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At a sporting goods store, a father placed into his cart an item which offered a six-pack of one company’s tennis balls free with the purchase of a box of another company’s stylish sweatbands. While the father was trying on new shoes, he left the cart in an aisle along with his eight-year-old daughter, who he had instructed to stay with the cart.
With her father gone, the girl proceeded to break the tape that held the sweatbands in order to try one on. A clerk then lightly bumped into the cart, and one of the tennis ball tubes exploded, sending shards of plastic flying. Upon seeing his bleeding daughter, the father fainted. The daughter suffered severe cuts on her face, and the father developed a nervous condition that required a doctor’s treatment.
In a negligence action brought on the daughter’s behalf against the company that manufactured the tennis balls, which theory of liability would be most likely to result in a verdict for the daughter?
(A) The tennis ball company is liable under the doctrine of res ipsa loquitur.
(B) The tennis ball company breached its implied warranty.
(C) The tennis ball company is strictly liable for the harm caused by its product.
(D) The tennis balls constituted a private nuisance.
The Answer is : A.
The only doctrine listed that is relevant in negligence is res ipsa loquitur. Breach of warranty, strict liability, and nuisance are separate and independent bases of liability. Thus, choice (A) is the only correct answer, and choices (B), (C) and (D) are incorrect. Note that while res ipsa loquitur requires a showing that the injury was caused by an agency or instrumentality within the exclusive control of the defendant many courts have logically interpreted this element to mean exclusive control “at the time of the probable negligence rather than at the time of the accident.” David G. Owen, Products Liability Law Â§ 2.5 at 103 (2nd ed. 2008); Escola v. Coca Cola Bottling Co., 150 P.2d 436 (Cal. 1944).
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