- Strict products liability
- Implied warranty of merchantability and fitness for a particular purpose
- Representation theories
Types of DefectsThere are three types of defects, and any one of them will suffice to establish the needed element in your products liability action. The three types of defects are as follows:
- Manufacturing Defects: This type of defect occurs when the product that caused the injury is different from other products manufactured in a way that makes it unreasonably dangerous
- Design Defect: Design defects occur when the product has an unreasonably dangerous design, and alternative designs exist that make it safer, economical, and practical (in other words, the product would not lose functionality)
- Warnings Defect: This occurs when a product has a risk that could not be eliminated by a redesign, and the consumer would not have been made aware of the risk based on the warnings given. Warnings on products must be clear and conspicuous. An adequate warning, however, does not discharge the duty to design the safest product possible.
Proving Existence of Defect When Product Left Defendant's ControlFortunately for products liability claimants, there is a presumption that the product has not been altered if it has remained within the ordinary distribution channels. Theory 1: Intentional Tort: Proving a products liability action based on intentional tort would require proving the same elements required for the intentional tort of battery. Theory 2: Negligence: To pursue a products liability claim based on negligence, the following elements must be proven:
- Duty: a duty will be owed to any foreseeable (no privity required)
- Breach: It must be shown that the defendant supplied the defective product
- Causation: The product cannot have been altered after it left Defendant's control.
- Damages: Physical injury or property damage must have occurred.
- Duty: Merchant has duty to supply safe products (defendant cannot be a casual seller or service providers)
- Breach: The defendant must have supplied the defective product.
- Causation: The product cannot have been altered after it left Defendant's control. Additionally, the plaintiff's use of the product must have been foreseeable
- Damages: Physical injury or property damage must have taken place.
- Warranty of Merchantability: goods in the chain of commerce are of acceptable quality and generally fit for ordinary use.
- Fitness for particular purpose: sellers know or have reason to know of the particular purpose for which goods are required & that buyers rely on seller's skill and judgment in selecting goods