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, an assembling manufacturer, the wholesaler, and the retail store owner. Product liability suits may be brought by the consumer or someone to whom the product was loaned. While products are generally thought of as tangible personal property, products liability law has stretched that definition to include such items as gas, pets, real estate, and writings.
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. In a strict liability theory of liability, the degree of care exercised by the manufacturer is irrelevant, as long as the product is proven to be defective, they will be held liable for the harm resulting from the defect.
Many states have enacted comprehensive products liability statutes. To promote uniformity in these diverse statutes, the United States Department of Commerce has promulgated a Model Uniform Products Liability Act (MUPLA) for voluntary adoption by the states. Claims may be based on the common law of the states or on the Uniform Commercial Code (UCC). Article 2 of the UCC deals with the sales of goods and it has been adopted by most states. The most important products liability sections are the implied and express warranties of merchantability in the sales of goods § § 2-314 and 2-315. Products liability is derived mainly from torts law.
In order to prevail on a product liability claim, the product complained of must be shown to be 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 intended use, it can be unreasonably dangerous to use due to a design flaw. 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 or hidden dangers in the product.
Attorneys who practice in the area of products liability provide services to individuals who have been injured or have a loved one that has been injured or killed due to the use or operation of a defective product, such as a defective airplane, automobile, lawnmower, ladder, tool, appliance, etc. Products liability attorneys typically handle related matters such as medical malpractice and commercial transactions, among others.
History of the Law:
A plaintiff in a products liability case asserts that the manufacturer of a product should be liable for personal injury or property damage that results from a defect in a product or from false representations made by the manufacturer of the product. A defendant often tries to disprove the plaintiff’s case by showing that the product was not defective or that the plaintiff’s misuse of the product was what caused harm to the plaintiff. See our article on American Litigation.
Products liability law consists of a mixture of tort law and contract law. Aspects of this area of law related to tort include strict liability, negligence, and deceit. Aspects that relate to contract law relate mostly to the laws governing warranties. Because this area of law is really hybrid in nature, a plaintiff may assert a number of possible claims, such as negligence, breach of implied warranty of fitness, breach of express warranty, or fraud.
The basis for products liability law developed over several centuries. English courts developed the doctrine of caveat emptor, meaning “let the buyer beware.” Under this doctrine, a buyer was expected to protect himself against both obvious and hidden defects in a product and could not recover from the manufacturer for damages caused by these defects. Over time, however, English courts began to recognize a rule that a seller implied warrants that a product does not contain a hidden defect. On the other hand, American courts continued to employ the caveat emptor rule for most of the nineteenth century.
When courts in the United States began to impose implied warranties of merchantability in the late 1800s, the rule required that the plaintiff have privity of contract with the defendant. This meant that the buyer must have purchased a product directly from the manufacturer in order to recover from the manufacturer. During that time, manufacturers had begun to rely more heavily on retailers to sell products. Since many buyers did not actually purchase the products directly from the manufacturers, though, those buyers could not recover for breach of implied warranty from the manufacturers due to a lack of privity of contract.
Courts opened the doors to modern products liability cases in the 1950s and 1960s by allowing remote plaintiffs to recover against the manufacturers of defective products. The American Law Institute (ALI) included rules pertaining to products liability in the Restatement (Second) of Torts, which was official promulgated in 1965. Since the 1960s, the law of products liability has continued to expand and develop. The ALI recognized this development by approving the Restatement (Third) of Torts: Products Liability, in 1998.
Elements for Liability:
A plaintiff may rely on one or more of several theories upon which to base his or her argument for recovery in a products liability case. The primary theories for recovery include the following: negligence, tortuous misrepresentation, breach of warranty, and strict liability in tort.
Tort Theory of Negligence:
The tort of negligence remains a central part of the law of products liability. In order to recover under a theory of negligence, a plaintiff must prove five basic elements, including the following: (1) the manufacturer owed a duty to the plaintiff; (2) the manufacturer breached a duty to the plaintiff; (3) the breach of duty was the actual cause of the plaintiff’s injury; (4) the breach of duty was also the proximate cause of the injury; and (5) the plaintiff suffered actual damages as a result of the negligent act.
In a products liability case, the law requires that a manufacturer exercise a standard of care that is reasonable for those who are experts in manufacturing similar products. However, even if a plaintiff can prove that a manufacturer has failed to exercise the proper standard of care, the plaintiff cannot recover without proving two aspects of causation. The plaintiff must first show that but for the manufacturer’s negligence, the plaintiff’s would not have been injured. The plaintiff must also show that the defendant could have foreseen the risks and uses of the product at the time of manufacturing.
Misleading Information or False Advertising:
See our article on False Advertising. A claim in a products liability suit may be based on false or misleading information that is conveyed by the manufacturer of a product. A person who relies on the information conveyed by the seller and who is harmed by such reliance may recover for the mis-representation. This basis for recovery does not depend on a defect in the product, but rather depends on the false communication.
Tortuous misrepresentation may appear in one of three basic forms. First, a person may commit fraudulent misrepresentation, or deceit, in which the person knows that a statement is false and intends to mislead the plaintiff by making the statement. Second, a person may commit negligent misrepresentation, where the person was negligent in ascertaining whether a statement was true. Third, some jurisdictions allow for strict liability in instances where a manufacturer makes a public statement about the safety of a product.
The Role of Warranty:
See our article on Warranties. A warranty is a type of guarantee that a seller gives regarding the quality of a product. A warranty may be express, meaning that the seller makes certain representations regarding the quality of a product. If the product’s quality is less than the representation, the seller could be liable for breach of express warranty. Some warranties may also be implied due to the nature of the sale.
The Uniform Commercial Code (U.C.C.), which has been adopted in part by every state, provides the basis for warranties in the United States. The U.C.C. recognizes express warranties and two types of implied warranties: the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. An implied warranty of merchantability is a promise that a product sold is in good working order and will do what it is supposed to do. An implied warranty of fitness for a particular purpose is a promise that a seller’s advice on how to use a product will be correct.
The Doctrine of Strict Liability:
Strict liability imposes liability on a party even if no negligence is demonstrated. Section 402A of the Restatement (Second) of Torts included a provision that created strict liability on the part of a manufacturer. Under this section, a manufacturer is liable for product defects that occur during the manufacturing process, notwithstanding the level of care employed by the manufacturer. Courts later extended the strict liability principles to include cases that did not involve errors in manufacturing, such as cases involving a failure of a manufacturer to provide ample warnings.
The Restatement (Third) of Torts: Products Liability applies strict liability rules to cases involving errors in manufacturing, but applies negligence rules to other types of products liability cases. Nevertheless, many states continue to apply the strict liability rules that were developed in older cases.
Product Defect in Manufacturing, Design and Warnings:
In order to recover for harm caused by a product, a plaintiff in a products liability suit must prove that a product possessed some sort of defect or hazard. This is true regardless of the theory or theories of recovery that the plaintiff attempts to prove. The vast majority of states recognize three types of defects that may give rise to a products liability suit. These include defects in manufacturing, design, and warnings.
Manufacturing Defect:
A defect in manufacturing is one that the manufacturer did not intend. A manufacturing defect is the clearest instance in which strict liability applies. Under the Restatement (Third) of Torts: Products Liability, a product, “contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.”
An example of a manufacturing defect would be a exercise machine’s weight clutch that does not work properly and causes a plaintiff to have an accident. Even though the manufacturer of the machine did not intend for the clutch to malfunction, and even though the manufacturer was not negligent in the design of the clutch, the strict liability doctrine in products liability law could render the manufacturer liable.
A plaintiff may have difficulty proving that a product caused the plaintiff’s injuries. For example, even if a exercise machine clutch had some defect in the safety system, the user’s misuse of the weight limits on the machine conditions may have been the actual cause of an accident. Additionally, in some circumstances, it may be difficult for a plaintiff to prove that a defect caused an accident due to the damage to the product. A car may be so heavily damaged in an accident, for instance, that it is impossible to prove what caused the accident to occur.
In some instances, a plaintiff can rely on the “malfunction doctrine” to prove causation. Under this doctrine, if the circumstances of an accident indicate that a defect caused the accident, and the plaintiff can produce evidence that removes other possible causes, then the plaintiff can prove causation even if the product is damaged or destroyed. This doctrine is similar in application to res ipsa loquitur in the law of negligence.
Design Defect:
A defect in a products liability suit may be based on the product’s design. The Restatement (Third) provides that a design defect occurs “when the fore-seeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.”
Cases involving design defects generally focus on the manufacturer’s decisions in making a product, especially with respect to decisions regarding a product’s safety. Unlike manufacturing defect cases, which focus on errors that a manufacturer made while actually making the product, design defect cases focus on the manufacturer’s plans in producing the product.
Modern legal systems employ a cost-benefit analysis in resolving design defect cases, as captured in the Restatement (Third). A plaintiff must identify an alternative design that could have made a product safer in order to prove a case based on a design defect. If a plaintiff can demonstrate that a practicable alternative to the design employed by the manufacturer could have prevented the plaintiff’s harm, then the court will determine whether the alternative was cost-efficient.
For example, assume that a metal fan was covered by a guard, but the openings in the guard were three-quarters of an inch wide. In using the fan, the plaintiff’s hand slips between the gaps in the guard, and the plaintiff is injured by the blades of the fan. The plaintiff may base a product liability suit on the design of the fan, arguing that if the guard’s openings were a half-inch or less, the plaintiff’s hand would not have been injured.
Warning Defects:
The last type of defect focuses on the warnings that a manufacturer fails to give regarding the dangerousness of a product. Under the Restatement (Third), a product may be defective “because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor,… and the omission of the instructions or warnings renders the product not reasonably safe.”
A manufacturer is under two related duties. First, the manufacturer is required to warn users of hidden dangers that may be present in a product. Second, the manufacturer must instruct users how to use a product so that the users can avoid any dangers and use the product safely. An example could involve a fan that is prone to overheating if operated for more than three hours continuously. After three hours, the fan could present a fire risk. If the manufacturer fails to provide a warning about the potential danger of the product, then a plaintiff who is injured in a fire started by the product could recover not only for a defect in the design of the fan, but also for the inadequate warnings regarding the danger posed by the fan.
A warning generally must be clear and specific. It should also be conspicuous and placed in a location that the user can easily find. Many manufacturers now provide warnings in foreign languages and by using symbols so that children and non-English speaking users are aware of dangers associated with a product.
Usual Defenses:
A defendant in a products liability suit may employ one of several defenses to liability. One of the more common defenses is that the plaintiff misused the product in a manner that was not reasonably foreseeable to the manufacturer. For instance, assume that a plaintiff wanted to tow his tractor to a different location and attaches a towing line to a snowmobile he owns and both vehicles slip off the road and injury results. The plaintiff decision to use his snowmobile as a towing vehicle would be a decision questioned by the defendant. The defendant could argue that using the snowmobile to tow a larger vehicle was not a reasonably foreseeable use of the product.
Other defenses may be based on the plaintiff’s own negligence in using a product or on the plaintiff’s assumption of the risk associated with the product. Certain products are inherently dangerous and the plaintiff is assumed to use reasonable precautions in their use. Thus, a plaintiff who stored dynamite over a hot stove will have a difficult time demonstrating product liability.
Similar defenses apply in breach of warranty claims. In a tortuous misrepresentation claim, the primary defense centers on whether a plaintiff’s reliance on a seller’s statement is justifiable. If a plaintiff’s reliance is not justified, then the lack of reliance defeats an essential element of the plaintiff’s claim.
Statute of Limitations as a Defense:
A plaintiff in each state must bring an action within a certain period of time prescribed in the state’s statute of limitations. In most states, the time period begins when the plaintiff discovered or should have discovered his or her injury, under what is known as the discovery rule. A few states begin this time period when the injury actually occurred. Some states have also enacted statutes of repose, which bar actions that are not brought within a specified period of time after some event has occurred, such as the initial sale of a product.
The key dispute often centers on the issue of when the plaintiff “should” have known the injury occurred. This is usually a question of fact for the judge to decide.
ALABAMA: An action must be brought within one year from the time when the injury is or should have been discovered.
ALASKA: An action must be brought within two years from the time when the injury is or should have been discovered.
ARIZONA: An action must be brought within two years from the time when the injury is or should have been discovered. The state has enacted a 12-year statute of repose that begins to run once the product is first sold. The statute of repose does not apply to actions based on negligence or breach of warranty.
ARKANSAS: An action must be brought within three years from the time when the injury is or should have been discovered.
CALIFORNIA: An action must be brought within two years from the time when the injury is or should have been discovered.
COLORADO: An action must be brought within two years from the time when the injury is or should have been discovered.
CONNECTICUT: An action must be brought within two years from the time when the injury is or should have been discovered. The state has enacted a 10-year statute of repose that begins to run once the manufacturer or seller has last parted with the product.
DELAWARE: An action must be brought within two years from the time when the injury is or should have been discovered.
DISTRICT OF COLUMBIA: An action must be brought within three years from the time when the injury is or should have been discovered.
FLORIDA: An action must be brought within two years from the time when the injury is or should have been discovered. The state has enacted a 12-year statute of repose, subject to various exceptions.
GEORGIA: An action must be brought within two years from the time when the injury is or should have been discovered or one year from the date in which death has occurred. The state has enacted a 10-year statute of repose, subject to various exceptions.
HAWAII: An action must be brought within two years from the time when the injury is or should have been discovered.
IDAHO: An action must be brought within two years from the date in which the occurrence of the injury took place. The state has enacted a 10-year statute of repose, subject to various exceptions.
ILLINOIS: An action must be brought within two years from the date in which the occurrence of the injury took place. The state has enacted a 12-year statute of repose that begins to run once the product is sold and a 10-year statute of repose that begins to run once the product is delivered to the first owner.
INDIANA: An action must be brought within two years from the date in which the occurrence of the injury took place. The state has enacted a 10-year statute of repose.
IOWA: An action must be brought within two years from the date in which the occurrence of the injury took place.
KANSAS: An action must be brought within two years from the date in which the occurrence of the injury took place.
KENTUCKY: An action must be brought within one year from the date in which the occurrence of the injury took place. If injury, death, or property damage does not occur within eight years of the product’s use, then this creates a rebuttable presumption that the product does not contain a defect.
LOUISIANA: An action must be brought within one year from the date in which the occurrence of the injury took place. This statute does not apply to minors.
MAINE: An action must be brought within six years from the date in which the occurrence of the injury took place.
MARYLAND: An action must be brought within three years from the date in which the occurrence of the injury took place.
MASSACHUSETTS: An action must be brought within three years from the date in which the occurrence of the injury took place.
MICHIGAN: An action must be brought within two years from the date in which the occurrence of the injury took place. If a product is in use for more than 10 years, then liability cannot be based on strict liability.
MINNESOTA: An action must be brought within four years from the date in which the occurrence of the injury took place.
MISSISSIPPI: An action must be brought within two years from the date in which the occurrence of the injury took place.
MISSOURI: An action must be brought within five years from the date in which the occurrence of the injury took place.
MONTANA: An action must be brought within three years from the date in which the occurrence of the injury took place.
NEBRASKA: An action must be brought within four years from the date in which the occurrence of the injury took place. The state has enacted a 10-year statute of repose, which begins to run from the date in which a product is first sold.
NEVADA: An action must be brought within four years from the date in which the occurrence of the injury took place.
NEW HAMPSHIRE: An action must be brought within three years from the date in which the occurrence of the injury took place, except where a legal duty has been imposed by the government, in which case the action must be brought within six years. The state has enacted a 12-year statute of repose, which begins to run once the product is manufactured and sold.
NEW JERSEY: An action must be brought within two years from the date in which the occurrence of the injury took place.
NEW MEXICO: An action must be brought within three years from the date in which the occurrence of the injury took place.
NEW YORK: An action must be brought within three years from the date in which the occurrence of the injury took place.
NORTH CAROLINA: An action must be brought within six years from the date of the initial purchase.
NORTH DAKOTA: An action must be brought within 10 years from the date of the initial purchase or within 11 years of the date of manufacture.
OHIO: An action must be brought within two years from the date in which the occurrence of the injury took place.
OKLAHOMA: An action must be brought within two years from the date in which the occurrence of the injury took place.
OREGON: An action must be brought within two years from the date in which the occurrence of the injury took place. The state has enacted an eight-year statute of repose.
PENNSYLVANIA: An action must be brought within two years from the date in which the occurrence of the injury took place.
RHODE ISLAND: An action must be brought within three years from the date in which the occurrence of the injury took place.
SOUTH CAROLINA: An action must be brought within three years from the date in which the occurrence of the injury took place.
SOUTH DAKOTA: An action must be brought within three years from the date in which the occurrence of the injury took place. The state has enacted a six-year statute of repose, which begins to run after purchase.
TENNESSEE: An action must be brought within four years from the date in which the occurrence of the injury took place. The state has enacted a statute of repose that runs six years after an injury and 10 years after the initial purchase of a product.
TEXAS: An action must be brought within two years from the date in which the occurrence of the injury took place.
UTAH: An action must be brought within two years from the date in which the occurrence of the injury took place.
VERMONT: An action must be brought within three years from the date in which the occurrence of the injury took place.
VIRGINIA: An action must be brought within two years from the date in which the occurrence of the injury took place.
WASHINGTON: An action must be brought within two years from the date in which the occurrence of the injury took place. The state has enacted a 12-year statute of repose.
WEST VIRGINIA: An action must be brought within two years from the date in which the occurrence of the injury took place.
WISCONSIN: An action must be brought within three years from the date in which the occurrence of the injury took place.
WYOMING: An action must be brought within four years from the date in which the occurrence of the injury took place.
Used Products and Product Liability:
Different rules have developed in products liability law for those who sell or repair used products. In most instances, a person who repairs, rebuilds, or reconditions a product is liable if the person is negligent in treating the product, but the person is not subject to strict liability for defects. In some instances, however, a person who remanufactures a product may be subject to the same products liability rules as the original manufacturer.
States are split regarding the bases of liability of sellers of used products. Some states expressly exclude sales of used products from products liability rules. In other states, the general products liability rules apply. Quite often both the new manufacturer and the original manufacturer are joined in the action as co defendants.
Conclusion:
Few areas of the law have created as much myth as the area of products liability. Manufacturers point to large verdicts and high cost of product liability insurance and claim that the powerful products liability laws of the United States cause increase in cost and lack of competitiveness of local business. At the same time, when polluted milk or dangerous vehicles appear in the market in other nations, it boosts the attractiveness of American products and few would purchase a vehicle made in China over a vehicle made in Germany precisely because the powerful laws that exist in Europe and the United States impose such liability upon defective or unsafe manufacturing.
Self policing does not have a good history in the world of business (or medicine or law, for that matter) so it may be assumed that governments will continue to allow citizens to seek relief in the courts for product liability. Both businesses and consumers must work within that world.
A businessman represented by this writer, injured on an exercise machine he used, had mixed reactions when his products liability claim based on failure to warn adequately resulted in a sizable settlement. He made his own living manufacturing parts and had often complained about the high cost of his insurance. As he gazed at the settlement check, he looked up and commented wryly, “Well, what goes around, comes around. I can use this to pay the insurance premiums….”