California Civil Jury Instructions (CACI)

VF-1207. Products Liability—Implied Warranty of Merchantability—Affirmative Defense—Exclusion of Implied Warranties

New September 2003; Revised April 2007, December 2010

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, Affırmative 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.

If there are multiple causes of action, users may wish to combine the individual forms into one form. If different damages are recoverable on different causes of action, replace the damages tables in all of the verdict forms with CACI No. VF-3920, Damages on Multiple Legal Theories.

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.