Favreau v. Miller

I concur in the rejection of a warranty theory for personal injury damages. I would not decide whether to abolish the control test. We have not had the benefit of briefing and argument on that issue since the parties agreed that control was unnecessary and that is the law of this case. However, I believe that the jury instructions contain two substantial errors in the application of negligence standards to this case. Accordingly, I would reverse for a new trial.

The trial court instructed the jury that, in order to show negligence on the part of the landlord, the plaintiff must prove that “the…