Texas PJC Malpractice 2022

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

PJC 71.10

PJC 71.10

Breach of Implied Warranty of Merchantability (Tex. UCC § 2.314(b)(1), (b)(2), (b)(4), (b)(6))

QUESTION ______ Was there a breach of the implied warranty of merchantability, and, if so, was such breach a proximate cause of the [ injury ] [ occurrence ] in question? A warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. There is a breach of an implied warranty of merchantability if the goods in question fail to at least— 1. pass without objection in the trade under the contract description; and 2. in the case of fungible goods, be of a fair average quality within the description; and 3. run, within the variations permitted by agreement, of even kind, quality, and quantity within each unit and among all units involved; and 4. conform to the promises or affirmations of fact made on the con COMMENT When to use. PJC 71.10 should be used to submit a claim for breach of implied warranty of merchantability under Tex. Bus. & Com. Code §2.314(b)(1), (b)(2), (b)(4), (b)(6). For cases involving a breach of warranty of merchantability under Tex. UCC § 2.314(b)(3), see PJC 71.9. Design defect cases. When the breach-of-implied-warranty claim involves the contention that there was a defect in the design of the product, the instruction on and definition of “safer alternative design” in PJC 71.4 should be given. Tex. Civ. Prac. & Rem. Code §82.005; see also Hyundai Motor Co. v. Rodriguez , 995 S.W.2d 661, 664 n.14 (Tex. 1999). Use of “injury” or “occurrence.” See PJC 71.1. Substitution of “death.” Under the Texas wrongful death statute, a defendant’s liability may be predicated only on “an injury that causes an individual’s death.” Tex. tainer or label, if any. Answer “Yes” or “No.” Answer: _______________

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