The law of products liability is found mainly in common law (state judge-made law) and in the Uniform Commercial Code. Article 2 of the UCC deals with the sales of goods and it has been adopted by most states. In it, the most important sections are the implied and express warranties of merchantibility in the sales of goods §§ 2-314 and 2-315. However, there are also laws governing specific products. With food, there is the Food Safety Act and FDA and FSIS rules and regulations. The FDA also regulates medical devices and medications.

A lawyer needs to understand all of the laws that apply to a case to win compensation for a client.

3 Key Points You Need to Prove to Win a Product Liability Case

  1. The product causing the harm must have been in a defective condition, unreasonably dangerous for its intended use;
  2. The defect must have existed when the product left the manufacturer’s control; and
  3. The defect must have caused you harm, personal injury (you were injured) or wrongful death (a loved one passed away).

A product is “defective” if an ordinary user or consumer could not have anticipated the possible danger. The defect may be caused by the way it was manufactured, assembled, inspected, packaged or tested.

Proving the Defect

In any jurisdiction, a common denominator of these cases is the need to prove that an item is defective. There are three types of defects that incur liability in manufacturers and suppliers: design defects, manufacturing defects, and defects in marketing. Design defects are inherent; they exist before the item is manufactured. While the item might serve its purpose well, it can be unreasonably dangerous to use due to a design flaw. On the other hand, manufacturing defects occur during the construction or manufacturing of the item. Only a few out of many items of the same type are flawed in this case. Defects in marketing deal with improper instructions and failures to warn consumers of latent dangers.

3 Questions You Need Answered

  • Could the manufacturer have “designed out” the defect that injured you or your loved one? In other words, could the dangerous condition have been avoided by an alternative design that was economical and practical?
  • If the dangerous condition could not have been avoided without impairing the efficiency of the product, did the manufacturer guard the user from coming in contact with the dangerous condition?
  • If it was not possible to design out the danger or guard against it, did the manufacturer at least warn or instruct the user about the dangerous condition and the way in which it could have been avoided?


Products liability claims can be based on negligence, strict liability, or breach of warranty of fitness depending on the jurisdiction where the claim is based.

These cases are generally litigated under the theory of strict liability, where liability does not depend on the degree of carefulness by the defendant. This means that a company can be sued for compensation when there is evidence of a defect. It is irrelevant whether the manufacturer or supplier exercised great care; if there is a defect in the product that causes harm, he will be liable for it.


It’s also important to consider the issue of damages. Injury victims are entitled to receive money damages for such things as pain and suffering, medical bills, lost wages, loss of earning capacity, disability and disfigurement, emotional distress and, in some cases, loss of enjoyment of life.

Free Consultation with a Lawyer

The bottom line is this: product liability law is extremely complex. It’s important to hire a lawyer with considerable experience in this area of the law.

Fred Pritzker Lawyer
Attorney Fred Pritzker 1-888-377-8900 (toll free)

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