17. Mrs. Embs went into Stamper’s Cash Market to buy soft drinks for her children. She
had removed five bottles from an upright soft drink cooler, placed them in a carton, and
turned to move away from the display when a bottle of Seven-Up in a carton at her feet
exploded, cutting her leg. Apparently, several other bottles had exploded that same week.
Stamper’s Cash Market received its entire stock of Seven-Up from Arnold Lee Vice, the
area distributor. Vice in turn received his entire stock of Seven-Up from Pepsi-Cola
Bottling Co. Can Mrs. Embs recover damages from (a) Stamper, (b) Vice, or (c)
Pepsi-Cola Bottling? Why?
Answer: Strict Liability/Vertical Privity. Yes, on all three. The doctrine of strict liability in
tort extends not only to actual purchasers and users but also to bystanders whose injury
from a defective product is reasonably foreseeable. Moreover, as a matter of public
18. Catania wished to paint the exterior of his house. He went to Brown, a local paint
store owner, and asked him to recommend a paint for the job. Catania told Brown that
the exterior walls were stucco and in a chalky, powdery condition. Brown suggested
Pierce’s shingle and shake paint. Brown then instructed Catania how to mix the paint and
how to use a wire brush to prepare the surface. Five months later, the paint began to
peel, flake, and blister. Catania brings an action against Brown. Decision?
Answer: Implied Warranties, Fitness for a Particular Purpose. Judgment for Catania.
There is an implied warranty of fitness covering the sale of the paint. Here, 1) the seller
19. Robinson, a truck driver for a moving company, decided to buy a used truck from the
company. Branch, the owner, told Robinson that the truck was being repaired and that
Robinson should wait and inspect the truck before signing the contract. Robinson, who
had driven the truck before, felt that inspection was unnecessary. Again, Branch
suggested Robinson wait to inspect the truck, and again Robinson declined. Branch then
told Robinson he was buying the truck “as is.” Robinson then signed the contract. After
the truck broke down four times, Robinson sued. Will Robinson be successful? What
defenses can Branch raise?
Answer: Obstacles to Warranty Actions, Buyer’s Examination or Refusal to Examine. No,
Robinson will not prevail. Branch can use the defense of waiver of implied warranties.
20. Perfect Products manufactures balloons, which are then bought and resold by
wholesale novelty distributors. Mego Corp. manufactures a doll called “Bubble Yum
Baby.” A balloon is inserted in the doll’s mouth with a mouthpiece, and the doll’s arm is
pumped to inflate the balloon, simulating the blowing of a bubble. Mego Corp. used
Perfect Products balloons in the dolls, bought through independent distributors. The
plaintiff’s infant daughter died after swallowing a balloon removed from the doll. Is
Perfect Products liable to plaintiff under a theory of strict liability? Explain.
Answer: Nature or Strict Liability in Tort, Defective Condition, Unreasonably Dangerous.
No. Judgment for Perfect Products. A cause of action in strict products liability arises
when a manufacturer places on the market a product which has a defect that causes injury.
21. Patient was injured when the footrest of an adjustable X-ray table collapsed, causing
Patient to fall to the floor. G.E. manufactured the X-ray table and the footrest. At trial,
evidence was introduced that G.E. had manufactured for several years another footrest
model complete with safety latches. However, there was no evidence that the footrest
involved was manufactured defectively. The action is based on a theory of strict liability.
Who wins? Why?
Answer: Defective Condition. Judgment for Patient. The failure of the manufacturer G.E.
to equip the footrest with a safety device may constitute a design defect. The safety
22. Heckman, an employee of Clark Equipment Company, severely injured his left hand
when he caught it in a power press that he was operating at work. The press was
manufactured by Federal Press Company and sold to Clark eight years earlier. It could
be operated either by hand controls that required the use of both hands away from the
point of operation or by an optional foot pedal. When the foot pedal was used without a
guard, nothing remained to keep the operator’s hands from the point of operation.
Federal Press did not provide safety appliances unless the customer requested them, but
when it delivered the press to Clark with the optional pedal, it suggested that Clark
install a guard. The press had a similar warning embossed on it. Clark did, in fact,
purchase a guard for $100, but it was not mounted on the machine at the time of the
injury; nor was it believed to be an effective safety device.
Heckman argued that a different type of guard, if installed, would have made the press
safe in 95 percent of its customary uses. Federal, in turn, argued that the furnishing of
guards was not customary in the industry; that the machine’s many uses made it
impracticable to design and install any one guard as standard equipment; that Clark’s
failure to obey Federal’s warning was a superseding cause of the injury; and that state
regulations placed responsibility for the safe operation of presses on employers and
employees. The jury awarded Heckman $750,000, and Federal appealed. Decision?
Answer: Design Defect. Judgment for Heckman. A failure to provide proper safety devices
constituted a design defect that subjected Federal to liability. The question whether
23. Raymond and Sandra Duford purchased a woodburning stove from Sears. The stove was
manufactured by Preway, Inc. At trial, it was shown that Raymond had inadvertently
installed the section of the chimney pipe that went through the roof upside down; and all
parties agreed that such improper installation caused a fire that had destroyed the
Dufords’ house.
At trial, the Dufords alleged, and Preway admitted, that there were no markings on the
pipe indicating “which end was up.” An expert for the Dufords then testified that the
simple precaution of an embossed marking would have been satisfactory. Later, to the
amazement of all the parties, a witness for Preway pointed out that the actual pipe in
question had been marked with embossed letters. The pipe in fact had tiny letters spelling
“UP” with two arrows pointed in the proper direction. Since no one on either side had
noticed the letters except the one witness, the Dufords hastily changed their claim to that
of inadequacy of the marking. The trial court however issued a directed verdict for
Preway and Sears, and the Dufords appealed. Who will prevail? Why?
Answer: Merchantability/Strict Liability. Opinion vacated and case remanded for a new
trial. Products liability actions can be brought if goods are defectively manufactured or
defectively designed. In a defective design case, the plaintiff must show that the design
24. Vlases, a coal miner who had always raised small flocks of chickens, spent two years
building a new two-story chicken coop large enough to house 4,000 chickens. After its
completion, he purchased 2,200 one-day-old chicks from Montgomery Ward for the
purpose of producing eggs for sale. He had selected them from Ward’s catalog, which
stated that these chicks, hybrid Leghorns, were noted for their excellent egg production.
Vlases had equipped the coop with brand-new machinery and had taken further hygiene
precautions for the chicks’ health. Almost one month later, Vlases noticed that their
feathers were beginning to fall off. A veterinarian’s examination revealed signs of drug
intoxication and hemorrhagic disease in a few of the chicks. Eight months later, it was
determined that the chicks were suffering from visceral and avian leukosis, or bird
cancer, which reduced their egg-bearing capacity to zero. Avian leukosis may be
transmitted either genetically or by unsanitary conditions. Subsequently, the disease
infected the entire flock. Vlases then brought suit against Montgomery Ward for its
breach of the implied warranties of merchantability and of fitness for a particular
purpose. Ward claimed that there was no way to detect the disease in the one-day-old
chicks, nor was there medication available to prevent this disease from occurring. Is
Montgomery Ward liable under a warranty and/or strict liability cause of action?
Explain.
Answer: Implied Warranty Of Merchantability. Yes, Montgomery Ward is liable. The
implied warranty of merchantability and the implied warranty of fitness for a particular
purpose are designed to protect the buyer from bearing the loss when the goods do not
25. For more than forty years, Rose Cipollone smoked between one and two packs of
cigarettes a day. Upon her death from lung cancer, Rose’s husband, Antonio Cipollone,
filed suit against Liggett Group, Inc., Lorillard, Inc., and Philip Morris, Inc., three of the
leading firms in the tobacco industry, for the wrongful death of his wife. Many theories of
liability and defenses were asserted in this decidedly complex and protracted litigation.
One theory of liability claimed by Mr. Cipollone was breach of express warranty. It is
uncontested that all three manufacturers ran multimedia ad campaigns that contained
affirmations, promises, or innuendos that smoking cigarettes was safe. For example, ads
for Chesterfield cigarettes boasted that a medical specialist could find no adverse health
effects in subjects after six months of smoking. Chesterfields were also advertised as
being manufactured with “electronic miracle” technology that made them “better and
safer for you.” Another ad stated that Chesterfield ingredients were tested and approved
by scientists from leading universities. Another brand, L&M, publicly touted the “miracle
tip” filter, claiming it was “just what the doctor ordered.”
At trial, the defendant tobacco companies were not permitted to try to prove that Mrs.
Cipollone disbelieved or placed no reliance on the advertisements and their safety
assurances. Did the defendants breach an express warranty to the plaintiff? Explain.
Answer: Express Warranty. Remand for a new trial on the issue of whether Mrs. Cipollone
had read or heard the advertisements and, if so, whether she believed them. The court
also ruled that the Federal Cigarette Labeling Act preempted claims arising from smoking
26. Trans-Aire International, Inc. (TAI), converts ordinary automotive vans into
recreational vehicles. TAI had been installing carpet and ceiling fabrics in the converted
vans with an adhesive made by the 3M Company. Unfortunately, during the hot summer
months, the 3M adhesive would often fail to hold the carpet and fabrics in place.
TAI contacted Northern Adhesive Company (Northern), seeking a “suitable” product to
replace the 3M adhesive. Northern sent samples of several adhesives, commenting that
hopefully one or more “might be applicable.” Northern also informed TAI that one of the
samples, Adhesive 7448, was a “match” for the 3M adhesive. After testing all the
samples under cool plant conditions, TAI’s chief engineer determined that Adhesive 7448
was better than the 3M adhesive. When TAI’s president asked if the new adhesive should
be tested under summerlike conditions, TAI’s chief engineer responded that it was
unnecessary to do so. The president then asked if Adhesive 7448 came with any
warranties. A Northern representative stated that there were no warranties, except that
the orders shipped would be identical to the sample.
After converting more than 500 vans using Adhesive 7448, TAI became aware that high
summer temperatures were causing the new adhesive to fail. Explain whether TAI should
prevail against Northern in a suit claiming (a) breach of an implied warranty of fitness
for a particular purpose, (b) breach of an implied warranty of merchantability, and (c)
breach of express warranty.
Answer: Disclaimed Warranty. Judgment for Northern. The U.C.C. provides that “when
the buyer before entering into a contract has examined the goods or the sample or model
as fully as he desired or has refused to examine the goods there is no implied warranty
27. The plaintiff’s children purchased an Aero Cycle exercise bike for their mother to use
in a weight loss program. The Aero Cycle bike was manufactured by DP and purchased
from Wal-Mart. The first time the plaintiff, Judy Dunne, used the bike she used it only for
a few seconds. But he second time she used it, she pedaled for three or four rotations and
the rear support strut failed and the bike collapsed under her. At the time of the accident,
the plaintiff weighed between 450 and 500 pounds. She fell off the bike backwards, struck
her head on a nearby metal file cabinet, and was knocked unconscious. When the
plaintiff regained consciousness, her mouth was bleeding and her neck, left shoulder,
arm, leg, knee, and ankle were injured. The plaintiff was diagnosed as having a cervical
strain and multiple contusions. She filed suit against Wal-Mart and DP. Explain whether
the plaintiff should prevail.
Answer: Defective Conditions/Failure to Warn. A manufacturer is not responsible for
accounting for every conceivable foreseeable use of a product, but is liable for damage
caused by a use or handling of a product that the product’s manufacturer should
reasonably expect of an ordinary person in the same or similar circumstances.
28. For sixteen years, the late Mrs. Dorothy Mae Palmer had been married to an
insulator who worked with asbestos products. Mrs. Palmer was not exposed to asbestos
dust in a factory setting; rather, she was exposed when her husband brought his work
clothes home to be washed. Mrs. Palmer died of mesothelioma. This product liability suit
was brought by Mrs. Palmer’s daughters to recover for the alleged wrongful death of
their mother. The daughters claim that Mrs. Palmer’s mesothelioma was the result of
exposure to asbestos-containing products manufactured by Owens-Corning. The
daughters claim that the asbestos products were defective and unreasonably dangerous
and that Owens-Corning was negligent in failing to warn of the dangers associated with
its products. Explain whether the plaintiffs should prevail.
Answer: Duty to Warn. Under Oklahoma law, a manufacturer may have a duty to warn
consumers of potential hazards which occur from the use of its products. A failure to
warn may result in a product being defective and unreasonably dangerous. This duty to
warn, however, extends only to the ordinary consumer and user of the product (defined as
ANSWERS TO “TAKING SIDES” PROBLEMS
Brian Felley purchased a used Ford Taurus from Thomas and Cheryl Singleton for $8,800.
The car had 126,000 miles on it. After test driving the car, Felley discussed the condition of
the car with Thomas Singleton, who informed Felley that the only thing known to be wrong
with the car was that it had a noise in the right rear and that a grommet (a connector having
to do with a strut) was bad or missing. Thomas told Felley that otherwise the car was in
good condition. Nevertheless, Felley soon began experiencing problems with the car. On the
second day that he owned the car, Felley noticed a problem with the clutch. Over the next
few days, the clutch problem worsened and Felley was unable to shift the gears. Felley
presented an invoice to Thomas showing that he paid $942.76 for the removal and repair of
the car’s clutch. In addition, the car developed serious brake problems within the first month
that Felley owned it. Felley now contends that the Singletons breached their express
warranty.
(a) What arguments would support Felley’s contention?
(b) What arguments would support the claim by the Singletons that they had not given
an express warranty?
(c) What is the appropriate outcome? Explain.
ANSWER:
(a) A substantial amount of money was paid for the car, and this is one of the factor[s]
which would cause the buyer to reasonably rely on affirmations that the automobile
was in good mechanical shape. It makes little sense to pay thousands of dollars, and
(2) It is not necessary to the creation of an express warranty that the seller use
formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to
make a warranty, but an affirmation merely of the value of the goods or a statement
purporting to be merely the seller’s opinion or commendation of the goods does not
create a warranty.”