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A plaintiff may rely on one or more of several theories upon which to base his or her argument for recovery in a products liability case. The primary theories for recovery include the following: negligence, tortious misrepresentation, breach of warranty, and strict liability in tort.
The tort of negligence remains a central part of the law of products liability. In order to recover under a theory of negligence, a plaintiff must prove five basic elements, including the following:
- the manufacturer owed a duty to the plaintiff
- the manufacturer breached a duty to the plaintiff
- the breach of duty was the actual cause of the plaintiff's injury
- the breach of duty was also the proximate cause of the injury
- the plaintiff suffered actual damages as a result of the negligent act
In a products liability case, the law requires that a manufacturer exercise a standard of care that is reasonable for those who are experts in manufacturing similar products. However, even if a plaintiff can prove that a manufacturer has failed to exercise the proper standard of care, the plaintiff cannot recover without proving two aspects of causation. The plaintiff must first show that but for the manufacturer's negligence, the plaintiff's would not have been injured. The plaintiff must also show that the defendant could have foreseen the risks and uses of the product at the time of manufacturing.
A claim in a products liability suit may be based on false or misleading information that is conveyed by the manufacturer of a product. A person who relies on the information conveyed by the seller and who is harmed by such reliance may recover for the mis-representation. This basis for recovery does not depend on a defect in the product, but rather depends on the false communication.
Tortious misrepresentation may appear in one of three basic forms.
- First, a person may commit fraudulent misrepresentation, or deceit, in which the person knows that a statement is false and intends to mislead the plaintiff by making the statement.
- Second, a person may commit negligent misrepresentation, where the person was negligent in ascertaining whether a statement was true.
- Third, some jurisdictions allow for strict liability in instances where a manufacturer makes a public statement about the safety of a product.
A warranty is a type of guarantee that a seller gives regarding the quality of a product. A warranty may be express, meaning that the seller makes certain representations regarding the quality of a product. If the product's quality is less than the representation, the seller could be liable for breach of express warranty. Some warranties may also be implied due to the nature of the sale.
The Uniform Commercial Code (U.C.C.), which has been adopted in part by every state, provides the basis for warranties in the United States. The U.C.C. recognizes express warranties and two types of implied warranties:
- the implied warranty of merchantability
- the implied warranty of fitness for a particular purpose
An implied warranty of merchantability is a promise that a product sold is in good working order and will do what it is supposed to do. An implied warranty of fitness for a particular purpose is a promise that a seller's advice on how to use a product will be correct.
Section 402A of the Restatement (Second) of Torts included a provision that created strict liability on the part of a manufacturer. Under this section, a manufacturer is liable for product defects that occur during the manufacturing process, notwithstanding the level of care employed by the manufacturer. Courts later extended the strict liability principles to include cases that did not involve errors in manufacturing, such as cases involving a failure of a manufacturer to provide ample warnings.
The Restatement (Third) of Torts: Products Liability applies strict liability rules to cases involving errors in manufacturing, but applies negligence rules to other types of products liability cases. Nevertheless, many states continue to apply the strict liability rules that were developed in older cases.
Different rules have developed in products liability law for those who sell or repair used products. In most instances, a person who repairs, rebuilds, or reconditions a product is liable if the person is negligent in treating the product, but the person is not subject to strict liability for defects. In some instances, however, a person who re-manufactures a product may be subject to the same products liability rules as the original manufacturer.
States are split regarding the bases of liability for sellers of used products. Some states expressly exclude sales of used products from products liability rules. In other states, the general products liability rules apply.
A defendant in a products liability suit may employ one of several defenses to liability. One of the more common defenses is that the plaintiff misused the product in a manner that was not reasonably foreseeable to the manufacturer. For instance, assume that a plaintiff wanted to sweep a number of rocks in his driveway back into a bed of rocks. The plaintiff decides to use his lawnmower to shoot the rocks back into the rock bed. One of the rocks strikes and injures the plaintiff. The defendant could argue that using the lawnmower to move the rocks off of the driveway was not a reasonably foreseeable use of the product.
Other defenses may be based on the plaintiff's own negligence in using a product or on the plaintiff's assumption of the risk associated with the product. Similar defenses apply in breach of warranty claims. In a tortious misrepresentation claim, the primary defense centers on whether a plaintiff's reliance on a seller's statement is justifiable. If a plaintiff's reliance is not justified, then the lack of reliance defeats an essential element of the plaintiff's claim.