USA Law and Practice Contributed by: Trevor Keenan, Michelle Byers and Curtis Berglund, Campbell Conroy & O’Neil, P.C.
A breach of implied warranty of merchantability occurs when the product is not fit for the pur - pose for which it is typically used. The plaintiff typically must prove that the defect in the prod - uct rendered it unfit for its ordinary and intended use. An implied warranty of fitness for a particular purpose may arise where: • the seller has reason to know of the particular purpose for which the goods are provided; • the seller has reason to know that the buyer is relying upon its skill or judgement to furnish the appropriate goods; and • the buyer does in fact rely on the seller’s skill or judgement. Consumer Protection Consumer protection statutes are often broad and encompass such business practices as: • false or misleading advertising or labelling; • breach of implied warranties; • misrepresentations; and • safety violations. The statute will typically set forth the standard of proof. Many statutes require proof of intent and reliance on the misleading information or misrepresentation. Fraud To establish a fraud or intentional misrepresenta - tion claim, a plaintiff must prove that: • the defendant knowingly made a false or misleading representation about the product to induce the plaintiff into purchasing it; • the plaintiff relied upon the misrepresentation when purchasing the product; and
• the plaintiff was damaged by the representa - tion. A finding of fraud or intentional misrepresenta - tion may provide a basis for awarding punitive damages. Negligent Misrepresentation To prove a claim of negligent misrepresentation, the plaintiff must prove that: • there was a false or misleading representation made about the product; • the defendant should have known that the information was false or misleading; • the plaintiff relied on the false or misleading representation; and • the plaintiff was damaged as a result. Unlike fraud, negligent misrepresentation does not require the plaintiff to prove that the defend - Defects in manufacturing, design, packaging and product warnings can all give rise to liability. A manufacturing defect exists where the product differs from its intended design. A design defect exists where the product’s design is defective, such that all products manufactured and sold with the design are defective and foreseeable risks could have been limited or eliminated by a reasonable alternative design. A defective warn - ing involves the failure to disclose foreseeable risks of the product or the failure to adequately warn of the product’s dangers. Failure to warn claims are typically asserted as negligence or strict liability claims. The test for whether a product is defective var - ies among the states. Typically, states use the consumer-expectations test, the risk-utility test ant intended to mislead. Types of Product Defect
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