DEFECTIVE DESIGN OF PRODUCT (cont.)

In many products cases, the manufacturer will argue that the plaintiff was misusing the product or using the product in an unintended manner. This can be a complete defense for the manufacturer but only if the manufacturer can establish that the misuse or unintended use was not foreseeable.[3] In other words, if the misuse of the product was something that should have been foreseen by the defendant, the defendant may still be held liable for the defect in the product’s design.

DEFECTIVE MANUFACTURE OF A PRODUCT

A product may also be defective due to a manufacturing defect. Under California law, a product has a manufacturing defect if the product differs from the manufacturer’s design or specifications or from other typical units of the same product line. In order to establish a claim of manufacturing defect, a plaintiff must obtain the manufacturing specifications for a product and then establish that the particular product actually being used by the plaintiff did not conform to those manufacturing specifications. For example, if the manufacturing specifications called for a certain type of screw to be used but the product being used by the plaintiff had a different screw, this could be a manufacturing defect.

A common defense to claims of manufacturing defect is that the product has been altered or changed since it was sold. For example, the defendant may claim that the product was manufactured with the proper screw but that the screw was replaced after it was sold. In these cases, such a modification must be so substantial and unforeseeable as to constitute a superseding cause of an injury as a matter of law.[4]

FAILURE TO WARN OR INSTRUCT

A product can also be defective based on the manufacturer’s failure to warn of certain dangers associated with the use of the product. In order to establish a claim for failure to warn, a plaintiff must prove the following:

1. The defendant manufactured, distributed, and/or sold the product;
2. The product had potential risks that were known or knowable in light of scientific or medical knowledge that were generally accepted in the scientific community at the time of the product’s manufacture, distribution, and/or sell;
3. The potential risks presented a substantial danger when the product was used or misused in an intended or reasonably foreseeable way;
4. Ordinary consumers would not have recognized the potential risks;
5. The defendant failed to adequately warn or instruct of the potential risks;
6. The plaintiff was harmed; and
7. The lack of sufficient warnings or instructions was a substantial factor in causing plaintiff’s harm.

Under California law, even a product that is flawlessly designed may still be defective if it possesses risks to the user without a suitable warning so that consumers may refrain from using the product or avoid the danger by careful use.[5] In addition, the defendant will be held to an objective standard that is not based on what it actually knew. Instead, the manufacturer is held to the standard of an expert in the field and is obligated to keep abreast of any scientific discoveries and is presumed to know the results of all such advances.[6]

NEGLIGENCE

A designer, manufacturer, supplier, installer, and/or repairer of a product may be held responsible for damages caused by a product if a plaintiff establishes that the defendant was negligent. In order to prevail on a negligence claim, a plaintiff must prove that the defendant failed to use the amount of care in designing, manufacturing, inspecting, installing, and/or repairing the product that a reasonably careful defendant would have used in similar circumstances to avoid exposing others to a foreseeable risk of harm.

In a negligence claim, the question is whether the defendant used reasonable care, which is balanced by what the defendant knew or should have known about the likelihood and severity of potential harm from the product against the burden of taking safety measures to reduce or avoid the harm. In a negligence claim, a plaintiff must not only establish that a product was defective but also that the defect in the product was due to the negligence of the defendant.[7]

EXPRESS WARRANTY

A product may also be defective based on a breach of an express warranty. An express warranty is a contractual promise from the seller that the goods conform to the promise; if they do not, the buyer is entitled to recover the difference between the value of the goods accepted by the buyer and the value of the goods had they been as warranted.[8] The purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell.[9]

In order to prevail on an express warranty claim, a plaintiff must establish that he or she was harmed by a product because a defendant represented, either by words or actions, that the product was safe but the product was not as represented. The plaintiff must prove that:

1. The defendant gave a written warranty about the product or made a statement of fact or a promise about the product;
2. The product did not perform as warranted or did not meet the quality of the description of the product;
3. The plaintiff took reasonable steps to notify the defendant within a reasonable time that the product was not as represented;
4. The defendant failed to repair or otherwise remedy the product as required by the warranty;
5. The plaintiff was harmed; and
6. The failure of the product was a substantial factor in causing plaintiff’s harm.

IMPLIED WARRANTY OF MERCHANTABILITY

Even if a product does not contain an express warranty, it may contain an implied warranty of merchantability. In order to establish the breach of an implied warranty, a plaintiff must establish that he or she was harmed by the product that was purchased from the defendant because the product did not have the quality that a buyer would expect. To prevail, a plaintiff must prove the following:

1. The plaintiff bought the product from the defendant;
2. At the time of purchase, the defendant was in the business of selling these goods by occupation and held himself or herself out as having special knowledge or skill regarding those goods;
3. The product was not the same quality as those generally acceptable in the trade, or was not fit for the ordinary purpose for which such goods are used, or did not conform to the quality established by the parties’ prior dealings or usage of trade;
4. The plaintiff took reasonable steps to notify the defendant within a reasonable time that the product did not have the expected quality;
5. The plaintiff was harmed; and
6. The failure of the product to have the expected quality was a substantial factor in causing the plaintiff’s harm.

Unlike express warranties, which are basically contractual in nature, the implied warranty of merchantability arises by operation of law. Although privity, or a relationship between the seller and the purchaser, is normally required for actions based upon the implied warranty of merchantability, there are exceptions to this rule, such as one for members of the purchaser’s family.[10]

INHERENTLY UNSAFE COMMON CONSUMER PRODUCTS

Section 1714.45(a) of the California Civil Code states the following:

(a) In a product liability action, a manufacturer or seller shall not be liable if both of the following apply:

(1) The product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community.

(2) The product is a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, and butter, as identified in comment i to Section 402A of the Restatement (Second) of Torts.

This is an affirmative defense that must be raised by the defendant. In order to prevail, the defendant must prove the following:

1. The product is a common consumer product intended for personal consumption;
2. The product is inherently unsafe;
3. But the product is no more dangerous than what an ordinary consumer of the product with knowledge common to the community would expect.

PURSUING A PRODUCTS LIABILITY CLAIM

In order to prevail on a claim for products liability, the testimony of expert witnesses is almost always required. These claims can be very difficult, technical, and expensive to pursue. It is important that a highly skilled and experienced attorney be retained to pursue the case, as product manufacturers spare no cost to defend actions against them.

A products liability claim can arise from any type of product on the market. Some examples include:

• Manufacturers of motor vehicles, including automobiles and motorcycles
• Manufacturers of tires
• Manufacturers of household products such as toasters and blenders
• Manufacturers of heavy equipment, including forklifts and cranes
• Manufacturers of sporting equipment such as skis and skateboards
• Manufacturers of tools, including welding guns and cutting torches
• Manufacturers of beauty products, including hair dye and lotions
• Manufacturers of farming equipment, including tractors and combines
• Manufacturers of toys, including slides and toys that pose choking risks
• Manufacturers of elevators and escalators

DAMAGES FOR INJURIES CAUSED BY PRODUCTS

Defective products have caused amputations, serious burn injuries, traumatic brain injuries, paralysis, disfigurement, fractures, and even death. If you have been injured due to a defective product, you may be entitled to recover the following damages.

Economic Losses

Economic damages are ascertainable monetary amounts, including lost wages and medical bills. Someone injured by a defective product often will not be able to return to work and therefore may be entitled to the loss of future wage-earning capacity for the remainder of the anticipated life expectancy. In addition, serious injury can be caused by a defective product and may require medical treatment for the rest of the injured person’s life. To calculate the amount that this long-term care will cost, our firm may retain a specialist to prepare what is known as a “life care plan,” which is a plan that sets out medical and medically related care that will be needed over the remainder of the person’s life.

Non-Economic Losses

Non-economic damages include items such as emotional distress, mental pain and suffering, physical pain and suffering, disfigurement, and humiliation. Injuries from a defective product can be life altering and traumatizing, and the law therefore permits a plaintiff to recover for more than just medical bills and lost wages.

Wrongful Death Damages

In some situations, a defective product can cause death. In such a case, the deceased’s family members, or wrongful death beneficiaries, may be entitled to recover the medical bills as well as the funeral and burial costs. The deceased’s loved ones can also recover for their own damages due to the loss of love and society of the deceased person.

Punitive Damages

Punitive damages are damages that are meant to punish the wrongdoer as opposed to compensating the victim. Punitive damages are available only if it is proven by clear and convincing evidence that the defendant engaged in conduct with malice, oppression, or fraud.

TIME LIMITS FOR FILING CLAIMS FOR PRODUCTS LIABILITY

In California, the statute of limitations for filing most claims is two (2) years from the date of the injury. If, however, the claim is against a state or local governmental entity, the deadline to provide notice of your claim may be as little as six (6) months. For this reason, if you believe you or someone close to you may have a claim for damages, you should contact an experienced attorney as soon as possible.

[1] Demara v. The Raymond Corp. (2017) 13 Cal. App. 5th 545, 554.

[2] Bracisco v. Beech Aircraft Corp. (1984) 159 Cal. App. 3d 1101, 1106-1107.

[3] Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56.

[4] Torres v. Xomox Corp. (1996) 49 Cal. App. 4th 1, 19.

[5] Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal. App. 4th 564, 577.

[6] Carlin v. Superior Court (1996) 13 Cal.4th 1104, 111d n.3.

[7] Chavez v. Glock, Inc. (2012) 207 Cal. App. 4th 1283, 1304-1305.

[8] Dagher v. Ford Motor Co. (2015) 238 Cal. App. 4th 905, 928.

[9] Keith v. Buchanan (1985) 173 Cal. App. 3d 13, 20.

[10] Hauter v. Zogarts (1975) 14 Cal.3d 104, 115, n.8 .