Kansas City and Johnson County Product Liability Attorneys
A plaintiff need not prove the existence of a specific defect if it is shown that the product failed to perform as expressly warranted. Cantrell v. R. D. Werner Co., 226 Kan. 681, 684, 685, 602 P.2d 1326 (1979); Scheuler v. Aamco Transmissions, Inc., 1 Kan. App. 2d 525, 529, 571 P.2d 48 (1977). Kansas Courts have stated that in an express warranty claim, “the burden of proof resting upon the plaintiff entails merely demonstration that the goods did not have the properties warranted. In the absence of controverting evidence adduced by defendant, which convinces the jury that the goods were as warranted, plaintiff should prevail. Huebert v. Federal Pacific Electric Co., 208 Kan. 720, 494 P.2d 1210 (1972). Further, a defendant cannot rely on the defense that the product was altered or misused if the alteration or misuse was reasonably foreseeable. Huebert v. Federal Pacific Electric Co., 208 Kan. 720, 494 P.2d 1210 (1972).
In Cantrell, the Plaintiff alleged that a defect had caused the ladder to fail, causing him injury. The manufacturer had specifically represented that a ladder was “free of defects” for five years, which the Kansas Supreme Court held was sufficient to create an express warranty.
The relevant jury instruction is P.I.K. 128.12:
In the sale of goods, express warranties by a seller may be created in the following situation(s): (Any representation of fact or promise that relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods will conform to the representation or promise.)
(Any description of the goods that is made part of the basis of the bargain creates an express warranty that the goods will conform to the description.)
(Any sample or model that is made part of the basis of the bargain
creates an express warranty that the goods will conform to the sample or model.)
A statement pertaining to the value of the goods or purporting only to be a (seller’s) (manufacturer’s) opinion does not create a warranty.
A (seller) (manufacturer) who breaches an express warranty is liable to
any injured person who may reasonably be expected to use, consume, or be
affected by the goods.
Remember, the specifics of your case are unique, call The Law Offices of Jeremiah L. Johnson, LLC, today at 913-764-5010 to discuss your case. Inital consultations are free and you are under no obligation to retain our counsel.