Product Liability


Unsafe Products Can Harm Humans

Each year millions of people are injured, made sick, or killed by unsafe products, drugs, medical devices, vehicles, foods, and chemicals. Over 1000 consumer products are recalled each year and recalled products kill an estimated 22,000 people each year.

A recall is an action taken to remove a product from the market. A safety alert is issued in situations where a product may present an unreasonable risk of substantial harm. In some cases, these situations are also considered recalls.

A safety alert or recall may be initiated by a manufacturer or ordered by the government. The US Consumer Product Safety Commission (CPSC) issues warnings, safety alerts and recalls for products such as toys, recreational equipment, and household items. The National Highway Traffic & Safety Administration (NHTSA) issues warnings, alerts and recalls for automobiles, trucks, motorcycles, and other vehicles. The Food & Drug Administration (FDA) issues warnings, alerts, and recalls for drugs, medical devices, health products, cosmetics and food. The Environmental Protection Agency (EPA) issues alerts and recalls for chemicals, pesticides, fungicides, or products impacting the environment.

Tips if harmed by an unsafe product:

If you know or suspect you have been injured by an unsafe product, there are several things you can do:

· Promptly seek appropriate medical attention. Tell your health care professional of any symptoms or side effects and any medications, vitamins, or supplements that you are taking.
· Preserve evidence. Keep unused pills, prescription bottles, destroyed tires, the defective product, etc.
· Keep documents and make notes about your condition, care and life changes.
· In you were involved in an accident, file a report with the police and obtain the names, addresses, insurance information, vehicle license plate numbers and drivers' license numbers of all the persons involved in the accident. Also get the names, addresses and telephone numbers of anybody who witnessed the accident. If possible, you should take photographs of the accident scene, including all vehicles involved, and any injuries.
· Do not talk to anyone about the accident or injuries, except your doctor or lawyer.

Product liability encompasses a number of legal claims that allow an injured party to recover financial compensation from the manufacturer or seller of a product. In the United States, the claims most commonly associated with product liability are negligence, strict products liability, breach of warranty, and various consumer protection claims. The majority of product liability laws are determined at the state level and vary widely from state to state. Each type of product liability claim requires different elements to be proven to present a successful claim.

Product liability and negligence

A basic negligence claim consists of proof of (1) a duty owed on the part of the manufacturer, (2) a breach of that duty, (3) that the breach caused the plaintiff's injury, and (4) an injury. A products liability negligence claim usually falls into one of three possible types: those claiming a design defect, a manufacturing defect, or a failure to warn. Over time, several other negligence concepts have arisen to deal with certain specific situations, including negligence per se (using a manufacturer's violation of a law or regulation in place of proof of a duty and a breach) and res ipsa loquitur (an inference of negligence under certain conditions). The difficulties of an injured customer to prove what a manufacturer did or did not do during the design or manufacture of product has led to the development of newer product liability claims such as strict liability.

Product liability and strict liability

Rather than focus on the behavior of the manufacturer (as in negligence), strict liability claims focus on the product itself. The basic component of a strict liability claim is proof that the product is defective or unreasonably dangerous. Similar to negligence claims, strict liability claims may attack a product's design, manufacture, or warnings. The various U.S. states have employed numerous ways to determine a product's defectiveness. Most of the tests used to determine defectiveness include concepts such as consumer expectations (consumer expectations test), a balancing of the product's risk and its utility (Risk-Utility Test), the obviousness of the danger (Open and Obvious Danger Rule), the existence of a safer design alternative ( Feasible/Reasonable Design Alternative ), the sophistication of the product's user (Sophisticated User Doctrine), and existence of knowledgeable intermediaries between the manufacturer and the user (Learned Intermediary Doctrine).

Of the various U.S. states, California was the first to adopt the doctrine of strict liability for products, in 1964 (under the guidance of Chief Justice Roger Traynor). Although the Supreme Court of California has since become more conservative, it continues to endorse and expand the doctrine; in 2002 it held that strict liability for defective products even applies to makers of component products that are installed into and sold as part of real property.

Product liability and breach of warranty

Warranties are statements by a manufacturer or seller concerning a product during a commercial transaction. Unlike negligence claims, which focus on the manufacturer's conduct, or strict liability claims, which focus on the condition of the product, warranty claims focus on how these issues relate to a commercial transaction. Warranty claims commonly require privity between the injured party and the manufacturer or seller. Breach of warranty based product liability claims usually focus on one of three types: (1) breach of an express warranty, (2) breach of an implied warranty of merchantability, and (3) breach of an implied warranty of fitness for a particular purpose. Additionally, claims involving real estate may also take the form of an implied warranty of habitability. Express warranty claims focus on express statements by the manufacturer or the seller concerning the product (e.g., "This chainsaw is useful to cut turkeys"). The various implied warranties cover those expectations common to all products (e.g., that a tool is not unreasonably dangerous when used for its proper purpose), unless specifically disclaimed by the manufacturer or the seller.

Product liability and business ethics

Philosophers of business ethics would argue that a producer of goods and services is a moral fiduciary, with duties towards others that extend beyond legal obligations. For example, a ladder manufacturing company might clearly post the weight limits of its ladders, and exceed legal requirements in every way; however, if it also knows that there is a reasonable probability that its ladders will be frequently misused in a hazardous way, notwithstanding the fact it has met its legal responsibilities, it has a moral obligation to do what it can to prevent this. Such a view is propounded by philosopher Michael E. Berumen, among others.

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