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phones to shut down randomly (the Random Shut Down Defect). Rothbaum had purchased a Samsung Captivate
phone from an AT&T Store in Holyoke, Massachusetts. “Within months” of her purchase, the phone
“began shutting down randomly.” The phone first shut down randomly in mid-December, 2010.
During a three-week period in December 2010, her phone shut down at least three times.
When her phone unexpectedly shut down while in sleep mode, Rothbaum was required to press
and hold the “On” button to restart the phone. She did not, however, have to remove and reinsert
the battery before turning the phone back on.
Rothbaum went to an AT&T service center in late December 2010 to complain about this problem.
The representative performed a factory reset and gave her a phone number to call in case the
problems persisted.
Rothbaum's phone again shut down on or about January 3, 2011, while “it was powered on and
was in sleep mode.” Rothbaum then called AT&T, which sent her a replacement battery, which she
received in mid-January. Even after she replaced the battery, the phone “continued to shut down”
from January 17–21, 2011. She described these shutdowns as “annoying.”
On March 1, 2011, Rothbaum went to the AT&T store where she had purchased the phone and
reported that her problems were persisting. An AT&T representative gave her the Replacement
Phone which was the same model.
“Within a day or two” the Replacement Phone shut down randomly while in sleep mode. As with the
original phone, Rothbaum only had to press the “On” button to restart the Replacement Phone.
Rothbaum testified that such shutdowns occurred “no more frequently than once a month.” She
never needed to remove and reinsert the battery to turn the phone back on.
Rothbaum continued to use the phone for about eighteen months, from March 2011 to September
2012, when she gave the Replacement Phone to her attorneys for testing in connection with this
case.
Rothbaum also loaded on the Replacement Phone and used several applications (“apps”) that
were not created by Samsung, including Facebook, Twitter, and Words with Friends. She also used
several pre-loaded applications, such as Gmail.
After negotiating with Rothbaum for the opportunity to test the Replacement Phone, Samsung had
it inspected by one of its senior engineers in Korea. Through a variety of tests, including use of the
phone in the ordinary way by checking apps and browsing the web, voltage measurements, and
observation of the phone while it was in sleep mode, the phone did not randomly shut down, either
in sleep mode or during active use. The engineer concluded that the phone did not suffer from any
shutdown defect, and stated that the plaintiff's reported problems might be attributable to apps she
had installed, such as Words with Friends.
Between July 2010 and June 2011, Samsung produced at least 985,000 i897 Samsung Phones at
issue in this case. In a technical service memo to AT&T, Samsung stated that “[a] small percentage
of SGH–I897 handsets [the “Captivate” model of Samsung Phone] may exhibit a condition where
the handset will power off after going to sleep mode.” The bulletin explained that this problem
occurred only in phones within a certain range of IMEI numbers. The service bulletin also explained
that phone servicers should remove and replace certain capacitors to remedy the problem.
There was a steady increase in the return rate for the Samsung “Captivate” model between August
2010 and January 2011. In January 2011, 51.97% of returns were categorized under “Powers
On/Off.”
This document also stated that, “[d]ue to growing concern” about these power-related issues,
Samsung sampled 200 of the returned phones to determine the cause. It found that 43 units, or
22%, reproduced the powering-off symptom, and that all of these units had been produced before
the “corrective action” was implemented on November 6, 2010. Overall, Samsung's internal
documents indicate that less than 5% of Samsung Phones produced before November 2010 were
returned for any power-related reason and less than 1.25% of phones produced after the
November 2010 remedy were returned for any power-related reason.
Rothbaum alleges that Samsung was aware of this defect, but continued to sell the defective
phones, and her suit alleged that Samsung breached its implied warranty of merchantability on the
phone.
Samsung moved for summary judgment.
ISSUE: Was the random shutdown a breach of the implied warranty of merchantability? Is withholding
information a breach of any warranty?
REASONING: Generally, courts have found that when a plaintiff has only a minor problem with his or her phone,
such an inconvenience is insufficient to prove a breach of the implied warranty of merchantability.
For example, in In re Google Phone Litigation , No. 10-CV-01177-EJD, 2012 WL 3155571 (N.D. Cal.
Aug. 2, 2012), the plaintiffs alleged that their smartphones' data connections were inconsistent,
leading to difficulty receiving or placing calls. The district court rejected this as a basis for a breach
of the implied warranty, explaining that “[p]laintiffs' allegations that the phone drops or misses calls
are insufficient to demonstrate that this alleged defect is more than inconvenience or that the
Plaintiffs cannot re-initiate these calls such that the phone is unfit for its ordinary purpose.”
Rothbaum claims that Samsung breached the implied warranty of merchantability under
Massachusetts law by providing a defective phone. The court finds that a reasonable factfinder
would have to conclude that the Replacement Phone did not have an imperfection substantial
enough to constitute a breach of the implied warranty of merchantability, and that even if the
Replacement Phone did have a problem of that magnitude, the plaintiff has not shown that the
defendant's proposed remedy − a fully functioning replacement phone − would fail of its essential
purpose.
Accordingly, the court is allowing the defendant's motion for summary judgment on this theory of
liability.
DISCUSSION POINTS: E-Commerce & Cyberlaw
"Wii" Were Hurt
The laws of the states from which the plaintiffs came in the class action differed, with some affording more protection
than others. The court did not certify the class action, but said that each plaintiff in each state could pursue claims
under their own state laws. For some of the states, the action would be strict tort liability. For others, consumer
protection laws would apply for failure to disclose the potential injury. At any rate, there were several theories for
recovery the plaintiffs could use individually in their own states.
D. Warranties in particular sales
1. Sale on buyer’s specifications – no warranty of fitness for a particular purpose if it conforms to the
2. Sale of secondhand or used goods – same as new goods
3. Sale of food or drink
CASE BRIEF: Estate of Pinkham v. Cargill, Inc
55 A. 3d 1 (Me. 2012)
FACTS: Stanley Pinkham consumed a hot turkey sandwich during his break as a line cook at Dysart's Truck
Stop and Restaurant. Cargill manufactured the boneless turkey product in Pinkham's sandwich,
and the kitchen staff at Dysart's occasionally found pieces of bone in that turkey product. In the
middle of eating the sandwich, Mr. Pinkham experienced severe and sudden pain in his upper
abdominal area and thought that he might be suffering from a heart attack. He was taken by
ambulance to the hospital where a doctor concluded that Mr. Pinkham's “esophageal tear or
perforation” was caused by bones that were later removed from his esophagus. Mr. Pinkham
brought suit against Cargill and Poultry Products of Maine for selling defective and unreasonably
dangerous goods.
The lower court granted summary judgment for Cargill and the estate appealed.
ISSUE: What test applies to finding substances in food in restaurants? Is there enough evidence in the
case to survive summary judgment?
REASONING: Currently, there are two tests that courts apply when faced with a defective food product claim. The
traditional test is called the “foreign-natural” doctrine. “The ‘foreign-natural’ doctrine provides there
is no liability if the food product is natural to the ingredients; whereas, liability exists if the substance
is foreign to the ingredients, and the manufacturer can be held liable for injuries.” Newton v.
Standard Candy Co ., 2008 WL 752599 (D. Neb. 2008). “The reasonable expectation test provides
that, regardless whether a substance in a food product is natural to an ingredient thereof, liability
will lie for injuries caused by the substance where the consumer of the product would not
reasonably have expected to find the substance in the product.”
[W]e adopt the “reasonable expectation” test in Maine. We conclude that the Legislature intended
to align itself with the Restatement's objectives, and, therefore, the Legislature intended the
“reasonable expectation” test to be used in applying the language of [the Restatement].
With the proper test for evaluating the Estate's strict liability claim established, we can now turn our
attention to whether the Estate presented enough evidence to create a genuine issue of material
fact, and therefore survive summary judgment and proceed to trial.
The Estate presented evidence that creates a genuine issue of material fact as to whether the
turkey product caused Pinkham's injury. Dr. Stern testified that he believed that the injury was a
“perforation secondary to a foreign body.” The record demonstrates that the “foreign body” was
either a small piece of bone or cartilage, or a larger piece of bone. There is direct evidence of the
presence of the smaller pieces of bone or cartilage: Stern actually saw them. There is no direct
evidence of a larger piece of bone, but the summary judgment record does contain indirect
evidence that a larger piece of bone could have been present in the turkey product Pinkham
consumed, but may have passed, undetected, from Pinkham's throat. The indirect evidence is
found in the deposition of a Dysart employee, who testified that larger pieces of bone had regularly
been discovered in Cargill's “boneless” turkey product in the past, and in the expert deposition
testimony of John F. Erkkinen, M.D., who acknowledged that a larger bone piece could have
passed through Pinkham's esophagus and into his stomach.
Whether a consumer would reasonably expect to find a particular item in a food product is normally
a question of fact that is left to a jury. The Superior Court noted this, but nonetheless decided that a
food bolus containing one-to-two-millimeter bone fragments is not defective as a matter of law. In
making this determination, the court erred. The question of whether a consumer would reasonably
expect to find a turkey bone or a bone fragment large and/or sharp enough to cause an esophageal
perforation in a “boneless” turkey product is one best left to the fact-finder. At trial, the jury will have
an opportunity to determine whether a foreign body in the turkey product caused Pinkham's injury,
what the foreign body was, and whether Cargill is liable as a result.
Reversed.
DISCUSSION POINTS: Thinking Things Through
What’s Foreign to You…
1. Plaintiff was eating chicken with bread crumbs and pecan topping. Plaintiff testified that he was aware of the fact
that the chicken was topped with pecans and that he had similar dishes on other occasions. Moreover, Plaintiff
Plaintiff also cannot prevail on his claims under the reasonable expectation test. The reasonable expectation
test states: The test should be what is "reasonably expected" by the consumer in the food as served, not what
might be natural to the ingredients of that food prior to preparation.... The presence of a pecan shell in a pecan
Therefore, as a matter of law, Plaintiff should have guarded against the potential presence of a pecan shell,
2. Chicken bone in chicken sandwich: The Court of Appeals held that: (1) customer should have reasonably
anticipated that his chicken sandwich might contain a chicken bone, precluding his recovery, and (2) trial court
3. The court held that strict liability has replaced the warranty theory on food items, but held that there was sufficient
4. The court held one should expect peanuts to be in a candy bar known for its peanuts. No recovery for the
customer.
E. Necessity of defect
F. Warranties in the international sale of goods
IV. How are Warranties Disclaimed?
A. Validity of disclaimer
Of course, some sellers do not want to make warranties. Go through UCC § 2-316 with your students. Some
things of importance for your students to note are the following: (a) if the buyer inspects the goods prior to
entering into the sales contract, there can be no claim for breach of an implied or express warranty as to any
If merchantability exists, the disclaimer must mention the word “merchantability.”
1. Conspicuousness – larger or different type
2. Unconscionability and public policy
B. Particular provisions
C. Exclusion of warranties by examination of goods – what should have been revealed by examination is not
D. Postsale disclaimer – of no effect on warranties that arose at the time of sale
DISCUSSION POINTS: Ethics & The Law
Executive App Promises, App Disclaimers
The situation illustrates that the law permits executives to tout a product, but then hold consumers to the disclaimer
language. While Apple worked to improve the feature, there were clearly defects in the software – some hung on with
the hope that it would be fixed and then waived the time frame for bringing suit. Law and ethics are often two
different things and the promises by executives may have resulted in consumers hanging on when they should have
made claims.
V. What Other Theories of Product Liability Exist? (Use Figure 24-1 in text)
A. Negligence
B. Fraud
C. Strict tort liability
D. Cumulative theories of liability – more than one theory can be used
CASE BRIEF: Thomas v. Staples, Inc.
2 F. Supp. 3d 647 (E.D. Pa. 2014)
FACTS: Amy Thomas (married to Jason Thomas) purchased the MailMate Paper Shredder online from
Staples.com on November 15, 2006, a shredder manufactured, assembled, and distributed by
Executive Machines d/b/a Jeam Imports. In choosing the paper shredder, Amy Thomas said that
her main considerations were that the shredder be compact and easy to use. The shredder arrived
shortly after the date of purchase and was placed on a countertop in the Thomas' kitchen, routinely
used there for the purpose of keeping their “junk mail” under control and securing their personal
information. In using the machine, either Jason or Amy would stand in front of the counter and
insert material into the machine to be shredded.
On May 25, 2008, Amy Thomas was in the process of shredding mail in the MailMate Paper
Shredder when their 19-month-old daughter, Madalyn, started crying and began to pull on Amy's
leg. At this point, while the shredder was still operating, Amy picked up Madalyn and placed her on
her left hip. Having made no attempt to unplug or turn off the shredder, Amy turned away from
Madalyn to get Madalyn some candy; as Amy turned back around to face Madalyn, she saw that
Madalyn's left hand had become stuck in the shredder. Upon realizing that Madalyn's fingers were
stuck in the shredder, Amy unplugged the machine.
Amy does not recall whether there was noise coming from the machine when Madalyn's fingers
became stuck, whether Madalyn pulled away from her in order to reach out to the machine, or
whether any portion of the envelope she had placed in the machine was still in the process of
shredding. Jason was able to extract Madalyn's hand from the shredder with the use of a crowbar.
Subsequently, Madalyn was transported to Wilkes–Barre Hospital for initial examination and then
transported to Hershey Medical Center, where surgery was performed. Madalyn's two
partially-amputated fingers could not be reattached.
Mr. Thomas, on behalf of Madalyn, brought suit against Staples and the manufacturer of the paper
shredder and retailer, alleging claims for strict liability, negligence, breach of express warranty,
breach of implied warranty, and compensatory and punitive damages. Staples and Executive
Machines (defendants) moved for summary judgment.
ISSUE: What theories can the Thomases use?
HOLDING: The court finds that strict liability and negligence theories could be used for the case. The case
REASONING: The court finds that Section 402A makes sellers liable for harm caused to consumers by
unreasonably dangerous products even if the seller exercised reasonable care. A product can be
defective in design when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative design by the seller or other
distributor, or because of inadequate instructions or warnings when the foreseeable risks of harm
posed by the product could have been reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain
of distribution, and the omission of the instructions or warnings renders the product not reasonably
safe.
The court found the evidence of the Plaintiffs’ expert compelling in that the small size of the
shredder, the size and location of the openings and the blades, and the force of the pull made the
product more dangerous. The expert’s evidence also was that the design defects could have been
easily and inexpensively remedied.
The Court also found that there were genuine issues of material fact as to whether Plaintiffs can
establish the causation element. Defendants' expert, CED Technologies, Inc., concluded in their
expert report that “user misuse was a cause and/or contributing factor to the incident.” Specifically,
the “misuse” to which the CED Report refers is Amy Thomas “leaving Madalyn within arm's reach of
the operating shredder,” despite the fact that Amy, as she acknowledged at her deposition, had (1)
read the shredder's instruction manual prior to the 2008 incident, which contained warnings
regarding keeping children away and not inserting fingers into the shredder opening, and (2) a
warning icon on the shredder further advises users to not place fingers into the shredder opening.
Dr. Tipton thus reiterates his position that Madalyn's fingers were “pinched and pulled” into the
opening of the shredder.
The Court concluded that Plaintiffs have introduced evidence such that there was a jury question
as to whether Defendants were negligent in designing the MailMate Paper Shredder. Defendants'
Motion is DENIED as to Plaintiffs' negligence and strict liability-design defect claims.
ANSWERS TO QUESTIONS AND CASE PROBLEMS
1. Product liability; defect. There was no design defect. There was sufficient warning on the product. That the
landlord did not extend the warning to the tenants is not the responsibility of the product manufacturer. Hot
2. Express warranty. The statement about the wheelchair's service for years to come did not rise to the level of a
promise of future performance for purposes of an express warranty. Under section 2-725 of the UCC, the
3. Warranties for sale of food or drink. The NestlT Company would argue that under the foreign-natural doctrine,
the fact that there was a harmful ingredient natural to the product (pecan shell in pecan meat) should not allow
4. Warranty of merchantability. No. Because the soup is typically made with the whole fish, the presence of fish
5. Express warranty; privity. Privity is not an issue if the product has a defective design because the theories of
strict tort liability could be used. Whether an express warranty applies is a different question because the sales
Another theory of recovery might be inadequate warnings about the use of the product (strict tort liability) and the
6. Unconscionability; disclaimers. Even though the warranty disclaimer was in bold print on the barrels of ink, so
was all the other language imprinted there. Nothing there would call the attention of the buyer to the disclaimer.
7. Defective products. Discuss with the students the fact that there are some products that are inherently
dangerous and there is some assumption of risk. Discuss the importance of warnings and then discuss the risks
Discuss also the public policy issues of a company that manufacturers these products, but is not held
8. Express warranty. Whether statements in grain seed producer's brochure were assertions of fact of which
buyers were ignorant, as required for statements to create an express warranty as to seed yield, was issue for
jury, in action against producer by farmers who had bought the seed; although brochure did not use words
The complaint withstood summary judgment and a promise of performance (crop yield) is a basis for an express
9. Implied warranty of merchantability. (1) Franchisor was a “buyer” of meat for purposes of determining application
of implied warranty under Uniform Commercial Code; (2) meat processor's contractual agreement to indemnify
10. Express warranty; puffing. No. The statements were not merely matters of the seller’s opinion, but were made
11. Implied warranty of fitness for a particular purpose. The case withstood summary judgment because the court
held that there were representations made that the compressors were stable enough to be safe on the front of
12. Puffing; express warranty. A party may not justifiably rely on and assume to be true representations consisting of
mere expressions of opinion, hope, expectation, puffing, and the like; rather, the party must inquire into and
examine such representations to ascertain the truth. Statements that a horse has no problems and would make a
13. Warranty of merchantability. The ordinary purposes of an awning are to provide shade and other protection from
Sheldorado had knowledge of how the carport had been installed, and what precautions should have been taken
to prevent the defect that resulted. The foreseeability of the risk of the weight of snow operating upon a defective
14. Express warranty; warranty of fitness for a particular purpose. Yes, recovery could be on the basis of the
salesman’s express warranty or his warranty of fitness for a particular purpose. Cumberland was relying on
15. Express warranty. The statement that the car was “in good mechanical condition” was an express warranty.
Such a statement on a vehicle with its mileage was one that Felley was justified in relying on and one that was
LAWFLIX
The Incredible Shrinking Woman (1981) (PG)
Lily Tomlin’s exposure to various combinations of products causes her to shrink. Have the students discuss which
Fast Food Nation: The Dark Side of the American Meal (2002)
A look at the harmful effects of too much fast food and an interesting question as to whether the fast food restaurants
management system for classroom use.
