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Personal Injury and Defective Products

Product or products liability is the area of personal injury law concerning liability for injuries caused by “defective” products. “Defective” products include products that are “unreasonably dangerous” for their intended uses.

The Principles and Reach of Product Liability Laws

Many of the general principles of law followed by U.S. courts come from English “common law,” which is largely a distillation of principles applied by courts in actual cases. At common law, however, the sale of a product was deemed a commercial transaction, and only the parties to the transaction could sue for product defect injuries.

The unfairness of barring recovery of victims from those responsible for injuries lead U.S. states to enact product liability laws; there is no comparable federal product liability law. There are however, considerable differences in principles and procedures among the various states.

Liability generally extends to persons and entities throughout the “chain” of manufacture and distribution, including manufacturers, wholesalers, distributors, retailers, inspectors, testing labs, and suppliers of component parts; those who actually caused the defect become liable. Persons who may make claims or file suit include not only the purchasers of the product, but also anyone who was loaned or given the product, and sometimes those who were “foreseeably” injured.

Included Products and Types of Defects

The term “products” has also been extended beyond tangible retail products to intangible ones, including real estate, live “products” (such as pets), and writings, under certain circumstances. Most state laws allow for suit based on varying theories regarding a product defect, including:

  • Design Defects,” when the product is manufactured exactly as intended, but the product itself is deemed unreasonably dangerous when used as intended or in a foreseeable manner, e.g., the automobiles that burst into flames when rear-ended.
  • Manufacturing Defects,” when a particular version of a product is defective and does not conform to the manufacturer’s design due to some error in the manufacturing process, such as a bottle for soda pop that unexpectedly explodes, or a knife with a handle that falls off.
  • Marketing Defects,” such as missing or inadequate warnings and/or instructions, which may prevent the consumer from knowing how to safely use the product.

Just because a product is dangerous, however, does not necessarily mean it is “defective.” When evaluating defects, courts generally do a balancing test of whether any danger is outweighed by the utility of the product and lack of safer alternatives. For example, gasoline is “dangerous,” but is not considered “defective,” because its utility outweighs the danger and the lack of a substitute.


Negligence is one of three theories upon which many rely in pursuing a claim for product liability. What must be shown to succeed on a claim for negligence varies among the states, but may include:

  • That the defendant(s) had a duty to exercise reasonable care in manufacturing and/or selling the product so the product would not cause injury;
  • That duty was breached, i.e., the defendant(s) failed in designing, manufacturing, and/or marketing the product, resulting in the unreasonably dangerous, defective product; and
  • As a direct and proximate cause of the defect/breach of duty, the claimant was injured.

Breach of Warranty

A claim for breach of warranty may be based upon a written warranty, thereby making the claim essentially a breach of contract claim, where the product did not conform to the warranty representations and the injury resulted from this failure to conform. There is, however, also a warranty implied by law in every product that the product is safe for its intended use. A product used in the way intended, causing injury, is unsafe for its intended uses, and therefore constitutes a breach of the implied warranty.

Strict Liability

Of the three theories discussed herein, strict liability is the most recently recognized theory of liability. The concept arose from a 1963 California case, where the claimant was unable to prove negligence, and lacked the contractual relationship with the seller then necessary for a breach of warranty claim. The existence and requirements for this and the other theories depend on local state law.

For a strict liability claim, the claimant must usually still show that the product was unreasonably dangerous for its intended use. The claimant must also usually show that there was a sale and that the defect existed at the time the product left the control of the defendant against whom liability is sought, and that the defect resulted in the injury.

This theory is similar to negligence, but once the unreasonably dangerous defect is established, liability may be automatic, regardless of what the defendants might have known at the time the product was made, have done to fulfill their duties, or how much care was taken in the design, manufacture and marketing of the product. Furthermore, actions by the claimant that may have contributed to the injury are not a defense, as they are under a negligence theory.


Many commentators feel product liability suits are the only effective way to force manufacturers to make safe products. In most jurisdictions, the injured party is entitled to recover all amounts lost due to the injury, such as medical costs and lost wages, and also for pain and suffering.

Depending on the state, a claimant may also be entitled to an award of punitive damages, to punish the wrongdoer and discourage such conduct in the future, where the actions of the defendant were particularly reprehensible. For example, heavy punitive damages were awarded in the case where a car had a tendency to explode when hit from behind. Evidence showed that the manufacturer knew of the problem, but made an economic decision that it would be more cost effective to defend suits by victims rather than fix the problem.

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