PRODUCT LIABILITY CLAIMS
Question: What is a product liability claim?
The manufacturer of a product has a duty to produce a product that is safe and will not create an unreasonable risk of injury when used in a foreseeable manner. If you have been injured by a product - anything from farm machinery, to a snow blower to a cigarette lighter - you may have a claim against the product's manufacturer and distributors. Product liability claims can be based on negligence, strict liability, or breach of warranty.
Negligence - A manufacturer must use the same degree of care that a reasonably prudent person in the shoes of a manufacturer would use to insure that the product will not create an unreasonable risk of injury. Among other things, a manufacturer must be careful to design the product so it will be safe and fit for its intended purpose; construct the product so that the materials and workmanship will make the product safe for its intended use; inspect and test the product to determine whether there are defects as to material or workmanship; and give adequate warnings of danger and adequate instruction as to the proper use of the product which is dangerous when used as intended.
Strict liability - Under this theory an injured party is relieved of having to prove specific acts of negligence if he can prove the following elements: (1) that the product was in a defective and unreasonably dangerous condition; (2) that the product was defective when it left the control of the seller; (3) that the defect was a substantial factor in causing the plaintiff's injuries; (4) the seller was in the business of selling such products; and (5) that the product was intended to and did reach the consumer without substantial change.
A product liability claim can be made against the manufacturer, distributor, wholesaler, retailer, and maker of component parts. The product is unreasonably dangerous when it is dangerous beyond what might be expected by the ordinary user. A product may be defective either by reason of manufacture or design if it is unsafe for normal use.
Breach of warranty - Generally, the law imposes certain warranties (or guaranties) on the sale of products. Such warranties include that the goods are in proper condition for use and free of defects and that they are fit for a particular purpose.
Question: I know someone who lost an arm in a piece of farm machinery that was manufactured in the 1960's. Does he still have a claim against the manufacturer?
Yes, if he can prove that the manufacturer was negligent or that the machine was defective and unreasonably dangerous at the time it left possession of the manufacturer. Often times there are industry standards that govern the manufacturer of machinery and equipment at any point in time. Failure to follow these standards may be evidence of a product defect or negligence. The fact that this was an older piece of machinery does not relieve the manufacturer of its duties to the public to make safe products.
Question: What should you do if you are injured by a product?
First, you should preserve the product in exactly the same condition you find it following the injury. You should take pictures of the product and pictures of your injuries as well as the location where the accident happened. Be sure to keep all operator's manuals, parts books, receipts and instructions that may relate to the product. We have seen instances when the parent of an injured child or the spouse of an injured person has been so angry that they threw the defective product (water heater) in the local dump. This, obviously, makes it more difficult to prove the condition of the water heater at the time of the explosion. Certainly the other thing that one can do is contact an knowledgeable attorney to discuss the details of the particular accident and product involved.
Question: What kinds of "products" are subject to a products liability claim?
Virtually anything that has been made by someone in the business of selling that product may be the subject of a product liability claim. Well known examples include:
- farm equipment and machinery;
- poorly designed cars, trucks, recreational vehicles and motorcycles;
- lawn mowers and gardening equipment;
- toasters, ovens, and other household appliances;
- furnaces, fireplaces, and space heaters;
- dangerous children's toys, car seats, cribs, etc.;
- machinery and equipment used in a factory, such as presses, conveyors, etc.;
- electric saws, drills, nail guns, and any other power tools; and
- healthcare products such as pharmaceuticals, prostheses, artificial joints, etc.
Question: Are manufacturers automatically liable for any injury received by someone using their product?
No, there are certainly times when people are injured by a product that may be dangerous, but not defective. For example, if one were to accidently cut oneself with a sharp knife while peeling potatoes, there is not likely to be a claim against the manufacturer of the knife, unless there was something wrong with the knife. Knives must be sharp to accomplish their intended purpose. Similarly, the manufacturer is only responsible for injuries that might be received during a foreseeable use or application of the product. For example, the manufacturer of a chainsaw may not be responsible for injuries suffered while using it to give someone a haircut.
Question: How can product liability claims help make life safer for everybody?
There are numerous situations where manufacturers have corrected flaws in design or taken unsafe products off the market because they were injuring people and lawyers did something about it. Car designs become safer all the time; kid's pajamas are now flame resistant; lawn mowers quit running when the safety bar is released; all-terrain vehicles are less likely to roll over; and the health effects of cigarettes have been revealed and publicized. Ford would no longer leave the gas tank in a dangerous location on their Pintos because it is cheaper for them to pay off people who have been injured or killed than it is to correct the problem.
Question: How can I afford to take on the huge corporation that manufactured the defective gas fireplace that caused the explosion and injured my family?
Most law firms, including we at Herrick & Hart, S.C., will represent injured parties in a products liability claim on a contingent fee basis. In other words, the attorneys fees would consist of a percentage of what is recovered from the manufacturer of the defective product. Product liability claims can be very complex, expensive, and time-consuming. For this reason, we thoroughly investigate each case before jumping in with both feet. Sometimes, people are injured and it is simply not anyone else's fault. Other times, however, their injuries could have and perhaps should have been prevented and we at Herrick & Hart pursue those manufacturers vigorously.
