A person who has been injured by a defective product has, generally speaking, three primary bases for imposing liability on the manufacturer or distributor of the product: 1) strict products liability, 2) negligence, and 3) breach of warranty.

Strict Products Liability

Strict products liability can arise from defective design, manufacture, or notice to the consumer. In California, a manufacturer or seller of products can be liable where a) the product was used in intended or reasonably foreseeable manner (includeing reasonably foreseeable misuse, abuse, changes, alterations, etc.); b) the product was in defective condition when it left the defendant’s possession; and c) the defective product was the legal cause of the plaintiff’s injuries or damages. A plaintiff must prove that he was injured by a product manufactured, sold, or distributed by a defendant which product (a) contained a manufacturing defect, (b) was defectively designed, or (c) did not include sufficient instructions or warnings of potential safety hazards.

Strict products liability for a defective design can be shown by either under the “consumer expectation test,” or the “risk-benefit test.” The former requires a showing that the product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way. The “risk-benefit” test is met when the defendant fails to show prove that the benefits of the product’s design outweigh the risks of the design. This is a multi-factored showing including such considerations as the gravity of the harm actually or potentially caused, and the feasibility of an alternate design given the potential of injury. An injured consumer generally may not sue for the design defect of an “inherently unsafe products” such as alcohol, or butter, and may not sue on the theory of failed “consumer expectations” for prescription drugs.

A consumer may recover for a manufacturing defect where proving that the defendant manufactured, sold, or distributed the product, and the product contained an injury-causing manufacturing defect when it lefts the defendants’ possession.

A manufacturers and supplier may also be held liable for injury where it is shown that it is unreasonably dangerous to place a product in the hands of the user without a suitable warning, and no warning or an inadequate warning is provided. Liability can be avoided if the lack of a warning does not render the product “substantially dangerous” to the user. A warning is sufficient if it clear, understandable, and unambiguous.


A consumer injured by a defective “product” broadly construed may also recover if he or she proves that the defendant manufactured, supplied, installed, inspected, repaired, or rented the product, and the defendant was negligent in any of these aspects causing injury to the individual. A defendant will be held liability if he/she/it fails to use the amount of care in designing, manufacturing, inspecting, installing, or repairing the product that a reasonably careful designer, manufacturer, supplier, installer, or repairer would use in similar circumstances to avoid exposing others to a foreseeable risk of harm.

Breach of Warranty

Claims for injury or harm may arise from a representation of fact or promise that a seller may make to a buyer that becomes part of the agreement or bargain between the parties. This includes a description of the goods in question. The failure of the goods to conform to the representation is the basis of the claim. Such claims are based on breach of an express warranty.

Similarly, claims arise by operation of law based on an “implied warranty of “merchantability” or “fitness for a particular purpose.” Merchantability means that the goods are of average, acceptable quality and are generally fit for the ordinary purpose of which such goods are used. Claims based on “fitness for a particular purpose” may be shown where the seller know or has reason to know the particular purpose for which goods are required and the buyer relies upon the seller’s knowledge and judgment in choosing the goods.

Not infrequently, sellers attempt with varying degrees of success to recall warranties made or limit the damages that might be claimed from their breach. Here as elsewhere, a knowledgeable and experienced attorney should be consulted.

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