USA Law and Practice Contributed by: Trevor Keenan, Michelle Byers and Curtis Berglund, Campbell Conroy & O’Neil, P.C.
• fines ranging from USD50,000 per day for individuals, and up to USD1 million per cor - porate violation of the TSCA; • restitution; or • incarceration ranging from one to 15 years (15 USC Section 2615). FTC The FTC can impose civil penalties for knowing rule violations, including injunctions and fines of up to USD10,000 per violation (15 USC Section 45). 2. Product Liability 2.1 Product Liability Causes of Action and Sources of Law Product liability is derived from state rather than federal law. There can be significant differences between the product liability law of individual states. The primary causes of action in product liability cases are negligence, strict liability and breach of warranty. Other legal claims that may be applica - ble to product liability lawsuits include consumer protection, fraud and negligent misrepresenta - tion. Claims can generally be asserted against anyone in the chain of commerce including a manufacturer, seller, distributor or retailer, even if a defendant was unaware of the defect at the time it left its control. Negligence A negligence claim focuses on the reasonable - ness of the defendant’s conduct and whether there was a breach of the duty of care. A defend - ant owes a duty of reasonable care in its design and manufacturing processes and in its provi - sion of adequate product warnings.
The elements of a negligence claim are the fol - lowing: • the defendant owed a duty of care to the plaintiff; • the defendant breached that duty; • the breach caused the plaintiff’s injury; and • the plaintiff sustained injuries or damages. Strict Liability Strict liability focuses on the product itself and not on the defendant’s intent or level of care. As such, even if a manufacturer is found to have exercised reasonable care, it may still be found liable under strict liability. Strict liability generally requires a showing that: • the product was sold in an unreasonably dangerous condition when it left the posses - sion and control of the manufacturer, seller, distributor or retailer; • the product was materially in the same condi - tion when it reached the plaintiff as it was when it left the defendant’s control; and • the defect caused the plaintiff’s injury. Breach of Warranty Warranty claims may be based on: • express affirmations of fact or promises made to buyers or lessees relating to the product; • descriptions or samples of goods; or • implied warranties of merchantability and for fitness for a particular purpose. A breach of express warranty arises when a seller makes an express promise to a purchaser that the product will meet a certain standard and it fails to do so. The promises are often found in sales contracts but may exist when there are assurances or descriptions of product quality made to the purchaser.
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