What’s in a Defect?

FJA Journal

October 25, 2019

By Leslie M. Kroeger, Diana L. Martin and Poorad Razavi

The title of the section of the Journal is Products Liability. Each month, various types of defective products and corresponding litigation are described in hopes of educating you and warning you about what’s literally in your backyard. But, regardless of your legal acumen or experience level, it’s often good to take a step back and rethink the basics.

Black’s Law Dictionary (11th ed. 2019) defines products liability as, “1. 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. 1. Products liability can be based on a theory of negligence, strict liability, or breach of warranty. 2. The legal theory by which liability is imposed on the manufacturer or seller of a defective product. 3. The field of law dealing with this theory. — Also termed product liability; (specif.) manufacturer’s liability. See LIABILITY; 402A ACTION. — products-liability, adj.

Seems simple enough.  A company makes and sells a product.  Your client uses it.  Your client gets hurt. There must be a defect.  Well, maybe – let’s look a little closer.

Products don’t just magically appear on store shelves or in Amazon’s inventory; they start in someone‘s imagination. Often that someone is working in a marketing department and looking for something new to sell to make more profit for themselves or their company. Regardless of where a product starts, at every step in the process, from imagination, design, testing, and manufacture, through sale, there is a duty to act with reasonable care toward the end user.

The complete article can be accessed here.