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If a product injures you and there is a good argument that the product is unreasonably dangerous it can be an excellent case against both the manufacturer and the companies and people in the retail distribution chain.
Note: In an ordinary negligence case, say you trip and fall and break a leg on a sidewalk with a hole in it, the defense can argue that you should have seen the hole so the jury will be asked to apportion fault for your injury between you and the premise owner and if you are more than half at fault in Nevada, you lose and if you are less than half at fault but somewhat at fault, your award for damages is chopped by the percentage the jury says you were at fault. BUT IN PRODUCTS LIABILITY CASES, THERE IS NO REDUCTION FOR THE PLAINTIFF BEING PARTLY AT FAULT.
Here are some examples of product liability cases I have successfully handled:
- FAILURE TO PROVIDE ESSENTIAL SAFETY EQUIPMENT
A big manufacturing company sold a trailer mounted air compressor to a Las Vegas construction company. Safety chains to hold the trailer to the tow vehicle (in this case a pick-up truck) in case the trailer hitch came undone were an extra-cost option which the construction company decided not to pay for. The construction company's driver connected the trailer to his assigned pick-up trick and used the wrong size "ball" hitch. The trailer became disconnected and the tongue of the trailer went through my client's windshield, left eye, and part of her brain. She survived in a severely disabled condition. It was a multi-million dollar negligence claim against the construction company and a multi-million dollar products liability claim against the manufacturing company for selling an unsafe product.
- FAILURE TO WARN OF FLAMMABILITY
A lady bought "Head to Toe Tingling Tonic." The label said, "to feel good splash all over body, especially after taking a bath." My client got out of the bath tub, splashed some tonic on her arms and some vapors or drops from the tonic got ignited by the space heater in her bathroom--it was a mountain cabin--and the tonic burned her arms. There was nothing on the label to warn that the product was flammable and shouldn't be used near an ignition source.
In this case, the mere fact that the product was flammable might not have made it unreasonably dangerous. Rubbing alcohol is also flammable, but there is a long history of using rubbing alcohol to bring down fevers, and, perhaps, for sterilization. The flammable alcohol content of rubbing alcohol is intrinsic to its use and not unreasonably dangerous as long as there is an adequate warning that the product is flammable. But in the case of the head to toe tingling tonic the product was defective both because it lacked a warning label--indeed the label encouraged a dangerous use--and because the idea of spashing something flammable on your body to feel good is really dumb. In other words the dangerousness of the product was not offset by some important usefulness. This was clearly a defective product.
- SOAP TOO CAUSTIC AND/OR FAILURE TO WARN
In another case I had, a dishwasher at the Sahara Hotel and Casino, while dispensing powdered detergent from a dispenser, got some in his eye. The detergent was so caustic that it literally dissolved part of the surface of his eye before he could wash it out. In this case I argued that either the soap was too strong or that it failed to carry an adequate warning of how strong it was and that the maker of the soap dispenser had designed a defective dispenser. The trial court judge disagreed and granted summary judgment to the defendants but, I appealed and won in the Nevada Supreme Court. Fyssakis v. Knight Equipment, 108 Nev. 212, 826 P.2d 570.
WARNINGS DON'T ALWAY PROTECT THE MANUFACTURER: FORESEEABLE MISUSE
Naturally, lawsuits such as the two described above have encouraged lawyers for manufacturers to generate a blizzard of warnings, many of them so obvious that some consumers just ignore the whole mass of warnings. More importantly, in some cases manufacturers try to cover their butts with warnings that I don't think will hold up in court. For example, Lehigh's "Quick Link" sold at Home Depot is a link of chain with an opening on what side that opens and closes with a screw mechanism. It is a way to connect things to a chain or make a loop out of a chain. The stainless steel size I bought said, "800 lbs safe working load" on the front of the package. On the back of the package is a Warning that reads in part, "Do not use this product...or other situation where personal safety or valuable property could be endangered." I think that whenever there are hundreds of pounds of tension on a chain, its sudden rupture can cause human injury so it is foreseeable that this Quick Link will be used in situations in which if it fails, injury will occur. If I had such a case I would argue that the "800 lbs safe working load" statement encouraged use in which a failure at a lesser load could cause human injury.
CONSUMER MISUSE DOESN'T SAVE MANUFACTURER FROM DUMB DESIGN
In the 1970's Ford made some vehicles with an automatic transmission that could pop from Park into Reverse all by itself if the car was jolted, as for example, by a door slamming. I once represented a lady who had such a car. One day she went grocery shopping. When she got home she put the car into Park, left the engine running, and didn't apply the parking brake. She then walked to the back, opened the tailgate of her wagon, picked up her bag of groceries, slammed the tailgate down and the wagon popped into reverse and ran over her leg. After I did a videotaped re-enactment of this accident (showing the car jump from Park to Reverse) and hired a transmission expert Ford paid up. Notice that in this case:
- The Plaintiff was careless because she left the vehicle running without putting on the parking brake, but that didn't hurt us because in product liability cases, unlike most personal injury cases, this is not a complete or even partial defense, and
- Her car was quite old but that also didn't hurt the case because the design was dangerous. A curious note to this case is that Ford paid a lot of money to settle the case and the lady still had the old Ford that injured her. At the time of settlement the vehicle probably had a value of $200. I asked Ford if they wanted the car to scrap it as part of the settlement and they said, "No." For all I know this car is still on the road.
CAR COMPANIES ARE STILL MAKING UNSAFE CARS
Although car companies are getting better about recalling and fixing mistakes, this is not always the case. In February of 2014, after 13 deaths, General Motors finally got around to recalling and fixing 2005-2007 Chevy Cobalts, 2003-2007 Saturn Ions, 2006-2007 Chevy HHRs and Pontiac Solstices, 2007 Saturn Sky and Pontiac G5 cars with a defective ignition switch that can suddenly cut off the car's engine and power steering. In June of 2014 GM expanded the recall to include the 2006-14 Chevrolet Impala and the 2006-8 Monte Carlo; the 2005-9 Buick Lacrosse, the 2006-11 Lucerne and the 2004-5 Regal LS and GS; and the 2000-5 Cadillac Deville and the 2004-11 Cadillac DTS. This issue with these cars is that a jarring action can cause the ignition to shut-off which could cause a driver to lose control of the vehicle and crash. (GM originally argued that if the car shut-off this was an inconvenience issue, not a safety issue because an alert driver could re-start the car or still steer and brake w/o power, although braking and power effort would be greater without power.)
Many countries outside the English speaking world and Western Europe allow new cars to be sold that don't meet first world safety standards. The same global car company may sell a "safer" version of a model in the U.S., and a cosmetically identical but far less crashworthy model in Latin America. Saving money, of course, is the reason for less safe cars in countries with weak regulation. For example, to make the "passenger cage" of the car strong and safe requires a huge number of welds which require lots of electricity which is expensive.
COMPARING THE 'DEFECTIVE PRODUCT" TO THE COMPETITION
Sometimes whether a product that has hurt someone is defective is a question that can be easily answered by looking at competing products. Glock and some other high end pistols chosen by top law enforcement agencies are very unlikely to fire if they are accidentally dropped while a bullet is in the chamber. The fact that these gun manufacturers have engineered around a potentially fatal problem suggests that pistols that do fire when accidentally dropped are unreasonably dangerous. In some potential products liability cases, a comparison of the alleged defective product with its competitors can be much easier.
For example, we had a case involving a step ladder with one step that collapsed with the result that the plaintiff suffered a serious femur (thigh bone) fracture. A side view of the step ladder was like the letter "A" with the horizontal bar in the "A" being the single step. This step fell down with the Plaintiff standing on it because the two sides of the letter "A" came apart at ground level. After spending a few hours looking at competing single step step ladders at places like Office Max and WalMart I became convinced that the mechanism on this ladder preventing the legs from spreading too far apart was incredibly weak and prone to failure. We were even able to settle this case fairly without hiring an expert to point this out.
DEFENSES IN PRODUCTS LIABILITY CASES
The two major defenses in a products liability case are:
- The product (and warnings) were not unreasonably dangerous, and
- The Plaintiff totally misused the product. For example, if you forget the key to your front door and pull out your pistol and shoot at the lock from 3 feet away and some metal comes back and takes out your eye, this is a complete misuse of a pistol. On the other hand if you have a pistol or revolver on your hip or in your pocket and there is a bullet in the chamber and you fall and the gun discharges and shoots you in the foot, this is not a total misuse of a gun. It is a foreseeable and common use. Carrying a gun with a bullet in the chamber is known to be dangerous for many guns. Still, depending on all of the facts, this hypothetical accident will probably lead to a good products case. Sticking with the handgun example, some gun opponents would like courts to declare that all handguns are unreasonably dangerous products. However, I predict that courts will continue to hold that guns are inherently dangerous, but their dangers are obvious and known and a manufacturer does not become liable just for making a gun that meets current safety standards. (On the other hand, a gun manufacturer could be held liable for selling its guns to unauthorized buyers, but that's a different theory of liability.)
Note: I have made up the terms "totally misused" and "complete misuse of a product." These are not a legal terms. Technically, the defense is "misuse of the product" or "product misuse." However, a "foreseeable misuse" of a product is not a good defense. In the above examples my client arguably "misused" her Ford wagon by not putting on the parking brake when she exited and by not turning off the ignition. Carrying a handgun with a bullet in the chamber while hiking or hunting is arguably "misuse." But these "misuses' are so foreseeably going to happen that if the Plaintiff's attorney can show the judge or jury that the manufacturer could have prevented the injury by better design (given the knowledge at the time the product was made), the "misuse" defense will fail. Therefore, as a practical matter I think the phrase, "complete misuse" better sums up when "misuse" is a viable defense.
FAILURE TO PROPERLY MAINTAIN
In addition to products that are manufactured with a defect, many people are hurt by products which are not well maintained. For example, the closure device on a automatic door might leave the factory in good condition but because of a lack of maintenance it might malfunction and cause a door to slam on a person and knock them to the ground or close hard enough to break a bone. We also handle these cases. There are a number of interesting car cases where this defense has been raised, sometimes successfully, sometimes unsuccessfully. If a brake line ruptures and the car can't stop and death or injury results it would be a very good case if the car was 10 years old. If the car was 60 years old it might not be a good case.
CAR WRECK AND AIRBAG DOESN'T INFLATE
We get a lot of inquiries along these lines, "I was in a car crash and the airbag didn't go off. Do I have a case against the car company?" The first response is that if you were not at fault and the at fault driver has adequate insurance, it will be much easier to just go after the at fault driver. But sometimes the at fault driver doesn't have adequate insurance or, perhaps, you were the at fault driver. Now there are several possibilities:
- The airbag is missing. Sometimes after a car is in a collision the deployed airbag is not replaced. If you bought this car from a dealer you may have a good claim against the dealer. We would still have to prove that for the type of collision you were in, the airbag should have deployed and that it would have saved you from injury if it had.
- The airbag is there; it just didn't deploy (inflate). Airbags are not supposed to inflate in every collision. If you are rear-ended, the airbags should not inflate. On the other hand, if the front of your car hits another car at high speed, there is something wrong if front airbags do not inflate. Sometimes it will take expert knowledge to know if an airbag should have inflated.