BMJ Stone
EZG Manufacturing
Federated Insurance
Fraco USA, Inc.
Hohmann and Barnard, Inc.
Hydro Mobile, Inc.
iQ Power Tools
Kennison Forest Products, Inc.
Mortar Net Solutions
Non-Stop Scaffolding
Pullman Ermator
Tradesmen's Software, Inc.
June 24, 2005 8:39 AM CDT

Products Liability, A Primer


In some states, masonry may lose its identity as a product once it becomes part of a building, but in states where it does not, it remains a product subject to the realm of law known as products liability. Liability may arise by way of a manufacturing or design defect, failure to warn, or a breach of express or implied warranty.

A manufacturing defect is an aberration in the product line. It is the one bad apple in the group that differs from the manufacturer's intended result. On the other hand, a design defect addresses the entire product line. Liability for failure to warn and liability for breach of warranty may differ from state to state.

Generally speaking, the 50 states are divided into two products liability camps. Some jurisdictions, such as California, espouse strict liability for products, while others, such as Virginia, are primarily negligence jurisdictions.

Strict Products Liability
Strict liability is liability without fault. In a strict products liability state, the plaintiff need not prove that the manufacturer acted unreasonably under the circumstances. Although there is some variation in how strict liability is applied, generally a plaintiff need only prove the existence of a defect, whether in manufacture or design, and that the defect was the cause of injuries or damages. California law serves as an illustration. There, a product is defective in design: 1) if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; or 2) the benefits of the challenged design do not outweigh the risk of danger inherent in such a design.

In addition to a claim for strict products liability, a plaintiff in a strict liability jurisdiction may assert claims for failure to warn, as long as the danger is not open and obvious, or for breach of warranty.

The most common claim under a breach of warranty theory is breach of implied warranty. Implied warranties in products liability cases generally fall either under a breach of implied warranty for merchantability or a breach of implied warranty for fitness for a particular purpose. Even in jurisdictions that fall into the negligence camp, a breach of implied warranty in a products case is very similar to a strict products liability action. A plaintiff need only prove that a product is unfit for a particular purpose and that it caused his or her injuries or damages. The same holds true for a breach of implied warranty of merchantability. Breach of warranty actions do not involve fault on the part of the manufacturer. The plaintiff does not have the burden of proving that the manufacturer knew or should have known of potential problems.

Although the law among states may differ, generally speaking, those in the product chain or distribution system may be held strictly liable for a defective product. The chain would include the manufacturer, distributor and seller of the product.

Defenses do exist in strict liability jurisdictions. Assumption of a known risk by the plaintiff can usually serve as a defense. Also, misuse of the product, if it is not foreseeable, may be a defense.

Negligence Products Liability
Some states, such as Virginia, require proof of fault in order to establish liability for a product defect. In jurisdictions requiring proof of fault, the plaintiff must prove that the manufacturer acted unreasonably under the circumstances. In these jurisdictions, a manufacturer has a duty to use ordinary care to avoid dangers associated with its products.

In determining whether a product contains a defect, courts often look to three criteria: 1) government standards; 2) industry standards; and 3) consumer expectations.

Adherence to government or industry standards alone will not necessarily exonerate a product manufacturer facing a suit. Simply put, the standards may not be enough.

In order to prevail under a negligence theory, a plaintiff must establish that the product was unreasonably dangerous for its ordinary or reasonably foreseeable uses, and that the unreasonably dangerous condition existed when the product left the hands of the defendant. As is the case in strict liability jurisdictions, expert testimony is usually necessary to demonstrate the defectiveness or dangerousness of a product.

Unforeseeable misuse and assumption of the risk are valid defenses in negligence jurisdictions; however, an additional defense ? contributory negligence ? is also available. An important distinction in the application of the latter is noteworthy. In comparative fault jurisdictions (i.e., the majority of states), contributory negligence on the part of the plaintiff will serve to reduce the plaintiff's recovery, but not bar it entirely. In a minority of jurisdictions, for example Virginia, contributory negligence will bar a plaintiff's recovery in a products liability lawsuit. Contributory negligence will not, however, bar a plaintiff's recovery under a breach of warranty theory.

What law applies to masonry products in a damage claim will differ as jurisdictional boundaries are crossed. Knowledge of the various theories of liability that may be asserted in damage claims is the first step in preparing for any legal battle.

About the Author

Donald J. DeSisto, Esq., is an Associate with the Washington, D.C. law firm of Jackson & Campbell, P.C. He is a member of the Insurance Coverage Group and specializes in products liability, construction defect and insurance coverage matters.

This article is not intended to provide legal advice, but to raise issues on legal matters. You should consult with an attorney regarding your legal issues, as the advice you may receive will depend upon your facts and the laws of your jurisdiction.


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