Product Liability

Dangerous and defective products can cause personal injury or wrongful death. In such cases, it is possible for the victim, or the victim's family to recover damages under product liability claims.

Product liability is really a hybrid of tort law and contract law. The plaintiff can sue based on the following classifications.

· Negligence

· Strict liability

· Deceit

· Breach of implied warranty of fitness

· Breach of express warranty

· Fraud

Strict Liability

This is the most commonly asserted claim by a plaintiff against a defective product sold to the general public. In order to hold someone liable, you must prove that the manufacturer was careless and that this carelessness leads directly to your personal injury. This process of discovery however, would be prohibitive for an individual plaintiff to assert. Strict liability allows the suit against a company without having to show actual negligence.

Strict liability would not apply to goods purchased second hand through a flea market or on an auction website like eBay.

Warranty

A warranty is a type of guarantee that the seller makes regarding the product. The warranty is one of two types.

1. Express

2. Implied

An express warranty is something that is clearly stated about the product in question indicating that the product is not defective when used properly. Implied warranties can be broken down further into two categories.

1. Implied warranty of merchantability

2. Implied warranty of fitness of use

The first type of warranty states the product is sold in good working order and will do what it is designed to do. The second is a warranty that the advice the seller provides on the items use is correct.

The counter claim the defendant might use in a product liability claim is to assert that the plaintiff used the product incorrectly. Another defense that the seller might use to counter your claim is if you were aware of the defect, but continued to use the product for a period of time despite the flaw. The defendant's counsel can examine the product and use personal testimony of the product's use to their advantage.

Unavoidably unsafe products

Some products cannot be made safe when it is used as intended. Some examples of unavoidably safe products are:

· Prescription drugs

· Cleaning products

· Certain cosmetics

· Guns

Products that are determined to be unavoidably unsafe are usually exempt from strict product liability claims.

Companies who manufacture and sell products must take every reasonable step they can to ensure their product is safe to use and does the job for which it is intended when used properly. When defective products lead to personal injury or wrongful death, the company who manufactured, sold, or distributed the product may be held liable.