There are many strategies to consider when filing a products liability claim.
For example, when a consumer is injured by a product, he can proceed with a products liability claim under any of 5 theories:
- Strict products liability
- Implied warranty of merchantability and fitness for a particular purpose
- Representation theories
There are two common elements for all of these theories. The plaintiff in a products liability action, proceeding under any of the above 5 theories, would need to prove 1) a defect and 2) that the defect existed when the product left the defendant’s control.
Types of Defects
There 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 Control
Fortunately 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.
Theory 3: Strict Tort Liability: the following must be shown:
- 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.
Theory 4: Implied Warranties of Merchantability and Fitness: To pursue a products liability claim based on breach of implied warranties of merchantability or fitness, the following must be established.
- 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
A breach occurs when goods fail to live up to the warranties. The defect must have actually and proximately caused damages.
Theory 5: Representation: This theory is based on the falsity of statements given to the consumer.
Express Warranty: These are statements of fact/promise by seller regarding the goods that becomes part of the basis for bargaining. In other words, you rely on this warranty when purchasing your product. You must show the goods did not live up to the promise or warranty. You must also show causation and damages just as with implied warranties above.
Misrepresentation of Fact: This involves showing that the seller made a misrepresentation of (1) material fact regarding the quality or use of goods (2) and that such statement was intended to induce reliance by buyer in particular transaction.
Additionally, reliance on the misrepresentation must be proven, as well as causation and damages.
Successfully pursuing a products liability claim, as you can see, involves many elements that must be proven. This is why it is of the utmost importance to have a qualified attorney on your side. The attorneys at Dolman Law Group aggressively pursue products liability claims and help those injured by defective products get compensation for their wrongful injuries. If you have been hurt by a product that should not have been in the marketplace, give us a call today: 727-451-6900.