Case 1: Case Problem 7, p. 567 (Mallor, 15^th Ed. Chap 20): Malen v. MTD Products, Inc., 628 F.3d 296 (7^th Cir. 2010).

Donald Malen purchased a Yard-Man mower at Home Depot in 2001.The mower was manufactured by MTD Products in 1998 and advertised as "Reconditioned Power Equipment" with "Full Manufacturer's Warranty."The mower was equipped with a safety interlock system, one component of which (OPC) turned off the engine if the operator rises from the seat without disengaging the cutting blade and setting the parking brake.A second component turned off the engine if the operator shifted the mower into reverse without disengaging the blade.A label on the mower warned the operator to disengage the blades before leaving the operator's position.Malen used the mower without incident between 2001 and 2004.In October 2004, the mower became wedged over a curb, and his efforts to free it by rocking his weight and shifting gears were ineffective.He raised the mower platform and started to dismount without turning or engine off or determining the blade stopped moving.His foot slipped under the cutting deck and was struck by the rotating blade, causing permanent loss of use of his foot.Malen sued MTD Products and Home Depot for strict liability and negligence, because the OPC safety device was not connected and therefore inoperable and because MTD shunned a "fail safe" system that would have made the cutting blade unusable even without the OPC connected and was available and installed in later models of the lawnmower at the time Malen purchased the mower.The court granted summary judgment in favor of defendants, concluding Malen's own actions were the sole proximate cause of his injury.The Court of Appeals reversed the district court, because issues of material fact existed precluding the granting of summary judgment.

THE QUESTION IS TO ANSWER T / F ON THE 5 STATEMENTS BELOW:

1. Malen cannot recover "basis of the bargain" damages from MTD Products in its tort claim under the economic loss rule.Malen can recover personal, direct consequential, and compensatory damages from MTD Products under a Restatement (Second) of Torts 402A claim, even though the mower purchased by Malen was a used rather than a new product.

2. Malen's negligence, if any, in operating the mower is a valid affirmative defense that MTD Product may employ against Malen's warranty of merchantability claim.

3. Malen has a valid claim for defective design based on the manufacturer's failure to install the "fail safe" system, even though safety standards in place at the time the mower was originally manufactured did not require such a system and MTD Products was in compliance with prevailing safety standards at that time.

4. Malen does not have a valid claim for either negligent manufacture of the reconditioned mower or strict defective product liability, even though the OPC safety device was not connected and therefore rendered inoperable, because he purchased a used, reconditioned mower.

5. Malen's argument that the reconditioned mower failed to contain a "fail safe" system constitutes a "crashworthiness" claim, which is not precluded by his own negligence in operating the mower.