USA Law and Practice Contributed by: Trevor Keenan, Michelle Byers Graham and Curtis Berglund, Campbell Conroy & O’Neil, P.C.
Types of Product Defect Defects in manufacturing, design, packaging and product warnings can all give rise to liability. A manu - facturing defect exists where the product differs from its intended design. A design defect exists where the product’s design is defective, such that all products manufactured and sold with the design are defective and foreseeable risks could have been limited or elimi - nated by a reasonable alternative design. A defective warning involves the failure to disclose foreseeable risks of the product or the failure to adequately warn of the product’s dangers. Failure-to-warn claims are typi - cally asserted as negligence or strict liability claims. The test for whether a product is defective varies among the states. Typically, states use the consumer- expectations test, the risk-utility test or a combina - tion of both. Under the consumer-expectations test, a defect exists if the product is unreasonably danger - ous, and the danger exceeds what an ordinary con - sumer would expect (Restatement (Second) of Torts: Product Liability Section 402 (a)). Under the risk-utility test, the product is defective if the utility of the product is outweighed by the risk of injury (id). 2.2 Standing to Bring Product Liability Claims A person claiming injury resulting from a defective product has standing to bring a product liability claim. The original purchaser of the product is not typically the only one with standing. In a “tort based” warranty action (ie, for personal injuries or property damage other than to the product itself), the plaintiff need not have bought or leased the product directly from the defendant, so long as the plaintiff is a person whom the defendant might reasonably have expected to use, consume or be affected by the product. See Theos & Sons , Inc v Mack Trucks , Inc , 431 Mass 736 (2000). Whether a plaintiff can bring derivative damage claims in a product liability action typically depends on the law of the state where the action is filed. For example, a spouse or child may be permitted to bring a loss of consortium claim (for loss of care, guidance and comfort) in certain states. Wrongful death or survivor statutes, which also vary by state law, define when heirs or administrators can bring actions on behalf of the decedent’s estate. Certain states permit claims for emotional distress for individuals who were not physi -
• the seller has reason to know that the buyer is relying upon its skill or judgement to furnish the appropriate goods; and • the buyer does in fact rely on the seller’s skill or judgement. Consumer Protection Consumer protection statutes are often broad and encompass such business practices as: • false or misleading advertising or labelling; • breach of implied warranties; • misrepresentations; and • safety violations. The statute will typically set forth the standard of proof. Many statutes require proof of intent and reliance on the misleading information or misrepresentation. Fraud To establish a fraud or intentional misrepresentation claim, a plaintiff must prove that: • the defendant knowingly made a false or mislead - ing representation about the product to induce the plaintiff into purchasing it; • the plaintiff relied upon the misrepresentation when purchasing the product; and • the plaintiff was damaged by the representation. A finding of fraud or intentional misrepresentation may provide a basis for awarding punitive damages. Negligent Misrepresentation To prove a claim of negligent misrepresentation, the plaintiff must prove that: • there was a false or misleading representation made about the product; • the defendant should have known that the informa- tion was false or misleading; • the plaintiff relied on the false or misleading repre - sentation; and • the plaintiff was damaged as a result. Unlike fraud, negligent misrepresentation does not require the plaintiff to prove that the defendant intend - ed to mislead.
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