Paul Klein & Associates, P.C. Practice CenterSlips, Falls, & Other Premises-related Personal InjuriesLabeling and Warning DefectsIntroductionYou read all the directions, you followed them exactly, and still the machine malfunctioned and you were injured. If you or someone in your family has been injured while using a product you believed to be safe, you may have the right to bring a claim against the manufacturer, distributor, or seller of the product in order to recover the damages you suffered. Such a claim is called a products liability suit. One possible theory under which a plaintiff may recover in a products liability suit is called "failure to warn." Failure-to-warn liability arises from the responsible party's failure to provide adequate warnings about possible injuries from a product's use. An experienced products liability or personal injury attorney can help determine whether a valid failure-to-warn claim exists and provide information and representation throughout the entire legal process, in order to ensure that injured parties secure the compensation to which they are entitled. To help prevent injury in the first place, however, it is important to pay close attention to product labels and warnings, which in most cases are designed to prevent injury, and in most cases they do. Inadequate Warnings May Lead to Manufacturer or Seller Liability for Resulting InjuriesFailure-to-warn liability can arise in either of two circumstances: when foreseeable risks could have been prevented by proper instructions or warnings, but the warnings were not given; or when the warnings themselves, when followed, caused the injuries. To be effective a warning should include a prominent "signal word," like "danger," "warning," "caution," or "notice," in a typeface that captures attention, such as full caps and bold followed by an exclamation mark. It should identify the nature of the hazard, such as electrocution or electrical shock; it should describe the consequences of failure to follow the warning; it should state how the danger can be avoided (e.g., "do not use near fire or flame," or "do not remove safety guards"); and, if possible, it should include pictures or diagrams, especially if users may speak a language other than the one in which the warning is printed. Simplicity and common sense should be employed in warnings in order to make them as effective as possible. Product warnings may be communicated to the user through labels attached to the product, through owner's manuals or package inserts, on the packaging itself, or via a combination of these methods. If warning labels are used, they should be located near the hazard about which they warn. For instance, if the warning relates to removal of a safety guard, the label should be placed on the product as close to the guard as practical. The labels themselves should be made and affixed to withstand the environmental conditions in which the product will be used. In other words, if the product will be used outdoors, the label should be made to stand up to sun, wind, rain, and other adverse weather conditions. If warnings are too extensive or complicated to include on a small product label, the label can simply direct the user to the manual for further instructions. The more complicated the product, the more complicated the warning may have to be in order to be deemed adequate. A manufacturer or seller generally has no duty to warn of "open and obvious dangers," but they do have a duty to warn about hazards that could arise from any misuse or alteration of the product that is foreseeable. For instance, the manufacturer of a handgun does not have a duty to warn that guns may cause injuries, since causing injury is the purpose for which a gun is designed, but it generally does have a legal duty to warn that guards should not be removed from lawnmowers or snowblowers, especially if the manufacturer becomes aware that users are making these alterations in order to clean the machines or improve their performance. In evaluating the adequacy of a product warning, the court may ask a series of questions. First, was it likely that the product would cause harm? Was the product being used in a manner that the manufacturer or seller could have reasonably foreseen it would be used? How serious was the harm that resulted? Was it possible or practical to place a warning label directly on the product? Was it reasonable for the manufacturer to assume a certain level of knowledge or sophistication by the user? Was the warning noticeable to and understandable by the average user? Based on the answers to these questions, the manufacturer or seller may raise several defenses against a failure-to-warn claim. It may argue, for instance, that it had no duty to warn, because the danger was open and obvious (as in the handgun example, above). Or it may defend on the basis that the injured party was a sophisticated user of the product and should have appreciated the danger. Other possible defenses include actual knowledge of the risk, assumption of the risk, and comparative or contributory fault. The sophisticated user defense may arise when, for instance, a journeyman electrician is injured by a power tool. A seller may defend on the basis of the user's actual knowledge when, for example, the seller engaged in a detailed discussion of the potential hazard at the time of sale. Assumption of the risk is a related defense, arising when the user knew of the risk, whether or not a warning was given, and went ahead with using the product in a particular manner anyhow. And comparative or contributory fault (or negligence) may be argued by the manufacturer or seller in situations in which it shares responsibility for the accident with the user, based on the user's own negligent conduct. A manufacturer's duty to warn continues even after the sale of the product. In other words, if a product maker or seller becomes aware, post-sale, that a product has a previously unknown potential to cause injury, it must, if possible, communicate that information to the persons who should be warned. This duty may exist only if the users are not aware of the risk, and the same defenses may apply as those, discussed above, relating to time-of-sale warnings. Although a manufacturer may escape liability for injuries resulting from its otherwise safe product if it gave proper warnings and the user failed to heed them, a manufacturer cannot evade responsibility for an unsafe product by warning the user, no matter how extensive the warnings given. If an unsafe product can be made safe, the manufacturer must make it safe, and product labels or warnings alone will not suffice to make an otherwise defective product safe. ConclusionIf you have been injured by a product that was inadequately labeled or failed to include proper warnings, you may be able to make a claim against the manufacturer or seller. When seeking an attorney to represent you in connection with such a claim, be sure to investigate his or her background in products liability law. Ask questions about his or her training and experience so that you can make an informed decision about whether this is the right person to zealously represent your interests against a big company that may have many more resources than you do to fight the claims against it. Only with a veteran products liability or personal injury attorney on your side can you be sure to achieve an outcome that best compensates you for your losses. Product Manuals and InstructionsIntroductionYou reviewed the manual, you read all the instructions, you followed them exactly, and still the machine malfunctioned and you were injured. If you or someone in your family has been injured while using a product you believed to be safe, you may have the right to bring a claim against the manufacturer, distributor, or seller of the product in order to recover the damages you suffered. Such a claim is called a products liability suit. Liability in a products liability suit can be based on improper, inadequate, or erroneous product manuals and instructions. This liability often falls within the category of "failure to warn." Failure-to-warn liability arises from the responsible party's failure to provide adequate warnings about possible injuries from a product's use. An experienced products liability or personal injury attorney can help determine whether a valid claim exists and provide information and representation throughout the entire legal process, in order to ensure that injured parties secure the compensation to which they are entitled. To help prevent injury in the first place, however, it is important to pay close attention to product manuals and instructions, which in most cases are designed to prevent injury, and in most cases they do. Inadequate Product Manuals and Instructions May Lead to Manufacturer or Seller Liability for Resulting Injuries.Products liability based on improper manuals or instructions can arise in either of two circumstances: when foreseeable risks could have been prevented by proper instructions or warnings, but the warnings were not given; or when the warnings or instructions themselves, when followed, caused the injuries. Simplicity and common sense should be employed in product manuals and instructions in order to make them as effective as possible, and they should include pictures or diagrams whenever possible, especially if users may speak a language other than the one in which the instructions are printed. To be effective, a warning contained in a product manual should include a prominent "signal word," like "danger," "warning," "caution," or "notice," in a typeface that captures attention, such as full caps and bold followed by an exclamation mark. It should identify the nature of the hazard, such as electrocution or electrical shock; it should describe the consequences of failure to follow the warning; it should state how the danger can be avoided (e.g., "do not use near fire or flame," or "do not remove safety guards"). Product warnings may be communicated to the user through labels attached to the product, through owner's manuals or package inserts, on the packaging itself, or via a combination of these methods. If warning labels are used, they should be located near the hazard about which they warn. For instance, if the warning relates to removal of a safety guard, the label should be placed on the product as close to the guard as practical. The labels themselves should be made and affixed to withstand the environmental conditions in which the product will be used. In other words, if the product will be used outdoors, the label should be made to stand up to sun, wind, rain, and other adverse weather conditions. If warnings are too extensive or complicated to include on a small product label, the label can simply direct the user to the manual for further instructions. The more complicated the product, the more complicated the warning may have to be in order to be deemed adequate. A manufacturer or seller generally has no duty to include in its manual or instructions warning about "open and obvious dangers," but they do have a duty to warn about hazards that could arise from any misuse or alteration of the product that is foreseeable. For instance, the manufacturer of a handgun does not have a duty to warn that guns may cause injuries, since causing injury is the purpose for which a gun is designed, but it generally does have a legal duty to warn that guards should not be removed from lawnmowers or snowblowers, especially if the manufacturer becomes aware that users are making these alterations in order to clean the machines or improve their performance. In evaluating the adequacy of product manuals and instructions, the court may ask a series of questions. First, was it likely that the product would cause harm? Was the product being used in a manner that the manufacturer or seller could have reasonably foreseen it would be used? How serious was the harm that resulted? Was it possible or practical to place a warning label directly on the product? Was it reasonable for the manufacturer to assume a certain level of knowledge or sophistication by the user? Were the instructions accessible to and understandable by the average user? Based on the answers to these questions, the manufacturer or seller may raise several defenses against a failure-to-warn claim. It may argue, for instance, that it had no duty to include a particular warning, because the danger was open and obvious (as in the handgun example, above). Or it may defend on the basis that the injured party was a sophisticated user of the product and should have known how to use it and avoid the danger. Other possible defenses include actual knowledge of the risks involved, assumption of the risk, and comparative or contributory fault. The sophisticated user defense may arise when, for instance, a chemist is injured by while doing a scientific experiment. A seller may defend on the basis of the user's actual knowledge when, for example, the seller engaged in a detailed discussion of the potential hazard at the time of sale. Assumption of the risk is a related defense, arising when the user knew of the risk, whether or not a warning was given, and went ahead with using the product in a particular manner anyhow. And comparative or contributory fault (or negligence) may be argued by the manufacturer or seller in situations in which it shares responsibility for the accident with the user, based on the user's own negligent conduct. A manufacturer's duty to warn continues even after the sale of the product. In other words, if a product maker or seller becomes aware, post-sale, that a product has a previously unknown potential to cause injury, it must, if possible, communicate that information to the persons who should be warned. This duty may exist only if the users are not aware of the risk, and the same defenses may apply as those, discussed above, relating to time-of-sale instructions. Although a manufacturer may escape liability for injuries resulting from its otherwise safe product if it provided an appropriate product manual and gave proper instructions, but the user failed to heed them, a manufacturer cannot evade responsibility for an unsafe product by warning the user, no matter how extensive the warnings given. If an unsafe product can be made safe, the manufacturer must make it safe, and product manuals and instructions alone will not suffice to make an otherwise defective product safe. ConclusionIf you have been injured by a product that was not accompanied by a proper manual or adequate instructions, you may be able to make a claim against the manufacturer or seller. When seeking an attorney to represent you in connection with such a claim, be sure to investigate his or her background in products liability law. Ask questions about his or her training and experience so that you can make an informed decision about whether this is the right person to zealously represent your interests against a big company that may have many more resources than you do to fight the claims against it. Only with a veteran products liability or personal injury attorney on your side can you be sure to achieve an outcome that best compensates you for your losses. Product RecallsIntroductionFirestone tires, tainted hamburger, toys that pose choking risks-these are just a few notable examples of the kinds of product recalls that consumers hear about on a regular basis. While it may at first seem frightening to learn that a product you are using is potentially dangerous, it is important to realize that product recalls are an essential mechanism to protect consumers. Products are recalled if it has been determined that they may be defective and could cause serious injury or death, even when used properly. When someone has been injured by a defective product, the injured person or surviving family members may have the right to bring a claim against the manufacturer, distributor, or seller of the harmful product in order to recover the damages that they suffered. An experienced products liability or personal injury attorney can help determine whether a valid claim exists and provide information and representation throughout the entire legal process, in order to ensure that the injured parties secure the compensation to which they are entitled. To help prevent injury in the first place, however, it is important to pay close attention to product recalls, which are described in more detail in this article. Getting Defective Products Out of the Hands of the PublicThe United States Consumer Product Safety Commission (CPSC) is an independent federal regulatory agency that works to save lives and keep families safe by reducing the risk of injuries and deaths caused by unsafe consumer products. One of the primary roles that the CPSC assumes in order to achieve that goal is to facilitate the recall of defective products or arrange for their repair. A product is recalled if it presents a significant risk to consumers either because it may be defective or because it violates a mandatory CPSC standard. Once a product has been recalled, consumers should generally stop using it, unless the specific instructions relating to that product indicate otherwise. Product recalls are usually effective indefinitely; in other words, there is generally no end date to a product recall. Just because one product made by a certain manufacturer has been recalled, however, does not by itself indicate that the manufacturer's other products are harmful. In fact, many recalls apply only to products manufactured and date-coded for specific time periods, so even the same product made at a different time may pose no risk. A complete listing of products currently under recall by the CPSC is available on its website, www.cpsc.gov. The CPSC also offers a wealth of other information, including various informative and helpful publications, all of which are available free of charge on the website. Some of these publications are offered in Spanish, or even other languages, as well English. Although the CPSC oversees the safety of over 15,000 kinds of consumer products, that agency does not monitor the safety of certain important and widely used products, including motor vehicles, food, drugs, and cosmetics. Cars, trucks, and motorcycles are under the purview of the Department of Transportation, and food, drugs, and cosmetics are regulated by the Food and Drug Administration. The CPSC offers links on its website to these and other federal regulatory agencies, including the Environmental Protection Agency, which oversees products like pesticides, and the Bureau of Alcohol, Tobacco, and Firearms, which regulates gun safety. If the CPSC determines that a product is potentially harmful or violates a mandatory standard, it notifies the manufacturer in writing that corrective action should be taken. The letter usually includes specific guidance on what steps are warranted. For example, a repair may be all that is necessary to make the product safe, or total elimination from consumer use may be in order. The manufacturer is asked to submit to the CPSC for its review a plan outlining the steps the manufacturer intends to take. Recalls are designed to locate all potentially dangerous products as quickly as possible, to remove them from the chain of distribution and users' hands, and to communicate accurate and understandable information to the consuming public about the hazard and the steps being taken to remedy it. In order to achieve these goals, the CPSC may approve various methods of consumer notification by responsible companies. For instance, individual consumers may be notified directly that a recall is underway. Such communication must be clearly labeled so that the consumer knows its import, such as by the heading "SAFETY RECALL NOTICE" or "IMPORTANT SAFETY NOTICE," both on the letter itself and on the envelope containing the letter. The letter should also explain that the recall is for safety reasons, the nature of the product hazard, and the recommended action for the consumer. Letters must be specific and concise and directed at the target audience; that is, they must be individualized for consumers, distributors, and retailers. Alternatively, notification may be achieved through the display of posters or counter cards in the retail outlets where the recalled product was sold. In such a case, the recalling company usually prepares the poster or counter card and provides it to the retailer with specific instructions on where and how long to display it. A recall poster or counter card must be displayed in several prominent, conspicuous places throughout the selling establishments, such as on the shelf where the product was routinely sold, at checkout counters and customer service desks, and at store entrances and exits; they must be printed in colors that contrast with the background; and they must be readily visible and easily understandable. The CPSC often recommends that the display continue for 120 days, although the exact timeline may vary depending on the particular circumstances. Press releases may also be used to notify consumers about product recalls. Such releases are made available to the major wire news services (the Associated Press and United Press International), as well as to major metropolitan newspapers, television and radio networks, and relevant periodical publications. A press release that is issued by the CPSC itself generates significant media attention. Whether issued by the CPSC or the manufacturer, press releases must include the name of the product and the manufacturer; the specific hazard involved; the suggested retail price of the product; a description of the product and its intended use; the model and serial number and where they are located on the product; relevant dates of distribution and sale in order to help consumers determine whether they purchased the affected product; guidelines for discontinuing use of the product, if applicable; directions on how to obtain a refund, repair, or replacement; major national retailers selling the product; a description of the defect and the date the CPSC first became aware of it; and a name and toll-free telephone number that consumers may contact if they have questions about the recall. Press releases may also include an illustration of the product being recalled. Thousands of consumer products have been recalled in recent years. Rather than demonstrating only the plethora of hazardous products that are sold, however, the volume of recalls actually demonstrates the vigilance that is applied to protecting the consuming public. If you are notified of a product recall, be sure to follow the instructions provided. If you do not and are injured as a result, your failure to heed the warnings could compromise any claim you may have against the manufacturer or seller. ConclusionIf you have been injured by a recalled product or a product that was subsequently recalled, you may be able to make a claim against the manufacturer or seller. When seeking an attorney to represent you in connection with such a claim, be sure to investigate his or her background in products liability law. Ask questions about his or her training and experience so that you can make an informed decision about whether this is the right person to zealously represent your interests against a big company that may have many more resources than you do to fight the claims against it. Only with a veteran products liability or personal injury attorney on your side can you be sure to achieve an outcome that best compensates you for your losses. WarrantiesIntroductionWhen someone has been injured by a defective product, the injured person or surviving family members may have the right to bring a claim against the manufacturer, distributor, or seller of the harmful product in order to recover the damages that they suffered. Possible legal theories that can be argued in a products liability case include negligence (lack of reasonable care in the manufacture or sale of the product or in warning about the product), breach of warranty (failure to fulfill the terms of a promise regarding the product), misrepresentation (giving consumers a false sense of security about a product's safety), and strict tort liability (the product's defect, although not the fault of the defendant, rendered the product unreasonably dangerous and the defendant is therefore responsible). This article focuses on breach of warranty claims. An experienced products liability or personal injury attorney can help determine whether a valid breach of warranty or other products liability claim exists and provide information and representation throughout the entire legal process, in order to ensure that the injured parties secure the compensation to which they are entitled. A Breach of Warranty Is a Broken Promise About Product Safety or Performance.Products liability law is based on the responsibility of a manufacturer or other provider of goods to compensate users of the goods for injuries caused by defective or dangerous products. The basic idea underlying products liability law is that the companies providing the products are usually in the best position to prevent defective products from entering the marketplace, so if they fail to do so, they should be held accountable. The law in this area has evolved from the days of "caveat emptor" (let the buyer beware) to, in some instances, strict liability, in which manufacturers are responsible for injuries caused by their defective or unreasonably dangerous products even if they were not negligent. Breach of express or implied warranty is one theory on which injured persons may sue in a products liability case. In a breach of warranty case, the basic premise underlying the defendant's liability is the representation that a product will perform as promised, and the failure of the product to live up to that promise. In other words, the plaintiff must establish that the defendant made a warranty, either express or implied, about the safety or performance of the product. An express warranty is made when the seller or other party in the product's chain of distribution specifically states to the user something to the effect of, "This product is the best and safest for the purposes for which you will use it and it will perform perfectly." An implied warranty, by contrast, may arise when, despite the fact that the seller made no such express statement, it knew of the purpose for which the user bought the product and it intentionally sold a particular product to him or her to fulfill that purpose. In such a cases, the existence of a warranty is implied by law. The plaintiff in a breach of warranty case, much like a plaintiff in a strict liability case, must also establish that the product that was the subject of the warranty was defective, which means that it was unreasonably dangerous for its intended use. Manufacturing defects are usually easier to prove than design defects. If a particular consumer's tires exploded when driving at high speeds on a hot day, for example, it is pretty clear that that tires were not manufactured as the designer intended them to be. A design-defect case, on the other hand, could arise if many or all tires of a manufacturer's particular line posed a threat of explosion. In other words, in a design-defect case, the product may have been manufactured as it was intended to be, but the design was inadequately planned in such a way as to pose unreasonable hazards to consumers. Proving a design defect involves passing judgment on technical choices and usually requires expert testimony. The plaintiff in a breach of warranty case must also establish that the product's defect existed at the time it left the manufacturer's or seller's control. If the product's condition changed so as to render it unreasonably dangerous after it left a particular defendant's control, that defendant usually will not be held liable. Changes in a product's condition may be brought about by a person or entity later in the chain of distribution or by the ultimate consumer; in either case, parties higher up the chain may not be held accountable, unless the alteration was foreseeable. Another required element of the plaintiff's claim is that the defect caused the injury. Proving causation in a products liability case can be complicated. If the injuries could have arisen from several potential causes, the plaintiff generally must establish that the product defect had a substantial role in bringing about the injuries. Damages recoverable in a products liability lawsuit include those for personal injuries as well as property damage. In a personal injury case, the plaintiff's damages may include medical expenses, lost wages, damages for physical and mental pain and suffering, and sometimes even punitive damages, which go beyond compensating the plaintiff for his or her actual losses and are intended to punish the wrongdoer and deter future similar bad conduct. Property damage may also result from the breach of a product's warranty. In such cases, the plaintiff may be able to recover the costs of repairing or replacing the damaged property. The Magnuson-Moss Warranty ActThe Magnuson-Moss Warranty Act is a federal law that governs consumer product warranties. It requires manufacturers and sellers of consumer products to provide the purchasers of those products with detailed information about warranty coverage. Although it does not require that every manufacturer or seller provide a written warranty, it does govern what must be included in a written warranty once a manufacturer or seller decides to provide one. The Magnuson-Moss Warranty Act imposes three basic requirements: (1) all warranties must be designated as "full" or "limited," (2) required information about warranty coverage must be provided in a single clear and easy-to-understand document, and (3) warranties relating to consumer products must be made available before those products are purchased. In addition, the Act prohibits the disclaimer and modification of implied warranties-those warranties that are not specifically stated but are implied by law, such as the implied warranty of merchantability. The duration of implied warranties may sometimes be limited, however, if a manufacturer similarly limits its express warranties. Under the Act, warranties may not include deceptive or misleading terms. For instance, a warranty proclaiming coverage of all moving parts for a product that contains no moving parts would be misleading and therefore prohibited. The Magnuson-Moss Warranty Act makes it easier for consumers to sue for breach of warranty by making that breach a violation of federal law and by allowing consumers to recover court costs and attorneys' fees in such lawsuits. Even though Magnuson-Moss is a federal law, suits under the Act can be brought in either state or federal court. The Act actually attempts to discourage litigation, however, by encouraging informal dispute resolution mechanisms like arbitration or mediation, which often result in a less frustrating, less costly, and more expedient resolution of warranty disputes. ConclusionIf you have suffered losses-either personal injuries or property damage-as a result of the breach of a product warranty, you may be able to make a claim against the manufacturer or seller that offered the warranty. When seeking an attorney to represent you in connection with such a claim, be sure to investigate his or her background in products liability law. Ask questions about his or her training and experience so that you can make an informed decision about whether this is the right person to zealously represent your interests against a big company that may have many more resources than you do to fight the claims against it. Only with a veteran products liability on your side can you be sure to achieve an outcome that best compensates you for your losses. DisclaimerThis publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.
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