Home Table of Contents

AMI 1012 Products Liability—Issues—Breach of Express Warranty

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 1012
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 10. Products Liability
AMI 1012 Products Liability—Issues—Breach of Express Warranty
(Plaintiff)[also] claims damages from (defendant) on the ground that (defendant) made and breached certain express warranties concerning the (product).
[Any affirmation of fact or promise made by the (defendant) to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.]
[Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.]
[Any sample or model which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the sample or model.]
[It is not necessary to the creation of an express warranty (that (defendant) use formal words such as “warrant” or “guarantee”) (or)(that [he][she] have a specific intention to make a warranty.) (On the other hand, an affirmation merely of the value of the goods or a statement purporting to be merely (defendant)'s opinion or commendation of the goods does not create a warranty.)]
In order to recover for breach of an express warranty, (plaintiff) has the burden of proving each of six essential propositions:
First, that [he][she] has sustained damages.
Second, that an express warranty was created by [one of] the means I have just mentioned.
Third, that the (product) did not conform to the express warranty created.
Fourth, that failure of the (product) to conform to the express warranty was the proximate cause of (plaintiff)'s damages;
Fifth, that (plaintiff) was a person whom (defendant) might reasonably expect to [use][consume][or][be affected by] the (goods or product); and
[Sixth, that (plaintiff) notified (defendant) of the breach within a reasonable time after [he][she] discovered or should have discovered it.]
[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 which made and breached the express warranty); but if, on the other hand, you find from the evidence that any of the propositions has not been proved, then your verdict should be for (defendant(s))].
NOTE ON USE
If there is no issue of fact whether notice of the breach was given to the defendant, do not use the bracketed sixth 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 if the case is submitted on interrogatories.
COMMENT
This instruction is based on Ark. Code Ann. § 4-2-313 and § 4-2-607(3)(a).
For discussion of the notice element, see the Comment to AMI 1010.
In Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 447–48, 834 S.W.2d 136, 146–47 (1992), the court held that the statements in advertising materials did not become a basis of the parties' bargain because the buyer did not read them and therefore they did not constitute an express warranty, but in-person assurances made to the buyer regarding the product's safety could be found to be affirmations of fact and not mere opinion. An affirmation that an automobile was a one-owner vehicle, when it was actually two-thirds of one car and one-third of another car put together, was held to create an express warranty in Currier v. Spencer, 299, Ark. 182, 186, 772 S.W.2d 309, 311 (1989). For a case reversing the trial court's application of a stringent definition of “express warranty” as incompatible with the statute and caselaw, see Little Rock School Dist., of Pulaski County v. Celotex, 264 Ark. 757, 765-66, 574 S.W.2d 669, 673–74 (1978), reh'g granted on other grounds, 264 Ark. 757, 576 S.W.2d 709 (1979). The court in Walcott & Steele, Inc. v. Carpenter, 246 Ark. 95, 100, 436 S.W.2d 820, 823 (1969), held that germination certification tags on bags of seeds constituted an express warranty as a matter of law.
End of Document