The Lawletter Vol 39 No 5
Consumer product defects can give rise to litigation as either a breach-of-warranty action or a strict products liability action. In determining whether a "defect" in the product exists, it is important to distinguish between these two claims. A strict products liability action is a tort claim, and a breach-of-warranty action is a contract claim. Litigants often confuse the evidence of a defect in these two contexts.
In fact, evidence of a product or design "defect" is not required for a finding of unmerchantability in the context of a breach of implied warranty or breach of express warranty, although it is recognized that a product that is not "merchantable" or fit for a particular purpose is one that is defective. Hoffman v. Paper Converting Mach. Co., 694 F. Supp. 2d 359 (E.D. Pa. 2010) (citing Hittle v. Scripto-Tokai Corp., 166 F. Supp. 2d 142 (M.D. Pa. 2001)). To be merchantable, the goods sold must satisfy certain standards of quality and acceptability by the public but not necessarily be completely defect-free. Golden v. Den-Mat Corp., 276 P.3d 773 (Kan. Ct. App. 2012). The implied warranty of merchantability is intended to protect consumers and exists in all contracts for the sale of goods if the seller is a merchant. Paulk v. Thomasville Ford Lincoln Mercury, 732 S.E.2d 297 (Ga. Ct. App. 2012).
Evidence of an actual product defect, however, is essential in order to prevail on a tort claim for strict product liability. Hoffman, 694 F. Supp. 2d 359 (citing Restatement (Third) of Torts: Products Liability § 2)); Wetzel v. Capital City Real Estate, LLC, 73 A.3d 1000 (D.C. 2013); Gresser v. Dow Chem. Co., 989 N.E.2d 339 (Ind. Ct. App. 2013).