Masonry Magazine November 2003 Page. 40
Legal Issues
Buyer Beware:
Defective Products
Warren Lutz, Esq.
Jackson & Campbell, P.C.
We deal with products every second of our lives. From the bed we sleep on, to the shoes we wear, to the ladder we climb, to the pain relief we take for headaches, we constantly buy, touch, use or ingest products. Inevitably, some products fail and cause injury and loss, or otherwise disappoint the product user's expectations. Legal liability for such failure may be based on various theories and extend to many parties. This article explores those theories, and discusses related issues regarding warranties, liability of product distributors and retailers, and suggestions for product manufacturers and buyers.
Types of Product Defects
Product liability is based upon product defect. But defect is not limited to a product with a broken part. Rather, liability may also arise because of deficient product design, a mistake in the manufacturing process, or failure of the product maker or seller to provide warnings of the risks of product use.
For example, a design defect occurs on the drawing board, where, for instance, a scaffold should be, but is not designed to carry minimal, expected loads. As such every scaffold is defective by virtue of its design failure. By contrast, a manufacturing defect arises where the scaffold is properly designed, but as the scaffolding components are fabricated by the manufacturer, a worker poorly welds a component on one such scaffold. As a result, that specific scaffold will later fail to support a reasonably anticipated load.
Finally, a product may be defective because the manufacturer or seller fails to warn of the dangers or risks of injury associated with the product. Here, the scaffold manufacturer fails to warn that its product should not be assembled above a certain height because it will be more susceptible to collapse.
Failure to warn is one of the most tortured areas of product liability law. Many of us recall the infamous coffee burn lawsuits in which plaintiffs were awarded significant damages because they burned themselves after claiming that they were not warned that steaming hot coffee in a Styrofoam cup placed between their legs could burn. Similarly, anyone purchasing an electric drill or hammer may be humored or amazed by the increasing use of warning labels, some cautioning that the drill should not be placed into a bathtub filled with water, or that one should not strike their hand with the hammer. The manufacturers of such products undoubtedly believe that these warnings are silly as well, but feel compelled to add them to their products given the astounding verdicts in cases where the product user should simply have used common sense to avoid injury.
Injured Party Claims
Once a product defect causes injury or loss, the injured person may assert various claims. Breach of warranty is a common claim. Contrary to common belief, a warranty claim does not depend upon the issuance of a written warranty (although a written form helps prove the claim), but arises by law. Products that constitute "goods" under the Uniform Commercial Code in most states, carry with them implied warranties that the product will be fit for its ordinary purposes. If the product fails to satisfy this requirement, the injured person may seek to recover his or her resulting damages for breach of implied warranty. Express warranties also arise where the product seller makes specific written or oral claims about its product, and those claims become part of the reason the buyer purchases the product. Similarly, a display model may also create an express warranty that the product will perform as displayed.
If you make, market or sell a defective product, you are potentially liable to an injured party.
Another common claim is negligence, based on the product manufacturer's or seller's failure to exercise reasonable care in the design, manufacture, testing or sale of its product. The viability of such a claim is generally dependent upon showing that the manufacturer or seller did not exercise the same degree of care as that exercised by a reasonable manufacturer or seller.
A related claim is strict liability, where the focus is not on whether the manufacturer or seller exercised reasonable care, but whether the product is unreasonably dangerous to the product user or bystander. Thus, a manufacturer that expends significant resource to design and produce its product may still face liability if the product remains unreasonably dangerous either because of the inherent risks of using the product or the lack of adequate warning and instruction as to safe product use.
Fraud can also be alleged where an injured product user has relied upon a manufacturer's or seller's false product claims. This can be a more difficult claim to prove, however, where most states require that the product user show clear and convincing evidence that the manufacturer or seller intended to defraud the product user.
An increasing number of states have also enacted consumer protection and false advertising statutes that provide another means of pursuing claims involving defective products. Many of these statutes allow more favorable relief than claims for breach of warranty or negligence because they may permit recovery of attorney's fees and, in some instances, treble damages.