If you or someone you know has been injured by a product, there are five theories under which a product liability claim may be pursued. These are: 1) intent/intentional tort; 2) negligence; 3) strict product liability; 4) implied warranty of merchantability/fitness for a certain purpose; and 5) theories of representation.
These theories share two common elements which must be proven by plaintiffs of product liability action: 1) a defect in the product, and 2) that the defect existed after the product left control of the defendant.
There are three common types of defects for which these claims are pursued:
1) Design defect – A product’s design is unreasonably dangerous, and alternate designs exist which could make it safer and more practical without reducing functionality.
2) Manufacturing defect – The particular product which caused the injury was different from other similar manufactured products in an unreasonably dangerous way.
3) Warnings defect – A product had a risk which could not have been eliminated by a re-design and the consumer was not made aware of the risk based on the warning/s provided.
If a product has remained within typical distribution channels despite liability claims against it, this supports the notion that the product hasn’t been altered in the time since; this is beneficial for plaintiffs of these claims. Proving that a defect existed after the product left the defendant’s control may be done in a variety of ways depending on the theory under which the claim is pursued:
1) Intentional tort – Proving product liability actions based on this theory requires proving the same elements for intentional tort of battery.
2) Negligence – Four elements must be proven for negligence-based claims: a duty owed; that the defendant supplied the defective product in question; that the product could not have been altered after leaving control of the defendant; and either physical injury or property damage occurred as a result.
3) Strict tort liability – In addition to the four elements to be proven under negligence, strict tort liability also requires causation, under which the plaintiff’s use of the product must have been foreseeable in some way.
4) Implied warranty of merchantability/fitness – Two factors must be established under this theory: that goods within the commerce chain are generally of good quality and fit for regular use; and that a seller knows, or has reason to know, of the particular purposes of various products and that buyers often rely on the judgment and skills of sellers when selecting goods.
5) Representation – Theories of representation are generally based on allegedly-false statements made to consumers which often fall into one of two categories. The first is “express warranty,” which consists of statements of fact/promises made by sellers which were part of the bargaining process (the product, for example, did not live up to the warranty, and the damage and causation existed despite it). The second is “misrepresentation of fact,” which requires proving that a seller misrepresented material fact regarding the quality or use of particular goods, and that the statement was meant to induce the buyer’s reliance in the transaction.
This reliance on the misrepresented fact/s must be proven in addition to the causation and damage asserted in the claim.
If you or a loved one has a product liability claim to pursue, contact Mike Agruss Law for a free consultation. We are a Chicago-based injury law firm representing individuals (and their families) who have suffered an injury in an accident. We will handle your case quickly and advise you every step of the way, and we will not hesitate to go to trial for you.
Lastly, Mike Agruss Law is not paid attorney’s fees unless we win your case. Our no-fee promise is that simple. You have nothing to risk when you hire us – only the opportunity to seek justice.