13-1426. Strict products liability; misrepresentation; causation.

No instruction drafted.

                                               COMMITTEE COMMENT

            The New Mexico Supreme Court has not ruled on § 402B of Restatement (Second) of Torts and the products liability theory there stated. Until such time as the Supreme Court does consider this issue, the trial judge must decide whatever doctrine will be applied.

            In the event the trial judge decides to instruct on this theory, the following instruction may provide guidance:

A misrepresentation is a cause of an injury if it substantially influenced the decision to purchase or use a product, and the harm results from the fact which is misrepresented. Reliance upon a misrepresentation need not necessarily be that of the person injured. The necessary reliance exists if a purchaser is substantially influenced to buy the product because of the misrepresentation and passes the product on to a person who is in fact injured, but is ignorant of the misrepresentation. There is no cause between an injury and a misrepresentation if the fact which is misrepresented is unknown to the product's purchaser and users or there is indifference to the representation.

Causation is taken to be proved in the absence of evidence that a misrepresentation was unknown to or ignored by the product's purchaser and users or that the harm resulted from a condition or character of the product which was not misrepresented. The supplier has the burden of proving that, in light of all the circumstances of this case, a misrepresentation did not substantially influence the purchase or use of the product.

A misrepresentation is not a cause without which the plaintiff's injury would not have occurred unless the plaintiff, or someone who gave the plaintiff the product to use, was induced by the representation to purchase or use the product. There is a second element to causation in a misrepresentation case. The injury must result from the quality, condition or character, which was misrepresented.