In looking at the product it is critical to determine what is its intended use and what is its actual use. Product liability cases fall into three categories: manufacturing, design and failure to warn.
The basic principles of safe product design are:
In most cases, if you are injured by a defective product, you will be able to sue for your product liability injuries.
You don’t have to be the actual buyer of the defective product to sue for damages. If you were injured by a defective product, you may still recover damages. For example, assume your mother bought you a new shampoo to use. After one application of the shampoo, you experience scalp irritation and hair loss. Even though your mother was the actual purchaser of the shampoo, you suffered injuries caused by the shampoo. In this scenario, you may sue the company that manufactured the shampoo.
You don’t have to be using the defective product at the time of injury to sue for damages. The only requirement you have meet is that you suffered injury that was caused by the defective product. For example, your neighbor is mowing his lawn with a lawnmower. As the neighbor turns the lawnmower to cut a patch of grass, one of the blades flies off and strikes you in the face. You may sue for damages because the defective product caused your product liability injuries.
Who Can be Sued
Any party that is in the chain of distribution may be sued for injuries caused by the defective product in question. The chain of distribution is the path that the product takes from manufacturing to being sold. This path includes a host of different entities from distributors to individual makers of parts and components.
Manufacturers are at the start of the chain of distribution. Manufacturers include the makers of the defective component of the product and the makers of the defective product. Manufacturers of the larger defective product are liable because they used a defective part in making the defective product, which led to that product’s defect. For example, you buy a Ford Taurus. One day while driving the Taurus, the stock tire on the car explodes, causing you to drive into a tree and suffer neck injuries. You can sue both Ford, who manufactured the car, and the company that manufactured the tire.
Retailers may be liable for your product liability injuries even though they did not manufacture the defective product. The fact that the retailer sold you the defective put it within the chain of distribution and is thus subject to product liability.
Wholesalers and Distributors
Wholesalers and distributors make up the middle part of the chain of distribution. Because they are the driving force in moving the defective product from manufacturer to retailer, they may be liable for injuries caused by a defective product. Be sure these entities are in your suit for product liability injuries.
Product liability litigation can be complicated. There are a number of excellent sources for research dealing with these types of cases:
In the course of product liability litigation there are a number of recurring issues:
In most product liability cases the defendant will attempt to assert that there is no evidence of prior accidents. That defense may be subject to a lack of foundation objection. To rely upon that defense the defendant must establish that if there had been prior accidents the defendant would have known about them because there was in place a mechanism to check on the safety of the product and to determine whether or not there had in fact been accidents involving the product. The mere fact that the defendant has shown that there is no evidence of any prior accidents may be a result of there being no record keeping system in place to record complaints or to record actual accidents that are reported. That foundational evidence must be established before evidence of a lack of prior accidents should be admissible. In general, in order to lay the proper foundation for a defense of no prior accidents the defendant must show:
Another recurring issue in product liability litigation is the need for suing a foreign manufacturer who may have physically put the product together or had some substantial role in putting it together. The ability to sue such a manufacturer is dependent upon whether or not that potential defendant has purposefully created minimum contacts with the jurisdiction where the suit is pending so that it would reasonably anticipate being brought into court in that jurisdiction. If that threshold requirement cannot be met, you may not be able to bring the defendant before the Court. More importantly, however, if the distributor and/or assembler of the product is within the jurisdiction of your court you may not need that foreign manufacturer.
In product liability litigation involving products made for the federal government it is not unusual for the manufacturer to assert the state secret privilege. That privilege is a common law evidentiary rule that protects information from discovery when disclosure would be contrary to the national interest. This rule, however, in some instances becomes more than simply an evidentiary privilege as it may be used by the defendant if the privilege itself would deprive the defendant of a valid defense, i.e. there is evidence that the defendant cannot present because of the state secret privilege.
A related defense is the government contractor defense which turns on whether the government approved reasonably precise specifications for the product, the product conformed to those specifications and the manufacturer warned the government about dangers in the use of the product that were known to the manufacturer but not to the government.
The standards that apply to a product may be governmental (state or federal codes) or non-governmental. Non-governmental standards are published by the American National Standards Institute (ANSI), Underwriters Laboratory (UL) and the American Society of Safety Engineers.
Product misrepresentation is an issue in any product liability case that must be analyzed. If the product is a child’s toy, then how it is portrayed on TV or perhaps even in animated commercials may be significant. If the toy is used in a violent fashion in a manufacturer’s advertising, then it is reasonable to expect that a child in seeing that may think that the toy can likewise be used in that fashion.
The representation that baby oil is pure and gentle may be a basis for liability if the danger associated with inhalation of the baby oil is not set forth. The mere appearance of the product itself may be a form of representation. A piece of construction equipment that on its face appears to be well grounded and stable may still tip over in some circumstances. If that danger is not disclosed, then the mere appearance of the equipment may be a basis for liability.
For more information on issues in product liability claims see the other pages in the site dealing with product liability.
Product misuse is a defense asserted in many product liability claims as a bar to the claim. The term “product misuse” is a bit of a misnomer. The manufacturer will classify as misuse as any unintended use. Courts however apply a broader definition typically to the term of product misuse to constitute a use that is not reasonably foreseeable. As such, the use may be unintended by the manufacturer but it may still be reasonably foreseeable by the manufacturer. In that event, it should not constitute misuse. The placement of a towel on a sauna heater may not be an intended use of the sauna heater but it is a foreseeable use and, as such, should not constitute misuse. If this use was foreseeable to the manufacturer, then the manufacturer has a duty to reduce or avoid the risk or, in the alternative, to warn of the dangers associated with the product.
The Restatement of Torts (Third) states in §2 that a seller will be liable only if a plaintiff is harmed while using the product in a reasonably foreseeable manner and if the risk of harm was reasonably foreseeable. It should be kept in mind that the party bringing the claim has the burden of showing that the use of the product was indeed foreseeable by the manufacturer.
Burn injuries around the home are a common phenomenon. The products that may be the source of the burn are varied:
Household furniture that is cushioned with polyurethane foam may be a time bomb. This is a petroleum based product that has some of the same combustion characteristics as gasoline. In addition, this type of foam consumes oxygen as it burns thereby further endangering the occupants. It is commercially feasible to make furniture reasonably safe at a reasonable cost. Furniture covering material is available that will act as a fire retardant. Fire barrier materials that are designed to go between the fabric and the highly flammable foam have been produced for decades. In addition, the potentially combustible material may be treated with fire retardants.
It is well known that furniture may be exposed to small ignition sources around the house. In light of that manufacturers have a duty to design their products without defects in contemplation of those foreseeable uses and misuses.
Other products such as mattresses and mattress pads, electronic toys, and lighters are all subject to federal regulations. Those regulations may be the source of certain standards to establish liability.
Household stoves that have a opening oven door that is low enough to the floor for a child to climb on may present a hazard of tipping with resulting serious injury. Both the American National Standards Institute and Underwriter’s Laboratory have issued standards to deal with this issue.
In looking at burn injury cases there are several things to be considered:
Smoke detector defects can lead to the death or injury of all of the occupants of a residence. This is the type of product liability claim that should never arise. Smoke detectors fall into categories of either ionization or photoelectric smoke detectors. The vast majority are ionization detectors. The ionization detectors emit a beam of ions in a chamber and when the smoke enters the chamber the smoke particles obstruct the flow of ions thereby causing a reduction of current flow and thereby activating the alarm.
Photoelectric detectors emit a beam of light into a chamber and when the smoke particles enter the chamber and interfere with the beam the alarm is activated.
Typically, ionization detectors respond more quickly to the presence of numerous small particles of smoke such as those produced by by a flaming or fast fire. Photoelectric detectors, on the other hand, usually respond more quickly to larger particles such as those produced by a smoldering or a slower spreading fire.
The time frame between the activation of a photoelectric detector and the activation of an ionization detector can be considerable. Typically, the photoelectric detectors tend to give an earlier warning.
In any fire case involving a potentially faulty smoke detector it is critical that the detector itself be obtained or that at least its security be maintained. It is also important of course to know who else is conducting any inspections of the smoke detector.
The thrust of any such case involving an alleged smoke detector is that a timely warning from a properly designed and functioning detector would have prevented injury or at least limited the injury to something minor.
Lithium-ion batteries are almost universal. You find them in cell phones, laptop computers and a host of consumer devices. The primary reason that Smart Phones are as thin as they are is because of these types of batteries. There are believed to be more than 4 billion such batteries that were made simply during the year 2012. It has been discovered however, that they can pose a danger in that they may explode or catch on fire spontaneously. They are supposed to shut down rather than causing a fire. The problem is that the separator that separates the positive cathode from the negative anode sometimes can be broken, which can then allow contact between the negative and positive layers which generates a great deal of heat causing the electrolyte solution within the battery to expand rapidly and then either ignite or explode. The battery is like most batteries in that it has a positive cathode and a negative anode and the electricity is generated by the electrons or, more precisely, the negative ions passing through the separator to the positive side. As long as this is done in the anticipated controlled fashion, then all that is generated is electricity.
It is believed that batteries carried in cargo planes were the potential causes of two fatal crashes in recent years according to the Airline Pilot Association International.
Model airplane hobbyists are also users of these types of batteries to allow prolonged flight for their model airplanes, have long known that these types of batteries explode frequently upon impact.
On December 15, 2010 the Consumer Product Safety Commission voted unanimously to ban the manufacture, sale and resale of cribs which have a side rail that moves up and down. The product liability hazard was simply too great. The purpose of such a side rail is to allow parents to more easily lift the child from the crib. The problem with the side rail is typically an assembly problem which can lead to the drop side rail partially detaching from the crib creating a V-like gap between the mattress and the side rail where the baby can get caught and potentially suffocate or strangle.
This new standard published by the Consumer Product Safety Commission will take effect in June of 2011 and will prohibit hotels and child care centers from using drop-side cribs although these facilities would have two years to purchase new cribs.The new regulation however puts facilities on notice of the hazard and as such they would be well advised to discontinue use of such cribs immediately rather than waiting two years.
Bunk bed entrapment of a small child can result in serious injury or death. The space between the bed frame and the guardrail on some bunk beds is large enough for a child’s body to slip through but not for the head sometimes resulting in the child in effect hanging to death. This product liability issue is being addressed by some manufacturers.It is well known that children over the age of one begin trying to climb out of their beds. With their new found mobility and lack of judgment they are excellent candidates for entrapment in bunk beds. The standard across the industry typically is that children of that age should not be put on the top bed of a bunk bed.
Certain standards over the years have been published by a number of different private and public organizations such as the American Furniture Manufacturers Association (AFMA), the Consumer Product Safety Commission and the American Society for Testing and Materials. All of these are important sources to check in terms of establishing standards in regards to bunk beds.
In handling cases of this nature there are several things that are critical:
Stove range defects are a hidden hazard in many homes and apartments thereby giving rise to product liability claims. A serious hazard that many consumers simply are not aware of is that of range tipping. If a range tips as a result of a child putting weight on an open door, then that typically results in burns from the forward tipping range. Many ranges are inherently unstable when their oven door is open. Once that door is open then it is typically low enough for a child to climb on. That forward tipping can be initiated by a weight of 30 pounds or less.
Underwriters Laboratories has published certain standards to prevent tipping. This has required manufacturers to develop certain anti-tipping brackets to secure ranges to either the floor or the wall. There are a number of limitations on these brackets but if properly installed they can reduce the likelihood of range tipping.
In a suit involving range tipping the obvious defendants are the product manufacturer, the retailer, the installer and, if in an appartment, then the landlord. There may be some difficulty identifying the actual manufacturer although this can be determined by getting the identification number on the UL label which will then permit identification of the entity that submitted the product to UL for testing.
Claims against landlords and management companies may be based on the theory of a failure to insure proper installation or retrofitting of these stoves. The Institute of Real Estate Management has provided some standards in regards to these products.
It may be necessary to retain a competent engineer with knowledge of safety engineering to act as an expert witness as to how these stoves and ranges should have been installed.
The concept of post-sale duty to warn of defects is something that also needs to be considered. The National Safety Council has published a protocol recommending when a company should issue post-sale notices. Likewise, the Consumer Product Safety Commission has a Recall Handbook that was published that may be helpful in understanding when post-sale notices should be given.
Refrigerators currently sold in the United States either have freon in them or have hydrofluorocarbon in them as a refrigerant. Freon is an ozone depleting substance when it enters the atmosphere. Hydrofluorocarbon, on the other hand, presents problems as far as global warming in that it remains in the atmosphere for decades absorbing radiation that would otherwise be released into space.Hydrocarbon refrigerators, on the other hand, are cooled by carbon and hydrogen and these natural refrigerants do not degrade the ozone and are easily broken down by the sun thereby posing no global warming hazard.There are however some product liability issues relating to these type of refrigerators that product liability lawyers should be sensitive to.
The hydrocarbons in these new refrigerators pose some potential hazard in that hydrocarbons are flammable and there have been some isolated incidents of exploding hydrocarbon refrigerators.
General Electric plans to sell their first hydrocarbon household refrigerators in the U. S. in June of 2011. The Environmental Protection Agency has not yet given their approval to these refrigerators but that is anticipated. In 1994 the Environmental Protection Agency had ruled that hydrocarbon refrigerants were too risky to be used in household refrigerators. It appears that will change. Hydrocarbons are already found in many household appliances and substances such as gas stoves, furnaces, bathroom cleaners and air fresheners.
Machine entrapment cases are considerably less common today than they were years ago principally because of guarding techniques that have been employed by manufacturers and the success of product liability lawyers in promoting safety. The most common entrapment accidents involve legs or arms that are caught between two or more moving or compressing machine parts.The analysis to be employed in looking at a product liability claim is first whether or not the alleged defect could have been designed out, if not could it be guarded against and finally if neither of those are practical then a warning must be provided. From a cost point of view designing the hazard out is typically the most expensive. Guarding is frequently almost as expensive and the least expensive is simply providing a warning which in and of itself may be inadequate.
In looking at machine entrapment cases frequently the operators that are involved are reliable, fastidious workers but they make critical errors consisting of:
There are a number of different standards applicable to entrapment cases published by ANSI and also the Product Standards Index.
Propane heaters can cause carbon monoxide injury as reported by injury attorney Brien Roche. These heaters are intended for outdoors usage by campers but can be a source of serious carbon monoxide injury. Many of these heaters contain no warnings that if the heaters are used in an enclosed area they can cause injury. The whole advertising concept that such a propane heater is an outdoor instrument is a bit of an oxymoron. These heaters are not commonly used outdoors. Propane heaters are commonly used inside a tent, recreational vehicle, or other enclosed space to warm the area. Many propane heaters do have warnings stating that there is a need for adequate ventilation. That again is inconsistent with usage in a tent, RV, or other enclosed space.
There are a number of different potential theories of liability relating to propane heaters injuries:
Auto glass defects cause injuries in failing to contain passengers and in allowing glass to become a projectile according to accident lawyer Brien Roche. Many side and rear windows and sunroofs in motor vehicles are made of tempered glass.Tempered glass is different than laminated glass in that the tempered glass when it breaks it shatters and can become flying instruments of death within a motor vehicle. A laminated piece of glass however, when it breaks, tends to stay in place. Front windshields on vehicles are now mandated to be made of laminated glass. The importance of laminated glass is that not only does it not become a mechanism of further injury but it also serves to contain the occupants within the vehicle. Occupants who remain inside the vehicle during an impact tend not to suffer the same traumatic injuries as those that are projected through the window opening.
The cost of providing side and rear windows with laminated glass is not excessive. It is estimated to be approximately $1o0.00 per vehicle. There is substantial government and private industry testing that shows the benefits of laminated glass.
Indeed, laminated glass was widely used back in the 1970’s and 1980’s on a number of American made vehicles. In addition, the suppliers of laminated glass have long espoused the need for it in motor vehicles.
The argument to be made for laminated glass is the common sense notion that passengers in motor vehicles in the course of an impact should not be exposed to jagged pieces of glass flying around in the interior of the vehicle.
If you have been injured as a result of the lack of laminated glass in a vehicle that you are riding in, contact us.
Teenagers and young adults have recently become the focus of marketing for energy drinks. The two most famous such drinks are Red Bull and Monster.
The scientific data shows that these flavored drinks contain high amounts of caffeine and other stimulants that stimulate the central nervous system, cardiovascular system and can cause caffeine shock, heart attacks, irregular heartbeat, strokes and other problems.
The industry in 2011 grossed $8.9 billion. That is up from the previous year.
These types of drinks being dietary supplements are not governed by the FDA nor are they regulated by any federal authority. As such these drinks can be purchased by children or anybody else who simply has the money to pay for them.
Companies that manufacture these drinks have engaged in a very systematic marketing approach advertising these products to promote concerts and other things that young people are particularly interested in.
Since these drinks are not regulated by the federal government there is no obligation on the part of the manufacturer to disclose the true ingredients.
Research up to this point has indicated there are several dangers associated with these items:
The warning that is on the Monster product states simply that the product should be consumed responsibly, consumers should limit themselves to 2 cans per day and that it is not recommended for children, pregnant women or people that are sensitive to caffeine. Although that warning may be better than nothing, it really tells the user very little about the potential risk.
In looking at a case involving this product, it is important of course to be able to identify the actual manufacturer and it is also necessary to be able to expressly link causation to that manufacturer. Typically this can be done through either the autopsy report if there is a resulting death or bloodwork that was done after the adverse event.
If the potential plaintiff has consumed more than one product, that may be a significant problem as far as proving causation. Likewise if the user has consumed the product with alcohol or other dietary supplements, is a smoker or is advanced in age, those may all be factors to consider closely in terms of making a decision whether or not a case is viable. The potential defendant in a case such as this is not only the manufacturer but may in some circumstances be the retailer.
On April 17, 2013 a fertilizer plant in Texas exploded. The fertilizer plant had no sprinklers. It had no fire walls. It had no water deluge system. Safety inspections at the plant were, at best, sporadic.
It so happens that small fertilizer plants across the nation are overseen by a number of governmental agencies; each with limited jurisdiction and therefore basically operating with their blinders on as to other potential violations.
The source of the explosion in this case was ammonium nitrate, which is the chemical used to build the bomb that blew up the federal building in Oklahoma City in 1995.
What is particularly lacking in the regulatory scheme are any guidelines as to how close a facility like this can be to residential neighborhoods. There is no federal agency that determines how close such a facility can be to population centers. That is left up to to local zoning authorities. In the state of Texas zoning is typically de minimis and as such it is not unheard of to have a plant such as this in close proximity to schools and houses.
The damage from this particular blast destroyed an apartment complex, a nursing home and houses in a 4-block area.
The particular fertilizer company in this case not only stored but also distributed and blended fertilizers including chemicals such as anhydrous ammonia and also ammonium nitrate. This is used by farmers throughout the central Texas area.
This particular plant had been previously cited by the US EPA for not having an up-to-date Risk Management Plan. That particular violation was resolved and the company submitted a new plan in 2011. That plan however expressly stated that the company was not storing or handling any flammable substances. In addition the plan did not list fire or explosion as a potential danger. It is the ammonium nitrate, which is a solid granular fertilizer, stored at the facility that was the source of the explosion.
Antioxidant product liability is not exactly the rage these days. There is however a good bit of information floating around about the use of antioxidants and how beneficial they are. More antioxidants, however, are not necessarily better. The research in fact has shown that how you consume the antioxidants can make a big difference in your overall health.
Antioxidants are not vitamins. Some of them are but some of them are also minerals. Some are also enzymes. Enzymes are protein molecules that facilitate chemical reactions in order to allow your cells to properly function.
What antioxidants do is to essentially block the action of free, unstable chemical fragments that can cause harm. These fragments can cause cells to grow and reproduce abnormally. Your body produces these fragments during exercise and also during the process of converting food into energy. In addition such things as smoking, drinking alcohol, being exposed to sunlight and also to certain environmental contaminants such as pesticides can trigger the production of more of these fragments. Antioxidants, especially those in fruits, vegetables and whole grains counteract this process. There is fairly well-accepted data that people who consume a greater amount of antioxidant-rich foods have a lower risk of certain disease processes.
The idea that some fruits are so-to-speak “super antioxidants” is not true. All fruits are healthful in this regard and should be combined.
There is also a great deal of focus on food supplements. The problem with food supplements is that they are not food. The data as to these food supplements suggest that they really do not provide any significant benefit.
In addition the concept that more is better is not necessarily true in regards to antioxidants. Too much can be problematic. In particular, capsules that are labeled as “megadoses” of antioxidants can actually be harmful in that they may increase the production of these fragments, especially in people who drink alcohol or smoke.
Many of these products that are labeled as being rich in antioxidants also contain high levels of sugar and fat. In general you should avoid processed food and if you are looking to increase to your vitamin E content then eat an ounce of dry roasted almonds.
In December of 2010 the Environmental Protection Agency approved a request from the ethanol industry to allow ethanol content in a gallon of gasoline to climb from 10 to 15 percent. The new fuel will be called E15 as opposed to the existing fuel which is called E10. The idea is to allow ethanol from grain to hopefully decrease America’s dependence on foreign oil.There are some potential product liability consequences from the decision.
Critics of the increase of ethanol in gasoline however point out several things:
Foreign manufacturers are viewed by many plaintiff’s lawyers as being exempt from liability. But that need not defeat a claim for product defects.
The drywall fiasco that has occurred over the last many years is an example. Drywall is created from gypsum, a soft sulfate mineral that is converted into powder and then used to make the drywall boards. Gypsum is mined or produced synthetically and should be inert and nonreactive. However drywall made in China from a gypsum mine contains sulfur. Sulfur emits toxic substances. Where this type of drywall is installed, the homes become infected. These gases corrode copper, silver and other metallic items. They can corrode the electrical wiring, air conditioning coils, plumbing fixtures and electronic appliances. Electrical wire corrosion then can create fire hazards because of the potential for arcing.
The first clue of these gypsum boards being problematic was the rotten egg odor they emitted. In hot and humid areas, the drywall is caused to emit even more gas. In those homes where this product was installed, there was a rash of broken air conditioners resulting from corroded and blackened air conditioning coils and ground wires in electrical sockets.
The problem with suing the foreign manufacturer is that if there is contractual privity, then state law may preclude the plaintiff from suing in tort.
If the suit is brought in the context of a products liability claim, then the defendants down the distribution chain will seek to apportion fault on the absent manufacturer. It is important to be able to educate the jury or trier of fact as to what a reasonable supplier, distributor, installer or contractor should do to prevent defective products from entering the home. In particular it is necessary to look at quality control measures governing the purchase, testing and inspecting of the product and what those inspection protocols were.
In the case of drywall, a commonsense test could be applied i.e., it smelled. No distributor could miss that.
Where there is a settlement that occurs among suppliers, then that can be used against the parties i.e., they were interested in salvaging their own economic loss but care little about the damage caused to the plaintiff.
Pursuing a product liability claim involving a product that was made by a foreign manufacturer can be somewhat difficult. The Consumer Product Safety Act was passed in 1972 and was designed to protect consumers from unreasonable risk of injury. Within that Act the manufacturer is defined as one who manufacturers or imports a consumer product. Under the policy statements issued by the Consumer Product Safety Commission, importers are subject to the same responsibility as domestic manufacturers.
Likewise, under the National Traffic and Motor Vehicle Safety Act, importers of motor vehicles for resale are deemed to be the manufacturer of the imported product.
The federal government, to some extent, has taken the lead in terms of trying to establish standards for foreign manufacturers. The inter-agency working group on import safety has created a frame work addressing efforts to identify recognized practices with respect to insuring the importation of safe foreign products. For instance, this agency recommends that these foreign manufacturers should be subject to detailed contracts that lay out the process by which the product is going to be manufactured, should call for sight visits by the U. S. manufacturer and some system of review of that manufacturer in the foreign land. These regulations also require the importer to determine information about the product design specifications, manufacturer process and quality control system. All of this is designed to make sure that the U. S. manufacturer or U. S. importer is exercising some degree of oversight over the foreign manufacturer.
To the extent that a U. S. importer attempts to rely upon blind reliance on the foreign manufacturer, that reliance is misplaced. It is incumbent upon the U. S. importer to exercise some degree of control over the foreign manufacturer and the failure to do so may constitute negligence.
If you have been injured as a result of a product defect and feel as though you have a claim for relief, contact us. Brien Roche is a Fairfax, Virginia and Washington D.C. product liability attorney.
For more information on product liability see the pages on Wikipedia.