Product Liability F.A.Q.’s

1. What is product liability law?

Product liability law allows compensation for physical injuries and property damage resulting from defective and unreasonably dangerous products, and from the failure of the manufacturer and/or seller to warn the consumer of the possible dangers of using the product.

2. Under what circumstances can a product be considered defective?

In general, a product may be considered defective when it does not provide the level of safety that the community is reasonably expected that it should. The level of safety will vary from case to case, and it is the responsibility of the court to determine whether or not a product is defective.
Some factors the court will consider include, but not limited to:

What is the purpose of the product and how has it been marketed?
Is the product packaged appropriately, and safely?
Are the instructions or warnings adequate in relation to the use and non-use of the product?
What would a reasonable person expect to do with the product?
How long the product has been on the market, and when was the product shipped?

It is important to understand that products that are older and subjected to more use, would not necessarily be expected to be as safe as a newer product. Also, just because the safety of a newer model has been improved, does not mean the older product is defective.

3. What if I used the product in a way that was not intended by the manufacturer? Will this effect my claim?

Maybe. The question you should ask yourself is whether or not the way you used the product was a foreseeable misuse of the product. Manufacturers are required to anticipate the possible uses of their products, and might be responsible for a foreseeable misuse if they do not warn consumers of the dangers associated with the misuse. This oftentimes occurs when a consumer alters a product for their use. Depending on whether or not the use was foreseeable, your claim could be effected.

4. What types of damages may be recovered in a product liability claim?

In general, you should be reasonably compensated for all injuries and losses as a result of the defective product. Damages can be non-economic and economic, where past and future considerations can be awarded. Non-economic damages are those damages that a specific dollar amount is sometimes difficult to determine, such as pain and suffering, mental anguish, physical impairment or disability, and inconvenience. Economic damages include those items that can be compensated by payment, such as medical care, hospitalization, loss of income, loss of earning capacity, treatment, and so on. Experts are oftentimes needed to testify to determine future needs, past earnings, and other considerations.

5. What is meant by defective design?

A defective design claim is a claim based upon a product at the time it is sold. The claim states the product is defective and unreasonably dangerous to the ordinary consumer. An example is a seller who designs a car seat that collapses and causes injury.

6. What is the basis for a claim for “failure to warn”?

When a manufacturer fails to provide directions for the safe use of a product and/or fails to warn the consumer against the dangers when misusing the product, a claim could be filed on the basis of failure to warn. An example is a manufacturer selling a prescription drug without any warning that its use has side effects upon individuals with certain conditions.

7. What kind of claims can be brought for product liability?

When bringing a claim for product liability, there are three theories that can be used:
(1) negligence, (2) breach of warranty and (3) strict liability. In some instances, a claim can be filed based on more than one theory.

- Negligence theory requires a breach of duty owed by the manufacturer to the user, in which the manufacturer failed to warn the user against reasonably anticipated dangers arising from the foreseeable uses of the product. The duty owed by the manufacturer includes the design, manufacturing and assembling of the product, and providing adequate instructions and warnings on the product label.

- Breach of warranty theory is based upon an expressed or implied representation about the product to the consumer. A breach of warranty claim generally means that the product performed below the represented or expected level of performance.
- Strict liability simply states that manufacturers are legally responsible for injuries caused by their products, even if they were not negligent.

8. Assuming I have a product liability case, why wouldn’t you take my case?
In all cases, not just product liability cases, we must analyze the probable result of the case against the cost of obtaining the result. Product liability cases are extremely time-consuming and require significant resources to pursue. If we feel the resources and expenses will outweigh the probable result that our client will be awarded, we will not take the case. This is for the benefit our of client, as well as for the success of our firm.

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