WPI 110.01.01 Manufacturer's Duty—Express Warranties

Use this instruction if there is a claim against a manufacturer that the product was not reasonably safe because it did not conform to the manufacturer's express warranty.

Use bracketed material as applicable. The bracketed “at fault” language is intended to be used in conjunction with WPI 110.31.01.02 (defining “fault”) and with WPI 110.31.01.01 (the corresponding special verdict form) for cases involving mixed standards of care (e.g., negligence and strict liability); see the Notes on Use and Comments for WPI 110.31.01.01 (the corresponding special verdict form) and WPI 110.31.01.02 (defining “fault”).

Use WPI 110.04 (Seller—Manufacturer—Defined) with this instruction.

Along with this instruction, use either WPI 110.20 (Burden of Proof—Defect in Construction—No Affirmative Defense) or WPI 110.22 (Burden of Proof—Defect in Construction—Assumption of Risk or Contributory Negligence).

RCW 7.72.030(2).

The statute states in part that a “product manufacturer is subject to strict liability to a claimant if the claimant's harm was proximately caused by the fact that the product was … not reasonably safe because it did not conform to the manufacturer's express warranty or to the implied warranties under Title 62A RCW.”

RCW 7.72.030(2)(b) provides that a “product does not conform to the express warranty of the manufacturer if it is made part of the basis of the bargain and relates to a material fact or facts concerning the product and the express warranty proved to be untrue.”

Express warranty. In the context of product liability, courts have generally used the term “express warranty” to refer to the public misrepresentation theory of liability. See Restatement (Second) of Torts § 402B cmt. d (1965). Under this theory, liability sounds in tort rather than contract and no privity is required. See Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409, 88 A.L.R. 521 (1932). By stating that the express warranty be “made part of the basis of the bargain,” it is not clear whether RCW 7.73.030(2)(b) now requires privity before an action based on express warranty may be brought.

RCW 7.72.030(3) provides that “[i]n determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.” Although the statute's use of the word “shall” appears to make application of the statute mandatory, the WPI Committee has not included the consumer expectations test as part of this instruction. The WPI Committee believes that the contemplations of the ordinary consumer as to the safety of a product have no relevance in determining whether the product conformed to the manufacturer's express warranty.

Implied warranty. The pattern instruction will need to be modified for cases involving implied warranties. See Uniform Commercial Code, Title 62A RCW; Gates v. Standard Brands, Inc., 43 Wn.App. 520, 719 P.2d 130 (1986).

Pre-WPLA law. For a background discussion of the theories of misrepresentation and implied and express warranties under law predating the Washington Product Liability Act, see Baughn v. Honda Motor Co., 107 Wn.2d 127, 151–52, 727 P.2d 655 (1986).