When a consumer is injured as a result of a product which is defective, the consumer may be able to file a lawsuit based on product liability. The laws governing product liability consist of rules and guidelines which establish what parties are responsible for injuries as well as when a plaintiff has a valid claim.
In general, manufacturers and sellers in the distribution chain, such as retailers, wholesalers, and distributors, may be held liable for defective products which cause injury. There are two categories of product liability claims, those based on defective designs and those based on defective manufacturing.
What are the Elements of a Products Liability Claim?
Consumers, or plaintiffs, in products liability claims must show the following:
- The product has been sold in the marketplace to consumers;
- A seller or manufacturer was under an obligation to sell or manufacture that product so as to meet the ordinary expectation of consumers;
- The product has a manufacturing defect or a design defect;
- The defect that the product has caused that product to be unreasonably dangerous;
- It is foreseeable, or predictable, that consumers could have been injured by the defect; and
- A consumer sustained an injury from the product which caused damages.
What Are Post Sale Warnings and Recalls?
A post sale warning is issued by a manufacturer of products. It is used to warn consumers of any design or manufacturing defects which affect a manufacturer’s product.
A post sale warning or recall is used to ensure that adequate safety measures are taken to protect members of the public from potential injuries which may occur because of a dangerous or defective product. This may include products such as automobile parts or strollers, if consumers are not properly warned.
What is a Product Recall?
Consumers rely upon the law to protect them from injuring themselves each time they set out to try a new product or an existing product. Product recalls occur when the majority of a product becomes unsafe for consumer use.
When a product is recalled, the manufacturer or a government agency will alter the public consumers and recommend that individuals take a particular action to ensure their safety when they are using the product. Consumers are protected by the Consumer Product Safety Act against exposure to products which create unreasonable risks of injury to consumers.
A recall can be distinguished from a post sale warning because a manufacturer will require a consumer to return a product which they have purchased because that product was defective. If a recall is issued, in many cases, a manufacturer will replace or fix the product which the consumer purchased.
How Does the Government Play a Role in Product Recalls?
A product recall provides a means for a manufacturer or a company to remove a product which is causing a problem or injury as well as to offer a remedy for an injured party. The government plays an important role in administering the recall process as well as mandates some types of recalls.
A government agency will ensure that a product that has a defective design is immediately recalled as well as warn consumers regarding the defects. Because of this, it is important for consumers to regularly check government websites to ensure that products they purchase are not on the recall list.
The following government agencies are permitted to require a product recall:
- The Consumer Product Safety Commission;
- The Food and Drug Administration;
- The Food Safety and Inspection Services;
- The National Highway Traffic Safety Administration;
- The Coast Guard; and
- The Environmental Protection Agency.
The rules governing product recalls will vary depending on the government agency. Because of this, it may be helpful to research and look through the agency’s website in order to determine the guidelines which are required for a recall.
When Should a Manufacturer Issue a Warning?
In general, a manufacturer should issue warnings when certain inherent characteristics exist related to the product. They should consider factors such as:
- Does the seller know the product has a design defect? If the manufacturer is aware or has reason to know of any defects with the product, they are responsible for providing adequate post sale warnings;
- Does the risk outweigh issuing a warning? If the inherent risk of a product substantially outweighs the burden of issuing a warning, the manufacturer has a duty to provide adequate warnings; and
- Can the warning be adequately and effectively communicated? If the warnings can be issued adequately and without a substantial burden to the manufacturer, the manufacturer has a duty to issue warnings.
What if a Manufacturer is not Aware of a Defect?
There are many instances in which a manufacturer is not aware of a design or product defect. In these situations, the manufacturer will, in general, not be liable for damages which may occur.
There is, however, an exception to this rule which provides that if a manufacturer should have reasonably known of the defect, then the manufacturer can be held liable for any injuries which may occur.
What Happens After a Product is Recalled?
Following a product recall, a manufacturer will be required to take certain actions including:
- Contacting their regulators;
- Notifying their insurers; and
- Seeking legal counsel to evaluate the liability exposure and financial stability of the company.
For example, it may be smart for a company to draft a plan for paying a certain amount of money in a settlement or settlements paid to those individuals who were injured by the product. This type of plan will serve a better purpose if it is complete before recalling the defective product from the market.
Planning in this manner will allow the company to adequately warn consumers while also limiting exposure to greater liability for the company. There are legal consequences for recalling a defective product.
For example, recalling a product may open the door to a class action lawsuit following the issuance of a product recall. In addition, simply recalling a defective product may not be sufficient for a government agency.
The type of defect a product has determines the damages which are recoverable from the responsible party. There are three different categories of product defects, including:
- Design defects;
- Manufacturing defects; and
- Advertising defects, or marketing defects.
A design defect occurs prior to a product being made which makes it dangerous to use. For example, there may be a choking hazard associated with a toddler toy which may make it unsafe for children to use.
A manufacturing defect occurs during the process of production. For example, a baby crib may be missing a key part or component, which was not installed during the manufacturing process.
In these types of cases, if the crib breaks while a parent uses it, a baby may sustain serious injury due to the malfunction. The manufacturer of the crib would be liable for any injuries to the baby.
A marketing defect arises when a product is unsafe based upon the advertising related to the product. Examples may include improper labeling or the failure to provide adequate warnings for the consumers who use the product.
Do I Need an Attorney?
It is essential to have the assistance of a defective products attorney for any issues you may have with post sale warnings or recalls. Your attorney can review your case, assist you with filing a lawsuit, and represent you in court.
If you are a business owner or manufacturer who has an issue with a post sale warning or recall, it is important to contact an attorney as soon as possible. Your attorney can review your situation, assist you with protecting yourself from a product liability lawsuit, and represent you in court if a lawsuit is filed against you.
