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Product Liability

With over 20 years of experience, Fort Lauderdale accident attorney David I. Fuchs has  successfully represent 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. Fort Lauderdale accident lawyers explain that 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. Fort Lauderdale accident attorneys reveal 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 rollover 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 Ft Lauderdale accident attorney 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.

Ft Lauderdale personal injury lawyer David I. Fuchs will represent you for injuries that include, but are not limited to:

  1. 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  injury lawyer David I. Fuchs who will take your call and speak with you immediately about your product liability case. Fort Lauderdale injury attorney 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 injury lawyer David I. Fuchs at his Fort Lauderdale office 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 cannot come to us lawyer David I. Fuchs will send a representative to see you. We speak English and Spanish. Se habla Inglés y Español.

Llame a David Fuchs, abogado de lesiones ocasionadas por productos defectuosos.

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