The Ultimate Guide to Product Liability

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A person who has been injured by a defective product may have a case for product liability. This ultimate guide details the law of product liability and answers some of the common questions about this important concept.

What Is Product Liability Law?

Generally speaking, product liability is a kind of personal injury law. Product liability law holds manufacturers, producers, distributors, suppliers, and retailers responsible for injuries caused by the products they sell to the public. 

These entities are legally liable for damages if a defective product injures a consumer of the product.

How Can a Product Be Defective?

There are three main ways in which a product can be defective:

  • Design Defect: Under this theory of product liability, a person’s claim is based on the assertion that there is a flaw in the product originating in its design;  
    • If there is a design defect, all products with the same design are rendered defective by the design flaw. A manufacturer will be liable for injuries caused by a defective design if the product was designed as intended and injured a person who used the product as it was intended to be used. A manufacturer can also be liable for the foreseeable misuses of its product. Some examples of products with design defects are:
      • Children’s products which contain small choking hazards or are otherwise unsafe for the age of child for whom it is intended;
      • Structurally unstable products;
      • Unexpectedly flammable items, especially where the item would regularly come in contact with heat sources, i.e., cookware;
  • Manufacturer Defect: Under the manufacturing defect theory of liability, a manufacturer is liable for harm caused by a defect that results from an error in the manufacturing process. A manufacturing defect is different from a design defect. With a manufacturing defect, there is no flaw in the design of the product, but an error occurred during the production of the product which makes it defective. Examples of manufacturing defects include the following:
    • Pieces of the product are not securely fastened;
    • Installing incorrect or outdated competent;
    • Using the wrong color where color indicates safety precautions;
    • Faulty electrical or mechanical wiring.
  • Marketing Defect: A marketing defect originates in a manufacturer’s failure to warn about the potential hazards of using its product. Sellers and manufacturers have a duty to give an appropriate warning when their products pose a reasonably foreseeable risk of harm.
    • In determining whether there was a duty to warn about a risk of harm, the court considers the foreseeability of harm, the severity of the potential harm, the ease (or difficulty) of providing an adequate warning, and the likely effectiveness of a warning. 
    • There is no duty to warn when the risk of harm is open or obvious, i.e., riding a motorcycle). An example of a marketing defect is a bicycle helmet that has been designed to industry standards but is marketed as “indestructible,” when in reality it can be crushed in a serious accident.

How Can a Product be Dangerous?

Some products that are dangerous because of the nature of their components or their expected uses. This inherently dangerous nature of a product does not create liability for the producers. Typically, if a person buys a dangerous product, e.g., toxic chemicals, the person assumes the risk of being injured.

However, product liability law regarding inherently dangerous products protects a consumer from injury by a product that is unexpectedly dangerous. A seller or producer of a dangerous product will be liable if the dangerous nature of the product is not commonly expected or if the producer failed to properly warn consumers of the danger of using the product.

Theories of Product Liability

Depending upon the state in which a person was injured, or the type of product by which a person was harmed, there are various legal theories available to support a product liability claim. The most common legal theories are:

  • Negligence: Under the negligence theory of product liability, the injured person must prove that the manufacturer or seller of a product owed a duty to protect the person from injury, and their breach of that duty in fact caused the person’s injury. Depending upon the state in which the injury occurred, the manufacturer or seller’s liability will be offset or limited by the injured person’s own negligence, if there was any.
  • Strict Liability: Today, many states have adopted some form of strict product liability. Under these laws, if a product is determined to be defective, any fault or negligence of the manufacturer or seller is immaterial. The manufacturer or seller is liable for the injuries caused by a defective product. 
  • Liability by Statute: Some states have enacted statutes that spell out the nature of proof required for product liability. If a person was injured in one of these states, their attorney will use the statute as a guideline in determining the manufacturer or retailer’s liability, as well as any cap on damages that might affect a person’s recovery.
  • Breach of Warranty: Breach of warranty can also provide the basis for a product liability claim. Warranties are statements made by a manufacturer or seller concerning a product during a commercial transaction. Claims of liability for harm caused by defective products based on a breach of warranty theory usually focus on one of three types warranties:
  • Breach of an express warranty: Express warranty claims are based on explicit statements made by the manufacturer or the seller of a product about the product, e.g., “This chainsaw is useful for gardening.”
  • Breach of the implied warranty of merchantability: Implied warranties are not expressly stated, but rather are implied in the expectations of consumers common to all products. For example, consumers expect that a tool is not unreasonably dangerous when it is used for its intended purpose, unless the manufacturer or seller specifically disclaims this understanding. 
    • The implied warranty of merchantability is a guarantee that a product does not have design defects, manufacturing defects, or improper labels. It is implied in every commercial transaction involving products unless it is expressly stated that the warranty does not apply.
    • Implied warranties are implied as a matter of law from the very act of manufacturing, distributing, or selling the product.  State laws set the statute of limitations on how long a consumer can wait to make a claim for breach of an implied warranty after buying a particular product.
  • Breach of the implied warranty of fitness for a particular purpose: If a seller knows the particular purpose for which a customer is purchasing a product and knows that the customer is relying on the seller’s skill or judgment, then the product comes with an implied warranty of fitness for the particular purpose for which the consumer is purchasing the product..

What Information Will Help a Person’s Claim?

If a person is injured by a defective or dangerous product, it is important that the person consider the evidence they will need to prove their injury and recover damages. Below are some suggestions about which documents a person should seek out or hold on to.

  • If a person is seriously injured, the person should, of course, seek medical attention immediately. If the person is not seriously injured, they may want to document the scene of the accident with photographs, especially if the defect is obvious on the face of the product. If possible, a person should also collect the contact information of anyone who witnessed the accident. Collecting direct evidence of the scene of the accident will help a person’s attorney prove their claim, whether in pre-trial negotiations or at trial. 
  • A person should save the receipts of all expenses they incur, including doctor visits, medicine, and any costs that result from the accident. If a person has to miss work because of injury, they should keep updated records of time/wages lost. Doing so will help a person’s attorney quantify the injury’s impact on their finances.
  • If a person has  filed a claim for injuries with their insurance provider, they should keep a clear record of any correspondence. These conversations will become useful in the event that an insurance provider does not cover all expenses.

How An Attorney Can Prove Liability

The elements of a successful claim for product liability are as follows:

  • A quantifiable loss: A person  must have suffered some loss as a result of the defective or dangerous product in order to have a claim for product liability. Essentially, there must be some physical injury to a person or measurable damage to a person’s property;
  • A defective product caused the loss: A person must show that some defect of the kinds identified above caused the injury or damage; a person would have to prove that a safer design was available; or, that the defendant knew of prior, similar accidents; or, that the manufacturer was sufficiently notified of the danger and did not take reasonable steps to prevent injuries or warn about the peril;
  • The manufacturer or seller of a product is responsible for the defect: This is established by one of the theories of liability discussed above, i.e. negligence, strict liability, breach of express or implied warranty or liability by statute;
  • The injured person was not at fault: A common defense toa  product liability claim is that the injured party was aware of the danger and assumed the risk by continuing to use of the product, or that the injured person failed to use the product for its intended purpose or in the manner in which the manufacturer intended the product to be used;
  • The lawsuit was filed in a timely manner. States have varying statutes of limitations for product liability claims. It is best not to delay in pursuing a claim for a variety of reasons including statutes of limitations which set deadlines within which claims must be made..

If a claim is successful, a person can expect to recover compensatory damages for the following losses and possibly punitive damages:

  • Medical expenses: for the cost of doctors, hospitalization; medications, procedures, rehabilitation and any other expenses associated with treating a person’s injuries;
  • Future medical expenses: if a person has not fully recovered by the time the case is settled or otherwise comes to end, their future medical expenses can be quantified;
  • Lost wages;
  • Loss of future income if it can be anticipated;
  • Loss of earning capacity: if the injured person can expect to be permanently affected;
  • Pain and suffering;
  • Loss of consortium: loss of the normal companionship of a person’s spouse;
  • Punitive damages: if the defendant acted in an exceptionally irresponsible or wilfully reckless manner, the jury may also award an amount in damages to punish the defendant.

You Will Need an Attorney to Pursue Your Claim

If you’ve been injured by a defective or dangerous product it is essential that you contact an experienced defective products lawyer. An experienced personal injury lawyer can analyze the facts of your case and investigate the product and how it caused injury or damage. 

The services of an expert in the manufacture of the product that caused your injury may be necessary. You are most likely to get the best result with an experienced personal injury lawyer to represent your interest.


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