When is a manufacturer or seller liable for negligence?
Under a negligence theory, the manufacturer or seller can be held liable for any personal injury, or damage to other property, if it failed to exercise due care, or act reasonably, in light of the foreseeable risk of harm to others. In addition, there must be a reasonably close causal connection between the failure to exercise due care and the resulting injury or damage.

When is a manufacturer liable for breach of warranty?
A manufacturer or seller may be responsible for breaking an express or implied promise regarding the quality of its product (sometimes referred to as breaching an express or implied warranty).  A manufacturer or seller may make an express promise or warranty about the quality of its product in sales discussions, brochures, advertisements, warranty certificates or other writings.  Even if no specific promise is expressed, the law may imply a certain level of quality relating to products.  For example, products are generally assumed to be of "merchantable" quality, meaning that they are fit for their ordinary purpose.  They may also be assumed to be fit for any particular purpose for which they have been sold and about which the seller or manufacturer was aware.  Generally, products are not "fit" for their ordinary or special purpose unless they can be used safely.

When is a manufacturer or seller strictly liable?
“Strict liability” is imposed upon a manufacturer or seller when a product is rendered “unreasonably dangerous to the user or consumer” as a result of a defect in its manufacture or design, or in its failure to provide adequate safety warnings or instructions. The product must be in normal use, however, or at least being used in a reasonably foreseeable fashion, and must not have been substantially changed since its manufacture and sale. The liability is “strict” because one need not prove “fault” (negligence) on the part of the manufacturer or seller.

What should you do if you are injured by a product?
If you are injured as a result of a defective product, you should preserve the product in its current condition. Do not discard it or modify it in any way. Do not give the product back to the manufacturer or seller, their insurers or representatives. Do not attempt to reuse the product in any manner. You should also locate all owner’s or instruction manuals that came with the product, any written warranties covering the product, as well as maintenance records for the product. You should also locate receipts, canceled checks, or other documents establishing the time and place of the product’s purchase. If the product/machine is large and cannot be moved without difficulty, photograph and videotape it and its location. Finally, do not give any type of statement to the insurers or representatives of the manufacturer or seller without first reviewing the facts with an attorney experienced in the handling of this kind of case and who can help you to understand your rights.

If you have been injured by a product that you believe was defective, please contact one of our Product Liability attorneys for a free consultation.

Product Liability Department members:  Robert C. LeSuer, Craig A. Markham, Kenneth G. Vasil, and Lori R. Miller.