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c. Damages Recoverable in Products Liability In tort, a products-liability plaintiff may typically recover only for (1) personal injury and (2) harm to property other than the defective or injurious product itself. This rule is called the economic-loss rule, and states vary on how they apply it in particular cases. Under Article 2, by contrast, the plaintiff may typically recover not only for these things, but also for other economic losses, including lost or diminished value to the defective product itself. [2 Hawkland UCC Series § 2-314:6, Westlaw (database updated June 2021).] d. What the Plaintiff Must Prove to Recover in Products Liability The intricacies of negligence and strict products liability in tort are well beyond the scope of this outline, though they are covered extensively in Quimbee’s Torts Outline. Broadly speaking, though, in negligence, the plaintiff must prove injury actually and proximately resulting from a failure to exercise due care. In strict products liability, the plaintiff must show that a defect, existing when the product left the seller’s control, rendered the product unreasonably dangerous and actually and proximately caused the injury. In Article 2, the plaintiff must show that the product was not merchantable. As mentioned, courts are divided over whether merchantability, in this context, is coextensive with tort law. Some seem to say yes, more or less, while others maintain the plaintiff need only show that the product was unreasonably dangerous for its intended and foreseeable uses. [2 Hawkland UCC Series § 2-314:6, Westlaw (database updated June 2021).] 5. Time of Breach of Implied Warranty of Merchantability The implied warranty of merchantability is breached, if at all, at the time of sale—that is, the time of tender of delivery. Thus, if the goods conform to that warranty at the time of sale, there is not necessarily a breach if the goods later become unmerchantable (unless, perhaps, this deterioration arises from a defect existing at the time of sale). Put another way, breach of the implied warranty of merchantability requires that the goods be unmerchantable at the time of sale. [ See In re Motor Fuel Temperature Sales Practices Litigation , 534 F.Supp.2d 1214 (D. Kan. 2008) (noting that the defect giving rise to the breach of warranty must exist at the time of sale); Pappalardo v. Combat Sports, Inc. , No. 11–1320 (MLC), 2011 WL 6756949 (D. N.J. Dec. 23, 2011) (same).] 6. Proving the Existence of a Defect and the Implied Warranty of Merchantability In some courts, for the plaintiff to prove a breach of the implied warranty of merchantability, she must show a specific defect in the goods that existed at the time of sale. This observation is especially, though not exclusively, true in products-liability cases. Other courts do not necessarily require proof of a specific defect, at least so long as the existence of some defect (if not its specific nature) can be inferred from the circumstances. For instance, if a car suddenly catches fire while in operation, one can infer the existence of a defect without proof
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