## Facts

- A manufacturer sold a golf-practice device (“Golfing Gizmo”) consisting of two ground pegs, an elastic cord between them, a long cotton cord attached to the elastic cord, and a golf ball attached to the cotton cord.
- The product instructions and marketing materials stated the device was “completely safe” and that the “ball will not hit player,” and described the ball’s return path as feedback for hooks and slices.
- A parent purchased the device as a Christmas gift for her 13½-year-old son, who set it up and used it according to the directions.
- During use, the user struck the cotton cord with the club shaft, causing the ball to whip back and strike his head, resulting in serious head injury and brain damage.
- Expert testimony attributed the injury to a foreseeable mis-hit: striking from underneath while catching the cord so the ball recoiled toward the golfer.
- The injured minor and his parents sued on theories of strict-liability misrepresentation, breach of express and implied warranties, and strict liability for defective design.
- A jury returned a defense verdict, but the trial court granted judgment notwithstanding the verdict (JNOV) for plaintiffs; defendants appealed.

## Issues

1. Whether the seller’s safety assurances (“completely safe” and “ball will not hit player”) supported strict products liability for misrepresentation.
2. Whether those assurances constituted express warranties and whether the product breached express and implied warranties.
3. Whether the device was defectively designed under strict products liability such that plaintiffs were entitled to judgment as a matter of law.

## Decision

- The California Supreme Court affirmed the order granting JNOV for plaintiffs.
- The safety statements were affirmative representations of fact, not mere sales talk, and were false as applied to foreseeable use that caused the injury.
- The statements also created express warranties that became part of the basis of the bargain; the product did not conform to them.
- The product breached the implied warranty of merchantability because it was not fit for its ordinary purpose as marketed—safe backyard golf practice by ordinary, including inexperienced, users.
- The design was defective as a matter of law because the configuration created a foreseeable risk of severe rebound injury during ordinary, anticipated mis-hits, and the danger was not one consumers could reasonably evaluate given the safety assurances.

## Legal Principles

- A manufacturer may be strictly liable for affirmative misrepresentations about product safety when the statements, measured against reasonable consumer expectations, prove untrue and cause injury in a foreseeable manner.
- Specific safety assurances can constitute express warranties when they form part of the basis of the bargain; nonconformity that causes injury establishes breach.
- Implied merchantability requires fitness for ordinary purposes; a product marketed for safe ordinary use is unmerchantable if it poses an unreasonable risk during ordinary, expected use by intended users.
- Design-defect analysis considers foreseeable misuse by intended users, including inexperienced consumers, when that misuse is part of ordinary anticipated use.
- JNOV is proper where the evidence permits only one result and no reasonable jury could find for the verdict winner on the governing liability standards.

## Conclusion

The court upheld judgment for the injured plaintiff as a matter of law because the manufacturer’s explicit safety assurances were actionable as strict-liability misrepresentations and express warranties, the product was unmerchantable for its ordinary advertised purpose, and the device’s recoil design created a foreseeable, severe hazard during ordinary expected use.


Hauter v. Zogarts, 14 Cal. 3d 104 (Cal. 1975)