Defective Product Basics

Products Liability Basics 101

     Products liability claims arise when a manufacturer, wholesaler, retailer, or some other party in the distribution chain places a product in the stream of commerce that injures someone. Products liability claims can be based on a product’s defective design, defective manufacturing, inadequate warnings, false advertising, or breach of warranty. However, there may be various other claims available to injured consumers based on their unique circumstances and their state’s laws.

     These claims can be brought under multiple legal theories, including strict liability and negligence. Products liability claims are predominantly based in tort and or contact/law. Where defective design and defective manufacturing claims are tort law centered, false advertising claims and breach of warranty claims are centered around contract concepts. However, the two are not mutually exclusive, and many products liability claims can resound in both tort and contract.

     You should know that any product liability claims you have must arise under state law as there are no federal laws governing these claims. However, many states have comprehensive products liability statutes. To promote predictability in products liability cases in the several states, the United States Department of Commerce promulgated the Model Uniform Products Liability Act (MUPLA), which states could wholly adopt, partially adopt, or wholly reject in favor of their own products liability regulations.

     Products liability cases can also be based on state common law, which is binding law created and recognized through cases and court decisions. In addition, products liability claims can also be based on Article II of the Uniform Commercial Code (UCC), which governs “goods,” or items that are considered movable, i.e., a car, a washing machine, a lawnmower, etc. However, in recent years, products liability cases under the UCC have included, pets, gasoline, writings, prescription medication, coffee, guns, and more.

Common Products Liability Claims

     As mentioned above, product liability claims can be based on a product’s defective design, defective manufacturing, inadequate warnings, or false advertising. Here, we’ll discuss these claims at length and consider what a consumer is required to prove to prevail on their claim. Breach of warranty claims will be discussed separately below. Although many products liability claims may seem absurd, whether it be due to the seemingly excessive settlements or the reason the claim was brought in the first place, many products liability claims are warranted under the circumstances.

Design Defects

     Under the Restatement (Third) of Torts, a product has a design defect when the risks posed by the product could have been reduced by the adoption of a reasonable alternative design. Design defect claims are centered around the plans in producing the product rather than the product itself. Design defects are judged using a cost-benefit analysis. This means, to prevail in a design defect claim, a consumer will be required to prove there was an available and practical alternative product design that posed a lesser risk of harm, ultimately making it more cost-efficient to use the alternative, safer design.

Manufacturing Defects

     Under the Restatement (Third) of Torts, a product was defectively manufactured when it departed from its intended design, even when ordinary care was exercised by the manufacturer in preparing the product. Many defective manufacturing claims are brought under a strict liability theory, where the consumer bears no burden in proving that the manufacturer’s conduct fell below the ordinary standard of care. Claims brought under a theory of strict liability will be discussed in detail below.

     The Takata Airbag recall is a current and an ongoing products liability case involving a manufacturing defect. It is estimated that more than 100 million airbags have been affected. The Takata airbags were discovered to have a faulty propellant canister, which has shown to explode through the airbag when impacted, propelling shrapnel into the car’s cabin and thereby injuring consumers. Currently, the Takata airbag recall extends to 14 manufacturers, with more than 150 injured and 14 dead consumers affected.

The Malfunction Doctrine

     Manufacturing defects can be difficult or impossible to prove when the product has been severely damaged in an accident. In this case, the consumer is prevented from showing that the product was indeed defective because the product cannot be examined. In some cases, the consumer may prove their claim by using the “malfunction doctrine,” where the consumer can prevail by producing evidence eliminating other potential causes of an accident. For example, consider a car accident where one vehicle caught fire after colliding with another vehicle, destroying the vehicle. It is hypothesized that the fire was caused by the vehicle’s defective fuel tank, but because the vehicle was destroyed, there is no direct evidence proving that the defective fuel tank was the source of the fire. The driver of the destroyed vehicle can nonetheless prevail on their defective manufacturing claim by offering evidence that eliminates other potential causes of the fire.

Defective and Inadequate Warnings, i.e., “Failure to Warn” Claims

     Under the Restatement (Third) of Torts, a product may be deemed defective when there are inadequate instructions or warnings, and injury could have been avoided by the inclusion of reasonable instructions.

     A manufacturer, distributor, retailer, or other person or entity in the distribution chain have two duties concerning warnings: (1) to provide warnings against any hidden dangers the product may impose; and (2) to instruct the consumer on how to use the product to avoid any dangers or risks the product might impose. Warnings must be stated clearly and conspicuously. This means the warning can’t be in excessively small print on page 27 of a 275-page manual.

     Likely the most famous products liability case under a failure to warn claim is Liebeck v. McDonald’s Restaurants. You probably know this case as the “hot coffee” case, where a woman was severely scalded when her McDonald’s coffee was spilled. Despite wearing thick sweatpants, the coffee soaked straight through her pants contacting skin, causing third-degree burns on much of her lower body. Liebeck spent eight days in the hospital, underwent extensive skin grafts, was rendered partially disabled over a two-year period, and was left permanently disfigured.

     McDonald’s dodged the case for years, offering Liebeck $800 to settle the claim. With broad media coverage, Liebeck was widely criticized with many people finding it hard to believe that hot coffee could cause the damage alleged. However, the case eventually proceeded to trial, where it was revealed that McDonald’s served their coffee at a temperature 30 to 40 degrees hotter than other fast-food establishments, reaching anywhere from 180 to 190 degrees. At this temperature, third-degree burns can occur within two seconds of contact, whereas coffee served at the standard 150 to 160 range took significantly longer to cause third-degree burns at 20 seconds, giving consumers time to react.

     Liebeck argued that the coffee was unreasonably dangerous, and that McDonald’s should have sold their coffee at the lower, customary temperature. Over 700 other consumers, including children, had been burned by McDonald’s coffee prior to Liebeck. With billions of cups of coffee sold each year, McDonald’s saw these numbers as insignificant and didn’t believe it necessary to change their policies. However, the jury in Liebeck saw things differently, eventually awarding Liebeck $2.7 million in damages (which was eventually reduced to $480,000). This was chump change for McDonald’s, though, with its sales in coffee alone bringing in more than $2.7 million of revenue every two days.

False Advertising

     With respect to false advertising, when a consumer relies on information guaranteed by a person or entity in the distribution chain, and the consumer is subsequently harmed in reliance on the information provided, the consumer may recover damages based on misrepresentation. This is also known as “tortious misrepresentation.” Unlike the other products liability claims discussed above, false advertising has little to nothing to do with the product; the product doesn’t have to be defectively designed or defectively manufactured. Tortious misrepresentations come in three varieties: (1) the misrepresentation is fraudulent or deceitful when the retailer (or other person or entity) when they know the information they are providing is false; (2) the misrepresentation is negligent when the retailer provides the information, without knowing whether the information they are providing is false; and (3) a public statement is made concerning a product’s safety, and the product later is recognized to be unsafe. The third scenario is generally applicable to states employing a theory of strict liability.

     A more recent case in the advertising realm stems from the Sandy Hook Elementary school shooting. In 2019, the Connecticut Supreme Court reinstated the formally dismissed case brought against Remington, one of America’s largest gun manufacturers, which alleged wrongful marketing and unethical advertising under the Connecticut Unfair Trade Practices Act. This case shows how otherwise valid state-based products liability claims can conflict with protective federal statutes applicable to gun manufacturers, distributors, and retailers, such as The Protection of Lawful Commerce in Arms Act, which insulate these entities from civil liability. 

Products Liability Tests

     Because product liability cases ostensibly require consumers to prove nothing other than that they were harmed by a product, many courts have limited those persons or entities in the distribution chain’s liability by utilizing various “tests” to determine whether it is really equitable to hold them liable. Essentially, the tests serve as an escape mechanism. The two most used Tests are the Risk-Utility Test and the Consumer Expectation Test, which are applicable to products liability claims based on defective design, discussed above, and fall within the cost-benefit analysis test, also discussed above.

The “Reasonable Person” Standard

     As an initial matter, it is important to discuss the “reasonable person” standard, especially with respect to these two tests. When it comes to all torts, the reasonable person standard is always used. The reasonable person standard is objective rather than subjective, meaning the standard is not centered around what this consumer with their own unique knowledge and skills would do under the circumstances. There are deviations in the reasonable person standard when it comes to children, persons with disabilities, etc., but we will not discuss those here. The “reasonable person” is always cautious; never speeds, always reads the instructions, and makes all decisions with the intelligence an ordinary person would.

The Risk-Utility Test

     Under the Risk-Utility Test, the product designer can evade liability when there is evidence to show that the product’s utility outweighs its inherent harm. In other words, the consumer must show that a reasonable person would determine that the risks in using the product outweigh any burdens or costs in taking the necessary precautions, i.e., the risks are outweighed by utility.

The Consumer Expectation Test

     Under the Consumer Expectation Test, the product designer can avoid liability when the consumer, using the reasonable person standard, could determine that the product was dangerous and could anticipate and/or appreciate the risks in using it. The Consumer Expectation Test can be complicated because, even using the reasonable person standard, many dangers and risks may not be apparent to a reasonable person. For example, consider a car with an exterior or exposed gas tank. The average, reasonable consumer could probably appreciate that this could present a substantial and dangerous risk to the consumer should the tank be exposed to extreme heat or an open flame. However, this is an obvious and visible example of danger. Most cars have many parts which consumers cannot see, nor do they understand how they function, making it difficult to assess the risks.

     Many states may utilize one or both tests. It could be that, based on the product at issue, one test would be more suitable than the other. When it comes to complex products with many moving parts, the Risk-Utility test is generally used. Sometimes, a court will combine the two tests, using the practical elements that both tests provide under the circumstances.


     Warranties come in two varieties: express warranties and implied warranties. Warranties are generally applicable to those who design, and manufacture products more than they do to distributors, wholesalers, and retailers, although these parties in the distribution chain can make warranties too. For example, it is rare that a used car dealer will make warranties extending beyond the warranties that already come with the car.

     A warranty is a promise that a product is going to work over a certain period in the manner that it should. A warranty may also be based on the consumer’s reasonable expectations that the product will work according to its intended purpose.

Express Warranties

     Express warranties occur when a designer, manufacturer, or other party expressly extends a warranty, either verbally or in writing. You likely have experience with the express warranties and encounter them with many purchases you make. For example, suppose you purchased a washing machine and the paperwork warranted that the washing machine had a seven-year warranty. When your washing machine stops working two years in, the warranty has arguably been breached. Usually, a retailer selling washing machines, such as ordinary home improvement stores, does not make additional warranties and consumers are limited to the warranties made by the entity responsible for manufacturing the washing machine.

     However, let’s consider express warranties in the retailer context. Suppose an avid rock climber is planning an upcoming rock-climbing excursion. He goes to a sporting goods store to buy a new top rope to hold him as he climbs. Suppose the rock climber picks a top rope, but prior to purchasing it, asks the salesclerk what the rope’s weight limit is and whether the clerk thinks the rope would hold him. The store clerk says, “It can hold 250 pounds. This is a great top rope; I would recommend it to all rock climbers because it can meet all your rock-climbing needs. It really can hold anything.”

     It turns out that the salesclerk had never been rock climbing, and the weight limit was 200 pounds, not 250 pounds. The rock climber, who weighed 200 pounds, had all his rock-climbing gear strapped to his body, which put the weight on the top rope well beyond 200 pounds. On his rock-climbing excursion, the rope snapped under the man’s weight, which resulted in several broken bones. Here, the salesclerk made an express warranty that the top rope could hold 250 pounds and the salesclerk, and the retailer that employed the salesclerk, could be held liable on an express warranty claim brought by the rock climber.

     It should also be noted that breach of warranty claims bears a close resemblance to tortious misrepresentation claims and share many similarities, and there is much crossover. The rock climber in this scenario may have a tortious misrepresentation claim, either fraudulent or negligent, in addition to the breach of warranty claim.

Implied Warranties

     Generally, implied warranties are established by state law, usually located in the state’s commercial code) and will cover those products sold within the state. Implied warranties typically do not vary by product, and most products will be covered by an implied warranty no matter what the product is, provided the relevant state has adopted some form of an implied warranty statute.  

     Implied warranties serve as a guarantee that the product will not harm the product’s user when used according to its ordinary purpose. Accordingly, to have a valid implied warranty claim, you need to use the product in a manner consistent with its ordinary purpose. For example, consider that you were trying to dust your ceiling, but you can’t locate the stepladder you would normally use to reach the ceiling. You grab a chair at your dining room table and think it is sturdy enough to hold you. The chair seems to hold up, but it collapses with you on it several minutes later and you break your leg as a result.

     While the chair came with an implied warranty, you’re unlikely to have a viable claim alleging that the warranty was breached. Chairs are generally meant to be sat in rather than stood on, as this is their ordinary purpose. Because you weren’t using their chair according to its ordinary purpose, there is no claim, absent an express warranty that guaranteed that the chair could withstand a person standing on it (which is unlikely).

Disclaiming Warranties

     It is possible to disclaim warranties. However, there are state statutes and regulations that will govern how and when warranties can be disclaimed. Generally, when a warranty is disclaimed, it must be done in “conspicuous writing,” which means the disclaimer must be apparent and obvious to the user, as discussed above with respect to defective warnings. Whether a writing is conspicuous is usually a question that will need to be resolved by an experienced products liability attorney rather than on your own. When a merchant has properly disclaimed implied warranties, a warranty claim is barred.

Strict Liability

     With an understanding of what kind of products liabilities claims are available, let’s turn our discussion to what legal theories a products liability claim can be brought under. By far, the most common legal theory with respect to products liability claims is strict liability because it has the lowest burden of proof, requiring a consumer to prove essentially nothing other than that they were harmed by the product. The legal theories under which a products liability claim can be brought will depend on what theories the state in question recognizes.

     Generally, all parties in the distribution chain are held liable, even when it appears they had nothing to do with causing the harm that resulted. All that is required is: (1) the product was unreasonably dangerous, and the consumer did not cause the product to be unreasonably dangerous; (2) the product harmed the consumer when the consumer used the product in the way it was intended to be used; and (3) the product was substantially in the same condition it was when it was sold to the consumer.

     Let’s consider an example of what a product’s liability claim might look like under a theory of strict liability. imagine that a consumer purchased bottled soda at their local grocery store. The consumer drinks the soda and discovers that there is a dead rat in the bottle upon drinking it, making the consumer violently ill.  Although the grocery store likely had no part in bottling the soda, they are nonetheless liable because they are in the distribution chain. This is a strict liability.

     Generally, a person harmed by a product can recover damages without showing that any single party in the distribution chain acted negligently. The ordinary consumer is generally not expected to prove how a particular wholesaler, retailer, etc. negligently created or handled a product. Not only would it be time consuming and costly to require a consumer to prove such, but it is likely beyond the consumer’s knowledge. A single bottled soda passes through many hands—maybe even hundreds—prior to reaching the consumer and likely went through many processes and locations prior to reaching the grocery store. It would be nearly impossible to prove at what point the soda became contaminated with so many parties involved, particularly when each party in the distribution chain will be blaming another party.

     But what about the consumer? Shouldn’t she have checked to make sure her soda wasn’t contaminated? Should not she have noticed the contamination? In short, maybe. A strict liability claim will not be barred because the consumer didn’t inspect the product prior to using it, although this is an evidentiary question that will likely be resolved at trial by a jury. When a risk is obvious to the consumer and the consumer proceeds to use the product anyways, parties in the distribution chain are not strictly liable. While a rat in a soda bottle may be obvious to a consumer, consider all the other products where contamination could easily be disguised. For example, listeria in lettuce, pesticides in corn, salmonella in raw chicken. It would weigh against public policy to require a consumer to inspect every product they purchase prior to using it.


     However, there are restrictions when it comes to who the consumer can sue based on where they received the product and who sold it to them. Strict liability claims generally can only be brought against those who regularly deal in the goods sold. A person or entity who regularly deals in the goods sold is known as a merchant. A grocery store regularly sells soda, as well as other food and household products, and they are merchants who are strictly liable using the example above.

     Let’s consider a person or entity who is likely not considered a merchant under a strict liability theory. For example, suppose that you went to a neighborhood garage sale and purchased an antique lamp. Some days later, you go to plug in the lamp, and you inexplicably are shocked and sustained some harm as a result. It turns out the shock was due to poor wiring. In this example, you won’t be able to sue the person holding the garage sale under a strict liability theory because they are neither a merchant who regularly deals in lamps, and they aren’t a seller in the distribution chain.

     With many aspects to consider in strict liability claims, when you’ve been harmed by a product, you will want an experienced products liability attorney to examine your claim. Time may not be on your side, as many products liability claims can be time barred.


     Although negligence and strict liability claims may seem similar, they contrast in many ways. Importantly, negligence is centered around a manufacturer’s, retailer’s, etc. conduct and strict liability is centered around the product. To have a valid negligence claim, the consumer must show that the seller: (1) owed a duty to the consumer; (2) the duty to the consumer was breached; (3) the breach resulted in harm to the consumer; and (4) the consumer incurred damages as a result.

     Unlike strict liability, negligence requires that the consumer prove that the party acted carelessly. Accordingly, it is possible that a party in the distribution can be strictly liable without being negligent. A consumer will generally have little issue in proving that a duty was owed to them, that they were harmed by the responsible party’s breach, or that they incurred damages due to the breach. However, proving a breach was committed will likely be difficult. To be negligent, a party in the distribution chain’s conduct must be beneath the ordinary standard imposed.

     Let’s look at an example to contrast strict liability with negligence. Let’s consider a grocer as we did in our strict liability example. Suppose that a consumer purchases prepackaged salad mix and serves it to her guest at a dinner party. The salad mix had been contaminated with volatile pesticides and the consumer and her guests became very ill. The consumer decides to sue the grocer under both a negligence and strict liability theory.

     While the consumer will have no problem winning her strict liability claim because all elements are met. However, it is unlikely that the consumer can prove that the grocer was negligent.  It would be almost impossible to prove that the grocer did not act with ordinary care. How would the grocer know that the salad mix was contaminated, particularly when there are no visible impediments? Grocers do not typically open all prepackaged items to test it to reveal potential contaminants. If the grocer handled the prepackaged salad mix with the ordinary care that any grocer would, there would be little evidence to show that they acted below the ordinary care standard imposed. Because negligence claims are generally much harder to prove in these circumstances, strict liability claims are much more common.

Consumer Protections Extend to Expected Users

     Consumer protections extend to those who did not actually purchase the product themselves and extend to those persons who would reasonably be expected to use the product. Historically, consumer protections only extended to those in 'privity' with the seller via contract, meaning only the purchaser could recover when they were harmed by a product because they were the party that contracted with the seller. However, the law now recognizes consumer protections extending beyond the original consumer.

     For example, consider a consumer who purchases a lawnmower who later allows his neighbor to use it to mow his lawn. While trying to turn the lawnmower on, it spontaneously combusts resulting in severe burns to the neighbor. Consumer protections will extend to the neighbor because parties in the distribution chain could reasonably expect a situation such as this to occur, and the law recognizes that the neighbor should also be entitled to the same chance to recover damages as the original purchaser.

Arguments Against Liability

     Products liability claims are complex and generally will require expert testimony. They are also costly and time intensive. Product designers, manufacturers, distributors, and retailers may have an advantage over consumers due to their access to monetary resources and top-of-the-line experts. There are certain arguments persons and/or entities are likely to make in their defense, depending on the claim at hand.

     Certain products are inherently dangerous, such as fireworks and dynamite, and it is assumed that the consumer is aware of such risks and will conduct themselves in a reasonable manner when handling such dangerous products. When a consumer is harmed by an inherently dangerous product, it is likely to be argued that the consumer assumed the risk of harm in using the product.

     Another common argument against liability is improper use. Many times, an entity or person in the distribution chain, mainly manufacturers, will argue that the consumer used the product in an ‘improper manner’, despite adequate warnings, or that the way the consumer used the product was improper and could not have been anticipated by the manufacturer.

     Like ‘improper use’ is the argument that the consumer’s harm was due to their own negligence, based on how the consumer decided to use the product or what they were attending to accomplish in using the product. Consider the lawnmower example above and contrast it with this scenario: the original consumer allows his neighbor to borrow his lawnmower to mow his lawn. However, the original consumer noticed the lawnmower hadn’t been working as well as it had been and decided to tinker with it to see whether he could get it to work better. He removes a component part, replacing it with another part, and it seems to do the trick. Later, when the lawnmower spontaneously combusted and caused the neighbor severe burns. Under these circumstances, the neighbor’s chance at recovery is greatly reduced.

     When a consumer manipulates a product, there is a solid argument that those in the distribution chain are not liable. Consider the strict liability elements discussed above, which require that the product be substantially the same as when it was sold to the consumer. Liability must end somewhere, and a court would recognize that those in the distribution chain cannot be held liable when consumers add or remove components that change the product in a way that is not consistent with how the consumer received the product. Certainly, a product liability brought by the neighbor against anyone in the distribution chain would likely not be barred, as there is likely extensive investigation to be done to determine what caused the lawnmower to combust. In any event, the neighbor might have a negligence claim against the original consumer for attempting to repair the lawnmower and allow his neighbor to use it. 

Other Products Liability Issues: Forum Shopping

     Because products liability claims involve many moving parts and many persons and/or entities, a products liability claim can be brought in many states. “Forum shopping” occurs when a harmed consumer attempts to bring a case in a state that will be sympathetic to their claims. Today, there are many laws and opinions, such as Bristol Myers Squibb Co. v. Superior Court of California (2017), governing where a products liability claim can be brought, predominantly to promote consistency and predictability amongst the several states.

Other Products Liability Issues: “Subsequent Remedial Measures”

     Many consumers may be surprised to know that evidence that a manufacturer or other entity who took steps to correct a product that was defectively designed or manufactured, known as “subsequent remedial measures,” can’t be used against them in court to prove that the product was indeed defective or that a safer alternative existed. The reasoning is, if evidence of this sort was admissible, manufacturers and other parties would be less inclined to take corrective measures if those corrective measures could be used against them in court, de-prioritizing consumer safety.

The Takeaway

     Products liability covers various claims and products that are based in state law. Whether or not a consumer has a viable claim will be highly dependent on the state in question. Although laws have been introduced to create predictability amongst the several states, there are variances and there will likely continue to be some unpredictability involved.

     Overall, liability claims serve an important social purpose, such as policing. While many manufacturers, distributors, sellers, etc. chalk rising costs up to costly products liability claims up large settlements and a resulting increase in insurance costs, lawsuits are really the only accountability parties to the distribution chain have.

     You’ll need an experienced products liability attorney to assess a products liability claim. They are complex and involve many moving parts, as well as time and money. There are also many other issues to consider, such as whether the claim may be time barred by the state’s statute of limitations. Pharmaceutical companies have special exemptions for potentially harmful effects of drugs that need to be discussed carefully with an attorney prior to bringing a lawsuit.

Footer Add 7