What to do when a product causes an injury

Nearly everything we use on a daily basis is either a product or something that requires the use of one. Unfortunately, even products that seem harmless can cause injuries when they malfunction or fail to perform their function as they were intended.  Injuries that result from the failure of common products often come as a complete surprise to the victim.  Sometimes, the injured person does not even realize that their injury was the result of poor design or a manufacturing defect in the product.  By the time it occurs to them that their injury was probably preventable, they have thrown the defective product away.  This is why it is important for those who have been severely injured when interacting with products to immediately preserve the offending items.

Claims arising from injuries due to defective products are called product liability claims. The claims can arise from a number of defective products; some of the ones we use daily are consumer goods, electronic devices, and articles of clothing. There are several potential claims that may exist against a product manufacturer and seller:

  • Defective Design: A defective design claim exists when a manufacturer designs a product that is not reasonably safe for its intended purpose or for any other reasonably foreseeable uses.  The design of the product itself renders it inherently problematic and likely to lead to injury.
  • Manufacturing Defect:  A manufacturing defect claim exists when the design of a product may be safe, but the manufacturer fails to produce the product in accordance with the design standards, rendering the resulting product unreasonably dangerous.
  • Failure to Warn: A manufacturer or seller who knows or should know that a product is potentially dangerous, even if the danger is not obvious to the buyer, has to warn the buyer of the danger.  This means the product may be totally safe in design and manufacture, but only so long as the buyer is adequately instructed on how to avoid potential dangers.  If the manufacturer or seller fails to provide adequate warnings of the danger and consequences, then they are responsible for any harm caused by that dangerous condition.
  • Express Warranty: When a manufacturer or seller advertises or otherwise states that a product meets certain safety standards, then it has created an express warranty to which it must conform.  Failure to meet its own stated safety standards or other important product description is a breach of the express warranty and makes the manufacturer or seller responsible for the consequences.

In addition, under the law, manufacturers, distributors, retailers, and sellers also make “implied warranties” to purchasers and users of their products:

  • Implied Warranty of Merchantability: There is an implied warranty that products will be fit for the purposes for which they are ordinarily used.  When a manufacturer produces a defective product and a seller sells it to an unsuspecting purchaser, the manufacturer and seller have breached the implied warranty of merchantability and are responsible for any injury that may occur as a result.
  • Implied Warranty of Fitness for a Particular Purpose:  When the manufacturer or seller knows, or should know, that the product will be used for a particular purpose,  an implied warranty is created that the product will be fit for that purpose regardless of whether it is a purpose for which the product is ordinarily used.

When a product is unreasonably dangerous due to design defect, manufacturing defect, or inadequate warnings, then the manufacturer and seller may have breached express and implied warranties.  This is why the seller of a product may be just as responsible for an injury caused by that product as the manufacturer who designed or produced it.

How to prove a product liability claim

All product liability claims require that the injured person prove the product was defective in design or manufacture, or that it had inadequate warning.  The most important evidence in a product liability case is the product itself.  Even in cases that appear to be clear-cut, the burden of proof requires more than just a claim that “the product broke and I got hurt, so the manufacturer is responsible.”  The injured person has to be able to explain why the product failed.  This typically requires extremely technical explanations that involve material science, failure modes and effects, industry or regulatory requirements, and hyper-technical jargon.  For this reason, it is often necessary for one or more product experts to analyze the failure in order to reach conclusions about what caused it to fail. Without the product, this analysis cannot be done and proving that the product was not reasonably safe becomes much more difficult.

If you have been injured by a defective product

In addition to saving the defective product, the injured person should try to save everything related to the product, such as the receipt, credit card history, or invoice to provide proof of purchase.  If possible, the injured person should also save all of the packaging that came with the product as well as any instructions, warranties, inserts, and other parts that came with the product.  If the product caused an explosion or for some reason is hard to preserve, the injured person should take photographs of the product from every angle under good lighting, trying as hard as possible not to disturb its condition further.  If the product is under the control of a third party, such as an employer or friend, then they should be notified to preserve the product and all other available evidence immediately.

The attorneys and investigation team at Allen & Allen are equipped to retain qualified experts for almost any product defect claim and have the experience, technical background, and litigation skills to handle these potentially catastrophic cases.

About The Author: Rob Reed is an experienced personal injury attorney with the law firm of Allen & Allen. He works out of the Richmond Office. Rob has devoted his practice to helping victims of serious accidents and their families in personal injury cases.