Texas PJC Malpractice 2022

PJC 70.5

P RODUCTS L IABILITY —D EFINITIONS , I NSTRUCTIONS & Q UESTIONS

PJC 70.5

Seller of a Product

QUESTION ______ Was ABC Company engaged in the business of selling table saws ? The “business of selling” means involvement, as a part of its business, in selling, leasing, or otherwise placing in the course of commerce products simi lar to the product in question by transactions that are essentially commercial in character. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 70.5 provides a preliminary question to establish whether the defendant is one to whom strict liability may apply. Strict tort liability applies to designers, manufacturers, and some sellers ofproducts. McKisson v. Sales Affiliates, Inc. , 416 S.W.2d 787 (Tex. 1967); Shamrock Fuel & Oil Sales Co. v. Tunks , 416 S.W.2d 779 (Tex. 1967); Restatement (Second) of Torts §402A (1965). The doctrine also applies to the constructors and some sellers of mass-produced homes and used products. See Humber v. Morton , 426 S.W.2d 554 (Tex. 1968); Hovenden v. Tenbush , 529 S.W.2d 302 (Tex. App.—San Antonio 1975, no writ). It is not necessary, however, that the seller be engaged solely in the business of selling such products. Restatement (Second) of Torts § 402A cmt. f. Liability of nonmanufacturing product sellers. Section 82.003 of the Texas Civil Practice and Remedies Code provides that a nonmanufacturing seller of a prod uct is not liable for harm caused by the product unless the claimant proves one or more of the elements set forth in the statute. When a disputed fact question arises about the existence of one or more of these elements, the Committee recommends that the ques tion be submitted to the jury. For example— Did Sidney Seller participate in the design of [ the product ]? Note that this section does not apply to claims arising under chapter 2301 (Sale or Lease of Motor Vehicles) of the Texas Occupations Code. Tex. Civ. Prac. & Rem. Code § 82.003.

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