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Consumer Warranty Law: 12.3.3.1 General Scope

Strict liability can extend to any kind of product that is recognizably dangerous to those who may come in contact with it.102 The products at issue in decisions range from automobiles and airplanes to cinder building blocks, glass doors, and roller skates.103 Some courts hold that houses and buildings,104 or products incorporated into houses or buildings,105 are products that are covered by the doctr

Consumer Warranty Law: 12.3.3.2 Used Goods

The language of the Second Restatement provides that “any product” includes used goods as well as new.106 Reaching the original manufacturer of the used goods may pose a problem because of the Second Restatement’s requirement that the goods reach the consumer “without substantial change in the [goods’] condition.”107 However, a manufacturer may be liable for a good that has been substantially changed if that change was reasonably foreseeable.

Consumer Warranty Law: 12.3.3.3 Services

Strict liability does not apply to the sale of services,114 so negligence may be the appropriate tort claim.115 Nevertheless, strict liability may apply to mixed transactions involving both goods and services, such as the sale and installation of home improvement products.116 In such a case the seller can be strictly liable for defects arising from improper installation or repair even if the goods were not defective.

Consumer Warranty Law: 12.3.4 Defective Condition

According to comment 2 to section 402A of the Second Restatement, a product is defective if it is “at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer.” This standard is similar to UCC unmerchantability119 (not fit for its ordinary purpose based upon the reasonable consumer’s expectations), and the same general principles apply.120

Consumer Warranty Law: 12.3.5 The Unreasonably Dangerous Requirement

In most jurisdictions the consumer must show that the defect rendered the product unreasonably dangerous.126 Historically, the definition of “unreasonably dangerous” was that a product was “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”127

Consumer Warranty Law: 12.3.6 Failure to Warn

In addition to liability for manufacturing defects and design defects, a manufacturer may be strictly liable if its failure to warn the buyers of defects renders the product unreasonably dangerous.156 The duty to warn extends to all reasonably foreseeable uses of a product.157 The court will evaluate the warning from the perspective of an ordinary user of the product, as opposed to someone completely unfamiliar with the product.158

Consumer Warranty Law: 12.3.7 Causation

Proximate causation is an element of any tort claim: was the defect the legal cause of the damage or was the damage caused by something else, such as the consumer’s improper maintenance or abnormal use, or an outside factor?163 Causation for strict liability is quite similar to causation for breach of warranty.

Consumer Warranty Law: 12.3.8 Use in a Normal or Foreseeable Manner

As a policy matter, the manufacturer cannot be held strictly liable for damage arising from abnormal, unforeseeable use of the product, such as using a rocking chair as a stepladder. Abnormal use is closely related to the issue of causation. Improper use can bar recovery, but only if it was not a foreseeable use by an ordinary consumer; it may be, and often is, foreseeable that a consumer will use a product improperly.170

Consumer Warranty Law: 12.4.1.2 Establishing the Standard of Normal Care

Proof of the standard of normal care—the skill and knowledge normally possessed in the trade or profession—often requires expert testimony.191 Nonetheless, three significant exceptions to this general rule exist. First, when the jurisdiction has already established a standard of conduct by case law, the court should rule as a matter of law whether the seller violated this duty.

Consumer Warranty Law: 12.4.1.4 Standard of Care As to Inspection for Defects and Preparation for Sale

As part of the duty to act reasonably in placing goods in the stream of commerce, a manufacturer has a duty to inspect the final product.202 This duty extends to inspecting component parts used in the finished product.203 Application of this holding to a manufactured home would mean the manufacturer would be liable in negligence for defects in the appliances or furnishings installed in the manufactured home if the manufacturer did not perform a reasonable inspection of those items before deliver

Consumer Warranty Law: 12.4.2 Failure to Act in Conformity with the Standard

To prevail in a negligence action, the consumer must show that the defendant breached the specific duty it had to the consumer. The consumer must establish what action or inaction on the defendant’s part was negligent. Problems of proving what the defendant actually did or did not do are quite similar to those of proving that a defect existed at the time of sale for UCC breach of warranty claims.229

Consumer Warranty Law: § 2308. Implied warranties

(a) Restrictions on disclaimers or modifications. No supplier may disclaim or modify (except as provided in subsection (b) of this section) any implied warranty to a consumer with respect to such consumer product if (1) such supplier makes any written warranty to the consumer with respect to such consumer product, or (2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product.

Consumer Warranty Law: § 2311. Applicability to other laws

(a) Federal Trade Commission Act and Federal Seed Act.

(1) Nothing contained in this chapter shall be construed to repeal, invalidate, or supersede the Federal Trade Commission Act [15 U.S.C. § 41 et seq.] or any statute defined therein as an Antitrust Act.

Consumer Warranty Law: § 2312. Effective dates

(a) Effective date of chapter. Except as provided in subsection (b) of this section, this chapter shall take effect 6 months after January 4, 1975, but shall not apply to consumer products manufactured prior to such date.

Consumer Warranty Law: § 2302. Rules governing contents of warranties

(a) Full and conspicuous disclosure of terms and conditions; additional requirements for contents. In order to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products, any warrantor warranting a consumer product to a consumer by means of a written warranty shall, to the extent required by rules of the Commission, fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty.

Consumer Warranty Law: § 2303. Designation of written warranties

(a) Full (statement of duration) or limited warranty. Any warrantor warranting a consumer product by means of a written warranty shall clearly and conspicuously designate such warranty in the following manner, unless exempted from doing so by the Commission pursuant to subsection (c) of this section:

Consumer Warranty Law: § 2304. Federal minimum standards for warranties

(a) Remedies under written warranty; duration of implied warranty; exclusion or limitation on consequential damages for breach of written or implied warranty; election of refund or replacement. In order for a warrantor warranting a consumer product by means of a written warranty to meet the Federal minimum standards for warranty—

Consumer Warranty Law: 20.2 Distinguishing Service Contracts from Warranties

Service contracts are distinct from written or express warranties, and legal requirements and consumer enforcement rights under the two are different. Under the Magnuson-Moss Warranty Act, a written warranty must be “part of the basis of the bargain.”4 Under the Federal Trade Commission’s Magnuson-Moss rules a written warranty is part of the basis of the bargain if it is provided at the time of sale and there is no extra charge for it.5