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AMI 1013 Products Liability—Issues—Claims Involving Two or More Theories of Liability

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 1013
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 10. Products Liability
AMI 1013 Products Liability—Issues—Claims Involving Two or More Theories of Liability
(Plaintiff) asserts (number) separate grounds for the recovery of damages: First, that [a defective (product) was (manufactured)(or)(assembled)(or)(sold)(or)(leased)(or) ((otherwise distributed)) (by (defendant))] [and][the other][second] that [there was negligence on the part of ((defendant))] [and][third] [that (defendant(s)) breached an implied warranty that (defendant's (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][and][fourth] [that an implied warranty of fitness for a particular purpose was breached (by (defendant))] [and][fifth] [that an express warranty was breached (by (defendant))].
[With respect to the (manufacture)(or)(assembly)(or)(sale)(or)(lease)(or) ((other distribution)) of a defective product, (plaintiff) (claims damages from (defendant) and) has the burden of proving each of four essential propositions:
First: That [he][she] has sustained damages;
Second: That (defendant)(was)(were) engaged in the business of (manufacturing)(or)(assembling)(or)(selling)(or)(leasing)(or) ((otherwise distributing)) (product);
Third: That the (product) was supplied by (defendant) in a defective condition, which rendered it unreasonably dangerous; and
Fourth: That the defective condition was a proximate cause of (plaintiff)'s damages.]
[With respect to proof of a defective condition, if you find that in the normal course of events no (injury)(death)(or)(property damage) would have occurred in the absence of some defect, then you are permitted, but not required, to infer that a defect existed.]
[With respect to the claim of negligence, (plaintiff) has the burden of proving each of three essential propositions:
First: That [he][she] has sustained damages;
Second: That (defendant) was negligent; and
Third: That such negligence was a proximate cause of (plaintiff)'s damages.]
[In order to recover for breach of an implied warranty 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, (plaintiff) has the burden of proving 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 this condition 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) of the breach of this implied warranty within a reasonable time after [he][she] discovered or should have discovered it.].]
[With respect to the asserted breach of a warranty of fitness for a particular purpose, (plaintiff) has the burden of proving seven essential propositions:
First: That [he][she] has sustained damages;
Second: That at the time of contracting (defendant) had reason to know the particular purpose for which the (product)(was)(were) required;
Third: That (defendant) knew that the buyer was relying on (defendant)'s skill or judgment to select or furnish a suitable (product);
Fourth: That the (product)(was)(were) not fit for the particular purpose for which (it was)(they were) required;
Fifth: That this unfitness of the (product) was a proximate cause of (plaintiff)'s damages;
Sixth: That (plaintiff) was a person whom (defendant) would reasonably have expected to (use)(consume)(or)(be affected by) the (product); and
[Seventh, that (plaintiff) notified (defendant) within a reasonable time after [he][she] discovered or should have discovered that the (product)[was][were] not fit for the particular purpose for which [it][they][was][were] required.].]
[With respect to the asserted breach of an express warranty:
(Any affirmation of fact or promise made by (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 that 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 (defendant) 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 a proximate cause of (plaintiff)'s damages; and
Fifth: That (plaintiff) was a person whom (defendant) might reasonably expect to (use)(consume)(or)(be affected by) the (product); and
[Sixth, that (plaintiff) notified (defendant) of the breach within a reasonable time after [he][she] discovered or should have discovered it.].]
[It will be necessary for you to consider separately each asserted ground for recovery. If you find from the evidence that every essential proposition with respect to any one ground for recovery has been proved, then your verdict should be for (plaintiff) (and against the party or parties against whom that ground for recovery is asserted); but if you find from the evidence that any essential proposition with respect to any one ground for recovery has not been proved, then your verdict with respect to that ground for recovery should be for ((defendant)) (the party or parties against whom that ground for recovery is asserted).]
NOTE ON USE
In the first paragraph the several causes of action should be listed as “one … and the other” or as “First, … second, … third,” etc.
If a cause of action asserting negligence is involved, AMI 302 and 303, defining negligence and ordinary care, should be given.
Do not use the final paragraph if the case is submitted on interrogatories.
This instruction can be used to submit to the jury any combination of five separate causes of action in the field of products liability: strict liability (AMI 1008); negligence (AMI 203); breach of implied warranty of merchantability (AMI 1010); breach of implied warranty of fitness for a particular purpose (AMI 1011); and breach of an express warranty (AMI 1012). Before using this instruction consult the Notes on Use and Comments with respect to those AMI instructions.
COMMENT
“Negligence and strict liability are not mutually exclusive claims. More than one theory of liability is permissible in a products liability action.” Nationwide Rentals Co., Inc. v. Carter, 298 Ark. 97, 100–01, 765 S.W.2d 931, 933 (1989). For other products liability cases involving instruction on multiple theories, see W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982) (upholding plaintiff's verdict on interrogatories answered in the affirmative as to defendant's unspecified negligence but in the negative as to strict products liability elements, citing AMI); Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983) (holding it error to submit the strict liability claim to the jury but correct to submit claim for breach of implied warranty of fitness); Threlkeld v. Worsham, 30 Ark. App. 251, 785 S.W.2d 249 (1990) (upholding verdict on case submitted to jury on multiple theories).
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