By: Ronald L. Slater

If you are injured by a defective product (which includes machinery), you may have recourse against its manufacturer or seller (if engaged in the business of supplying such products) under an area of the law commonly referred to as "product liability." In such cases, the theories of recovery often include negligence, breach of warranty and strict liability.

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 they 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 or seller liable for breach of warranty? A manufacturer or seller may be liable for breaching an express or implied warranty regarding the quality of a product. The level of quality established by an express warranty is usually determined by the manufacturer's and seller's statements or other representations.  The level of quality established by an implied warranty is measured by the concepts of "merchantability" (fitness for their ordinary purpose), or of "fitness for a particular purpose." Generally, goods usually are not "fit" for their ordinary or particular purposes 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. However, the product must be in normal use, or at least be a reasonably foreseeable misuse of the product, 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 type of case and who can help you to understand your rights in this type of a situation.

If you have been injured by a defective product, please call Robert C. LeSuer, Craig A. Markham, Edward J. Betza, or Lori R. Miller at (814) 456-4000.