PRODUCT LIABILITY - 5 THINGS YOU NEED TO KNOW ABOUT DEFECTIVE AND DANGEROUS PRODUCTS
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Corey B. Friedman, Esq.
West Palm Beach, Florida
Every year defective and dangerous products cause thousands of injuries and deaths throughout the United States. In a product liability case it is important that your attorney not only understand different theories of product liability law (such as: Design Defects, Manufacturing Defects, Negligence, and Failure to Warn), but also, you attorney should have a good understanding of laws such as the Consumer Expectation’s Doctrine.
Famous product liabilities which come up in recent popular culture lore include: The Ford Pinto, McDonald’s Coffee, Firestone Tires, Ford Explorers, etc. In addition, medical device and drug manufacturers are often subject to product liability litigation.
I. PRODUCT LIABILITY THEORIES
A Design Defect is a theory of liability which identifies a flaw in the intended design of a product. For example, a lawnmower that does not have certain blade guards may be said to have a design defect. A vehicle which has too high a center of gravity and narrow placement of shock absorbers on the rear axel may too be considered to have a design defect.
It is also important that the victim show that alternative and safer designs would and could have been made available and that the cost for such alternative design was slight compared to the harm caused by the unimproved design. This is known as the risk-utility and while used in the past in Florida, and can be used as evidence (that a safer design existed, etc), Florida uses what is known as the Consumer Expectations Test (below).
A Manufacturing Defect is one by which there is an aberration in a good during the manufacturing process that differs from the intended design. For example, if someone finds scrap aluminum or metal in their can of cola.
Negligence during the manufacturing process can occur when someone did something they should not have or failed to do something that they should have done which was both a legal and proximate cause of harm to the victim.
Failure to Warn occurs when a consumer cannot readily appreciate certain dangers that the manufacture was in a better position to know and understand.
Strict Liability is a theory of liability that holds certain parties responsible regardless of their conduct but only applies when the product is purchased in the ordinary course of business.
Additionally, other theories include Breach of Express Warranty, Breach of Implied Warranty (Merchantability) and Breach of Implied Warranty (Fitness for a Particular Purpose).
II. WHO IS RESPONSIBLE
The items must be put in the stream of commerce and received by the end user in a substantially similar condition as when it was released into the stream of commerce. The typical parties that would be proper defendants when there is a defective product released into the stream of commerce include:
1. The manufacturer of the product;
2. The manufacturer of component parts;
3. Parties that assemble products;
5. Distributors; and
III. WHAT IS THE CONSUMER EXPECTATIONS TEST?
Recently, in Aubin v. Union Carbide Corp, 40 Fla. L. Weekly S596 (Fla. Oct. 29, 2015), the Florida Supreme Court affirmed the use of the Consumer Expectations Test. Simply, a product is deemed defectively designed if the plaintiff is able to demonstrate that the product did not perform as safely as an ordinary consumer would expect when the produce is used in the intended or reasonably foreseeable manner.
IV. WHAT IS THE MARKET SHARE THEORY?
When there are various manufacturers of a certain product and that product is later deemed to be defective, if the consumer is unable to identify which manufacturer made the product, under the Market Share Approach all of the manufacturers will or can be held liable to the extent of their market share of that product.
For example, A, B, and C are companies which create Widget X. A has a market share of 40%, B has a market share of 50 % and C has a market share of 10%. In the event that there is a determination of liability based on a defective product and it is not determined who (A,B, or C) manufactured it, they will all share in the liability in proportion to their market share.
V. WHAT DO FLORIDA’S STANDARD JURY INSTRUCTIONS LOOK LIKE WITH REGARD TO PRODUCT LIABILITY
Taken directly from the Florida Supreme Court’s Standard Jury Instruction website, the below are pertinent jury instructions regarding Product Liability in Florida at the time this writing was crafted:
NOTE ON USE
The instructions in this Part PL PRODUCT LIABILITY do not contain instructions on Negligence. When alternative issues of negligence are to be submitted, use Charge 3.5 on Negligence Issues, as in Model Charge No. 8.
The issues for your determination on the claim of (claimant) against (defendant) are whether the (describe product) [sold] [supplied] by (defendant) was defective when it left the possession of (defendant)and, if so, whether such defect was a legal cause of [loss] [injury] [or] [damage] sustained by (claimant or person for whose injury claim is made). A product is defective
PL 1 express warranty
if it does not conform to representations of fact made by (defendant), orally or in writing, in connection with the [sale] [transaction], on which (name) relied in the [purchase and] use of the product. [Such a representation must be one of fact, rather than opinion.]
PL 2 implied warranty of merchantability
if it is not reasonably fit for the uses intended or reasonably foreseeable by (defendant).
PL 3 implied warranty of fitness for particular purpose
if it is not reasonably fit for the specific purpose for which (defendant) knowingly sold the product and for which the purchaser bought the product in reliance on the judgment of (defendant).
PL 4 strict liability (manufacturing defect)
if by reason of a manufacturing defect it is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product]* and the product is expected to and does reach the user without substantial change affecting that condition.
A product is unreasonably dangerous because of a manufacturing defect if it does not conform to its intended design and fails to perform as safely as the intended design would have performed.
PL 5 strict liability (design defect)
if by reason of its design the product is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product]* and the product is expected to and does reach the user without substantial change affecting that condition.
A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer] [or] [the risk of danger in the design outweighs the benefits].
If the greater weight of the evidence does not support the claim of (claimant), your verdict should be for (defendant).
[However, if the greater weight of the evidence does support the claim of (claimant), then your verdict should be for (claimant) and against (defendant)]. **[However, if the greater weight of the evidence does support the claim of (claimant), then you shall consider the defense raised by (defendant). On the defense, the issues for your determination are (state defense issues)].
“Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.