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In a products liability case,
the plaintiff usually must prove that the product was
defective. A defect is an imperfection that renders a
product unsafe for its intended or reasonably
foreseeable uses. There are three general kinds of
defects: design defects, manufacturing defects, and
warning defects.
Design defects exist when a
whole class of products is inadequately planned, such
that it poses unreasonable risks to consumers. A car
manufacturer's design of a vehicle with the fuel tank
positioned so that it explodes in low-speed collisions
can be classified as defective. When the design is
defective, even products perfectly manufactured are
defective. A production or manufacturing defect, on the
other hand, arises when a sound design plan is not
followed and the product is improperly manufactured.
Sometimes, something other than
the product itself is defective. For instance, caustic
chemicals should be packaged in appropriate containers
to avoid leakage. If they are not, a products liability
suit could arise. Improper labeling, instructions, or
warnings on a product can also make the product
defective. Dangerous products must carry warning labels
that explain their proper use, the circumstances that
are likely to cause harm, and what steps should be taken
in an emergency involving the product. The Food and Drug
Administration sets the minimum labeling standards that
manufacturers must follow. Proper labeling requirements
also apply to claims made in sales materials, product
displays, and advertising. If these requirements are not
met and a consumer is injured, a products liability suit
can enable the consumer to recover the resulting
damages.
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The plaintiff in a products
liability case must prove that the product was defective
when it left the defendant's hands and that the defect
proximately caused the injury. A defect has been said to
be a proximate cause of an injury if the injury was a
direct, natural, or probable result of the defect's
existence. The issue of causation in a products
liability case can be complicated, especially if the
defect in the product involved was an indirect or remote
cause, or only one of a number of potential causes. The
determination of whether the defendant's negligence or
breach of warranty proximately caused the plaintiff's
injuries is very much dependent on the facts of the
particular case.
When the evidence indicates
that the injury could have resulted from a number of
causes, the question becomes whether the cause for which
the defendant is responsible was a substantial factor in
bringing about the injury. For instance, if the
plaintiff was burned when she removed the glass pot from
a drip coffee maker to pour a cup of coffee and the pot
separated from the handle, a defect in the way the
handle was attached to the pot could be one cause, but
the fact that the plaintiff had previously dropped the
pot on the floor and had heated it on the stove top,
contrary to the manufacturer's instructions, would also
have to be considered.
As noted in the example given
above, the plaintiff's misuse of a product can affect
the proximate-cause analysis. Likewise, if the plaintiff
has altered a product, that alteration, rather than a
product defect, may be deemed the proximate cause of the
plaintiff's injuries. If the defendant should have
anticipated that its product could be misused or altered
in the way that it was, however, and could have guarded
or warned against that possibility, it may still be
liable for the plaintiff's damages.
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In a products liability
negligence claim, the plaintiff must prove that the
defendant did not exercise the proper degree of care
when manufacturing or otherwise providing the product to
the consumer. Everyone in the chain of distribution must
exercise reasonable care, including the designer, the
manufacturer, and the seller. The duty is owed to anyone
who is likely to be injured by the product if it is
defective, including the initial purchaser, his or her
family members, bystanders, and persons who lease the
product or hold it for the purchaser.
The duty of care includes the
duty to make adequate inspections during product
manufacture, the duty to use proper packaging, and the
duty to issue adequate instructions and warnings. If any
of these duties is breached and someone is injured, the
consumer or other injured party can bring a claim based
on negligence.
In a strict liability case, on
the other hand, the plaintiff need not prove any
violation of the standard of care. Under this theory,
the defendant is responsible for any defects in its
products that threaten the safety of a consumer's person
or property, even if it exercised care in handling the
product and even if the plaintiff had no direct dealings
with the defendant, such as when the consumer bought the
product from someone other than the defendant. Strict
liability applies when the defendant is engaged in the
business of selling the product that caused the injury,
and the product is expected to and does reach the
consumer without a substantial change in the condition
in which it was sold.
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Warranties are express or
implied representations of fact that the law will
enforce against the person who made them. Products
liability law is concerned with three types of
warranties relating to a product's quality or fitness
for use: express warranties, the implied warranty of
merchantability, and the implied warranty of fitness for
a particular purpose. These warranties are part of the
Uniform Commercial Code (UCC), which every state has
adopted.
An express warranty is created
in one of three ways: through an affirmation of fact
about the goods made by the supplier of the goods to the
purchaser, which becomes a part of the basis of the
bargain; through a description of the goods that becomes
a part of the basis of the bargain; or through a sample
or model that is made part of the basis of the bargain.
An express warranty can be words spoken during sale
negotiations, or it may be written into the sales
contract or on tags attached to the product or a sample.
The express warranty may have been part of an earlier
purchase of the same product, or it may arise from
product publicity. Mere sales "fluff," however, such as
"This is the greatest product you'll ever buy," does not
create an express warranty.
Implied warranties are created
and imposed by law and they accompany the transfer of
title to goods unless they are expressly and clearly
limited or excluded by the contract. The UCC states that
contractual limitations on liability for personal
injuries, however, are unconscionable and therefore will
not be enforced.
The implied warranty of
merchantability requires that products and their
containers meet certain minimum quality standards,
primarily that they be fit for the ordinary purposes for
which they are sold. This warranty includes a reasonable
standard of safety. The implied warranty of fitness for
a particular purpose imposes similar requirements when
the seller knows or has reason to know of the particular
purpose for which the goods are required. If the seller
recommends a particular product to meet the buyer's
specific needs, it warrants that the product is fit for
those purposes.
An action for the breach of one
of these warranties is like a strict liability claim, in
that no negligence or other fault needs to be shown.
There are some limitations, however. For instance, the
seller must receive prompt notice of the breach as a
condition to imposing liability, and the buyer must have
relied on the warranty. When personal injury rather than
property damage is involved, the courts are less likely
to strictly enforce these defenses.
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A manufacturer has the duty to
make its products as safe as possible. When it cannot
eliminate all risks, it must warn users and buyers of
the dangers that exist. If it fails to provide adequate
warnings, the person injured because of that failure may
have a products liability claim based on failure to
warn.
Warnings must be provided for
any dangers likely to arise when the product is being
used normally or in a way that could reasonably be
anticipated, even it if is not a purpose for which the
product was sold. A consumer who clearly misuses a
product, however, cannot recover under a failure-to-warn
theory or any other products liability theory. Also,
warnings are usually not required for a product's very
obvious dangers.
Certain products, like
prescription drugs, present unavoidable dangers. The
duty to warn consumers about unavoidable dangers
presents special problems. Manufacturers must provide
warnings about possible side effects of such drugs,
including allergic reactions, but there may be no duty
where unusually susceptible consumers are concerned.
The manufacturer's duty to warn
continues even after the product is sold. As new
information becomes available, such as through consumer
complaints or scientific testing, the manufacturer or
seller must update its warnings to purchasers, either
through direct contact or, if that is not possible,
through mass media publication.
A failure-to-warn claim can be
in the nature of a negligence or a strict liability
claim, depending on the facts of the particular case and
the law of the state in which the claim is made.
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Plaintiffs in products
liability lawsuits are usually able to recover all
foreseeable damages. In actions based on contract, like
some breach-of-warranty cases, some courts may limit the
recovery of consequential damages to those that were
within the contemplation of the parties at the time they
entered into the contract. In other words, in a
non-contract case, the plaintiff may be able to recover
for any damages that flow from the accident causing the
injury, but in a breach-of-warranty case the damages may
be much more limited. If a car malfunctions due to a
defect and crashes through the plate glass window of a
convenience store, the warranty claim would cover the
cost of repairs to the car, but a tort claim by the
convenience store owner could cover the costs of
repairing the business and the lost income for the
period of time the store had to be closed.
In order to be recoverable
under any theory, damages must be foreseeable.
Foreseeable damages generally include economic losses,
such as those for repairs to damaged property, medical
bills, and lost wages. Recoverable noneconomic damages
include awards for pain and suffering, emotional
distress, and punitive or exemplary damages. Although
some states have placed limits on the amount of
noneconomic damages recoverable in products liability
cases, these limits have in some instances been declared
unconstitutional.
Punitive damages are intended
not to compensate the victim for losses but to punish
the defendant's conduct. They are usually not allowed in
breach-of-contract (warranty) cases. Although punitive
damage awards get a lot of media attention, they are in
fact quite rare and are more common in business
litigation. The amount of punitive damages is usually
based on the wealth of the defendant and the
reprehensibility of its conduct. Some states require
that a portion of the punitive damages awarded be paid
to the state. Whereas compensatory damages are not
taxable to the plaintiff, the amount of punitive damages
that he or she receives is subject to federal income
tax.
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Firearms are a unique type of
product in that their very purpose is to inflict harm,
and if they failed to do so they would be considered
defective. Although victims of accidental and criminal
shootings may be searching for someone to compensate
them for their losses, they are unlikely to achieve that
goal by bringing a products liability action.
Recently, however, cities have
been bringing suit against firearm manufacturers,
arguing that gun makers are at least partly responsible
for the costs of gun-related violence in major
metropolitan areas. If these suits gain acceptance,
suits by individual victims could also gain ground.
A different scenario is
presented when a gun dealer sells a firearm to someone
in violation of any applicable screening or
waiting-period procedures. If that conduct ultimately
leads to injury, the dealer may face liability, but it
would not be on products liability grounds.
Seller or manufacturer
liability is more likely in accidental shooting cases,
such as when a safety mechanism fails to engage and the
gun accidentally discharges. Incidents involving
gun-related violence rarely involve such unintentional
conduct, however, and the firearms that cause the
injuries are performing exactly as intended by their
design and manufacture.
Although the courts may be
willing to entertain various new theories of liability
in gun-related injury cases, they have demonstrated some
reluctance to apply products liability law when
intentional, criminal conduct is involved. More likely
sources of liability in these cases are gun owners and
dealers who fail to keep their weapons out of the hands
of criminals or inexperienced users.
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The National Childhood Vaccine
Injury Act was established to provide a remedy for
plaintiffs who were injured through the administration
of a required or recommended vaccination. The Act
relieves these plaintiffs of the burden of engaging in
lengthy litigation, and ensures their recovery in
appropriate cases. Congress has, through an excise tax
on the sale of certain vaccines, funded a Vaccine Injury
Compensation Fund from which compensation may be paid
for vaccine-related injuries or deaths. Any lawyer who
is consulted about such injuries has an ethical
obligation to inform his or her clients about the
availability of compensation under the act.
Any person who has sustained a
vaccine-related injury, or the legal representatives of
such person, may make a claim under the Act. The
proceeding for relief is initiated by filing a petition
with the United States Claims Court. Elements of
compensation include all unreimbursable expenses, both
past and future, that resulted from the vaccine, and up
to $250,000 for pain, suffering, and emotional distress.
In some cases, the award may also include lost earnings.
Attorneys' fees and costs may also be recovered.
Punitive damages may be awarded, but not when the
manufacturer can show that it complied with the
requirements imposed by the Food, Drug and Cosmetic Act
and the Public Health Service Act.
A person suffering a
vaccine-related injury may also bring a civil action for
damages after the Claims Court has acted or failed to
act on the petition.
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Since the 1970s, groups of
plaintiffs have banded together to file consolidated
lawsuits against the manufacturers of certain products.
These cases are often referred to as class-action suits.
By joining together, plaintiffs can achieve a balance of
power with major manufacturers, which may bring about an
earlier, a fairer, and a more efficient resolution of
their claims.
The makers of silicone breast
implants, contraceptive devices like the Dalkon Shield,
asbestos products, and tobacco products, to name just a
few, have all encountered this type of litigation. In
many states, one judge is appointed to handle all cases
involving claims against a particular manufacturer. This
approach spares the defendants from separately defending
many individual claims, but even this method can prove
costly because the defendants may be forced to pay
significant damage awards. Nonetheless, class-action
suits are usually a better method of resolving disputes
when potential litigants are many and they are scattered
throughout the country.
In other cases, there is only
one plaintiff but multiple defendants. This situation
arises when the plaintiff is unable at the outset of a
case to identify which particular defendant is
responsible for his or her injuries. Multiple defendants
have been named in cases involving pregnancy drugs,
asbestos, and other products. Once the lawsuit is
initiated, the defendants may be able to get dismissed
from the case if they can prove that they are free from
liability.
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Sellers and manufacturers have
argued that the shift in legal standards from caveat
emptor (let the buyer beware) to strict liability makes
them vulnerable to even the most suspect claims, and
they have taken this concern to their state legislatures
and the United States Congress. As a result, some states
have passed laws that help shield sellers and
manufacturers from liability or limit their liability in
certain cases.
One type of reform law permits
manufacturers to defend themselves by proving that their
products, when manufactured, met generally accepted
safety standards. This state-of-the-art defense relieves
manufacturers from the almost impossible standard of
making a perfect product. When this defense is applied,
an injured consumer cannot establish liability by
arguing that the product would have been safer if the
manufacturer had incorporated safety features that were
developed after the product was made.
Businesses have also lobbied
for the establishment of maximum amounts that injured
consumers can be awarded as punitive damages. Some
states have responded by capping these awards. In 1996,
however, President Clinton vetoed a bill that would have
limited punitive damages to $250,000 or twice the amount
of the economic and noneconomic damages, whichever was
greater. The President based his decision on his belief
that the damage caps would deprive families of the
ability to fully recover for injuries caused by
defective products.
Consumer advocates, too, have
opposed products liability reform laws because they
allow manufacturers to avoid liability. The advocates
argue that these laws discourage innovation and the
setting of higher safety standards. On the other hand,
the sellers and manufacturers may argue, the
proliferation of products liability law suits costs
every consumer money, because the costs of all products
have to be increased to cover the expenses of
litigation. There are persuasive arguments on both sides
of this reform movement, which will undoubtedly continue
to be waged for many years to come.
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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
strict liability, in which manufacturers are responsible
for injuries caused by their defective or unreasonably
dangerous products even if they were not negligent.
In a products liability action,
the injured person, or plaintiff, must prove that there
was a design or manufacturing defect in the product, or
that the manufacturer did not adequately warn consumers
about the product's possible dangers; that the product
caused the injuries; and that he or she was using the
product in the way it was intended to be used, or that
the manufacturer should have anticipated that the
product would be "misused" in the way that it was.
Manufacturing defects are
usually easier to prove than design defects. If a
particular consumer's gas barbecue grill explodes when
first lit, for example, it is pretty clear that that
grill was not manufactured as the designer intended it
to be. A design-defect case, on the other hand, could
arise if many or all grills of a manufacturer's
particular model posed a threat of explosion. Proving a
design defect involves passing judgment on technical
choices and usually requires expert testimony. 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.
Manufacturers must warn
consumers of a product's potential dangers and instruct
product users on any precautions they must take.
Warnings must be conspicuous enough to grab the
attention of a reasonable person, and they must clearly
explain the nature and seriousness of the possible
risks.
Proving causation in a products
liability case can be complicated. The plaintiff must
establish that the product was defective when it left
the hands of the defendant and that the defect was the
cause of the accident that led to the injuries. If the
injuries could have arisen from several potential
causes, the plaintiff usually must establish that the
product defect had a substantial role in bringing about
the injuries.
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). Although
there is no limit to the list of products that could
form the basis of a products liability suit, some of the
more common product categories include:
Alcoholic beverages.
Alcoholic beverage claims are similar in many
respects to claims involving adulterated beverages
in general, but some aspects of these cases are
specific to alcohol. Some states, for example, have
specific statutes that impose liability on sellers
of adulterated alcoholic beverages for injuries to
the consumer and his or her family and property
resulting from the use of the beverage.
Apparel. Products
liability cases based on defects in apparel often
relate to flammability, the presence of irritants in
the fabric, defective construction, concealed
foreign objects, or the slipperiness of footwear.
All kinds of apparel can be involved, from standard
shirts and pants to Halloween costumes and hard
hats.
Asbestos. Personal
injuries, deaths, and property damage have resulted
from exposure to asbestos products, and many
products liability suits have been brought to
compensate the victims of that exposure. Plaintiffs
have based their claims on strict liability, design
defect, failure to warn, and civil conspiracy
theories, among others.
Chemicals & cosmetics.
Household chemicals and personal-care cosmetics can
be the subjects of products liability lawsuits if
they are defective and cause injuries. The
plaintiffs in these cases must prove that the
manufacturer or seller knew or should have known
about the dangerous defects in their products.
Firearms. Although
many victims of criminal or accidental shootings
have attempted to prove that the guns used were
defective and that the sellers or manufacturers were
liable for their damages, courts have been reluctant
to embrace that argument. One exception to holding
these defendants liable exists with regard to
"Saturday night specials," which are notoriously
dangerous and known to be used in criminal
activities.
Food & agricultural
products. All types of food and beverages, as
well as agricultural products like crop care
products and animal foods, can also lead to products
liability lawsuits if they are defective and cause
injuries. In many cases, if the plaintiffs can show
that the defendants violated applicable laws, such
as sanitary guidelines or pesticide limits, they
will be able to prove that the defendants were
negligent.
Machinery & tools.
Machinery and tools can often lead to injuries, and
when those injuries result from a product defect or
a failure to provide adequate warnings, the
manufacturer or seller may be liable. Defendants in
these cases even have a duty to guard against misuse
of their products, if they could have reasonably
foreseen that such misuse would occur.
Medical products &
devices. The line between products liability
cases involving medical products and medical
malpractice cases is sometimes blurry. Lawyers
experienced in these areas can advise both
plaintiffs and defendants on which law applies.
Motor vehicle defects.
Motor vehicle manufacturers have a duty to use
reasonable care in designing their products to
ensure the safety of drivers, passengers, and even
bystanders. Plaintiffs may have been contributorily
negligent, however, and thus receive lower or no
damages, if they failed to use their seat belts or
child restraints, or were careless in some other
way, such as by speeding or driving while
intoxicated.
Pharmaceutical products.
Drug manufacturers must comply with Food and Drug
Administration (FDA) guidelines for the manufacture,
marketing, and sale of their products. Compliance
with FDA standards will not, however, insulate a
defendant from liability if its product otherwise
proves to be defective. Drug manufacturers have a
duty to warn about possible side effects of a drug.
Often, a "learned intermediary," such as a doctor or
pharmacist, will be charged with the duty of passing
those warnings on the patient. If the drug
manufacturer advertises its product directly to the
general public, however, the manufacturer may still
have a duty to warn the public directly about the
risks of taking the drug.
Recreational products.
Recreational products that can be the basis of a
products liability suit run the gamut from board
games to amusement park attractions. As with all
other products, manufacturers and sellers have the
duties to use care in ensuring the safety of their
products and to warn about potential hazards.
Tobacco. Tobacco
products have been the subject of recent litigation
in which the tobacco companies have been ordered to
pay very large damage amounts for costs incurred as
a result of smoking-related diseases. Although there
is mounting evidence that tobacco companies may have
known about their products' harmful effects and kept
that knowledge hidden, younger plaintiffs will have
a harder time alleging that they were affected by
that failure to warn, since the adverse consequences
of tobacco use have been public knowledge for quite
some time now.
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Disclaimer
This 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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