When you commit to the CBTR Process you help ensure that your test taking skills - including a confident, positive attitude - meet the bar preparation and performance standards necessary to pass the bar on your next attempt. We will work together to meet that challenge. 

Learn More

User Rating: 5 / 5

Star ActiveStar ActiveStar ActiveStar ActiveStar Active

Manufacturer’s Motion to Dismiss


Paul Pfau has supplied model answers to the Daily Journal Corporation for over 30 years. Here is a sampling of model answers for past bar questions, in order to give bar applicants a sense of the fundamental writing skills necessary to succeed. Although the Daily Journal may have edited the articles for space purposes, there are specific writing style methodologies that are incorporated into each of the examples. These are methods that bar applicants will learn in order to develop skills sufficient to produce passing standards under exacting timed conditions.

Manufacturer’s Motion to Dismiss

An analysis of Manufacturer’s (Mfgr) motion to dismiss Consumer’s (C) complaint is based on the following grounds as discussed below. In either federal or California jurisdictions an involuntary dismissal by the court may be granted if it is determined C failed to adequately prosecute his negligence and strict products liability claims against Mfgr.


Mfgr will first contend that C’s injury was caused by her own misuse of the Cold Drink Blender (Blender) which was intended for mixing only cold substances. Mfgr will argue that the Blender did not contain a design defect – including the “removable cover” to prevent liquids from overflowing – because it was intended to be used for cold drinks and not the hot vegetable soup used by C. Mfgr will also assert that the brochure it supplied with its product adequately warned of potential injury if the Blender was used improperly. In this regard, the brochure specified that the Blender was “perfect for making all of your favorite cold drinks” – with examples of cold drinks cited – and included the admonition that the contents should not be filled “2 inches of the top.” Mfgr will also contend that C failed to show in her complaint that the addition of a “locking top” on the Blender to prevent spillage could have been achieved without serious impact on the Blender’s price or utility.

In her negligence cause of action, C will undoubtedly be able to prove that she was a foreseeable plaintiff and that Mfgr as a bailor owed her the special duty to warn of reasonably foreseeable dangerous defects associated with the use of its product. Mfgr will counter that the publication of its brochure noting the use limitation of the Blender for cold drinks was adequate warning – so that C’s misuse of the Blender should not be viewed as a breach of its duty. Although the “severe burning” resulting from the hot soup spillage was both the actual and proximate cause of C’s damages due to this injury, C will contend that the use of hot drinks in the Blender was reasonably foreseeable – and especially in view of the fact that Mfgr’s brochure did not expressly warn against hot drink usage. Mfgr will argue that C’s misuse of the Blender was also compounded by filling the Blender “to the top” with the hot soup – in spite of the brochure’s admonition not to do so. On balance, Mfgr’s motion to dismiss on a misuse theory should be denied given C’s reasonable prosecution of its negligence cause of action. Mfgr’s best argument, however, would be that C failed to assert in its complaint that the addition of a “locking top” on the Blender to prevent spillage could have been achieved without serious impact on the Blender’s price or utility – a necessary factor in establishing a manufacturer’s design defect in the use of its product.

For much the same reasons, Mfg’s motion to dismiss based on a misuse theory in C’s strict products liability cause of action should also be denied. As a commercial supplier, Mfgr was similarly under a duty to warn against potential design defects. C would also argue that Mfgr’s failure to expressly warn against hot drink usage – in spite of the usage specifications recited in the brochure – was both the breach and actual and proximate cause of her damages resulting from “severe burning.” As with the negligence cause of action, Mfgr would not be able to exculpate itself from liability for failure of Retailer to discover the potential manufacturing design defect involving the Blender lid to open.

Contributory Negligence

Mfgr’s motion to dismiss C’s negligence and strict products liability claims should also be denied based on a contributory negligence theory that C failed to exercise due care regarding the use of the Blender.

As discussed above, C’s prosecution of both theories is reasonable, and despite the fact there is substantial evidence she failed to exercise due care in following the usage specifications noted in Mfgr’s brochure by using a hot liquid and filling the Blender to the top. Ordinary contributory negligence, however, would probably fail to protect Mfgr where C merely failed to discover the potential defect associated with the Blender’s non-locking lid or where her misuse was reasonably foreseeable. This is a question of fact that should be determined at trial and which should not be granted through a motion to dismiss where C has a reasonable opportunity to prosecute each theory of liability. Although a comparative negligence theory may be a more effective defense for Mfgr in assessing proportional liability, the motion to dismiss should still be denied given C’s ability to prosecute her claim based on both theories of liability.

Government Safety Standards

A product’s noncompliance with government safety standards establishes in most jurisdictions that it is defective – while compliance with safety standards is only evidence that the product is not defective.

At best, given the compliance of the Blender with “design standards” requiring no locking mechanism as promulgated by the federal Consumer Products Safety Commission, Mfgr would only be able to argue that the evidence supported the result that the Blender was not defective in view of the fact there was no locking mechanism. C would be able to rebut this evidence, however, so that a motion to dismiss by Mfgr on this fact alone should be denied. Again, C could reasonably prosecute his claim based on either theory of negligence or strict liability – with the trier of fact determining the outcome.

Retailer’s Motion to Dismiss

Retailer’s (R) motion to dismiss C’s complaint based on the ground it did not participate in the manufacture of the Blender and that it should therefore not be held responsible for any defect in its design is examined below.

Any foreseeable plaintiff – such as Consumer – may sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them.

Retailer would clearly qualify as a commercial supplier of the Blender – there is no evidence he is a casual seller – so that C may ultimately allege the negligence and strict products liability theories against R. R’s motion to dismiss should therefore be denied given C’s clear ability to prosecute her case against R as a commercial supplier of the Blender.

This answer was provided by Cal Bar Tutorial Review who, for nearly 30 years, has been providing customized tutorial review preparation for California bar applicants. Cal Bar Tutorial and Review may be contacted through 800-783-6168 or 800-348-2401. Cal Bar’s website is


English Arabic Chinese (Simplified) Filipino German Italian Japanese Portuguese Russian Spanish

CA Bar Exam Facts

Statewide Test Results

First Time Takers
about 57.2% Fail 

Repeat Takers
about 77.1% Fail

All Takers
about 70.9% Fail

about 80.7% Fail

Still not sure you need help? View the full report.

Avoid a nightmare of bar exam failures. Call 1-800-783-6168 today!

CA Bar Exam Schedule

First Year Law Students

  • June 25, 2019
    Register by 5/15/2019

California Bar Exam

  • Feb 26, 27, 2019
    Register by 1/15/2019

Course Discounts

Note : This is our
40th Anniversary Year 
Also, there are accompanying discount opportunities because of this.

 Cal Bar’s “Pay It Forward” discount policy enables you to discount the cost of your individualized program if you have charitable experience in your background.

If you have no charitable experience, you may still qualify for a $1,000 discount from your totally personalized program – which includes old-fashioned one-on-one, materials, classes. Just ask.

Printable Flyers

Earn credit towards a FREE Course when you refer qualified candidates that enroll in the California Bar Tutorial & Review program - A common sense approach for raising your law school grades & passing the Bar Exam with an All-In-One-Common-Sense-Cost.

As always, Cal Bar's policy is to "pay it forward". Learn How

More Success For Ali

Cal Bar is pleased to announce that Ali Hinsche continued her remarkable run of success in having just passed the Florida bar exam.

This was her 4th (count 'em: 1, 2, 3, 4) successful bar - on her 1st attempt-following California, New York and Illinois.

While Ali worked with Cal Bar for each state, she also owes her success to persistence, hard work, and in learning how to adapt and apply the Cal Bar test-taking systems to the requirements of each bar exam.

Site MapHaving trouble locating something on our website? Take a look at our Site Map or use the link at the top of every page to Contact Us. We would be glad to assist you.

Thank You For Your TestimonialI am writing to thank you for all the help you gave me while I was preparing for this past February's bar examination. I know I couldn't have done it without you.
 E. Ericson

ESL SupportSpecializing in English as a Second Language (ESL) and applicants with learning needs requiring special bar exam accommodations.