FREE ESSAY ON PRODUCT LIABILITY

PRODUCT LIABILITY

Product Liability
Every day American consumers purchase products that they feel are beneficial to there
development. Where that lies depends on the consumer. However, One underling variable is
a constant when it comes to purchasing the product. That variable is whether or not the
product is right for them. When the consumer purchases a product, they are liable for
whatever mishaps may occur and accidents that may happen. But producers are not
completely free from the liability of their product to their consumers. This is where
product liability legal issues come from, a segment of the law which has seen its fare
share of turmoil and difficulties. 
Product liability is the producer's requirement to warn the consumer of and any possible
troubles associated with the product. This is usually done with a warning label attached
to the product, or is found via flyer form in the instruction manual. Sports and
recreational equipment cause serious injuries everyday. There are many reasons for the
cause of injury, but most cases of injury are due to product defects. These defects are
manufacturing, design, and failure to adequately warn. Besides the product defects,
consumers are exposed to other forms of potential mishaps, which are negligence, breach
of warranty, and strict tort legal responsibility.
Because America is a society largely dependent upon the outside means in which to
entertain themselves, many Americans are changing from the casual spectator to that of
the exuberant participator. Therefore, the number of accidents associated with products
has risen. Subsequently, so have the court cases and trials.
Product liability comes into play when the product breaks, or doesn't perform up to
regulation standards set forth by the producer. In more cases than not, there is some
form of injury sustained due to product defect or claims. So in short, the definition of
product liability is the responsibility of the manufacturer to the user if the use of its
product results in personal injury or property damage (Legal Concepts, 122).
Sports and recreational equipment cause serious injuries everyday. There are many reasons
for the cause of injury, but most cases of injury are due to product defects (Swartz).
These defects are manufacturing, design, and failure to adequately warn. As I have
already stated in the beginning of this analysis, product liability has three main
theories under which recovery can be made. These recoveries are:
? Negligence
? Strict liability
? Breach of warranty
Negligence is the understanding that the producer or manufacturer has the responsibility
or duty to applicate a reasonable degree of care. Many people fail to realize that a
negligence action in not under a duty to insure that its product will not cause injury;
rather, the product merely has to be reasonably safe. The most common incidence of
negligence is the manufacturers failure to inspect or test a product. Another common
incidences of negligence is the defendants failure to sufficiently caution the user of
the dangers the defendant knew about. Another is breach of warranty. Studies have shown
that the care taken by manufacturers to warrant reasonable process to the consumer has a
lot to be desired. From 1982 to 1984 there were 161 deaths and 128,000 injuries caused by
ATV's . This lack of duty can be as much to blame for there petulance as it does to their
marketing exploits. 
One of the most common incidences of negligence associated with products in the
manufacturers failure to inspect or test the product. When inspecting the product could
have led to discovery of an injury-causing defect, the producer is liable. McCormick V.
Lowe & Campbell Athletic Goods disclosed a variety of factors on the reasonableness of
the inspection. These factors can include industry advances, the seriousness of the
possible harm, the likelihood of the possible harm, and the feasibility of the
inspection. In McCormick V. Lowe, the plaintiff claimed the defendant company furnished a
vaulting pole that broke while the plaintiff was attempting to use it. The plaintiff
brought a negligence action to recover the injuries he sustained in the fall that
resulted in the inferior product. The court held that a manufacturer of a product is
under a duty to exercise ordinary care to test products to determine whether or not such
products contain defects, which can be rendered unsafe when used for an intended purpose.
The court concluded that a failure to perform such a duty will leave the manufacturer
liable to the person who is injured as a result of that violation.
When inspecting the product could have led to discovery of an injury-causing defect, the
producer is liable. The infamous Bernick v. Judern case reiterates this understanding. A
hockey mouth guard shattered when the player was struck between his nose and lips. The
product was advertised as providing "maximum protection to the lips and teeth." It was
alleged that there was a breach of express and implied warranties. The plaintiff's upper
jaw was fractured, three of his teeth were totally knocked out, and part of a fourth
tooth was broken off. The plaintiff sued the manufacturer of the mouth guard alleging
breach of express and implied warranties. The trial court had entered summary judgment
for the defendants, and the appellate court reversed and remanded. The court also noted
that, although the plaintiff's mother purchased the mouth guard, the plaintiff was a
third-party beneficiary and was therefore entitled to the same express warranty which she
received as the purchaser. In addition, the court disagreed with the defendant's
contention that the plaintiff's claim for breach implied warranty was barred by lack of
privity, and stated that privity was not required. 
In some cases the duty of a retailer to inspect for defects, however, is limited when it
would be reasonable for the retailer to rely on the manufacturers expertise or skill.
Outwater V. Miller is an example of a suit brought forth against the wrong party.
Apparently, Outwater, an importer and distributor purchased a partially assembled bike in
a sealed carton from the manufacturer, and sold the bike, still in package, to a
wholesaler, who then in turn sold the bike to a retailer. The retailer assembled the bike
and sold it to the plaintiff. Some days later, the front tire came off the bike causing
injuries to the plaintiff. The plaintiff, angered, brought a negligence action against
the importer, wholesaler, and the retailer.
The court however, explained that in a negligence action, if a vendor buys a product from
a reputable source of supply, he will be justified in assuming that the product is free
from defects, and thus, in under no duty to inspect the product, assuming the product was
safe. 
The second area of concern in determining that a negligent conduct has ensued is in the
producers failure to warn. The theory behind this recovery is the failure to warn action
is the defendants responsibility, and if the manufacturer braches this duty, and injury
has resulted, the producer is liable. 
Martell V. Broadwalk Enter,. Inc is such a case where manufacturers fail to inform the
consumer of the possible hazards involved in using their product. This case revolved
around the notion that the manufacturer, once again, didn't use a reasonable degree of
care in informing the consumer of the hazards involved with jet skis. Unfortunately for
Martell, this inability to inform resulted in a loss of limb. Martell, the rider of a
rented jet ski was struck by a motorboat alleged that the manufacturer failed to
adequately warn him of the dangers posed by the product. Evidence was presented that the
jet skis color and size made it difficult to see, and its difficulty handling in rough
water tended to force novice riders to look only straight ahead to keep it afloat, thus
increasing the risk for collision. The court affirmed the findings of liability of the
manufacturer of the Jet Ski because the vessel was defectively designed and it lacked
adequate warnings of potential dangers associated with its foreseeable uses.
Another failure to warn breach is Rawlings Sporting Goods V. Daniels. A high school
football player who suffered brain damage when his football helmet broke during a head-on
collision with another player brought a negligence action against the manufacturer of the
helmet. The court held that a manufacturer is under duty to warn of dangers that it knows
or should know are associated with its product. The court added that there is a
presumption in failure to warn cases that if the warning had been given, the plaintiff
would have read it, and subsequently, prevented himself of acquiring the severe damage to
his brain. In short, the manufacturer is liable for negligence if it fails to warn of the
dangers that it knew or should have known about the helmet or product. 
Another form of breach of duty, and more modern in approach is the intentionally
marketing of a product in such a way as to blind the consumer of all possible hazards
involved with thereof product. Quite often an attorney will discover that a product is
defective not only because of its design or manufacture but also because of the manner in
which it is advertised. Advertisements sometimes display products being used in a
dangerous manner without warning of catastrophic consequences if the consumer should use
the product the same way. An example of this can be found in the Pell v. Victor J Andrew
High School case. The unharnessed user of a mini-trampoline was unable to complete a
somersault and landed on a mat, severing her spine. It was alleged that the manufacturer
failed to adequately warn. There was a warning label on the trampoline bed stating that
it should be used only with proper supervision but the product was assembled with the
label facing the floor. The warning did specify the risks of spinal injury and paralysis
due to somersaulting without a spotter or harness. There were also warnings on the frame
of the trampoline, but frame pads on all four sides covered these. The court affirmed a
$5 million judgment against the manufacturer largely because warnings were ineffective in
that they failed to adequately warn users of the high risk of injury associated with the
mini-trampoline.
In another such case, Steel V. Murray Ohio Mfg. Co. claimed that manufacturer-marketing
techniques used to sell products are intentionally masking the risks faced by the
consumer, thus blinding them from the products defects. When a front tire of a bicycle
went into a pothole the rider's foot slipped off the metal pedal causing the saw-like
edge of the pedal to strike the riders Achilles tendon, thus damaging it to the point
where doctors had to remove it completely. The extreme nature of the event of riding
blinded the consumer of the possible hazards involved in participating in such an action.
It was alleged that the producer didn't inform the consumer of such horrific occurrences,
occurrences that had happened prior to Steels accident. The nature of the event was
unreasonably dangerous and the action resulted in a hefty settlement for Steel.
Strict Liability in Tort is the understanding that some products are designed with all
care to inform the user of the possible hardships and hazards of the product. Because the
producer has done everything in their power to inform the user of the possible hardships,
no breach of duty has occurred. However, strict liability tort concludes that the product
contained a defect that led directly to the injury of the consumer. 
Aquino v. Pepsico. A coach bought a football helmet with an inferior rivet. While a
football player attempted to tackle a player of the opposing team, the rivet failed to
support the helmet on his head. It was later found out that the helmet was made with
cheap imitation carbon steel rivets. Because of the inferior design, the rivets rusted
and broke on impact. Paralyzing the player for life. It was alleged that the
manufacturing specifications called stainless steel rivets. The football player received
the low grade susceptible ones. Because of the strict liability tort, the player received
a settlement of $1 million dollars cash, and $2,000 dollars per month for life,
increasing %30 annually. 
There is no defense for the theory of strict liability failure cases. 
The third theory of products liability is breach of warranty. Whenever the product
purchased doesn't perform in the way that it was warranted. Or doesn't live up to
expectations from the consumer, breach of warranty has occurred. An example of this can
be found in the text book. In the text, an inflatable raft claims that it can hold
upwards of 150 pounds of weight without going under. However, if 100 pounds of pressure
was applied to raft and it sunk, then breach of warranty has occurred. The book also
states that even in the absence of expressed warranties, the purchaser may be able to get
implied warranties under the UCC. The Uniform Commercial Code is applicable to all
transactions in good manufactured goods.
In defenses of product liability, the defendant has the immediate advantage by possessing
general knowledge about the products technological background. There are two basic
approached to a defense. The defendant can deny all the plaintiffs allegations, or it can
use special defense aimed at the alleged defect.
Defects are hard to define. Federal and state courts have pondered this very concept.
Because of the influx of new equipment each year, it is virtually impossible to define a
defect. This is by and far the biggest defense defendants have. 
Another defense is the plaintiff. The injured plaintiff has been consciously involved in
sports activity, either as a voluntary participant or as a spectator. Therefore, the
three general defenses in products liability cases focus on the plaintiffs conduct in
relation to the particular product under scrutiny. 
The defense of contributory negligence is governed by a reasonable person standard and is
generally only viable to defend a negligence cause of action.
If the purchaser has altered or misused the product, all warranties may become void, and
the consumer is liable of any unfortunate circumstance that may befall them.
Lastly, assumption of risk, which occurs when the plaintiff voluntarily encounters a
known danger, is the most significant defense in product liability.