185.05. Magnuson-Moss Act-Burden of Proof-Breach of Implied Warranty

185.05 Magnuson-Moss Act--Burden of Proof--Breach of Implied Warranty In order for Plaintiff to recover for a breach of implied warranty of merchantability claim against Defendant, Plaintiff has the burden of proving each of the following propositions: First, that the problem of which Plaintiff complains existed when it left Defendant's control. The Plaintiff may prove this by showing: a. or b. [in the absence of abnormal use or reasonable secondary causes the [vehicle] [product] failed to perform in the manner reasonably expected in light of its nature and intended function;] Second, that the defect made the [vehicle] [product] unfit for the ordinary purpose such a [vehicle] [product] is used; Third, that the Plaintiff notified Defendant or its authorized dealer of the defect within a reasonable amount of time after discovering it; Fourth, that Defendant or its authorized dealer did not repair the vehicle [product] after being given a reasonable number of attempts or did not offer to refund, replace or take other remedial action within a reasonable amount of time. Fifth, that Plaintiff sustained damages; and Sixth, that Plaintiff's damages were proximately caused by the [vehicle] [product] being unfit for the ordinary purpose for which such [vehicles] [products] are used. If you find from your consideration of all the evidence that each of these propositions has been proven, then your verdict should be for the Plaintiff. On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proven, then your verdict should be for the Defendant. [the problem was due to a defect or malfunction of the [vehicle] [product]; Instruction approved January 2007.