PERSONAL INJURY

Product Liability

The law of product liability is the area of law that deals with the liability of the manufacturer, wholesaler or retailer of a product for injuries resulting from that product.  This includes the manufacturer of component parts of the product, an assembling manufacturer, the wholesaler, the retail store or other ultimate seller of the product, and any other party in the distributive chain, regardless of whether you actually purchased the item yourself.

Research from the U.S. consumer Product Safety Commission indicates that defective or unsafe products cause 29.4 million injuries and 21,400 deaths each year.  You or your child may be injured by something seemingly harmless or something you use everyday, such as a hair dryer, toaster, baby chair, toy, iron, coffee maker, air conditioner, car, hand tool or even your clothing.  Product liability law gives consumers the ability to sue for and recover damages from manufacturers, distributors and vendors for injuries resulting from accidents caused by products.  Virtually all products are subject to products liability law, not just items on the store shelves.  Products subject to the law run the spectrum from food, drugs, appliances, automobiles, medical devices, medical implants, blood, tobacco, gases, real estate, writing, maps, and even commercial jets.

Types of Product Liability claims

Strict Liability

Strict liability is the term used to describe situations in which a person can be held liable for damages caused to another person even without negligence or other fault.  Strict liability means “liability without fault.”  Therefore, a person is liable whether or not they were negligent and whether or not they intended to do any harm.

Strict liability is also often imposed on manufactured products, under the law of product liability.  Strict liability claims do not involve proof of whether or not someone acted reasonably or used appropriate care in manufacturing a certain product.  Translated to products liability terms, a defendant in a product liability claim will be found liable for damages to a plaintiff if it is found that the product is defective, regardless of whether the manufacturer or supplier exercised great care when designing and manufacturing it.  As such, a plaintiff does not have to demonstrate that the manufacturer or vendor was negligent or careless, only that:

• a defect in the product caused the accident
• he or she was using the product in a manner consistent with the way it was meant to be used
• the product was not substantially changed between the time it left the seller or manufacturer’s hands and the time it reached the plaintiff

Even if you are not the original owner of the merchandise, you can sue for product liability.  For example, if a friend lends you a power saw that turns out to be defective and injures you, you can file a product liability claim against the manufacturer, distributor, wholesaler, and/or vendor of the item.  Even a company that doesn’t actually make a product, but merely puts its label on it, is liable for any injuries the item causes.

Negligence

In negligence claim, a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty, resulting in injury to the plaintiff.  Negligence consists of doing something that a person of ordinary prudence would not do under the same or similar circumstances; or failing to do something that a person of ordinary prudence would do under the same or similar circumstances.  This can take the form of negligence in drawing up or reviewing plans for a product, negligence in maintaining the machines that make the component parts of the product, negligence in failure to anticipate probably uses of the product, negligence in failure to inspect or test the product adequately, negligence in issuing inadequate warnings or instructions regarding the use of the product, or any other aspect of the manufacturing or distribution process where due care is not used.

Breach of Warranty

A breach of warranty claim arises under the law of contracts, where the law imposes certain “implied warranties”on the sale of goods.  Such warranties include the warranty of merchantability (that the goods are in proper condition for use and free of defects), and the warranty of fitness for a particular purpose (e.g. the refrigerator must be able to keep food cold and fresh; the chair must be capable of supporting a person’s weight).  These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated.  If a product does not meet these standards, the purchaser may have the right to return it and get back the purchase price, or sometimes to receive monetary damages.  The law of contracts covers economic loss caused by the breach of warranties in the sale of goods.  The Uniform Commercial Code, Article 2, also deals with the sales of goods and the implied and express warranties of merchantibility in the sales of good  § 2-314 and 2-315.

In product liability cases, it is essential that measures be taken promptly to preserve evidence, document the chain of custody of the product in question, and to enable engineers or other expert witnesses to thoroughly evaluate the product of your injuries.

Types of Product Defects

When making a claim for strict liability, it is necessary to prove that the product was defective by proving that it was “unreasonably dangerous for its intended use” as a result of a defect or defects.  A product may be inherently dangerous but have substantial value, or “utility” such that the danger is one which would not be considered “unreasonable.”  For instance, gasoline is an inherently dangerous product, but its utility far outweighs any danger posed by it.  Therefore, the law does not consider gasoline to be unreasonably dangerous for its intended use.  If there were an alternative, less dangerous, and no more costly fuel available, the law would likely permit a product liability action to prove that gasoline is an unreasonably dangerous product and, therefore, defective.  Similarly, a knife is a dangerous product, but the law wouldn’t consider it “unreasonably” dangerous unless it were manufactured with a handle so fragile that it will snap during ordinary use.

Certain types of products, such as medical drugs, may be considered unavoidably unsafe.  There are many drugs used in the treatment of serious and fatal diseases which themselves may cause serious injury and even death.  Although these products may be clearly “dangerous,” they may not be considered “unreasonably dangerous” if order information and warning are given to users. 

In general, there are three types of defects which could render which could render a product unreasonably dangerous:

• Manufacturing defect - error in product manufacture or assembly
• Design defect - Faulty product design
• Manufacturer or seller’s failure to warn of danger associated with use of the product

Manufacturing defects are defects that typically occur in a relatively low number of units of a given product, since the defects occur during the manufacturing process of a product.  Any number of problems can occur during production and assembly of complex products:  a screw may not be adequately tightened; a bolt may be missing; wires may be crossed or pieces may be incorrectly soldered.  As a result, the product comes off the assembly line in defective condition.

Design defects are inherent flaws in the design of a product, such that even if a product is assembled and produced perfectly, it will always come out of the factory in dangerous condition.  An automobile that will explode upon impact would be considered to have a design defect.

Design defects also apply to the way products are packaged.  For example, if an insect poison is sold in a bottle that is prone to leaking, or requires a user’s hands to come in contact with the poison, the manufacturer could be liable for injuries which result from the defective design.  Much of today’s product liability litigation consists of design defect cases, and this field is broad enough to cover such claims as asbestos litigation, vaccine and other drug litigation, flammable fabric litigation, dangerous power tool or appliance litigation, defective medical implant litigation (including breast implants), and any other area in which a product’s design makes it unreasonably dangerous for its intended use, thereby causing injury. 

Inadequate instruction and warnings are also a basis by which a product can be determined to be defective.  Inadequate warnings generally are those which fail to prevent the improper use of assembly of a product.  Product manufacturers have a responsibility to provide consumers with clear and complete instructions to ensure the safe use of a product.  This is particularly important when the product is “intrinsically dangerous,” i.e. of such a character to be harmful in its ordinary use absent proper caution (chemicals, drugs, machinery, etc.).  In that case, the manufacturer must adequately warn consumers of the potential dangers, and the alert must be explicit and written in language that is easily comprehensible to the average person. Failure to adequately and properly warn, with regards to use, handling, dangers, and other effects of a product is a common basis for product liability lawsuits.  An otherwise useful product carrying inherent risks may be determined to be unreasonably dangerous for its intended use solely due to the absence of an adequate warning alerting the user to the danger.
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