Ill. Pattern Jury Instr. (Civil) 185.06

Affirmative Defenses

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 exis ted when it left Defendant's

control. The Plaintiff may prove this by showing:

a. [the problem was due to a defect or malfunction of the [vehicle] [product];] 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 i ntended

function;]

Second, that the defect made the [vehicle] [product] unfit for the ordinary purpose such a

[vehicle] [product] is used;

Third, that the Pl aintiff 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 g iven 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.

[In this case Defendant has asserted the affirmative defense that:

Summarize in simple form and without undue emphasis or repetition affirmative

defense(s) to warranty enforcement whi ch has not been withdrawn or ruled out by the

court and is supported by the evidence.

The Defendant has the burden of proving this affirmative defense.]

If you find from your consideration of all the evidence th at the propositions required of

the Plaintiff have been proven and that [the Defendant's affirmative defense has not][none of the

Defendant's affirmative defenses has] been proven, then your verdict should be for the Plaintiff.

If, on the other hand, you find from your consideration of all the evidence, that the propositions

the Plaintiff is required to prove have not been proven, or th at [any one of] the Defendant's

affirmative defense[s] has been proven, then your verdict should be for the Defendant.

Instruction, Notes and Comment approved January 2007.