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Three Ways to Win

Tort cases for negligence, strict products liability and breach of warranty.

To compensate you for these injuries, there are a number of legal "theories" which may provide grounds for recovering damages resulting from product defects. Each theory of recovery requires different types of evidence and are subject to different legal rules, burdens of proof and limitations. You attorney must investigate the facts to determine the best causes of action to pursue in your specific case. But depending on the circumstances, you may have evidence to help your attorney establish as many as three types of claims:

  1. Negligence - holding manufacturers, sellers and suppliers liable for acting carelessly in bringing dangerous products into the marketplace;
  2. Strict Liability - holding these defendants liable for “unreasonably dangerous” products even without evidence of negligence; and
  3. Breach of Warranty - holding manufacturers and distributors responsible for breaking express or implied promises that their products were safe for use and free of defects.


Manufacturers must exercise reasonable care to make sure that their products are safe for consumers. To do so, they must design, manufacture, test and inspect their products to make them safe for all foreseeable uses. If that’s not feasible, they must warn consumers of known hazards or of hazards that a careful manufacturer should have discovered, but which may not be obvious to the consumer. If they fail to exercise reasonable care to ensure safety or to warn of such dangers, they will be held liable for the resulting damage.

Those who sell products made by someone else are just as liable if they claim to be the manufacturer.  Otherwise, retailers and wholesalers are only liable if they knew of or by reasonable care would have discovered the defect.  Similarly, suppliers who know or should have discovered dangers that are not obvious to users will be held liable for injuries if they fail to give adequate warnings.

Those who rent equipment or other goods must also take care to make these products safe for use. Like manufacturers and sellers, they have a similar duty to warn about dangers that may not be obvious to their renters.

Of course, product manufacturers and suppliers are not the only persons with a duty to exercise care.  If those using these products act carelessly or ignore proper warnings and instructions, their contributory negligence may prevent them from prevailing in a negligence case.

Strict Liability

It can be a challenge to prove a specific act of negligence on the part of large manufacturers or retailers. But even without such negligence, you may still hold them liable for damages by proving that their product was:

  1. Defective when supplied to the consumer;
  2. Unchanged in condition when it was supplied;
  3. Unreasonably dangerous; and
  4. The cause of injuries.

Unlike negligence claims, the focus here is not on the conduct of the manufacturer or seller, but upon the product itself.

Breach of Warranty

When you buy a product in reliance on the seller's representations, these statements of fact create "express" warranties that the product will perform as described. Even without uttering a single word, sellers will be held to certain "implied" warranties that their goods conform to certain standards. If they don't, sellers may be liable for damages to those injured as a result.

There are several types of warranties which provide grounds to sue for such damages:

Express Warranties

When sellers boldly claim that their products are "the best anywhere," or represent a "revolutionary breakthrough," such promotional "puffing" will not likely create a warranty.  While there are no magic legal words that are required to create warranties, they must be verifiable statements of fact that a product will work in a certain way, have certain qualities, parts or ingredients, or produce certain results. Only then may we determine whether the product's shortcomings caused an injury for which damages may be awarded.

Implied Warranties

Of course, the mere fact that a product is offered for sale suggests that it has certain marketable, useful qualities. For this reason, the law holds sellers to certain warranties even when they are otherwise silent.

Implied Warranty of Merchantability

When products are sold, there is an implied warranty, or a promise that the products are fit for the ordinary purposes for which such products are used. A seller who breaks this warranty or promise is responsible to a person who sustains injury as a result.

Implied Warranty of Fitness for a Particular Purpose

When the seller at the time of contracting has reason to know any particular purpose for which the products are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable products, there is an implied warranty that the product is fit for such purposes.

Notice Required to Preserve Warranty Claims

Like other legal grounds for recovery in products liability cases, proceeding on a breach of warranty theory has some special requirements and limitations. A seller or manufacturer is not responsible for a breach of warranty unless the buyer gave to the seller or manufacturer notice of such breach within a reasonable time after the buyer knew or should have known of the alleged defect. What amounts to a reasonable time depends on the circumstances and the kind of product involved. Though notice may be oral or in writing, it must inform the seller of the alleged breach of warranty or defect in the goods.

Defenses to Warranty Claims

Beyond a possible lack of notice, sellers may rely on certain defenses to breach of warranty claims:

"You Were Abnormally Sensitive"

A person cannot recover damages for breach of warranty if the injury or damage resulted from an allergy or physical sensitivity to which normal persons are not subject unless the seller had reason to know that the plaintiff was abnormally vulnerable to injury from the product.

"You Failed to Use Our Product Properly"

Any warranty of the goods involved in this case was based on the assumption that they would be used in a reasonable manner appropriate to the purpose for which they were intended. A person cannot recover damages for breach of warranty if the injury or damage the person suffered resulted from the person's improper use of the goods unless the seller had reason to know that the plaintiff intended the improper use and nevertheless warranted that the use was an acceptable use.

"You Continued Using It After Discovering a Defect"

A person, using a product after the person knew or should have known of the defect or condition which the person claims was a breach of warranty, may not recover unless a reasonable person would use the product in spite of that knowledge.

"The Product Changed After We Supplied It"

The manufacturer is not responsible if the defect was created as a result of a substantial change made by another to the product after it left the possession of the manufacturer. Similarly, the seller is not responsible if the defect was created as a result of a substantial change made by another to the product after it was sold.

The Sealed Container Defense

Suppliers and distributors who lacked knowledge of the defect or the chance to discover it with reasonable care may escape liability by showing that  the product was acquired and then sold or leased in a sealed container or in an unaltered form.  This defense only applies where the supplier had no involvement in the design or manufacture of the product and made no alterations or modifications thereafter which caused injury.