Sales and Leases | 189
user’s objectively reasonable, foreseeable reaction to a defect matters greatly here. However, a user’s mere subjective, idiosyncratic reaction is irrelevant. Put another way, a good is not merchantable if it fails to meet the objectively reasonable expectations of the ordinary, intended user. [ See 2 Hawkland UCC Series § 2-314:3, Westlaw (database updated June 2021).] Factors in Determining Whether Goods Are Fit for Their Ordinary Purposes Courts consider many factors in determining whether goods are fit for their ordinary purposes, including whether the goods: are as safe as the ordinary user would reasonably expect, when used for their ordinary purposes; conform to industry or government standards; are marketable or usable; and are of average quality.
[ See 2 Hawkland UCC Series § 2-314:3, Westlaw (database updated June 2021).]
Whether the Goods Are Safe for Their Ordinary Purposes In general, for a product to be fit for its ordinary purpose, the product must be reasonably safe (or, in the language of some courts, minimally safe) when used in the intended or a reasonably foreseeable manner. Here, the law of contracts intersects with the law of products liability. Courts vary extensively in how they handle these cases. Some courts seem to make the standards under the implied warranty of merchantability somewhat coextensive with the law of strict products liability in tort, requiring a defect that existed when the product left the seller’s control and actually and proximately caused the injury. Other courts adopt a less rigid analysis in applying the implied warranty of merchantability, requiring simply that the product was not reasonably safe for its intended purpose, without necessarily demanding that the plaintiff prove a defect. [ See 2 Hawkland UCC Series §§ 2-314:3, 2-314:6, Westlaw (database updated June 2021); Wojcik v. Empire Forklift, Inc. , 14 A.D.3d 63 (N.Y. App. Div. 2004); In re Fosamax Prods. Liability Litigation , 924 F.Supp.2d 477 (S.D.N.Y. 2013); Tort Law and the Implied Warranty of Merchantability, infra .] Example : A corporation manufactured and sold various luxury products, including lipstick. A study by a consumer-protection group found that the lipstick contained, on average, around .21 parts per million (ppm) of lead. Federal regulations prohibited more than .1
Made with FlippingBook - Online Brochure Maker