Products Liability

P R A C T I C E A R E A S - P r o d u c t s L i a b i l i t y

We represent individuals who have been injured as a result of an unsafe product that was designed, manufactured, sold, and/or furnished by a person or company. We assist those injured individuals in bringing their claims and being fairly compensated for their injuries.

Products liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. This includes the manufacturer of component parts (at the top of the chain), an assembling manufacturer, the wholesaler, and the retail store owner (at the bottom of the chain). Products containing inherent defects that cause harm to a consumer of the product, or someone to whom the product was loaned, given, etc., are the subjects of products liability suits. While products are generally thought of as tangible personal property, products liability has stretched that definition to include intangibles (gas), naturals (pets), real estate (house), and writings (navigational charts).

Products liability claims can be based on negligence, strict liability, or breach of warranty of fitness depending on the jurisdiction within which the claim is based. Many states have enacted comprehensive products liability statutes. These statutory provisions can be very diverse such that the the United States Department of Commerce has promulgated a Model Uniform Products Liability Act (MUPLA) for voluntary use by the states. There is no federal products liability law.

In any jurisdiction one must prove that the product is defective. There are three types of product defects that incur liability in manufacturers and suppliers: design defects, manufacturing defects, and defects in marketing. Design defects are inherent; they exist before the product is manufactured. While the item might serve its purpose well, it can be unreasonably dangerous to use due to a design flaw. On the other hand, manufacturing defects occur during the construction or production of the item. Only a few out of many products of the same type are flawed in this case. Defects in marketing deal with improper instructions and failures to warn consumers of latent dangers in the product.

Products Liability is generally considered a strict liability offense. Strict liability wrongs do not depend on the degree of carefulness by the defendant. Translated to products liability terms, a defendant is liable when it is shown that the product is defective. It is irrelevant whether the manufacturer or supplier exercised great care; if there is a defect in the product that causes harm, he or she will be liable for it.

The law of products liability is found mainly in common law (state judge-made law) and in the Uniform Commercial Code. Article 2 of the UCC deals with the sales of goods and it has been adopted by most states. In it, the most important products liability sections are the implied and express warranties of merchantibility in the sales of goods ?? 2-314 and 2-315. Products liability is derived mainly from Torts law (i.e., personal injury law).

Product Liability: Basis of Liability

The manufacturer of a product has a duty to produce a product free of defects.
A defect in a product may be:

a broken or missing part that can be repaired
a fault making the product unsuitable for the purpose for which it was purchased, or which makes the product unreasonably dangerous

Liability for defective products is governed by the law of product liability, which combines elements of the law of contracts and of the law of personal injury.

Breach of Warranty
Generally, under the law of contracts, the law imposes certain warranties (guarantees) on the sale of goods.
Such warranties include:

the warranty of merchantability; that the goods are in proper condition for use and free of defects
the warranty of fitness for a particular purpose (e.g., the lawnmower must be able to mow grass, the stove must be able to cook food)

These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated. Additionally, if the seller or manufacturer makes a specific representation to a purchaser concerning the quality or function of goods ("this lawnmower will last for 10 years" or "this stove will heat food to 500 degrees") the seller or manufacturer can be held to these express warranties.

If a product does not meet these standards, the purchaser may have the right to return it and get back the purchase price, or sometimes to receive monetary damages. The law of contracts covers economic loss caused by the breach of warranties in the sale of goods. See Defective Products

If a defect in a product or breach of an express or implied warranty causes personal injury, the injured person may be able to bring a lawsuit against the manufacturer, the seller, or anyone else in the "chain of distribution" for damages resulting from the injury. The law of personal injury covers this type of injury.

A product may be "defective" under the law of product liability in a number of ways:

A product may be made poorly (the wheels fall off a brand new car as it is driven down the highway).
A product may work perfectly for its purpose (the stove cooks food well) but be designed in such a way that an injury may occur if it is used normally (the burner on the stove is unusually small, causing a normal-sized pot to tip easily).
A product may also be safe if used carefully, but it may be considered defective if the manufacturer has failed to supply information on how to use it, or warnings about the consequences of certain kinds of use. (For example, if the oven is placed too near a wall, it may cause a fire).
A product may also be defective if there is a misrepresentation concerning the product, resulting in an injury.

Certain types of products may be considered unavoidably unsafe such as certain medical drugs. There are many drugs used in the treatment of serious and fatal diseases which themselves may cause serious injury and sometimes death. Although these products may be clearly "dangerous," they may not be considered "unreasonably dangerous" if proper information and warnings are given to users.

A user injured by an allegedly defective product may not be able to recover damages if it is shown that the user misused the product. Manufacturers are expected to recognize that some types of misuse by users of their products is "foreseeable", and thus the products are expected to be designed to avoid this misuse. For example, a lawnmower may have a "deadman" switch preventing users from unclogging the mower while it is running. If the kind of misuse is not foreseeable (using a lawnmower as a ceiling fan), the misuse may prevent the injured user from recovering from the manufacturer.

Procedural Rules
Because product liability lawsuits span the areas of contract law and tort law, the rules applying to product liability lawsuits can sometimes be inconsistent and confusing. For example, the statutes of limitation which apply to the two types of lawsuits differ:

contract lawsuits usually having a limitations period of up to six years or more
personal injury lawsuits frequently having a limitations period of as little as one or two years

Additionally, in a personal injury lawsuit, the period of limitation typically runs from the time the injury occurs. In a contract lawsuit, the period typically runs from the time the contract is made, usually the date of the purchase in the case of a product.

Many states have also enacted statutes of repose (a type of statute of limitation) for certain types of actions (e.g., against doctors and architects, and sometimes against product manufacturers). These statutes of repose place an outside limit (usually 10, 15, or 20 years) on certain types of lawsuits, regardless of when the injury is discovered.

In recent years, lawmakers in many states have targeted product liability actions for new types of limitations aimed at relieving product manufacturers from liability for large damage awards. These limitations have included the statutes of repose mentioned above.
Other measures have included caps on:

the amount of punitive damages which may be awarded in product liability lawsuits
the amount of contingent fees which attorneys may receive for bringing the lawsuits

OSHEROW, SHINER & ASSOCIATES, P.A., BOCA CORPORATE PLAZA, SUITE 650, 7900 GLADES ROAD, BOCA RATON, FLORIDA 33434
TELEPHONE: (561) 477-5054 FACSIMILE: (561) 477-3661 www.osherowlaw.com E-MAIL: mrosh@osherowlaw.com