AMI 1010 Products Liability—Issues—Breach of Implied Warranty of Merchantability—Burden of Proo...
Ark. Model Jury Instr., Civil AMI 1010
Arkansas Model Jury Instructions-Civil
November 2021 Update
Chapter 10. Products Liability
AMI 1010 Products Liability—Issues—Breach of Implied Warranty of Merchantability—Burden of Proof
In this case (plaintiff) claims damages on the ground that (defendant) breached an implied warranty in that (defendant's)(product) was not fit at the time (defendant) sold it for the ordinary purposes for which such goods are used [and was not adequately contained, packaged, and labeled][and did not conform to any promises or affirmations of fact made on the container or label]. In order to recover, (plaintiff) must prove each of five essential propositions:
First, that [he][she] has sustained damages;
Second, that (defendant) sold a (product) which was not fit at the time (defendant) sold it for the ordinary purposes for which such goods are used [and was not adequately contained, packaged, and labeled][and did not conform to any promises or affirmations of fact made on the container or label];
Third, that such condition of the (product) was a proximate cause of (plaintiff)'s damages;
Fourth, that (plaintiff) was a person whom (defendant) might reasonably expect to [use][consume][or][be affected by] the (product); and
[Fifth, that (plaintiff) notified (defendant) within a reasonable time after (plaintiff) discovered or should have discovered the breach of this implied warranty.]
[If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for (plaintiff) (against the party or parties you find to have breached this implied warranty); but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for (defendant) (on the issue whether (defendant) breached this implied warranty).]
NOTE ON USE
Do not use this instruction when the cause of action is based on breach of the implied warranties of habitability, sound workmanship, and proper construction in the sale of a house. See AMI 1205 to 1208.
If there is no issue of fact whether notice of the breach was given to the defendant, do not use the bracketed fifth element. If there is an issue concerning the adequacy of the notice, an additional instruction may be appropriate.
Do not use the final bracketed paragraph of this Instruction if the case is submitted on interrogatories.
This instruction is based on Ark. Code Ann. § 4-2-314 and Ark. Code Ann. § 4-2-607(3)(a).
Revision of this instruction deleted the legal term “merchantability” as unnecessary to the instruction's substance and in the interest of providing the jury a “plain English” instruction.
This instruction has not continued the statutory element that the goods “must pass without objection in the trade,” Ark. Code Ann. § 4-2-314(2)(a), because it is not pertinent to products liability actions.
Ark. Code Ann. § 4-2-607(3)(a) requires a buyer to give the seller notice of the breach within a reasonable time after the buyer discovers or should have discovered the breach. The court approved a notice instruction based on Ark. Code Ann. § 4-2-607(3)(a) in Precision Steel Warehouse, Inc. v. Anderson-Martin Machine Co., 313 Ark. 258, 261, 856 S.W.2d 306, 307–08 (1993) (noting absence of such an element in AMI 1010 and 1011). Notice is a condition precedent to recovery which must be alleged and proved. Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994); L. A. Green Seed Co. of Ark. v. Williams, 246 Ark. 463, 469, 438 S.W.2d 717, 720 (1969); Industrial Electronic Supply, Inc. v. Lytle Mfg., L.L.C., 94 Ark. App. 81, 226 S.W.3d 1 (2006); Adams v. Wacaster Oil Co., Inc., 81 Ark. App. 150, 98 S.W.3d 832 (2003). Whether the notice was sufficient or timely is ordinarily a question of fact to be resolved by the factfinder. Greenfield Seed Co. v. Bland, 18 Ark. App. 48, 710 S.W.2d 833 (1986), citing L. A. Green Seed Co. of Ark., supra, and its reference to Comment 4 to Ark. Code Ann. § 4-2-607; Industrial Electronic Supply, Inc., supra. Where the evidence is such that it can lead reasonable minds to only one conclusion as to the sufficiency of notice, however, it becomes a question of law to be resolved by the court. Cotner v. International Harvester Co., 260 Ark. 885, 889, 545 S.W.2d 627, 630 (1977).
The court has also observed in the commercial context that general notice of an alleged defect is not enough. Rather, the notice must be sufficient to put the seller on notice that the buyer is looking to it for damages for the alleged breach of warranty. Cotner, supra. The filing of a complaint itself does not constitute adequate notice. Williams, supra. The purpose in the commercial context of the notice requirement is to give the seller an opportunity “to minimize damages in some way, such as correcting the defect[, and] … to give immunity to a seller from stale claims.” Cotner, supra, 260 Ark. at 889, 545 S.W.2d at 630. Notice need not be in writing, Smart Chevrolet Co. v. Davis, 262 Ark. 500, 502, 558 S.W.2d 147, 148 (1977), but the court has observed that it must be “sufficient to let the seller know that the transaction is still troublesome and must be watched.” Cotner, supra, 260 Ark. at 880, 545 S.W.2d at 630 (citing U.C.C. Comment 4). These issues do not appear as an element in this Instruction for four reasons: First, the statute says only “reasonable time.” Second, none of these cases held that these issues must be addressed in jury instructions. Third, the Instruction that the court held was sufficient in Precision Steel said nothing about them. Fourth, Comment 4 to the Uniform Commercial Code recognizes that “‘(a) reasonable time’ for notification from a retail customer is to be judged by different standards [than those applicable to a merchant buyer] so that in his case it will be extended, for the rule of requiring notification is designed to defeat commercial bad faith, not to deprive a good faith customer of his remedy.”
© 2021 Arkansas Supreme Court Committee on Jury Instructions-Civil
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