Products Liability


The area of product liability has undergone a substantial evolution over the last few decades. In the past, if a defective product injured a consumer or customer, ordinary principles of tort law would apply, i.e., the consumer was required to show that the manufacturer was negligent in the production of the product. The prevailing principle was “caveat emptor”, or ‘let the buyer beware’.  Society has, however, recognized that consumers lack the resources and are generally incapable of determining whether many products are safe – they are certainly unable to examine and inspect component parts.

Currently, the law in nearly every state allows an action against a manufacturer that places a defective and injurious product into the stream of commerce.


Liability and damage claims against manufacturers of goods can be based on several legal theories or combinations of theories.

Strict Liability

An action based on ‘strict liability’ can be brought against any of the parties that manufactured, designed, sold or furnished the product.  ‘Strict liability’ means that the consumer need only show that the product was defective and caused an injury. It is not necessary to show that the manufacturer was negligent.

Products Liability
The area of products liability controls products ranging from your children’s toys to the medication prescribed by your physician.


In the past, only an individual who had direct contact with a manufacturer was entitled to sue for a product defect, e.g., the person who bought the product. This direct relationship is referred to as “privity”.  Today, purchasers of defective products can sue manufacturers even though they did not buy the product from the manufacturer but was merely an “ultimate user”.


In addition to actions founded in strict liability, manufacturers can also be sued based on negligence, i.e., that the product was negligently manufactured or designed, or that it was inadequately tested before it was offered for sale to the general public. Liability may also be predicated on the negligent failure to warn of dangers associated with misuse of the product. For example, children’s toys that have small component parts capable of being ingested may be unsuitable for young children- the manufacturer may have an obligation to warn consumers of this danger.

Manufacturing Defect

Several years ago an automobile manufacturer built a car that because of improper manufacture of the gas tank had a tendency to explode if involved in a minor rear end collision. As a result of multiple claims, the vehicle was recalled and the defect corrected.

Design Defect

Design defects include designing a crib where the side rails are placed in a way that an infant’s head can be trapped and the infant suffocated.

Inadequate Warning

A product that does not come with complete instructions or does not warn of its dangers can also give rise to a product liability claim. Medications generally will be accompanied by a variety of warnings concerning side effects and possible drug interactions- failure to publish adequate warnings and instructions will give rise to a product liability claim.

Breach of Warranty

Virtually every product that is sold is accompanied by a representation mandated by law that the product is safe and fit for the use for which it was intended- these are referred to as ‘implied warranties’. Many products also have express warranties, i.e., a written statement indicating what defects are covered and what responsibilities the manufacturer assumes in the event the product fails to comply with the express warranty. Such warranties are sometimes referred to as ‘limited warranties’. Breach of implied or express warranties may support a claim for injuries sustained from defective products.


Often, written statements that purport to limit liability for injuries caused by defects accompany products. Courts uniformly find such disclaimers invalid and unconscionable.


Product liability actions can also be pursued for defective medical devices.  Successful class actions have been brought by thousands of women who underwent breast implantation and have suffered from a variety of ill effects from them.  Likewise, drug manufacturers have been successfully sued for medications that have caused miscarriages or damaged unborn children. 


In many states, there are limitations on the types and conditions under which actions can be brought as a result of transfusions from contaminated blood.


There has been a movement by legislatures to limit the amount and type of recovery that can be made by an injured consumer.  The intent of this type of legislation is to reduce exposure, damages and insurance premiums for manufacturers.  Some legislatures have likewise reduced the period within which a lawsuit must be brought (statute of limitations), to eliminate actions against manufacturers who produced products many years before. Society will ultimately have to determine whether it is more interested in protecting the consumer or the manufacturer.

Punitive Damages

Punitive damages may also be recovered where it can be shown that the manufacturer knew the product was likely to cause damage but made an economic decision to place the products into the stream of commerce nevertheless.  Punitive damages are intended to punish wrongdoers for intentional and outrageous conduct.


Most attorneys will accept a product liability claim on a contingency fee, that is, the attorney will earn a fee only in the event of a successful recovery.  The contingency fee is often referred to as the “poor mans key to the court house”. Product liability cases can be very expensive to prosecute as qualified experts must be obtained to testify in the proceeding.  It would not be unusual for the costs in a product liability case to exceed $10,000.00 or more. For this reason, attorneys will generally only accept a product liability case where potential recovery is substantial, to justify the time and expense involved in taking the case.

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