Part VI: Types and Examples of Common Accidents

Defective Products

Millions of Americans are injured or killed each year due to defective, faulty products that are dangerous even when being used for their intended purposes. Unlike other types of cases, such as automobile accidents or “slip and fall” cases, it is not necessary to prove that the manufacturer, distributor, or retailer of the product—or anyone else involved in the “stream of commerce”—was careless (“negligent”) in designing or making the product. Rather, the manufacturer, distributor, or retailer is “strictly liable” for injuries, deaths, and damage to other property caused by a product that is dangerous because of a defect in its design or manufacture when it is being used for an intended or “foreseeable” use.

The rationale behind holding a manufacturer, distributor, or retailer strictly liable for a defective product without regard to whether it was negligent or not is that the manufacturer and others in the stream of commerce are in a better position to protect themselves from the costs associated with a defective product than are the users of the product. For instance, the manufacturer, distributor, or retailer can obtain insurance to protect themselves and spread the cost of the insurance premiums across the board by raising the price of its product a few cents or dollars. Putting the brunt of liability for defective products on the manufacturer, wholesaler, or retailer simply makes this part of its cost of doing business that it can pass along to the purchasers of its product.


The definition of “product” is expansive. Products include everything from automobiles to bottles to elevators to massproduced residential homes and apartment buildings. But it is not necessary that the product be mass-produced. The fact that a product is unique does not render its maker, distributor, or seller any less liable for any injuries or damage caused by it if the product is defective, if the company is otherwise in the business of manufacturing and selling products as part of its full-time commercial activity. Thus, a company that makes a one-of-a-kind device for a customer is bound by the laws of strict liability. Indeed, some companies are in the business of making specialized products for each job. This does not make them any less subject to the laws of strict product liability.

Strict product liability, however, does not apply to the onetime or occasional seller. For instance, if you hold a yard sale and sell an item that turns out to be defective and causes injury, you are not held strictly liable for the victim’s injuries. The victim will have to prove that you were somehow negligent in causing the defect that injured her. Proving negligence requires a much higher standard of proof than strict liability. (Used goods sold by non-dealers are usually “as is” sales, and come with no warranties or guarantees.) Similarly, if a neighbor sells you a one-time batch of tomato sauce, he would not be considered a “seller” under products liability law. If you became sick after eating the sauce, you would have to prove that your neighbor was careless (“negligent”) in making the sauce, and such negligence was the cause of your injuries.


A person or entity involved in the manufacturing, distributing, or retailing of a product is strictly liable if: (1) the person or company places the product on the market, (2) the person or company knows that it is to be used without inspection for defects, (3) the product proves to have a defect, and (4) the defect causes injury to a person or damage to property. The defective product must be dangerous and unsafe when used not only for its intended purpose, but also for uses that can be reasonably anticipated by the manufacturer, distributor, or retailer of the product (“foreseeable” uses).

A product may be defective because of a flaw in its design or a defect in its manufacture. The difference between a product that is defectively designed and one that is defectively manufactured is that, in the first case (i.e., design defects), all of the products—even if made to the manufacturer’s exact specifications—are defective and dangerous. When a product is dangerous because of its design, then all products of that type are dangerous and the product is subject to recall, and a warning is given not to use the product and to take it back to the place where you bought it for a full refund.

On the other hand, when there is a defect in manufacture, that means that the product, when properly made, is safe for its intended use, but due to a mistake in its fabrication or assembly, the specific individual product is defective and dangerous. A common type of error that makes an individual product unsafe is a faulty weld. If welded properly, the product is safe for use, but if welded improperly, the product poses an unreasonable risk of harm to users of the product and persons nearby.


Mass injuries can result when products are mass produced but defectively designed in a manner that makes them dangerous when used in their proper way. A product is defective in design if either: (1) the product fails to perform safely as an ordinary consumer would expect when the product is used in an intended or reasonably foreseeable manner or (2) the risks inherent in the dangerous design outweigh the product’s benefits. The first test is known as the “consumer expectation” test, while the second test is known as the “risk-benefit” test.

Under the consumer expectation test, when a product fails to meet an ordinary consumer’s expectations as to the safety of the product in its intended or reasonably foreseeable use, a manufacturer is strictly liable for the resulting injuries or property damage. The consumer expectation test is based on the theory that when a manufacturer places a product on the market, it makes an implied representation that the product is safe for the tasks it was designed to accomplish.

The risk-benefit test of a defective design involves a balancing of the danger posed by the product’s design against the product’s usefulness (“utility”). This doesn’t necessarily require that the product’s risk of harm outweigh the product’s benefits. Liability may be imposed where the product’s design has an “excessive preventable danger,” and it would have been feasible for the manufacturer to reduce the risk of harm by using an alternate, safer design. For example, a glass bottle of apple juice marketed for infant use could be made safer by an alternative design, such as the use of plastic instead of glass, thereby preventing injuries to infants who might be injured by broken glass if the bottle was accidentally dropped.


A product is defective in its making when something happens during the manufacturing process that makes the particular item unsafe and dangerous, even though it has been designed safely. Some of the problems could be a faulty weld, lose or missing screws or bolts, or the use of materials that are inferior in quality to those called for by the specifications. The manufacturer or supplier of a defective part that is used in the product (a “component product”) is strictly liable for any and all injuries and damages caused by its defective part, even though it is incorporated into a larger product.


One major criteria of strict product liability law is that, at the time of the injury, the product was in substantially the same condition as it was when it left the manufacturer. If the company was in the business of supplying raw materials that would be incorporated into the final product, the questions then are whether the raw material met the specifications the manufacturer set and whether the product was materially changed. If the manufacturer ordered raw material of quality “A” but the supplier sent an inferior quality of product, the supplier can be held liable for strict product liability. If the supplier sends product meeting the standard requested by the manufacturer, but the design is faulty in not requiring a higher standard of raw material, the supplier is not strictly liable.

If what was sent by the supplier is a dangerous material in and of itself, the supplier can be held liable under the laws of strict product liability if the material retains its inherent quality. The most common example of this is asbestos. For years, asbestos was used by many manufacturers in a number of products and in many of them the raw asbestos was processed, yet the asbestos (particularly its dust) retained its toxic qualities. In such a case, the supplier of the raw asbestos is held strictly liable for injuries resulting from the inhalation of asbestos dust.

A product may also be defective when, although the product was properly designed and manufactured, it fails to include adequate instructions for its use or sufficient warnings regarding its dangers when used in a proper or foreseeable way.


Note that the law does not impose absolute liability. If the consumer were using a product in a way the manufacturer, distributor, or retailer could not have foreseen, strict products liability does not apply. Also, where the victim was partially at fault for his injuries or death, the legal doctrine of “comparative fault” applies to reduce the amount of monetary damages the manufacturer, distributor, or retailer must pay. The fault of the victim is weighed against (compared to) the fault of the manufacturer, distributor, or retailer.

For instance, if the victim was 25 percent at fault for causing his injuries, then the amount of his financial recovery is reduced by that amount. Hence, if a jury concluded that the total damages amounted to $100,000 but found that the victim was 25 percent responsible for the accident, then the victim’s award would be reduced by the percent of his fault (in this case, 25 percent), so that instead of receiving the full $100,000, the victim would receive only $75,000.


Sometimes when a person is injured by a defective and dangerous product, her injuries will be obvious, such as a broken arm, burns, or head injuries. However, in some cases, it is not at all unusual for injuries to take a few days to a few weeks—even years in the case of asbestosis—to show up. Therefore you should contact an experienced personal injury law firm as soon as possible after the accident. The attorney is familiar with the types of injuries that may arise as a result of being injured by a defective product, and oftentimes can help find a skilled doctor to treat you.


If you have been injured or a loved one killed by a defective product, you should promptly consult an experienced personal injury law firm. The defective property should not be reused, repaired, destroyed, or otherwise changed or disposed of without first giving the attorney and her investigator the opportunity to inspect and evaluate it. All instructions, warnings, other packaging materials (such as the box the product came in, if any), and receipts and warranties should not be thrown out, but rather given to the attorney so she can evaluate the sufficiency of assembly instructions, danger warnings, and other important information. The attorney or her investigator will want to talk to any witnesses of the incident while the facts are still fresh in their minds.

In most products liability cases, the attorney will want to keep the product in the same condition it was in when it caused the injuries until the case is completely over. In many cases, the attorney will want to hire an expert the appropriate certain field to evaluate the defective product and testify at trial. The attorney will often need to have the product and/or assembly instructions or warnings evaluated by a professional such as an engineer or human factors expert to see whether the product posed an unreasonable risk of harm. For instance, if a product failed because of metal fatigue and caused serious injuries, the attorney will likely want to have the product tested and evaluated by a metallurgist.