What Is a Latent Defect?

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 What is a Defective Product?

A defective product is a product that causes an injury to an individual due to reasons such as:

A defective product can be anything from an energy drink to real estate. Some defects in products are discovered at the time of a routine inspection. Others, however, are not discovered until the product is on the market or has been sold.

A defective product is unreasonably dangerous when the product is used for its intended purpose, with no alterations or interference. Defective products cause injury to a consumer because of a design defect, a manufacturing defect, or a marketing defect. Examples of defective products include:

  • A food item;
  • A medical device; and
  • A children’s toy.

What is a Design Defect?

Sometimes, defective products are released to the public. One way a product may be flawed is a design defect. A design defect means that the product was manufactured correctly, but there is something wrong in the way it is designed that makes it dangerous to consumers.

Because a design defect occurs in how the product is designed, that defect usually affects the entire line, rather than just one particular product. An example of a design defect is a vehicle that is top-heavy and prone to flipping over when turning sharp corners. In that case, all vehicles in the line would be affected by the design defect, not just one single car.

Design defects can serve as the basis for a product liability or defective product lawsuit. This is especially true if someone is injured as a result of the defective design.

What is Product Liability?

Product liability is the liability of a retailer, manufacturer, or seller of a product when a defective product is allowed to reach consumers, regardless of that consumer’s negligence. Product liability laws determine what party is responsible for defective or dangerous products. All parties in the distribution chain can be held liable under the product liability theory.

Product liability laws and claims regarding those laws vary by jurisdiction. There are commercial statues in each state that model the Uniform Commercial Code (UCC). The UCC contains warranty rules affecting product liability.

What is a Defective Product Injury?

A product may be defective due to reasons such as:

  • Design;
  • Manufacturing; or
  • Warnings about dangers.

These issues may cause a user or users to become injured by the product. If a defective product caused an injury, the purchaser may be able to recover damages. The injured individual may sue the manufacturer of the product or the party responsible for repairing the product.

The injured individual may be able to sue the seller of the product as well. This can include wholesalers or distributors that are responsible for getting the product from the manufacturer to the retailer. This is the case even if that seller did not cause the defect.

How do I Win a Defective Product Injury Suit?

A court will generally hold a defective product injury to strict liability. In these cases, it does not matter what the intentions of the producer were or how careful the producer was. Even if the defect is a latent defect, the producer will be liable for injuries caused by the product so long as the product was used correctly by the consumer.

In defective product cases, the consumer must generally prove the following elements:

  • The product’s defect existed when the producer last had control over the product;
  • The consumer properly used the product;
  • The defect in the product was the cause of the injury; and
  • The consumer’s injury is severe enough to warrant a recovery.

Strict liability does not prevent a consumer from bringing claims of carelessness in design or creation. Additionally, a lawsuit may include a claim that the product failed to work as promised.

What is a Latent Defect?

A latent defect is a hidden problem with a product that is not discovered during a routine inspection. In other words, a latent defect is a defect that may appear after a product is already on the market.

Is a Patent Defect Different from a Hidden Defect?

Yes, a patent defect is different from a hidden defect. A patent defect is defined as a defect visible upon inspection of the product. A hidden defect may not be visible upon the same inspection.

Does the Buyer Bear the Liability for Latent Defects?

No, in general, consumers purchase new products with an understanding of existing problems. This is due to the fact that they are told by the seller or manufacturer of any known defects at the time of purchase.

In some cases, however, a hidden defect may be discovered after the product is sold. In these cases, the latent defects that are discovered after the product is sold are not the responsibility of the buyer. However, these defects are the responsibility of the seller or manufacturer.

Can I Sue for a Hidden Defect?

Yes, it is possible to sue for a hidden defect. In general, a manufacturer is responsible for a defect discovered after the product was placed on the market. A consumer who sues based on a latent defect usually proves the following elements to be successful in their lawsuit:

  • The product included a dangerous, unreasonable defect;
  • The product’s defect caused an injury to the plaintiff while the product was being used in the correct manner; and
  • The product was not substantially changed from its original selling condition.

When Can I Not Sue for a Hidden Defect?

There are cases in which a seller may not be liable for hidden defects in a product. Examples may include when a seller is protected from hidden defects in a written contract. A seller may have a duty to disclose defects they are aware of and they may not have a duty regarding hidden defects discovered at a later date.

How Do I Prove a Defective Product Claim?

There are different legal theories under which a consumer can bring a product liability claim if they have been injured or suffered damages because of a defective product. These may include:

  • A breach of express warranty;
  • A breach of implied warranty;
  • Strict product liability; or
  • Negligence.

A breach of express warranty occurs when the defective product violates an express warranty that is guaranteed by the manufacturer. This warranty is created by overt words or actions of the seller. An express warranty may be created by:

  • A seller’s promise about the product;
  • The description of the product; or
  • A model of the product.

Even if the product does not have an express warranty, it may have implied warranties. An implied warranty is a warranty that the product is fit for the purpose for which it was sold. This type of warranty applies when a seller offers a product for sale, even if the product’s performance is not discussed.

Under the theory of strict liability, a product defect occurs when a consumer purchases a product that had a design defect, a manufacturing defect, or had a lack of warnings, resulting in an injury to the purchaser. Under this concept, an individual may hold an entity or an individual liable for damages or losses without the need to prove intent or carelessness. This usually applies in cases where a product is inherently dangerous or hazardous.

Another defective product claim is negligence. Under a negligence theory, the consumer of the product must show that the producer was not reasonably careful when making or distributing the product and this carelessness caused the consumer’s injury.

Should I Talk to an Attorney about Latent Defects?

Yes, if you or someone you know purchased a product that contained a latent defect, you should contact a class action attorney as soon as possible. An attorney will review your case, determine if you have a claim, and assist in filing the lawsuit. An attorney will also represent you during any court proceedings, if necessary.

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