What Do I Do If I Am Injured By A Defective Product?
The modern shopper purchases products from all over the world. Decisions to purchase a product are based upon advertisements and good-faith that the product will be what the consumer expects. When a product injures a consumer, the law offers a means of recourse to compensate for the consumer’s injuries. Below is an overview of common considerations for a personal injury suit arising from a defective product.
The person injured by the product will be the plaintiff in the lawsuit. Plaintiffs for product liability actions can be a wide range of individuals. The purchaser of the product is the most obvious plaintiff, and this class of people are certainly able to bring suit if they are injured by the product. However, potential plaintiffs go far beyond purchasers. Any bystander or user of the product is also able to bring suit for injuries suffered. For example, mother purchases an iron that has a defective electrical cord. If the iron malfunctions while mother is using it and she is shocked, she can file suit. If mother loaned the iron to her son and he is shocked while using it, the son can bring suit. If son’s child is nearby when the malfunction occurs and the child is also injured, the child can bring suit as well.
The class of defendants that can be sued for the injuries resulting from the product are equally diverse. Rather than having to track down the manufacturer of the product, a plaintiff is allowed to “go to the familiar face” by simply filing suit against the retailer that sold the product. Any member of the chain of commerce for the product can be sued so long as two things are true. First, the product must have been defective when it left that party’s control. Second, the party must be in the business of selling the product—whether the sales are to other retailers or consumers is irrelevant.
Revisiting the iron example from above, every member of the chain of commerce that handed off the defective iron is liable to the injured party. If the iron’s cord, before being installed on the iron, was safe, the manufacturer of the cord cannot be sued: the defect developed after leaving their control. During the assembly process, the cord was improperly handled, causing it to suffer a defect. The iron was assembled with the defective cord and sold to a wholesaler that then sold it to a department store that finally sold the iron to the mother. The manufacturer of the iron, the wholesaler, and the department store may all be sued for the defective product, even though the iron manufacturer is the sole party that caused the defect. If mother sells the iron at a garage sale to a friend and friend is then hurt by the defective cord, friend can still bring suit against any or all three of these parties. Note, however, that friend cannot bring suit against mother, even though mother sold the iron to friend; mother is not in the business of selling irons, and by being only a casual seller she escapes liability.
The first type of product liability claim is one for negligence. A negligence claim requires a showing that the defendant failed to exercise reasonable care in manufacturing, designing, selling, or warning of dangers associated with the product. Proving this type of culpability can be extremely difficult because, unlike other types of claims, each member of the chain of commerce must have failed to exercise reasonable care in some way to be held liable. Because the other types of product liability claims are more successful and easier to successful bring, negligence claims for product liability injuries are not as common as other types of claims.
The most common type of products liability claim is one for strict liability. As the name suggests, strict liability claims don’t look to culpability at all; instead, the wrongful act is simply selling a defective product, even if the manufacturer could not have been more careful. In Savina v. Sterling Drug, Inc., the Kansas Supreme Court recognized three ways in which a product can be defective: in manufacture, by not conforming to the intended design; in design, by being designed in a manner that is insufficiently safe; and in adequacy of warnings, if the product poses a danger that consumers should be warned of. To determine if the design of the product is defective, Kansas courts apply the “consumer expectations test.” This test asks if the design created a product that is more dangerous than a normal consumer would reasonably expect. Adequacy of warnings is also a thorny path to liability. Manufacturers are not required to warn about obvious dangers (such as a knife being sharp) but are obligated to warn of hidden or unobvious dangers (such as the highly flammable nature of most cologne and perfume).
One final method of recovering for injuries caused by a defective product is through breach of express or implied warranties. Section 84-2-313 outlines the obligations of a retailer to honor any express promises or guarantees made to a consumer. In the context of defective products, these sorts of claims commonly arise when a floor model is used to advertise a product. The retailer is warranting that the product will be just as the model or sample is, including being free from defects. Section 84-2-315 is a similar warranty, known as the implied warranty of fitness for a particular purpose. This is an unspoken warranty that is created when a retailer is told about what the consumer wants to accomplish with a product and the retailer then recommends a particular product. For example, if an artist entered a hardware store and asked a sales associate which grinder would work best on iron, by suggesting a specific grinder, the associate has made an implied warranty that the grinder will work on iron. If the grinder is not strong enough to grind the iron, and causes injury to the artist when she attempts to do so, the artist has a claim for her injuries under this implied warranty. The final warranty comes from Section 84-2-314: the implied warranty of merchantability. This warranty is very broad and is implied for every good sold by a retailer. It simply guarantees the product will be capable of performing the ordinary tasks the product is used for. Thus, when a product is being used for its ordinary purpose and injures the user because of a defect, this warranty has been breached and can provide redress for those injuries.
Each day we all use countless products. The law seeks to ensure that businesses are responsible for injuries they cause by selling defective products. This goal is accomplished via a number of claims. Determining which type of claim is best for each client is a skill that attorneys develop over time. This means that selecting an experienced attorney is vital when you have been injured by a product, as the means of recovery are vastly different in what each requires.
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