Products Liability

Products liability refers to the liability of the manufacturer or other entity in the chain of distribution, for personal injury, property damage or economic loss caused by the use or sale of that product. The term “product” is not confined to the finished product alone; instead, ancillary items which impact consumer expectations or product safety may constitute part of product itself. For example – if owner’s manual contains poorly drafted instructions and user is injured as a result, the manufacturer may be subject to a lawsuit. The owner’s manual is thus an extension of the product. While products are generally thought of as tangible personal property, products liability has stretched that definition to include intangibles (gas), naturals (pets), real estate (house), and writings (navigational charts).

The term “chain of distribution” is also viewed broadly. This includes the manufacturer of component parts (at the top of the chain), an assembling manufacturer, the wholesaler, and the retail store owner (at the bottom of the chain).

Products containing inherent defects that cause harm to a consumer of the product, or someone to whom the product was loaned, given, etc., are the subjects of products liability suits. Products liability claims can be based on negligence, strict liability, or breach of warranty of fitness depending on the jurisdiction within which the claim is based. Many states have enacted comprehensive products liability statutes. United States Department of Commerce has promulgated a Model Uniform Products Liability Act (MUPLA) for voluntary use by the states.

The law of products liability is derived mainly from Tort Law and found mainly in common law and Uniform Commercial Code.

Legal Theories of Product Liability Claims:

Product liability lawsuits combine confusing array of theories including:

1. Negligence – Negligence is combination of four elements: Legal duty; its breach; proximate cause and injury. In any jurisdiction one must prove that the product is defective. There are three types of product defects that incur liability in manufacturers and suppliers: design defects, manufacturing defects, and defects in marketing. Design defects are inherent; they exist before the product is manufactured. While the item might serve its purpose well, it can be unreasonably dangerous to use due to a design flaw. On the other hand, manufacturing defects occur during the construction or production of the item. Defects in marketing deal with improper instructions and failures to warn consumers of latent dangers in the product.

2. Strict Liability – Rather than focus on the behavior of the manufacturer (as in negligence), strict liability claims focus on the product itself. Under strict liability, the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective.
The difficulty with negligence is that it still requires the plaintiff to prove that the defendant’s conduct fell below the relevant standard of care. However, if an entire industry tacitly settles on a somewhat careless standard of conduct, then the plaintiff may not be able to recover even though he or she is severely injured, because although the defendant’s conduct caused his or her injuries, such conduct was not negligent in the legal sense. As a practical matter, with the increasing complexity of products, injuries, and medical care (which made many formerly fatal injuries survivable), it is quite a difficult and expensive task to find and retain good expert witnesses who can establish the standard of care, breach, and causation.

Therefore, in the 1940s, in the case of Escola v. Coca-Cola Bottling Co. 24 Cal 2d 453 (1944), the Court stated that

“Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the pubic. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk”

Since then Courts have adopted the view that because sellers are in the best position to discern the risk associated with their products, those sellers should bear the cost of injuries due to any defect in their products. As a result, Courts in most states today allow recovery for injury from a defective product under the theory of strict liability without showing of the fault or negligence on the part of seller.

3. Breach of an express or implied warranty – Product liability claims based on breach of warranty usually focus on one of three types: (a) breach of an express warranty (b) breach of an implied warranty of merchantability, and (c) breach of an implied warranty of fitness for a particular purpose. Express warranty claims focus on express statements by the manufacturer or the seller concerning the product. The various implied warranties cover those expectations common to all products unless specifically disclaimed by the manufacturer or the seller.

Product liability claims based on breach of warranty are quasi-contractual and are governed by the Uniform Commercial Code, a model act promulgated by National Commissioners on Uniform State Laws that has been adopted in some form or other by all states except Louisiana.

4. Fraud/ Misrepresentation – Product liability claims based on fraud/ misrepresentation focus less on the product and more on the allegedly culpable behavior of its manufacturer or distributor.    A misrepresentation may be written or oral. An omission may also constitute a misrepresentation if the defendant had a legal duty to disclose the true facts to plaintiff.

5. State consumer protection statutes – Many states have enacted consumer protection statutes providing for specific remedies for a variety of product liability claims. Statutory remedies are often provided for defects which merely render the product unusable (and hence cause economic injury) but do not cause physical injury or damage to other property. The best known examples of consumer protection laws for product defects are lemon laws which permit consumers to seek reimbursement and limited damage when product continually fails in its intended use.


A successful plaintiff can generally recover compensatory damages. These damages, intended to return the plaintiff to pre injury status, may include compensation for medical expenses, lost earnings, lost earning capacity, pain and suffering disability and disfigurement, embarrassment and emotional distress, etc. Above and beyond compensatory damages, plaintiffs may seek damage awards designed to punish the defendant and to deter similar conduct by others in future. If there is some egregious conduct on the part of defendant, Court may award punitive damages against the defendant.

Attorneys specializing in product liability laws:

Attorneys specializing in product liability laws must have insight and knowledge in areas such as common laws, federal and state product liability statues, documentation, etc. Product liability attorneys can help clients in avoiding product liability claims by suggesting on suitable measures required to be taken by manufacturer or the distributor. On the other hand he can suggest victims about the possible damages. Besides he is expert to represent clients in Court if any matter is committed to Court. He may also try to get out of Court settlement.

Individuals looking for an attorney specializing in product liability laws need to find someone who is well versed in law of torts, common laws, federal and state product liability statues, etc.  Most medical product liability attorneys take their cases on a “contingency” basis, where the attorney fee is a percentage of the amount recovered from the defendant through plaintiff’s recovery.

Please contact the Law Offices of Douglas C. Anton, Esq. for a case evaluation and to schedule an appointment.

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