Injury From Defective and Dangerous Products

The types of claims addressed in this article are most commonly known as Product’s Liability. Oftentimes, they may be the subject of Class Action lawsuits due to the number of people adversely impacted. Claims regarding defective products may take various forms such as breach of warranty, negligence, misrepresentation, violation of consumer protection statutes, and even fraud. Among the claims related to product liability, strict liability for a defective product is one of the most important concepts one should be aware of. Strict Liability means someone is responsible regardless of any malicious intent, and in some cases, even absent negligent behavior. In general, strict product liability is imposed when a defective product causes injury to another party. In order to establish strict liability for defective products, a plaintiff must meet several requirements:

The wrongdoer must be a merchant

It is important to distinguish who are merchants and who are not. The wrongdoer must be a person or entity that routinely deals with the type of goods at issue. Casual sellers in the internet usually are not considered merchants, but this is an evolving area of law. Likewise, services providers that manufacture goods collateral to their services are not considered merchants of the goods. Those who are not merchants will not be liable under the strict liability theory. That noted, merchants potentially includes everyone in the chain of sale including the manufacturer, distributor, and retailer.

The plaintiff must prove that the product is defective

If the defect is due to manufacturing process, the plaintiff must show that the defective product is different from other products of a similar type, or that something went wrong in the manufacture of one item or batch, and also that the product is more dangerous than a reasonable consumer would expect. For example, we expect vehicle engines to burn fuel to run the vehicles. We do not expect an engine to explode. As for design defects, the plaintiff must show that risks associated with the design outweigh the benefits the design brings. In doing so, he/she may show that there is an alternative design available that is safer, more economical, and more practical. In simpler terms: should the product have been made safer for a similar cost?

The product was not altered

This element may be obvious but the defective product at issue should not have been altered since leaving the wrongdoer’s (defendant)’s hands. This means if someone had made any changes to the product before the plaintiff receives it but after leaving the defendant, you cannot hold that defendant liable under strict liability. Liability can still exist against others in the chain of commerce. If the plaintiff altered the good themselves, it could give rise to a defense of contributory negligence or assumption of risk. But this must be judged by a reasonableness standard. For example, if a good is made for a young child, the mere fact that a child can alter it may cause liability. This is because a reasonable child would not know better. If an adult alters a good designed for a child, the defenses could still apply.

Foreseeable use of the product by the plaintiff

At the time of injury, the plaintiff must have to make foreseeable use of the product. The scope of foreseeable use is rather broader than the scope of “proper” use of the product in our daily lives. For instance, a desk is probably not meant to be used as a step ladder. Yet, it may be foreseeable that the user can use the desk to reach somewhere higher.

Defenses to strict liability

In some strict liability cases, a defense of comparative responsibility (also known as comparative fault may be asserted) may be available by a defendant. In other words, if the product user was well aware of the inherent risks of the defective product, he/she might not be able to recover damages. Nevertheless, not all states have adopted comparative fault as a viable defense in strict liability cases.

Breach of warranty cause of action

Some states do not allow a plaintiff to recover damages under strict products liability theory. For instance, the Commonwealth of Virginia has not adopted the strict liability theory. However, the user of the defective product may be able to use other theories to recover his/her damages. One way is to rely on breach of warranty theory. The implied warranty of merchantability provides, when any person buys any goods from any merchant, the goods are fit for the ordinary purpose for which such goods are used. This provision automatically become a part of the contract by operation of law. There may also be Federal laws that can be relied upon, and/or a national class action case.

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