ccmic

Essay 2 (2007 July California Bar Exam Model Answer):
TORTS / CIVIL PROCEDURE
Answer Provided by Barperfect
Written by Steve Liosi, Esq., Former Chapman Law Faculty Tutor

(1): Was Consumer’s misuse of the Cold Drink Blender foreseeable?

Whether Consumer’s misuse was indeed foreseeable is likely, from a procedural standpoint, a question for the jury to decide. The mere allegation of such will not result in a motion to dismiss being granted.

That said, since the product itself contained no explicit warnings to not use with hot beverages, it is entirely foreseeable that a user would use the product to mix a hot beverage. In the mind’s of most, a blender is a blender. Without an explicit direction to limit use to only cold beverages, using the product to mix a hot beverage is certainly foreseeable – tantamount to someone using a kitchen chair to reach an item in the upward reaches of one’s kitchen. As such, the motion to dismiss will likely be denied.

Can a product’s name serve as an adequate warning?
Manufacturer likely will not be able to rely on the product’s name, in and of itself, to fulfill its duty of placing a product in the stream of commerce with an adequate warning. More explicit and conspicuous warnings would be required, and none exist – there is no mention of any warning on the product itself that suggests use should be strictly limited to cold beverages. Again, the motion to dismiss will likely be denied.

(2): Did Consumer cause her own injury?

Even if Consumer was found to have contributed to her own injuries, that, in and of itself, would not be sufficient grounds for a dismissal to be granted. The only impact of Consumer’s contributory negligence would be to lessen her recovery.

Consumer was likely injured due to a variety of reasons (see supra), not solely by her alleged lack of due care. True, Consumer filled the container to the top, but the warning about not filling “beyond 2 inches of the top” was not affixed to the product itself – it was instead included in a separate brochure. A warning included in a separate brochure only (and nowhere else) will likely not be deemed sufficient. Moreover, the hot soup splashed all over Consumer, presumably because the container did not have a top that could be locked in place during use. Whether Consumer’s injury was caused by her lack of due care is likely a question of fact for the jury to decide. Manufacturer’s mere allegation will likely not result in a dismissal being granted.

(3): Is the Cold Drink Blender defective?

A product is either defective or it is not defective. It does not matter that locking mechanisms are not required by federal law. In fact, this product is likely defective since it had improper warnings (see supra). As such, there will be no dismissal granted on this particular ground since the product will likely be found defective, despite the federal Consumer Products Safety Commission design standards.

(4): Will Retailer’s motion to dismiss be granted simply because Retailer played no part in the manufacture of the Cold Drink Blender?

Retailer will be liable simply because it placed the product in the stream of commerce. Playing no part in the manufacture of the product is irrelevant. Retailer can still be found strictly liable since the Cold Drink Blender will likely be found defective (see supra).