Products Liability

Whether based on negligence, strict liability, or breach of warranty (or all of them), the basis for a products liability action often arises when a consumer uses a product and is severely injured by it. The injuries can be caused a design defect, manufacturing defect, or failure to adequately warn of the dangers associated with use of the product.

Design Defect Claim

This type of claim focuses on that product as unreasonably dangerous. The design is flawed – or contains a hazardous condition – that could be eliminated from the product, or guarded against, or that under current knowledge could be made safer.
 
The general principles that apply to safe product design are actually generally accepted, basic product engineering standards:

1. Eliminate the hazard from the product - “design out” the defect.
   
   
2. If the hazard cannot be eliminated, then incorporate safety devices, such as guards and interlocks.
   
   
3. In addition to elimination or guarding against the hazard or defect, that adequate and understandable warnings and warning devices be provided to the product user.

One of the leading sources of determining whether a design defect existed is a competitors product: did a safer alternative design exist? Did a similar product use a safety feature or device that was absent from the product that injured the consumer?

Another basis is whether the manufacturer or seller sells safety components as an option. Consider than not too long ago, airbags for front-seat passengers was a safety option – the consumer had to pay extra for driver and front seat passenger airbags. Today, while driver and front seat passenger airbags are standard safety equipment, side airbags – or curtain airbags – are still options in many new vehicles.
 

A product may be unreasonably dangerous due to a defect hazard in the process or materials used to create, assemble, or construct the product.  The product does not work as it should or was not manufactured to its intended specifications.

For example, a concrete pile used to construct a bridge is often constructed using reinforced steel bars – or rebar – to strengthen the concrete and hold it together. If the rebar is not assembled into the concrete pile correctly or effectively, that pile is weaker and at a higher risk of failure or breaking, causing severe injuries

Failure to adequately warn cases are based on the manufacturer or seller of the product knowing that certain dangers exist with their product’s use. They do not tell consumers – do not provide warnings about the known or foreseeable product dangers – and the consumer is injured.

While sometimes there is no warning at all, there may be instances where the warning was inadequate because it was placed somewhere where the consumer could not see it.

Common Defenses to a Product Liability Claim

Product manufacturers and sellers usually offer a defense to a product liability claim in the initial stages of litigation.  Product manufacturers and sellers often claim that the injured consumer was at fault, and the product was safe, by asserting common defenses:

1. the product was misused – or not used as intended – by the injured consumer;
   
   
2. the injured consumer or someone else (usually the consumer’s employer) modified the product, making it dangerous;
   
   
3. the consumer’s co-worker was negligent in using the product, thereby causing the injuries;
   
   
4. the defect or hazard was not foreseeable to the manufacturer or seller.

Many cases are lost right after a consumer is injured by a product. Why? How? The product that caused the injuries is lost or destroyed before anyone, including the injured consumer’s attorney and the attorneys for the product manufacturer or seller – have had a chance to inspect or test the product.

Preservation

You or your attorney can demand that the product be preserved. In Florida, under certain circumstances, sanctions can be imposed – including a claim for “spoliation” or destruction of evidence – if an injury-causing product is not preserved. This means that efforts must be taken to prevent alteration or change or destruction of the injury-causing product.
 
Your attorney may seek to take possession of the product, whether at his/her office or in a private storage facility. Sometimes this may require buying whoever possesses the product a new version of what you trying to take and preserve.
 
In the case of vehicles in rollover crashes, the car is literally removed from the tow facility by a flatbed and delivered to a covered storage facility arranged for by the consumer’s attorney or both the consumer and defendants’ attorneys.
 
Sometimes, if the product is a large or extremely heavy machine or piece of equipment (e.g a crane), then taking possession of the product may not be possible. Your attorney would send a “product/evidence preservation letter” to whomever has possession or control of the injury-causing product, instructing them not to destroy it. This may even require court intervention.
 
Inspection

It is important to have the product inspected and photographed as soon as possible after accident/injury. Preferably, the product will be at the scene of the accident or injury. This ensures that documentation of the product’s appearance, condition, are preserved, as well as the location where the accident/injury occurred.
 
Depending on the product, your attorney will hire and bring an expert in the appropriate discipline/field to the inspection.
 
Were There Any Witnesses?

Compiling a list of eyewitnesses and other witness who were present before of after the incident (even though they did not see the accident) will be very important in proving what happened. Your attorney may be able to take statements to preserve their testimony – remember, memories fade quickly about small but important details.
 
Was There An Investigation?

Did law enforcement – such as Highway Patrol or police – investigate the accident? Did the accident happen at work – perhaps OSHA is investigating the case.

An insurance company – automobile insurer, workers compensation insurer, independent adjuster – may already be investigating the case and documenting the evidence.

If you have been seriously injured by a product defect, then you may be entitled to compensation through a product liability claim.

Contact an experienced and dedicated personal injury attorney at our law firm for a prompt and confidential consultation regarding your product liability claim.

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