Product Liability and Defective Product

Product Liability and Defective Product

Consumer products that are defective and/or dangerous can cause significant, if not fatal injuries. Each year, thousands of people are hurt by dangerous products that reach the market despite consumer protection laws and advanced manufacturing techniques. Some of the injuries that are readily seen include death, amputation, traumatic brain injury, paralysis, and burns. Put simply, some companies are not as careful as they should be when bringing products to the market.

The Consumer Product Safety Commission (CPSC) is the government agency responsible for protecting consumers from defective products by constantly conducting research on potential product hazards to reduce injuries and deaths caused by defective goods. Annually, incidents under the CPSC jurisdiction kill 21,000 people and injury almost 30 million. In addition, in a study prepared by the U.S. Consumer Product Safety Commission where they estimated the cost to society of consumer product injuries in 1998, the concluded that it costs approximately 461 billion per year with medical costs accounting for 9% of that number, lost wages for 15%, and pain and suffering for 76%. Product liability cases are filed annually involve hundreds of thousands or even millions of individuals as plaintiffs. Moreover, many of these defective products are recalled each year due to the threat that they pose to consumers, much of which gets wide media attention due to the concern for public safety.

When a defective product causes any injury, many different parties in the distribution chain could be held liable, including the manufacturer of the product, the manufacture of any component parts, the designer of any part of the product, the parties that assembly and/or modify the product, the product’s distributor, and even the retailer that sells the product to the consumer. The first thing the victim needs to establish for product liability is that the injury-producing object or instrumentality was legally defective as it pertains to how it was manufactured, its design, or adequacy of warnings. Strict liability for a “manufacturing defect” may be imposed if, when the product left the particular defendant’s control, it differed from the manufacturer’s intended result or from apparently identical products of the same manufacturer, and the product was used in a manner reasonably foreseeable by the defendant but nonetheless caused plaintiff injury. Barker v. Lull Engineering Co., Inc. (1978) 20 C3d 413, 429, see CACI 1201, 1202. The burden is to demonstrate that there was a flaw in the manufacturing process—i.e., that the product deviated from the manufacturer’s design or specifications and was manufactured differently from the prototype.

With respect to design defect, although “perfectly” manufactured, a product may nonetheless be legally defective because of a flaw in design such as missing a critical safety device. Design defect strict liability may be established under either of two alternative tests, commonly known as the “consumer expectation” and “risk-benefit” tests. Soule v. General Motors Corp. (1994) 8 C4th 548, 563–564. Under the “Consumer expectation” test, a product is defective in design if it failed to perform as safely as an ordinary consumer would expect or have a right to expect when using the product in an intended or reasonably foreseeable manner. The victim must produce evidence that the product failed to satisfy ordinary consumer expectations as to safety.

The alternative test, “Risk-benefit”, is established if in light of relevant factors, including, but not limited to, the gravity of the danger imposed by the design; the likelihood that such danger would cause injury; the mechanical feasibility of a safer alternative design; the financial cost of an improved design; and the adverse consequences to the product and consumers that would result from an alternative design, judged by hindsight, that the risk of danger inherent in the challenged design outweighs the benefit of the design. When proceeding under the “risk-benefit” test, the victim need only establish evidence that would permit the jury to find a design feature of the product was a proximate cause of plaintiff’s injuries. They do not need to demonstrate feasible alternative designs. Instead, the burden shifts to the product designer to establish that the benefits of its product design outweighed the design risks.

Further, a product not otherwise defective in manufacture or design may nonetheless be deemed legally “defective” if a suitable warning about its dangerous propensities is not given. Similarly, a legal “defect” may be rooted in the failure to provide appropriate safe use instructions. Barker v. Lull Engineering Co., Inc. (1978) 20 Cal.3d 413, 429. There are two types of potential “warning” defects: The first, failure to inform consumers of risks or side effects that may follow foreseeable use of the product, enables consumers to eliminate or reduce the risk of harm. The second, failure to instruct consumers as to how the product should be used, provides consumers with the opportunity to make an informed choice.

Knowledge or knowability of the risks involved is an essential element of failure to warn strict liability. I.e., plaintiffs suing on a failure to warn strict liability theory must plead and prove that the product defendants either (i) actually knew of the risks involved at the time of manufacture and/or distribution, or (ii) based on the state of scientific knowledge at the time of manufacture and/or distribution, should have known of the risks. Carlin v. Super.Ct. (Upjohn Co.) (1996) 13 C4th 1104, 1110–1111.

Finally, under changing consumer or industry standards, a design considered safe at the time the product was placed on the market may be deemed defective several years later at the time of injury. While a strict product liability action cannot be maintained where the defect is attributable to changing standards, a negligence action may lie for the manufacturer’s failure to modify or retrofit the product or to warn users of dangers that became manifest after the product was manufactured. See Hernandez v. Badger Const. Equip. Co. (1994) 28 Cal.App.4th 1791, 1827–1831. Recovery on a theory of negligent design of a product involves balancing the likelihood and gravity of potential harm from a given design against the burden of the measures required to avoid the harm. If the likelihood and gravity of harm outweigh the design’s utility, the manufacturer may be found negligent for having placed the product on the market regardless of any product warnings the manufacturer may have provided. Merrill v. Navegar, Inc. (2001) 26 C4th 465, 478–481.

Notably, product defendant cannot be held liable under any theory unless the defect was a substantial factor in causing the injury. More often, the victims’ negligence and the defective product combine as concurrent causes. Here, however, the threshold issue is whether the product defect was a “substantial factor” in bringing about plaintiff’s injury; if so, the product defendant is a “legal cause” and the issue becomes one of apportioning damages by comparative fault. [See generally, Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849.

At Abir Cohen Treyzon Salo, LLP our products liability attorneys work tirelessly to right a wrong caused by a defect product by holding manufacturers accountable for the damage they caused. If you or your loved ones have suffered a significant injury as a result of a product, please call us to see if we can help you.


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