Proving Fault in a Product Liability Case
If you've been injured by a defective or dangerous product, you may have an easier time recovering compensation for your injuries than those who are injured in other ways. This is because special rules and theories of recovery have been developed in the area of product liability law.
A person may recover against a manufacturer or seller based on one or more of the following theories: strict liability, negligence, and breach of warranty, depending on the law in the applicable state. The most commonly asserted theory, strict liability, is discussed below.
Strict Liability Defined
Ordinarily, to hold someone liable for your injuries, you must show that they were careless. That is, they were negligent, and that their carelessness led to your injuries. With products sold to the general public, however, it would be extremely difficult and prohibitively expensive for one individual to have to show how and when a manufacturer was careless in making a particular product.
Neither can the consumer be expected to prove whether the seller or renter of a product had a proper system for checking for manufacturer's defects, or whether the seller caused the defect after receiving the product from the manufacturer. Finally, a consumer can’t be expected to check each product before using it to see if it’s defective or dangerous.
For all these reasons, the law has developed a doctrine known as "strict liability," that allows a person injured by a defective or unexpectedly dangerous product to recover compensation from the maker or seller of the product, without showing that the manufacturer or seller was actually negligent.
Here's how strict liability works: If you have been injured by a consumer product, you are entitled to compensation from the manufacturer or from the business that sold or rented the product directly to you. Strict liability operates against a non-manufacturer who sold or rented a product only if it’s in the business of regularly selling or renting those particular kinds of products. In other words, if you bought something at a flea market stall, garage sale or thrift store that sells all kinds of things, but not any one type of item on a regular basis, strict liability may not apply.
Rules of Strict Liability
Regardless of what steps a manufacturer or seller says it took in making and handling a consumer product, you can make a strict liability claim, without showing any carelessness on the part of the manufacturer or seller, if all three of the following conditions exist:
- The product had an "unreasonably dangerous" defect that injured you as a user or consumer of the product. The defect can come into existence either in the design of the product, during manufacture, or during handling or shipment;
- The defect caused an injury while the product was being used in a way that it was intended to be used;
- The product hadn’t been substantially changed from the condition in which it was originally sold. "Substantially" means in a way that affects how the product performs.
Manufacturers' and Sellers' Defense: Awareness of the Defect
Manufacturers and sellers have a defense to claims of strict liability that may be particularly important if you have owned the product for a while. That is, you may not be able to claim strict liability if you knew about the defect but continued to use the product. If it appears, either from the condition of the product (which the manufacturer's or seller's insurance company will have a right to examine) or from your description of your use of the product, that you were aware of the defect before the accident but used the product anyway, you may have given up your right to claim injury damages.
Get a Free Legal Evaluation Today: No Strings Attached
If you or a loved one have been harmed by a dangerous or defective product, time may not be on your side. Depending on when the injury occured, when it was discovered, or whether there is a class-action lawsuit in the works, you may need to take immediate action. Fortunately, you can have your potential claim analyzed by an attorney absolutely free.
In December 2016 Cuisinart was the talk of the town, and not in a good way. Consumers of Cuisinart food processors began reporting mouth injuries and tooth damage related to pieces of processor blades that ended up in their food.
Cuisinart announced a massive recall of the riveted blade products sold in the US and Canada. The recall encompassed products sold from July 1996 to December 2015. The large window for item production causes other issues, which we will address in a moment.
What Does Products Liability Cover?
Products liability insurance is the coverage that would respond to bodily injury and property damage claims caused by products produced by the policyholder. Sometimes this coverage is included in a general liability insurance policy, but for companies that produce large numbers of consumer products it is often stand-alone coverage.
This insurance protects against medical claims for bodily injury or illness, financial claims against property damage, and legal defense costs should a claim turn into a lawsuit. A large number of claims due to a product or products could result in a class action lawsuit, like in the case of the Cuisinart recall.
With such a lengthy timeline of products being sold, where is the products liability coverage?
Which Policy Responds?
This is a complex question with many possible answers:
All of the Cuisinart blade injuries have been reported in the last several months. Products liability for any bodily injury or property damage may come from the current policy. Or would it?
The affected products were sold over a 19 year period. Products liability coverage is typically triggered by a claim, so the policy or policies that were in effect over the last several months would provide coverage. However, it would depend on how the policy or policies were written.
Full Prior Acts?
Assuming that Cuisinart and/or their parent company had a full occurrence policy with the same insurance company every year for the last 19 years, then there is no question that the insurance company would respond to claims.
One thing business owners should look for in a products liability policy would be the absence or presence of full prior acts coverage. Full prior acts coverage allows a policy to respond to claims that are made involving faulty products made in years past, as well as current products made by the policyholder.
An exclusion of prior acts coverage on a full occurrence policy means the policy will respond only to claims on products made in the current policy term. This exclusion would be bad news for Cuisinart, since the products in question were produced well before their current insurance term.
No matter how old your products may be, there is always a margin for error or materials breakdown. Products liability is a must for any company that produces a product that is sold to a wholesaler distributor or directly to a consumer.
Products liability insurance coverage can be a complicated issue. With the help of an experienced broker, companies can avoid potential gaps in coverage. Contact Hayes Brokers today for a full risk management analysis and to find out how to add products liability insurance to your portfolio.