Your Rights When You Have Been Injured by a Dangerous or Defective Product

Protecting Your Rights with a Product Liability Claim

Product LiabilityWhen you purchase a consumer product, you assume that all the necessary research has been done, and that appropriate measures have been taken, to ensure your safety when using the goods. Unfortunately, companies have a financial incentive to cut corners and maximize their profits. In addition, design, testing, and manufacturing are often rushed in order to bring a new product to market before competitors do so. Such practices can result in dangerous product defects. Fortunately, when a defective product causes you injury, you have a right to bring legal action to recover your losses.

What Is Product Liability?

Product liability refers to a type of legal claim for personal injuries caused by the use of, or exposure to, a dangerous or defective product. A product liability claim is a type of personal injury action, where you can recover compensation for both economic and non-economic losses, including lost work income, unreimbursed medical expenses, physical pain and suffering, loss of enjoyment of life, loss of companionship or consortium, and property loss or damage.

A History of Product Liability Law

The initial concepts related to product liability law initially evolved in England. For centuries, the governing legal principle related to dangerous or defective products was “caveat emptor,” or “let the buyer beware.” Under that rule, a person injured by a poorly designed or manufactured product had no means to recover for their losses.

In the late 1800s, English courts started to recognize an “implied warranty of merchantability,” and American courts followed suit. The warranty initially had limited application, as it required “privity of contract” between the manufacturer and the injured party, which meant that an injured person had a legal claim only if they purchased the dangerous or defective product directly from the manufacturer. In the mid-20th century, in recognition of the explosion of consumer goods available on the market, American courts began to expand the rights of consumers to recover damages from manufacturers of defective products, even in cases where privity of contract was lacking.

A significant change in product liability law came in the 1960s, as states began to enact statutes imposing “strict liability” for product liability. The concept of strict liability eliminates the requirement that the injured party prove the manufacturer or marketer was negligent in designing, marketing, or manufacturing the product. California instituted the first strict liability statute in 1963. Most states have since followed.

Different Types of Product Liability Claims

A product liability claim can be based on three different legal theories, depending on the facts and the law of the state where the claim is brought: negligence, strict liability, and breach of warranty. A product liability lawsuit may include claims under one, two, or all three different theories.


A product liability claim based on negligence can allege that the product was defective in one or more of the following ways:

  • Design—Such claims allege that the product’s designers failed to use reasonable care to ensure that the product was designed in such a way as to minimize the risk of injury to individuals using or exposed to the product
  • Manufacture—Such product liability actions assert that the manufacturer of the product, or of one of its component parts, failed to act reasonably by using substandard materials, failing to monitor employees, or otherwise failing to take reasonable steps to ensure that the product was safely assembled or fabricated.
  • Marketing—Such claims involve failure to provide appropriate warnings about the safety risks associated with use of or exposure to the product.

For a claim based on negligence, the plaintiff must show all of the following:

  • The at-fault party (which can include the designer, manufacturer, wholesaler, retail seller, installer, or marketer) failed to act reasonably under the circumstances, i.e., failed to take proper care when designing, manufacturing, or marketing the product;
  • As a result of that failure to act reasonably, the product or its marketing was dangerously defective; and
  • The defect caused the plaintiff to suffer injury, illness, or other losses.

Strict Liability

Most, but not all, U.S. states allow strict liability claims in defective product cases. In the simplest terms, strict liability is liability without proof of fault. Strict liability can be imposed when it can be demonstrated that a product had inherent defects that caused injury or loss. While a negligence claim requires the plaintiff to demonstrate that the at-fault party failed to act reasonably in designing, manufacturing, or marketing the product, a strict liability claim requires only proof that a product was brought to market that contained a dangerous defect. The plaintiff need not prove how the product came to be defective, only that it was inherently defective and caused the plaintiff to suffer injury when using the product as it was intended to be used.

Breach of Warranty

A warranty is essentially a guarantee that a product will meet a certain level of quality and reliability. Depending on the law of the state where the claim is brought, there are two types of warranties that might apply in a product liability lawsuit: implied warranties and express warranties.

  • Express Warranties—An express warranty is a statement that the manufacturer or seller of the product specifically makes, either in writing or verbally, regarding the use, quality, or suitability of the product. Express warranties may be found in packaging, instructions, or advertising/marketing. An example of an express warranty would be a statement in packaging or advertising that a certain type of glue is suitable for bonding plastic. If you use it to bond a plastic bumper on your car, and it fails, causing injury, you have a claim based on a breach of express warranty of merchantability.
  • Implied Warranties—The laws of some states provide for implied warranties that apply to consumer products sold within the state. The two common implied warranties are the warranty of merchantability and warranty of fitness for a particular purpose. The implied warranty of merchantability guarantees that a product can be used in the manner intended without posing an unreasonable risk of harm. The implied warranty of fitness for a particular purpose goes a step further, finding a seller liable if they knew a buyer planned to use a product for a specific purpose, even if an express warranty precluded that type of use. As an example, let’s say you purchase an epoxy that specifically states that it is not suited for plastic, but you tell the seller you intend to use it on a plastic fixture. If the epoxy fails and the plastic fixture falls and causes you injury, then you may have a claim for breach of the implied warranty of fitness for the particular purpose.

What Are Common Defenses to a Product Liability Claim?

A number of defenses can be raised in a product liability lawsuit. Among the most common that might be applicable, depending on the facts of the case, are the following:

  • The injured party modified the product, thereby rendering it unsafe.
  • The injuries suffered were reasonably foreseeable; therefore, the plaintiff assumed the risk of injury.
  • The injured party was aware that the product was defective and continued to use the product.
  • The injuries were suffered while the plaintiff was using the product in a manner not intended or foreseeable by the manufacturer.

Closely tied to this last defense is the concept of comparative negligence, which applies when the injured party has acted in some way that contributed to causing the injury. In most states, if a product was indeed defective, but was also used by a person in a way not intended by the manufacturer, then the injured person and the manufacturer are both considered to be partially at fault. Applying the principle of comparative negligence, the court apportions a percentage of fault to the injured person and reduces any damage award accordingly.

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