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Products Liability

A product liability action refers to any action brought for or on account of a personal injury, death, or property damage caused by or resulting from[i]:

  • manufacture;
  • construction;
  • design;
  • formulation;
  • development of standards;
  • preparation;
  • processing;
  • assembly;
  • testing;
  • listing;
  • certifying;
  • warning;
  • instructing;
  • marketing;
  • selling;
  • advertising;
  • packaging; or
  • labeling of any product.


The essential elements of an action for products liability are based upon negligence and include[ii]:

  • evidence of a standard of care owed by the reasonably prudent person in similar circumstances;
  • breach of that standard of care;
  • injury caused directly or proximately by the breach; and
  • loss because of the injury.


Under some jurisdictions, product liability law provides for three kinds of product liability actions:

  • for defective design;
  • for defective manufacture; or
  • for insufficient warning.


A plaintiff will prevail on a defective design theory if it proves that[iii]:

  • the product failed to behave in a safe manner as an ordinary user would have expected in its intended or foreseeable use; or
  • the design of the product was the proximate cause of the damages and the defendant failed to prove in the balance of interests, that the benefits of the design outweigh the inherent risks of the product.


A manufacturing defect is one in which the product fails to match the average quality of like products.  Under a manufacturing defect theory, a plaintiff must show that a mistake in the manufacturing process was the proximate cause of plaintiff’s injury[iv].

Under a failure to warn theory, a manufacturer is subject to liability where it has[v]:

  • reason to know that the product it markets is likely to be dangerous for the use for which it is supplied;
  • no reason to believe the user will realize its dangerous condition; and
  • fails to exercise reasonable care to inform the user of the facts which make the product dangerous.


It must also be established that the alleged failure to warn is the proximate cause of plaintiffs’ injury.

Some jurisdictions have adopted the doctrine of strict liability for products liability actions[vi].  A manufacturer is strictly liable in tort when an article s/he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being[vii].

Contributory negligence of the user, consumer, or bystander in the sense of a failure to discover a defect or to guard against the possibility of its existence, is not a defense to strict liability[viii].

[i] Driver v. Burlington Aviation, 110 N.C. App. 519 (N.C. Ct. App. 1993).

[ii] Id.

[iii] Silva v. American Airlines, 960 F. Supp. 528 (D.P.R. 1997).

[iv] Momen v. United States, 946 F. Supp. 196 (N.D.N.Y 1996).

[v] Id.

[vi] West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976).

[vii] Kramer v. Piper Aircraft Corp., 520 So. 2d 37, 39 (Fla. 1988).

[viii] West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976).

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