VF-1207. Products Liability - Implied Warranty of Merchantability - Affirmative Defense—Exclusion of Implied Warranties
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] buy the [product] from [name of defendant]?
______ Yes ______ No
If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.
2. Was [name of defendant] in the business of selling these goods?
______ Yes ______ No
If your answer to question 2 is yes, then answer question 3. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.
3. Did the sale of the [product] include notice that would have made a buyer aware that it was being sold without any representations relating to the quality that a buyer would expect?
______ Yes ______ No
If your answer to question 3 is no, then answer question 4. If you answered yes, stop here, answer no further questions, and have the presiding juror sign and date this form.
4. Was the [product] fit for the ordinary purposes for which such goods are used?
______ Yes ______ No
If your answer to question 4 is no, then answer question 5. If you answered yes, stop here, answer no further uestions, and have the presiding juror sign and date this form.
5. Was the failure of the [product] to have the expected quality a substantial factor in causing harm to [name of plaintiff]?
______ Yes ______ No
If your answer to question 5 is yes, then answer question 6. If you answered no stop here, answer no further questions, and have the presiding juror sign and date this form.
6. What are [name of plaintiff]'s damages?
| [a. Past economic loss, including [lost earnings/ lost profits/medical expenses:] | $______] |
| [b. Future economic loss, including [lost earnings/lost profits/lost earning capacity/ medical expenses:] | $______] |
| [c. Past noneconomic loss, including [physical pain/mental suffering:] | $______] |
| [d. Future noneconomic loss, including [physical pain/mental suffering:] | $______] |
| TOTAL $______ |
| Signed: | |
| Presiding Juror | |
| Dated: |
[After it has been signed/After all verdict forms have been signed], deliver this verdict form to the [clerk/bailiff/judge].
Directions for Use
The special verdict forms in this section are intended only as models. They may need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 1231, Implied Warranty of Merchantability—Essential Factual Elements, and CACI No. 1242, Affirmative Defense—Exclusion of Implied Warranties.
Under various circumstances, the plaintiff must also prove that he or she made a reasonable attempt to notify the defendant of the defect. Thus, where appropriate, the following question should be added prior to the question regarding the plaintiff's harm: "Did [name of plaintiff] take reasonable steps to notify [name of defendant] within a reasonable time that the [product] [was not/did not perform] as requested?"
If specificity is not required, users do not have to itemize all the damages listed in question 6. The breakdown is optional; depending on the circumstances, users may wish to break down the damages even further.
If there are multiple causes of action, users may wish to combine the individual forms into one form.
This form may be modified if the jury is being given the discretion under Civil Code section 3288 to award prejudgment interest on specific losses that occurred prior to judgment.
Question 2 should be modified if the defendant held himself or herself out as having special knowledge or skill regarding the goods. Question 3 should be modified if a different ground of liability is asserted under Commercial Code section 2314(2). Question 6 should be modified if the defendant is asserting other grounds under Commercial Code section 2316(3). This form should also be modified if notification is an issue.
Do not include question 3 if the affirmative defense is not at issue.
(New September 2003)