Kimberley Hoff 11 Nov 2012 PAR 116 Product Liability Product liability suits, torts for compensation due

to the defects a chattel, may be brought on grounds of negligence, warranty, or strict liability. Strict liability is used for defects that create unreasonable danger of physical harm to the user1. Negligence is generally used in cases of personal injury or property damage2, while Ken wants to sue for economic losses from the stallions poor breeding capacity, so it would not be the most appropriate theory of recovery in this case. Warranty, which is a combination of tort and contract law, is more suitable when the issue is the quality of the product in question, not its unreasonable danger. A warranty plaintiff may recover the difference between the value of the chattel with the defect and the value without it3. At the heart of warranty is a promise between the supplier and the consumer that the chattel has certain properties and is suitable for certain uses. Sometimes the warranty is explicitly expressed, such as in a description of the product4, and sometimes the case rests on an implied warranty of merchantability that the chattel is fit for the ordinary purposes for which such goods are used5. In order to establish warranty on the stallion, Ken would have to show that Ellie Arabians either made a claim somewhere in their advertising or other descriptions that their horses were suitable for breeding use, or that breeding was an ordinary purpose for purchasing a stallion, without which the horse is worth much less. He could potentially establish this because stallions are very dangerous animals, kept for specific reasons such as breeding while mares and geldings are suitable for broader use. The firm will need to carefully research all of the claims made by Ellie Arabians, as well as how clear it was or should have been to them that Ken intended to use the stallion for breeding. Ellie Arabians could, however, raise a defense to this, claiming either that Ken had a reasonable responsibility to examine the stallion for breeding potential before purchasing it and the opportunity to do so, or that they presented a disclaimer at the time of purchase that the stallion came without the usual warranty of merchantability and Ken went ahead with the purchase anyway6. They could also attempt to allege misuse of the stallion was the proximate cause of the breeding failures, not the stallions low sperm count. For a last-ditch effort to limit their losses Ellie Arabians could attempt to apply a limit to the type of damages Ken can claim under UCC, forcing him to accept a replacement of the stallion instead of damages for intangible economic loss7.

1 2

Restatement (2 ) of Torts 402A. th Edwards, Linda. L, et al. Tort Law, 4 ed. Delmar: Clifton Park, NY, 2009. 3 Uniform Commercial Code 2-714[2]. 4 UCC 2-313. 5 UCC 2-314. 6 UCC 2-316, 15 USC 2301 et seq. 7 UCC 2-719 [3])

nd