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South Florida Product Liability Lawyer, Florida Product
Liability Attorneys
South Florida product liability Lawyer David I. Fuchs has over
17 years of experience in successfully representing victims of
defective and dangerous products who have sustained and suffered
serious bodily injuries because of the negligence of manufacturers,
distributors, wholesalers or retailers of defective products and
merchandise.
The law of product liability is the area of law which deals with
the liability of the manufacturer, wholesaler or retailer of a
product for injuries resulting from dangerous and defective
products. Products subject to the law run the spectrum from food,
drugs, appliances, automobiles, medical devices, medical implants,
blood, tobacco, or even commercial jets. At common law (law derived
from judicial holdings carried over to the United States from
England) the sale of a product was viewed as a commercial
transaction upon which only the parties to the commercial contract
could sue. The law has evolved to the point where today virtually
anyone injured by a defective product
(defined as a product which is unreasonably dangerous for its
intended use) can bring an action for damages against any party in
the distributive chain of the product, whether it be the
manufacturer, the wholesaler, the retailer or even the maker of a
component part.
There are a number of theories or counts upon which an
injured party can bring an action in product liability law. The
plaintiff may include a count for each theory, or may choose to sue
on only one. The theories are: negligence, breach of express and
implied warranty and strict liability.
These theories overlap to a great extent and are the result of
historic evolution of the law, with strict liability being the
newest, having originated with a California court decision called
Greenman v. Yuba Power Products, Inc. , 59 Cal.2d 57, 27
Cal. Rptr. 697, 377 P.2d 897(1963). Until the Greenman
decision, a plaintiff was required to either proceed under a
negligence theory, in which he was required to prove negligence, or
proceed under a warranty theory, in which case he was required to
be in “privity” of contract with the defendant, meaning that
a contractual relationship had to be established between the
injured party and the defendant sought to be sued. The contractual
origin of breach of warranty claims is best illustrated by the fact
that to this day the implied and express warranties, under which
some product liability claims are brought, are contained in a
compilation of commercial statutes called the Uniform Commercial
Code, to which most jurisdictions adhere. Under strict liability
theory a plaintiff is not required to prove either negligence or
that he was in privity of contract with the manufacturer or other
seller. Some commentators argue that there is little difference
between proving that a product was unreasonably dangerous for its
intended use and proving that a manufacturer or other seller was
negligent for releasing into the stream of commerce a product that
was unreasonably dangerous for its intended use. Others argue that
in cases where the state of technology was such that the danger was
not known to the manufacturer at the time of sale and could not be
discovered, the ability to proceed without showing negligence is
important in assisting a jury to arrive at a verdict.
One of the most common terms to arise in product liability
litigation is “ defect”. In the eyes of the law this term
has a broader meaning than one might expect. The law considers any
product which is unreasonably dangerous for its intended use to be
defective. In considering this definition, it is important
to remember that the term “unreasonably” dangerous is
crucial to the meaning of the term “defective”. Thus, a
product may be inherently dangerous but have such utility that the
danger is one which would not be considered “unreasonable”.
For instance, gasoline is an inherently dangerous product, but its
utility far outweighs any danger posed by it. Therefore, the law
does not consider gasoline unreasonably dangerous for its intended
use. Should the day arrive where an alternative, less dangerous,
and no more costly fuel is developed, the law would permit a
product liability action to prove that gasoline is an unreasonably
dangerous product, and is, therefore, defective. Similarly,
a knife is unquestionably a dangerous product, but the law wouldn’t
consider it “unreasonably” dangerous. On the other hand, a knife
with a handle so fragile it will snap under ordinary use would be
an unreasonably dangerous product, and, therefore,
defective. Another factor which may be evaluated in
determining whether a product is defective is the adequacy of
warnings. Obviously, an inadequate warning will increase the danger
posed by a product, and may, itself, be negligence on the part of
the manufacturer. In addition, an adequate warning may be all that
is required to result in a factual determination that a danger
posed by the product did not constitute an unreasonable risk of
harm. The converse may also be true. An otherwise useful product
carrying inherent risks may be determined to be unreasonably
dangerous for its intended use solely due to the absence of an
adequate warning alerting the user to the danger.
Another distinction which arises in product liability law is the
distinction between manufacturing defects and design
defects. A manufacturing defect arises when the finished
product does not conform to the manufacturer’s plans or
specifications. An example of this would be a jagged edge on an
automobile ashtray, where the manufacturer’s plans called for a
smooth edge, but a malfunction occurred during the machining
process. Another example of manufacturing defects are product
failures caused by substandard materials, such as exploding soft
drink bottles. Design defects, on the other hand, occur when a
product is manufactured exactly as the manufacturer intended, but
the product itself is deemed to be unreasonably dangerous for its
intended use. An automobile that cannot withstand crush injuries
during a roll over accident or which will explode upon impact would
be considered to have a design defect. Much of today’s product
liability litigation consists of design defect cases, and this
field is broad enough to cover such claims as asbestos litigation,
vaccine and other drug litigation, flammable fabric litigation,
dangerous power tool or appliance litigation, defective medical
implant litigation (including breast implants), and any other area
in which a product’s design makes it unreasonably dangerous for its
intended use, thereby causing injury. The process of evaluating
whether an inherent danger makes a product “unreasonably” dangerous
for its intended use always involves balancing the utility of the
product and its design against the risk or danger posed by the
product.
Although there are some differences in the elements of product
liability claims founded upon negligence versus breach of implied
warranty versus strict liability, there are also many common
elements.
Negligence Claims: In a
negligence claim a plaintiff must show that a manufacturer, seller,
wholesaler or other party involved in the distributive chain or
group had a duty to exercise reasonable care in the process of
manufacturing or selling a product and failed to fulfill that duty,
resulting in injury to the plaintiff. Negligence consists of doing
something that a person of ordinary prudence would not do under the
same or similar circumstances or failing to do something that a
person of ordinary prudence would do under the same or similar
circumstances. This can take the form of negligence in drawing up
or reviewing plans for a product, negligence in maintaining the
machines that make the component parts of the product, negligence
in failure to anticipate probable uses of the product, negligence
in failure to inspect or test the product adequately, negligence in
issuing no warnings or instructions or inadequate warnings or
instructions, negligence in releasing the product into the stream
of commerce, or any other aspect of the manufacturing or
distribution process where due care is not used.
These theories share certain common elements which a plaintiff
must prove. They also differ in several key respects from product
liability actions based on negligence. The elements of warranty and
strict liability claims are as follows:
Defect: As previously noted, a defect is a feature which
makes a product unreasonably dangerous for its intended use.
Seller or Sale: Generally, this requirement would exclude
leases or loans of products. It may also exclude products provided
only incidental to a transaction in which the primary focus is
service. A seller may be anyone who sells the product or a
component of the product to any other party through the
distributive chain, up to and including the retail sale to the
consumer. A manufacturer "sells" the product to a wholesaler. A
manufacturer of a component part "sells" that part to the
manufacturer of the product in which the component part will be
incorporated. A wholesaler "sells" the product to the retailer, who
in turn "sells" the product to a consumer.
Defective at the Time it Leaves the Control of the
Seller: It must be shown that the product was defective at the
time it left the control of the seller. In a case against a
manufacturer that time would be when the product is sold and
delivered to a wholesaler. In the case of a wholesaler, that time
would be when the product is sold and delivered to a retailer. With
a retailer, that time would be when the product is sold and
delivered to a consumer. Needless to say, if the condition of a
product changes so as to render the product unreasonably dangerous
after the product has left the control of a defendant, that
defendant cannot be held liable, unless the change was reasonably
foreseeable within the scope of the intended use of the
product.
Defect Causing Plaintiff’s Injuries: In all personal
injury cases causation is a crucial element of a plaintiff's claim,
and this in no less true in product liability cases. First, there
must be medical causation of the injuries claimed by a plaintiff to
the danger of the product. In most cases, this will not be a
problem, unless the claim involves medical conditions which
arguably were not caused by the injury. In addition, other defenses
to product liability claims may be couched in terms of causation.
For instance, a plaintiff's failure to adhere to instructions for
using the product may be described as an intervening, new cause of
the plaintiff's injury, relieving the defendant of responsibility
due to lack of causation. Misuse of a product is a defense to
product liability claims, and this defense may couched in terms of
causation.
No Requirement to Show Negligence and No Defense of
Contributory Negligence: As previously indicated, under both
strict liability and warranty theories, a plaintiff need not prove
negligence. Similarly, the defense of contributory negligence of
the plaintiff, available in product liability cases founded upon
negligence, is not in most jurisdictions available to a defendant
in cases involving strict liability and warranty. The defense of
assumption of risk may or may not be available in any or all of
these theories, depending upon the rulings in a particular
jurisdiction.
As can be seen from the above discussion, modern tort law
provides a remedy for injuries caused by unreasonably dangerous and
defective products. Consultation with an experienced product
liability litigator is essential to assure that your case is
properly evaluated by appropriate experts in the field. In product
liability cases it is often essential that steps be promptly taken
to preserve evidence, document the chain of custody, and have
engineers or other expert witnesses thoroughly evaluate the product
and its relationship to the injuries.
South Florida product liability lawyer David I. Fuchs will
represent you for injuries that include, but are not limited
to:
I) Injuries requiring surgery, sutures, staples
2) Traumatic Brain Injury, including those caused by oxygen
deprivation
3) Severe burns resulting in significant and permanent
scarring
4) Mental anguish and emotional distress, death
After an accident or injury caused by a defective and dangerous
product it is important to seek legal counsel to protect your legal
rights by calling Florida product liability lawyer David I. Fuchs
who will take your call and speak with you immediately about your
car accident. Florida product liability lawyer David I. Fuchs will
then stand ready to fight for you to see that you get compensation
for your pain and suffering, any lost wages and medical bills.
Call South Florida product liability attorney David I. Fuchs
Toll Free at 800-570-2858 for a free consultation to discuss your
accident case. You may also write to South Florida product
liability attorney David I. Fuchs by filling out the form on the
"Contact Us" page."
If you can not come to us South Florida product liability lawyer
David I. Fuchs will send a representative to see you. We speak
English and Spanish. Se habla ingles y espanol.
Llame David Fuchs Florida abogado de accidentes productos.
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