Products Liability for personal injury is the name given to lawsuits for injuries caused by defective products. There are several different types of products liability cases.
A typical and all too frequently seen example is where a product fails to perform its intended purpose and injures the user, such as where a grinding wheel explodes, a rigging line fails, or a tire disintegrates. The defect may be due to a design defect that makes the product work improperly, or it may be caused by a manufacturing defect, such as where the wrong rubber compound is used in a tire and it explodes.
Sometimes someone is hurt where a tool is safe for a particular purpose but there is a danger if it is used for a similar use in different conditions, such as where a piece of rigging works fine in fresh water but salt water causes it to corrode and fail. Where a hazard exists for a product sometimes the manufacturer attempts to avoid responsibility for injuries by placing a warning label onto it, or by using lockout or tagout. However, some warnings don’t adequately convey the actual danger and even if a defective product is covered with warning labels it may still be defective.
Some defective products cause injury many years after manufacture, such as asbestos, where the mesothelioma disease it causes will not develop for decades after the exposure. Other injuries can occur after a containment like a bacteria has contaminated the product, such as where a batch of sprouts or ice cream causes salmonella poisoning. Other defects may be the result of use of the wrong ingredient, such as where poisonous mushrooms are placed into a restaurant dish.
When a product injures someone the victim has a right to seek economic (out of pocket) damages as well as non economic or “pain and suffering” damages. Typical examples of economic damages are hospital and medical bills, wage loss and impairment of earning capacity. Pain and suffering damages include the disruption caused by an injury, the inconvenience caused by dealing with the impaired area that has been hurt, and the impact of scarring or loss of use. Products liability cases may also be brought on behalf of the injured person’s spouse for domestic loss called “loss of consortium”.
When some products fail it occurs in connection with anothers’ negligence, such as where an air bag fails to operate after a negligent driver runs into the car of the plaintiff. And a plaintiff need not be blameless- if a person runs their car off the road and the seatbelt fails just because the driver made a mistake does not mean a case cannot be brought- instead the person’s damages are reduced by their percentage of fault.
Sometimes a manufacturer will know about a product defect and do nothing about it. If a car ignition switch has a history of being turned off by a driver’s heavy key ring and the manufacturer has received reports of switch failures and fails to do anything with the data, or hides the replacement of the bad switches then it may lead to a jury trial in which punitive damages are assessed by the jury.
Sometimes a product may be just too dangerous to safely use, such as the old three wheeler all terrain vehicles that had a front and forward flip problem called a pitch roll. So many riders were hurt that the manufacturers agreed to quit selling them in the U.S. after many lawsuits were filed due to injuries of riders.
It is a common defense to a products liability case that the consumer was somehow misusing the product. However, products liability lawsuits are allowed because the courts have determined that products should meet the expectations of a regular consumer, not a scientist or an expert, and to place every customer in the position of being a test pilot responsible for determining the fine line between success and disaster is irresponsible corporate behavior subject to monetary damages. Consumer lawyers are permitted to introduce before the jury at trial examples of other failures of the product. This category of evidence is known as “Other Similar Incidents” or OSI, and allows the jury to see what the manufacturer knew about the product hazards and when they discovered it.
If you are hurt by a defective product it is important to maintain custody of it and photograph the injury scene, obtain names of witnesses and obtain copies of whatever instructions or warning labels were provided. The law does not require that a product always malfunction every time it is used in order to be dangerous, only that it fails to meet the reasonable expectations of a consumer and causes injury during foreseeable use.
This post was written by Ray Thomas. Ray, a founding partner of downtown Portland’s Swanson, Thomas, Coon & Newton law firm, is a personal injury lawyer and pedestrian and bicycle law attorney.