Texas PJC Malpractice 2022

PJC 71.9

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

PJC 71.9

Breach of Implied Warranty of Merchantability (Tex. UCC § 2.314(b)(3)) (Design Defect)

QUESTION ______ Was the [ good or product ] supplied by ABC Company unfit for the ordinary purposes for which such [ goods or products ] are used because of a defect, and, if so, was such unfit condition a proximate cause of the [ injury ] [ occurrence ] in question? A “defect” means a condition of the [ good or product ] that renders it unfit for the ordinary purposes for which such [ goods or products ] are used because of a lack of something necessary for adequacy. For a defect in the design of the [ good or product ] to exist, there must have been a safer alternative design. “Safer alternative design” means a design other than the one actually used that in reasonable probability— 1. would have prevented or significantly reduced the risk of the [ injury ] [ occurrence ] in question without substantially impairing the utility of the [ good or product ] and 2. was economically and technologically feasible at the time the [ good or product ] left the control of ABC Company by the application of existing or reasonably achievable scientific knowledge. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 71.9 may be used to submit a claim of a breach of implied war ranty of merchantability in a products liability case under Tex. Bus. & Com. Code § 2.314(b)(3) when the defect alleged is a design defect. Tex. Civ. Prac. & Rem. Code §§82.001, 82.005; Hyundai Motor Co. v. Rodriguez , 995 S.W.2d 661, 664 n.14 (Tex. 1999). Except for the additional instruction on and definition of safer alternative design ( see Tex. Civ. Prac. & Rem. Code §82.005), this question is based on the approved question in Plas-Tex, Inc. v. U.S. Steel Corp. , 772 S.W.2d 442, 444 n.4 (Tex. 1989) (proof of defect required in action for breach of warranty of merchantability under section 2.314(b)(3)). Use of “injury” or “occurrence.” See PJC 71.1.

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