Product Liability

Making a Product Liability Claim

Thousands of people are injured each year while using manufactured products. Some injuries happen in normal use of perfectly good products. Many of these injuries though are caused by defective products. If you're hurt by a defective product, you can be compensated for your injuries.

Product Liability a Consumer-Driven Concept

Product liability is a relatively new concept, so far as the law goes. It burst on the scene in the last half of the 20th century, just as mass production and consumerism took off. Because we live in a consumer-driven economy, it didn't take long for product liability law to become fully formed.

The law is well-developed and understood. It breaks out into three types of lawsuits: negligence, strict liability and breach of warranty. The forms don't vary much between states, but there are some differences lawyers and their clients need to understand. Common elements among state laws include:

  • Defect: you need to prove the product was defective
  • Causation: you were hurt by and because of the product defect
  • Injury: you sustained an actual injury because of the product defect
  • Duty: the seller or manufacturer owed you a duty to make or sell a safe product

Duty is more or less assumed in the usual product liability case.

Negligence Cases

This case type most resembles an ordinary negligence lawsuit. In addition to duty, defect, causation and injury, you need to prove that the manufacturer or seller breached its duty to you. Usually you prove the seller or manufacturer was aware of the defect or should have been aware based on information known or available to it.

Strict Product Liability

Strict liability attaches to the maker of an unreasonably dangerous product. You won't have to prove the maker was negligent or that there was a manufacturing or design defect.

Breach of Warranty

When the maker of a product warrants its characteristics, if it fails in one of those characteristics and the failure causes your injury, you have a breach of warranty lawsuit. Warranties can be express (written or sometimes verbal) or implied by law.

What Is a Defect?

You may be injured using a product, but if it isn't defective, you can't recover for your injuries. For example, perfectly good baseball bats sometimes break in use, but it isn't a defect if you happen to be hit as the end of the bat detaches from the handle. If the bat maker failed to detect a flaw in a specific bat and it hurt you, you might recover.

There are three product defect types:

Manufacturing Defect: Consider the baseball bats. Let's say the maker has no process for inspecting the wood used in making the bats. It makes some bats containing knots or voids. One of these breaks and injures you. You have a product with a manufacturing defect.

Design Defect: Sticking with bats, say the maker decides to build a new type of bat with an aluminum head attached to a composite handle. It seems superior, but after a certain amount of use and contact, the head tends to detach from the handle. You're hit by a detached bat head. That's a design defect. In some cases where the product is of great utility you may have to prove the product is on whole more dangerous than useful.

Failure to Warn: Let's move from bats to wood mauls. You use a maul to split firewood. The maul is wedge-shaped and the blunt end looks like a good substitute for a sledge hammer. You strike a spike with this end, the wedge splinters and a piece flies into your eye. Your case could turn on whether there was a proper warning label on the maul. If there's not a warning about product use, the maker may face for failing to warn about safe use.


What Can You Recover?

If you're hurt by a defective product you can recover damages for various aspects of your injury. These include the cost of immediate and future medical care, your lost wages and future wages, and an amount to compensate you for your pain and suffering, including mental or emotional distress.

Preserving Evidence

It's important that you keep the defective product and any warnings or instructions for use as evidence for the lawsuit. You must safeguard it from degradation can keep it in as close to the condition as when the accident happened. Tampering with the evidence or willfully failing to preserve it can hurt your case and risk sanctions by the court. 

Complexity of Product Liability Lawsuits

Most product liability cases are complicated and many require expert analysis and testimony. Some require scientific and statistical evidence. Even lawyers who work in the area sometime specialize in certain case types, such as automotive products or drug defects. It can make a big difference when it comes to selecting a good product liability lawyer.

Lawyers usually accept cases on a contingent fee basis. You may still have to pay costs up front, like for depositions and experts. You may have to meet with several lawyers if your case is unusual or presents a twist. Unusual or novel cases may attract two types of lawyers: the inexperienced who need work, and the very experienced who like to challenge the law. You may find significant differences in the competency of the two, but not always.

Individual Lawsuits and Class Claims

Any lawsuit can be pursued on an individual basis. Products that injure many may be pursued as a class action lawsuit. Class actions can resolve many claims more efficiently than one-on-one lawsuits. The claims have to be similar to be lumped together. This includes what caused the injury, and what types of injury resulted.

Normally though, if you've been injured using a product you will file an individual lawsuit. This can be a stressful experience, but it's necessary to recover for your injuries. You'll be probed about misuse of the product, and what you knew of the dangers of the product. The extent of your injuries will be questioned, as well as your medical condition before the accident.

The manufacturer has much at stake. A loss means not just payment to you, but possibly costly product modifications or removing it from the marketplace. And a loss opens the door for additional lawsuits. These are some reasons many product liability cases settle before trial. Almost always, the settlement is confidential.

Questions for Your Attorney

  • I was hurt using some lawn equipment I borrowed from my neighbor. Can I sue the equipment maker even though I didn't pay for the product?
  • My wife has been terribly upset by my product liability accident. Can she be compensated for her distress?
  • I made a couple of custom changes to a product, and it failed. Can I still recover?
Have a product liability question?
Get answers from local attorneys.
It's free and easy.
Ask a Lawyer

Get Professional Help

Find a Product Liability Basics lawyer
Practice Area:
Zip Code:
How It Works
  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys
This article was verified by:
Dominique A. Penson | April 22, 2015
11 Park Place, Suite 1801
New York,NY

Talk to a Product Liability attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you