How to Defend Yourself in a Product Liability Lawsuit
Whether you are a manufacturer, a distributor, or a retailer, if someone is injured by a product, you might get hit with a product liability lawsuit. Products liability involves three different types of claims – two of them tort or personal injury claims, one a contract claim – that you should be responsible for damages that resulted from use of a defective product. Because the law in this area is extremely complex, you should seek out an experienced products liability attorney as soon as possible. However, with or without an attorney there are things you can do to strengthen your arguments and defend yourself in a products liability lawsuit.
Finding Technical Defects in the Complaint
Determine whether you were served properly.If the plaintiff didn't follow legal procedures to have the complaint delivered, you can have it dismissed for improper service.
- Courts have a particular procedure by which the plaintiff must deliver to you a copy of the complaint and summons so you have official notice that you are being sued. Generally, the papers must be delivered to you by a person over the age of 18 who is not a party to the lawsuit.
- The papers also must be delivered either to you in person or to someone who has authority to accept the lawsuit. If your company is being sued rather than you personally, the papers must be delivered to the correct person.
- For example, if the plaintiff is suing your company and the complaint and summons are delivered to your receptionist rather than your registered agent, you could claim improper service.
- If service was improper, you must make this objection in the first document you file in the case – typically your answer to the complaint. Otherwise, the court views any objection to service as waived.
- Keep in mind that having the plaintiff's lawsuit dismissed due to improper service doesn't usually make it go away entirely. The plaintiff typically can refile his or her lawsuit and complete service properly.
Check the date when the plaintiff was injured.Each state has a statute of limitations that only allows lawsuits to be filed within a certain period after the injury occurred.
- You can typically find out your state's statute of limitations by doing a simple search online. Which deadline applies depends on the type of lawsuit the plaintiff has filed. If the plaintiff is filing a tort or personal injury lawsuit, he or she typically has a year or two after the injury to file suit – although some states give as much as six years.
- However, if the plaintiff's claim is based on a written contract, the statute of limitations generally is much longer – often as long as 10 years.
Find out when the plaintiff purchased your product.Unlike statutes of limitations, statutes of repose require a plaintiff to file his or her lawsuit within a certain period of time after the product was purchased.
- Not every state has a statute of repose, so you'll have to do a little research to see if there's one that applies to the plaintiff's case.
- In many states the statute of repose is pegged to the product's useful life. For example, in Florida the statute of repose is 12 years if the product has a useful life of 10 years or less.
- Other states describe their statute of repose as a rebuttable presumption of the product's useful safe life. This means the law assumes your product can be used safely for a certain period of time, usually 10 years. If the plaintiff wants to file a lawsuit for an injury that occurred after that period, he or she must prove that the product could still be used safely.
Analyze the court's jurisdiction.If the court where the plaintiff filed suit doesn't have subject matter jurisdiction over the claim or personal jurisdiction over you, you can have the lawsuit dismissed.
- If the plaintiff sued in federal court and his or her claims aren't based on a federal law, the court does not have subject matter jurisdiction unless you and the plaintiff live in different states and the damages the plaintiff claims must be in excess of ,000.
- The court generally doesn't have personal jurisdiction unless the plaintiff sues in a court located in the county or judicial district where you live – or where your business is located, if your business is being sued rather than you personally.
- If you don't believe the court has personal jurisdiction over you, this must be raised in the first document you file – otherwise, the court will treat it as though you consent to the court's jurisdiction.
- Having the plaintiff's lawsuit dismissed for lack of jurisdiction can buy you some time, but it won't make the lawsuit go away. Typically the plaintiff will simply file the lawsuit in a court that does have jurisdiction.
Defending Against a Strict Liability Claim
Check your state's law.Not all states recognize strict liability claims for injuries caused by a defective product.
- Under a strict liability theory, you are liable for the plaintiff's injuries if your product was defective and the plaintiff was injured as a result of that defect. For the purposes of the law, "defective" typically is defined as "not meeting the customer's expectations." Your product also may be considered defective if you fail to warn users of a significant health or safety risk associated with use of your product.
- Most states have strict products liability to some extent, but the claim may not be available in certain circumstances, or against certain defendants. Nearly half of all states prohibit strict liability claims against anyone other than the company that manufactures the product.
- In states that have these laws, you can have the plaintiff's lawsuit dismissed for failure to state a claim, since you cannot be held strictly liable for injuries that result from use of the product – provided you are not the manufacturer of that product.
Evaluate the plaintiff's use of the product.You have a valid defense to the plaintiff's strict liability claim if you can prove the plaintiff misused or modified your product.
- The misuse defense is based on the plaintiff's behavior, while the modification defense is based on the product itself.For both defenses, you will need to use the discovery process – in which parties exchange information and evidence relative to the lawsuit prior to trial – to gain knowledge about the situation in which the plaintiff used the product.
- Any instruction guides that came with the product can help strengthen your defense, because you can compare the plaintiff's use of the product to the use described in the guide. An instruction guide also provides evidence that the plaintiff understood the correct use of the product.
- To succeed in the modification defense, you also must demonstrate that the changes the plaintiff made resulted in his or her injuries.
- For example, suppose you manufacture a saw with a rotating blade that has a guard to keep users from cutting their hands while operating the saw. If the plaintiff removes the guard, her modification could be the reason she cut her hand. However, if instead the plaintiff was electrocuted by faulty wiring, her modification had nothing to do with her injury.
- A modification defense also might succeed if the plaintiff modified your product to such an extent that you can argue the product that injured him was no longer yours.
Analyze whether the use was foreseeable.If the plaintiff misused your product, your defense is stronger if you can prove that use was unforeseeable.
- Even if the plaintiff misused your product, your defense will not succeed if her behavior could be reasonably anticipated.If the use differs significantly from the reason the product was designed you have a strong argument that the plaintiff was injured due to his or her own behavior rather than a defect in your product.
- A good way to analyze foreseeability is to look at what the plaintiff actually did and compare that to your product's intended purpose. For example, a car is meant to be driven. Driving a car in excess of the posted speed limit could be considered a misuse of the car; however, it is a foreseeable misuse. The car is still being driven, even though the driving is unsafe.
- In contrast, if the plaintiff is injured while using her car engine as a makeshift grill to cook her food, this would be an unforeseeable use. Car manufacturers don't make cars for use as cooking devices.
Consider the context in which the plaintiff was injured.If the plaintiff knew of the hazard that would accompany his or her use of the product and went forward anyway, you can argue that he or she assumed the risk.
- Assumption of the risk is a popular defense to strict liability claims. All you have to prove is that the plaintiff continued using the product even knowing that she might get hurt by doing so.
- For example, suppose, despite knowing that electricity and water don't mix, the plaintiff decides she's going to multitask and dry her hair while taking a bath. If she subsequently sues you, as the manufacturer of her hair dryer, you can argue that she assumed the risk because despite all warnings that she would get electrocuted if she used the hair dryer in the bath tub, she decided to try it anyway.
Defending Against a Negligence Claim
Determine your duty to the plaintiff.The plaintiff cannot argue that you were negligent if you owed no duty to him or her.
- Rather than using an affirmative defense, in which you have to prove something, you also have the option of attacking the plaintiff's case-in-chief. This means that you disprove one of the elements of the plaintiff's case.
- The plaintiff's case is made of distinct elements lined up like dominos. If you knock one down, the rest of the case will follow.
- The first element a plaintiff must prove in a negligence claim is duty. In a products liability case, the law requires you to exercise a reasonable standard of care as defined by those in your industry or who manufacture similar products.
Analyze whether you breached that duty.Even if you owed the plaintiff some duty, you were not negligent if you didn't breach that duty.
- Product testing and compliance with safety regulations are two things you can use to prove you didn't breach the duty of reasonable care. The results of safety tests also can show that you didn't breach your duty, especially if the product achieved high safety ratings.
- This element goes hand-in-hand with unforeseeable misuse. You cannot be reasonably expected to test the safety, performance, or functionality of your product in every possible circumstance – you are only legally responsible for injuries your product causes when it's being used the way it was intended.
Evaluate the cause of the plaintiff's injury.You have a defense to a negligence claim if the plaintiff's injury was caused by something other than your breach of duty.
- Demonstrating that something else most likely caused the plaintiff's injury will defeat the plaintiff's entire case, even if your product was defective and the plaintiff can prove that the defect was due to your negligent manufacturing practices.
- For example, if the plaintiff hit her head on your machine because she slipped in a puddle of milk on the floor, neither your machine nor any defect it might have was to blame for her injuries.
Compare the plaintiff's negligence to your own.You can reduce or even eliminate your liability if the plaintiff also was negligent in the way he or she used your product.
- Essentially, you must argue that the plaintiff wouldn't have been injured if he or she hadn't been acting carelessly.
- To build this defense, you will have to gain information about the context in which the plaintiff was injured and how the plaintiff was behaving immediately prior to the injury.
- An example of contributory or comparative negligence might be if the plaintiff was texting to a friend while operating the electric saw you manufacture.
Defending Against a Breach of Warranty Claim
Evaluate your relationship to the plaintiff.Because breach of warranty claims are based in contract law, you must have a contractual relationship to the plaintiff.
- Unlike negligence or strict liability claims, which can be brought by anyone who happened to be injured by your product, the plaintiff must have a specific legal relationship – called "privity" – with you to sue you for breach of warranty.
- Privity typically is established by a written contract, although the precise definition of privity varies among states. Usually, the plaintiff must be the person who purchased the product directly from you.
- Even if your product was defective, you can successfully defend against a breach of warranty claim by proving the plaintiff was not a party to the contract under which the product was sold.
Analyze the plaintiff's use of the product in light of the contract.When you entered into a contract with the plaintiff, you sold a product designed to fit a particular purpose.
- There are two basic warranties that courts infer are included in every contract: an implied warranty of merchantability and a warranty of fitness for a particular purpose. Much like strict liability claims, breach of these warranties hinges on the plaintiff proving that the product was defective.
- Essentially, the plaintiff told you what he or she needed to do, and you provided a product that would fulfill that need. There is an implied understanding that the product you sold the plaintiff would function and meet the plaintiff's specifications.
- To succeed on a breach of warranty claim, therefore, the plaintiff must prove that she told you her particular needs and you promised to meet those needs, but the product you provided failed to live up to that promise.
Determine whether the plaintiff modified or misused your product.As with strict liability, you have a defense against a breach of warranty claim if the plaintiff altered your product or used it for an unintended purpose.
- If the plaintiff made substantial changes to your product after he or she received it, you may not be liable for her injuries.
- As in strict liability, you must show the original design for your product, how the plaintiff modified it, and that those modifications caused the plaintiff's injuries.
- Common examples of a plaintiff's modification that can be used as a defense include removal of safety guards intended to prevent injury, if the plaintiff's injury is the same as the injuries the guard was designed to prevent.
- You also can defend yourself in a product liability lawsuit based on breach of warranty by proving that the plaintiff got injured while using your product in a way it was never intended.As with strict liability claims, the misuse must be unforeseeable, such as if the plaintiff used a meat slicer as a diaper-changing table.
Check the contract's notice requirements.The contract the plaintiff signed may include provisions on advance notice of a potential breach of warranty claim.
- Most contracts use boilerplate language to address the implied warranty of merchantability and the warranty of fitness. These clauses typically require written notice of a breach of warranty claim within a certain period of time after the injury.
- If the plaintiff fails to comply with the notice provisions in the contract, he or she is considered in breach of the contract itself, and will not prevail in the lawsuit over this defense.
- Many warranty provisions also limit the amount of damages the plaintiff can recover in a breach of warranty action, typically allowing only repair or replacement of the defective product.If the plaintiff's contract includes such a limitation, you should compare it to the damages the plaintiff is demanding in the lawsuit.
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