Q: What is a product liability claim?
A: A product liability claim is a claim that is asserted in a civil action. The party making the claim seeks to recover “compensatory damages” (money) from a manufacturer or supplier for physical injury, emotional distress, physical damage to property, or death from a defective product.
Q: What is a defective product?
A: Defects fall into four categories: 1) manufacture or construction; 2) design and formulation; 3) warnings and instructions; 4) conformance to representations.
Q: What is a manufacture or construction defect?
A: A manufacture or construction defect is a deviation from design specifications. Typically, a manufacturer produces thousands of identical products. Sometimes a few of those products differ, for reasons that may not be understood. If the differences cause harm, the manufacturer may be liable. An example of a manufacture or construction defect is a piece of metal found in a frozen pizza. If a person bites into the pizza and breaks a tooth on the metal, the manufacturer may be liable.
Q: What is a design or formulation defect?
A: This type of defect arises when the foreseeable risks exceed the benefits associated with the design. A design or formulation defect takes into consideration a number of factors such as the product user’s awareness of risks, conformance to public and private standards, the user’s expectations, and the economic feasibility of an alternative design.
Design defects are common. For example, a manufacturer may use highly flammable fabrics in children’s clothing or plastic parts when metal would have been safer, or the manufacturer may fail to securely fasten a necessary protective shield to a piece of equipment.
Q: What are defective warnings and instructions?
A: Some products require warnings and instructions so that the consumer can safely use the product. These warnings should be prominent and easy to understand. The manufacturer who fails to provide, or provides inadequate warnings and instructions will be responsible for injuries caused by those serious risks associated with the product that should have conveyed to the consumer. Guarding against “defective warnings and instructions” is the primary reason for the laundry list of instructions and warnings consumers find on most products.
The manufacturer is not liable, however, for failing to communicate a warning or instruction where the risk is open and obvious or a matter of common knowledge. Also, not all products can be manufactured to be safe in all instances. Lawn mowers, for example, can be very dangerous, and may cause injury even when warnings and instructions are clear and heeded by a consumer.
Q: What is conformance to representation?
A: If a manufacturer represents a product in a way that does not match its performance, then that product may be considered defective. Someone who is harmed by such a product does not need to prove fraud, recklessness or negligence to succeed in a legal action. If the manufacturer made a promise and the product did not perform in accordance with that promise and caused harm, the manufacturer is liable.
Q: What if the manufacturer no longer exists?
A: Sometimes, a manufacturer cannot be found, no longer exists or is otherwise not available. In such cases the product supplier may be held responsible for the harm caused by a defective product. A supplier also may be held accountable if it altered the product before the product reached the user.
Q: I think the manufacturer should be punished. Can I sue for punitive damages?
A: Yes. However, the burden of proof is quite high, meaning that the court will require a great deal of evidence before it awards punitive damages. If you are able to provide the necessary “proof,” the court, and not a jury, will determine the amount of the award. The court will consider a variety of factors including the manufacturer’s awareness, the manufacturer’s attitude and conduct, issues of profitability, and how long the misconduct has been going on.
This "Law You Can Use" consumer legal information column was provided by the Ohio State Bar Association. It was prepared by Toledo attorney Kyle Cubbon of Cubbon & Associates.