Products Liability / Product Failure

Products liability cases (also called product failure cases) are those in which a product, drug, or purchased item has not performed correctly and has harmed an individual or his or her property. Eric Stravitz has represented clients in many products liability cases. A few examples of these cases follow: one involving a portable generator that leaked and caused an explosion that put Eric’s client in a coma; several involving lights and ceiling fans that have caused fires, one involving a bicycle stem that failed (broke apart) causing a serious fracture to the rider, a spa tub that caught fire damaging a home, and a drug that caused serious personal injuries.

Expert witnesses are nearly always required in order to bring a products liability case. Sometimes product testing in a controlled environment, like a laboratory is necessary. Sometimes in fire cases, the product itself has been destroyed or significantly damaged by the fire, so it is useful to purchase an exemplar to test under the conditions that led to the fire. In order to prove a products liability case at trial, sophisticated visual exhibits may be necessary. As a result, these cases can cost large sums of money to bring to trial. For this reason, Eric will typically only take these cases if the product or drug has caused significant harm to a person or their property.

There are two common kinds of product defects: manufacturing defects and design defects. It is generally far easier to prove that a product had a manufacturing defect than a design defect.

Retailers have a duty to use reasonable care¹ to discover a defect in a product. Thus, if a retailer has received reports of a defective product, and has failed to take reasonable steps to discover and remedy the defect—or pull the defective product from its shelves—it could also be liable for the harm caused by the product.

Likewise, the supplier of a product must give adequate warning of those dangers that it knows or reasonably should know about, if the dangers would not be obvious to users. So the success of a claim against a product supplier could depend on what it should have known about the product, and whether the danger posed by the product was obvious.

Users of a products have a duty to use reasonable care for their own safety. This includes following the manufacturer’s instructions and using reasonable care to discover any defects or dangerous conditions that should be known to them.

Some products come with express warranties—spoken or written representations about a product by the seller who, in turn, relies upon those representations in making the purchase. If an express warranty is found to have been made by the seller and the product fails to meet the terms of the express warranty and causes harm, the seller could be liable for the harm.

Other theories of liability for a defective product include implied warranties.

Implied Warranty of Merchantability: All products that are sold carry an implied warranty that the products are fit for the ordinary purposes for which such products are used. A seller whose product does not conform to this warranty is liable to a person who is harmed as a result.

Implied Warranty of Fitness for a Particular Purpose: When the seller at the time of contracting has reason to know of any particular purpose for which the product is required and that the buyer is relying on the seller’s skill or judgment to select or furnish a suitable product for that purpose, there is an implied warranty that the product is fit for such purposes. In order to pursue a claim for breach of an implied warranty, the buyer must give the seller reasonable notice of the breach. While technically the notice could be spoken or in writing, written notice—for example by letter sent via certified mail, return receipt requested—is superior as it would be more readily provable if the notice was later contested. As with the implied warranty of merchantability, a seller whose product breaches this warranty is liable to a person harmed as a result of that breach.

Numerous defenses are available to a plaintiff’s warranty claims. First, if a person becomes injured by a product because of a unique sensitivity or allergy, they cannot recover unless the seller had reason to know that the Plaintiff was abnormally susceptible to injury from the product. Second, a plaintiff cannot recover if he was using the product improperly (unless the seller had reason to know that the person intended the improper use and nevertheless warranted that the use was an acceptable use). Third, if a person uses a product after a defect is or should be known to her, she will not recover unless a reasonable person would have used the product with that knowledge.

Another important concept in this area of law is strict liability. The manufacturer or seller of any product is responsible for physical harm resulting from a defective product, even though all possible care was used if:

1. The product was in a defective condition at the time it left possession or control of the seller;
2. The product was unreasonably dangerous to the user or the user’s property;
3. The defect caused the injuries or property damage; and
4. The product was expected to and did reach the user without substantial change in its condition.

To recover in an action for strict liability for a product defect, the plaintiff need not prove any specific act of negligence. The focus is not on the conduct of the manufacturer or seller, but upon the product itself. So how does one define “unreasonably dangerous”? A product is unreasonably dangerous when it is dangerous to an extent beyond that which would be contemplated by the ordinary user with the ordinary knowledge common to the community as to its characteristics.

The above writing is not intended to be a complete review of products liability law. Instead, it is designed to give a flavor of some of the issues that can arise. As you can tell, there is a lot of room for experienced plaintiff’s and defendant’s counsel to argue in these cases about whether the law’s requirements have been met in a particular case. Whether things are unreasonable, unreasonably dangerous, obvious, etc. can be subject to considerable debate depending on the facts of a particular case.

For this reason, it is important to bring a potential plaintiff’s case to an experienced trial lawyer like Eric Stravitz for review. If you would like Eric to review your case, please contact him at 240-467-5741.

¹ The concept of “reasonable care” or “reasonableness” is a consistent theme in products liability law. For this reason, whether the parties to a products case behaved “reasonably” is typically a hotly contested flashpoint in these cases.