Texas PJC Malpractice 2022

PJC 71.10

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

Civ. Prac. & Rem. Code §71.002(b); see also Kramer v. Lewisville Memorial Hospi tal , 858 S.W.2d 397, 404 (Tex. 1993). Therefore, in a case involving a claim for wrongful death, the word “death” may be substituted for the word “injury” in the neg ligence question. Proximate cause standard. Unlike a cause of action based on strict tort liability, an action based on breach of implied warranty under the Texas UCC requires a finding of “proximate” rather than “producing” cause. Hyundai , 995 S.W.2d at 667. For a defi nition of “proximate cause,” see PJC 70.2. Limitations. A cause of action for personal injury based on a breach of implied warranty has been held to be governed by Tex. UCC §2.725. Weeks v. J.I. Case Co. , 694 S.W.2d 634 (Tex. App.—Texarkana 1985, writ ref’d n.r.e.); Fitzgerald v. Caterpil lar Tractor Co. , 683 S.W.2d 162 (Tex. App.—Fort Worth 1985, writ ref’d n.r.e.). Sec tion 2.725 sets out a four-year statute of limitations and states that “a cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach.” Tex. UCC §2.725(b); see also Garcia v. Texas Instruments , 610 S.W.2d 456 (Tex. 1980) (cause of action for breach of warranty accrues on date of ten der of delivery of product). Other defenses. Other defenses may also apply in breach-of-warranty cases. See Tex. UCC §2.605 (waiver of buyer’s objections by failure to particularize), §2.607 (effect of acceptance, notice of breach), § 2.719 (contractual modification or limitation of remedy). The seller must also be a “merchant” as defined in Tex. UCC § 2.104(a). See Nelson v. Union Equity Co-operative Exchange , 536 S.W.2d 635, 641 (Tex. App.—Fort Worth 1976), aff’d on other grounds , 548 S.W.2d 352 (Tex. 1977) (whether seller is “merchant” is jury question). Implied warranties may be disclaimed. Both the implied warranty of merchant ability, Tex. UCC § 2.314, and the implied warranty of fitness for a particular purpose, Tex. UCC §2.315, may be excluded or modified under certain conditions. See Tex. UCC §2.316; Nobility Homes of Texas, Inc. v. Shivers , 557 S.W.2d 77, 82–83 (Tex. 1977). Note on submitting strict liability, negligence, and implied warranty theories in same case. When the controlling issues regarding the existence of defect for strict liability, negligence, or implied warranty are functionally identical, “a trial court is not required to, and should not, confuse the jury by submitting differently worded ques tions that call for the same factual finding.” Hyundai , 995 S.W.2d at 665–66 (affirming refusal in crashworthiness case to submit question on breach of implied warranty in addition to strict products liability question). Because of the overlapping elements of proof, there is a risk of conflicting answers that will necessitate a new trial. See Ford Motor Co. v. Miles , 141 S.W.3d 309, 315–19 (Tex. App.—Dallas 2004, pet. denied); Otis Spunkmeyer, Inc. v. Blakely , 30 S.W.3d 678, 690 (Tex. App.—Dallas 2000, no pet.); see also Hanus v. Texas Utilities Co. , 71 S.W.3d 874, 881 (Tex. App.—Fort

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