Every year companies around the world put millions upon millions of products out onto the market for people to buy. And every year, some of these products end up being defective and injuring consumers. For example, Honda issued a recall for the Takata airbags that are installed in some models of the vehicles that the company sells because the airbag was defective. In some instances, Consumer Reports stated, drivers were struck in the face and neck with metal shards after the airbag deployed. Those injured because of the defect in the airbag could, and some did bring a lawsuit against Honda and Takata to seek compensation for their injuries. Likewise, if you or a loved one are injured because of a defective product, you can seek redress for your injuries from the company that made the product.
The area of law that deals with products defects is called products liability. Products Liability is "a manufacturer's or seller's tort liability for any damages or injuries suffered by a buyer, user, or bystander as a result of a defective product." Black's Law Dictionary 1328 (9th ed. 2009). Defective products are those that are "unreasonably dangerous for normal use." Id. There are three different legal theories that plaintiffs typically use in products liability cases. These are negligence, strict liability, and breach of warranty.
Negligence and Strict Liability
Types of Defects
Under negligence and strict liability, products are usually alleged to be defective in one or more of the following ways:
- Manufacturing Defect: This type of defect occurs when there is an error in the manufacturing process that causes a product to have a flaw that it was not designed to have.
- Design Defect:This type of defect occurs when the design of the product renders it unsafe.
- Failure To Warn: This type of defect occurs when a product does not contain any warnings of a hidden danger the products has or the product does not contain instructions on how to use the product properly in order to avoid injury. In addition, a failure to warn could also mean that a product has inadequate warnings.
Many personal injury cases deal with the theory of negligence. Negligence means "[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation." Black's Law Dictionary 1133 (9th ed. 2009). For example, if a driver fails to stop and hits another car because he was not paying attention to the road because he was texting, then he could likely be held liable for negligence. Similarly, if a company creates a product that is defective in some manner and that product injures a person who was using the product as intended, then that company can be held liable for the injuries it products caused.
In Colorado, in order to prove negligence the plaintiff "must establish (1) the existence of a duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) which proximately caused (4) damage to the plaintiff." Largo v. Crespin, 727 P.2d 1098, 1102 (Colo. 1986)Largo v. Crespin, 727 P.2d 1098, 1102 (Colo. 1986). If a plaintiff can prove all these elements by a preponderance of the evidence than that plaintiff may be able to recover damages from the person or entity who was negligent.
Strict liability is a form of liability that "does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe." Black's Law Dictionary 998 (9th ed. 2009). Colorado adopted strict liability in 1975, in the case of Hiigel v. General Motors, 190 Colo. 57 (Colo. 1975). The court, in that case, stated a "[m]anufacturer's liability in strict tort does not rest upon the normal
negligence rules of foreseeability, but upon the newer concept of enterprise liability for casting a defective product into the stream of commerce. Thus strict tort liability shifts the focus from the conduct of the manufacturer to the nature of the product." Id. Under the theory of strict liability, a plaintiff does not have to prove that the manufacturer was negligent in order to recover damages. Instead, if a manufacturer put a defective product on the market, that manufacturer can be held liable for any injuries the product caused regardless of whether or not the manufacturer was negligent in making that product.
Breach of Warranty
A third theory that product manufacturers can be held liable under is breach of warranty. There are two types of warranties, express warranties, and implied warranties. Express warranties are warranties "created by the overt words or actions of the seller." Black's Law Dictionary 1725 (9th ed. 2009). Thus if a seller promises a consumer that a product will do something and that product fails to do what was promised, the consumer may have a claim for breach of warranty.
An implied warranty is a little different. It is "an obligation imposed by the law when there has been no representation or promise; especially, a warranty arising by operation of law because of the circumstances of a sale, rather than by the seller's express promise." Id. There are two kinds of implied warranties that typically come up in products liability cases, the implied warranty of merchantability and the implied warranty of fitness for a particular purpose.
- Implied Warranty of Merchantability: This warranty is "a merchant seller's warranty -- implied by law -- that the thing sold is fit for its ordinary purpose." Id. at 1726. For example, if a person buys a bicycle over the internet, when it is delivered that person expects the bicycle to support his or her weight. If the bicycle falls apart the second the consumer hops on it, then the seller may have breached the warranty of merchantability.
- Implied Warrant of Fitness for a Particular Purpose: This warranty is "a warranty -- implied by law if the seller has reason to know of the buyer's special purposes for the item -- that the item is suitable for those purposes." Id. For example, a consumer was in the market for a bicycle and asked the seller what bicycle in the shop was best. The seller recommends the Model X and the consumer then buys it. The bike works well at first but soon experiences problems if its ridden for more than a few miles and can not make it through an entire marathon. That consumer may then have a case of breach of warranty because the seller knew he wanted the bike for a marathon and the product was not made for it.
Contact A Denver Personal Injury Attorney
The theory or theories that are applicable in your case will depend on the facts and circumstances of your case. If you or a loved one has been injured because of a defective product, please do not hesitate to contact the Law Office of Jeremy Rosenthal today for a free case evaluation.