Frequently Asked Questions about Products Liability

Q: What options are available to someone who has been injured by a product?

A: A person injured by a defective or dangerous product may be able to bring an action for product liability and recover damages under one of the following theories: 1) strict product liability; 2) negligence; or, 3) breach of warranty.

Q: What is strict product liability?

A: Strict product liability refers to one of the theories under which a plaintiff can proceed when bringing an action based upon an injury caused by a product. In a strict product liability action, a plaintiff can recover damages without showing that the manufacturer or seller of a product was negligent.

Q: How do I know if I can sue based on a product supplier's breach of warranty?

A: There are two types of warranties: 1) implied warranties; and, 2) express warranties. You might be able to recover for a breach of an implied warranty if your state has implied warranty statutes, which are usually found in a state's commercial code and are not specific to particular types of product, but are implied under the law to cover most categories of products. You might recover for a breach of express warranty if the seller or manufacturer of a product expressly extended a warranty to you, in writing or verbally, and the product injured you.

Q: What are implied warranties?

A: Implied warranties are established by state law, and apply to most products sold within the state. Some examples of implied warranties include the "warranty of merchantability," and the "warranty of fitness for a particular purpose." In essence, these warranties state that a product will be fit and safe for its intended purpose.

Q: Am I protected by implied warranties if the documents that accompanied my product said the manufacturer disclaimed all implied warranties?

A: There are very specific rules governing how a manufacturer must disclaim any warranties that are implied under state law. Specific, conspicuous language is required. If the manufacturer successfully disclaimed all implied warranties, you cannot recover for a breach such warranties. However, you should not make this determination yourself, but show all documents that came with the product to an attorney, who will know the implications of the language used.

Q: If a seller makes safety modifications to a product model after someone has been injured by that product, can a plaintiff use evidence of the safety modifications in proving a product liability case?

A: Evidence of subsequent remedial measures cannot be used as evidence of the manufacturer's negligence, but can be used to show other facts about the manufacturer, like ownership or control over the product's design.

Q: What does the term "product liability" mean?

A: Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer. Responsibility for a product defect that causes injury lies with all sellers of the product who are in the distribution chain. Potentially liable parties include: the manufacturer; a manufacturer of component parts; the wholesaler, and the retail store that sold to the end consumer.

Q: Can I bring a product liability action if I was injured by a product I borrowed from my neighbor, and did not pay for myself?

A: Historically, a contractual relationship, known as "privity of contract," had to exist between the person injured by a product and the supplier of the product in order for the injured person to recover. In most states today, however, that requirement no longer exists, and the injured person does not have to be the purchaser of the product in order to recover.

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