If you are are injured by a defective consumer product, or your property is damaged, today the chances are that you have a claim against the seller, the manufacturer or some or all of the other people in the supply chain of that product. This wasn’t always the case.

For centuries, the general rule was that a consumer injured by a product had to prove actual negligence. Even if the product was clearly defective, sellers would still win if they could show that the defect wasn’t caused by any lack of care on their part. The mass consumer society has changed that. Since the 1940s, the courts have gradually extended the liability of manufacturers and sellers for defects in consumer products. The courts reasoned that putting liability on manufacturers and sellers would promote safety - since they would have an incentive to be as careful as possible - and that the manufacturers and sellers could more easily bear the risk, since they could spread the cost among all consumers of the product.

In 1963, in a case called Yuba Power Products v. Greenman, 59 Cal.2nd 52, the California Supreme Court decided that sellers of consumers products would be “strictly liable” for injuries caused by defective products. Since that time, strict liability has gradually become the general rule all over the country. Under this standard, injured consumers no longer have to prove negligence; they just have to show that there was a defect in the product that caused damage.

In most cases, however, it’s still not sufficient for a person simply to testify that they were injured by a defective product. In order to succeed, a plaintiff must prove three things: 1) that the product was defective; 2) that the defect existed when the product left the hands of the defendant; and 3) that the defect caused the harm.

What Does Defective Mean?
Product defects are not limited to those things that we would generally regard as defects - actual structural flaws in the product: the ladder that buckles when you stand on it; the tool part that breaks off and hits you in the eye. These kinds of defects are known as manufacturing flaws. There are two other major types of defects that have been recognized by the courts: 1) design flaws and 2) insufficient warnings.

Design flaws are features of a product that make it unreasonably dangerous to use. The manufacturer has to anticipate dangers that might arise in normal usage of the product and design the product accordingly. Thus, a toy intended for a two-year-old that has parts small enough to swallow or sharp of pointed edges may be unreasonably dangerous when you consider the limitations of a toddler. A car design that makes a car liable to flip over going around curves at reasonable speeds has a design flaw.

Courts have also held manufacturers liable for failing to include sufficient warnings about product hazards or clear directions for safe usage.

Proving Your Claim
Proving a products liability cases can be complex. Often the “proof” that a product was defective and that the defect existed when the product left the manufacturer or seller is circumstantial. The injured party presents evidence that they did not alter the product or use it improperly, but the product still malfunctioned.

One important piece of evidence that almost always must be presented is the product itself. Without the product, the defendant is robbed of the ability to check for other explanations of the malfunction. If a plaintiff destroys the defective product, that is known as “spoliation” of the evidence and usually means that the plaintiff is barred from bringing a claim.

Products liability claims can be very complex, both because of the proof involved and because of the possibility of multiple defendants - from the manufacturer of the product through the supply chain to the ultimate seller. Manufacturers may also try to blame the injured person or someone else for the problem. If you think you have a product liability claim, you should contact us as soon as possible to discuss the case.

Recently we were contacted by a company whose client had failed to pay a large invoice. After sending reminder after reminder to the client with no response, the company decided it was time to take legal action. Unfortunately, we had to break the news that they had waited too long. Under the law they couldn’t bring a legal action on a claim that old.

No matter what kind of claim you have against another person – whether it’s for an unpaid bill, a personal injury or a broken contract – the law will set a limit on how long you can wait before you bring that claim to court. This is called the statute of limitations and the time limit it sets varies depending on the type of action.

For the most common types of action, the limit varies between two and six years, but in some situations it may be much shorter. For instance, if you have an injury claim against the Commonwealth, you have to give notice of the claim within six months. Some factors may also extend the time you have to file. Suppose you are injured in an accident, but you don’t realize it because the effects of the injury take time to show up. The court may allow you to bring a suit even if the original damage took place earlier than the statute of limitations would ordinarily allow.

Don’t lose your rights. If you think you have a claim, contact us immediately, so we can make sure the clock doesn’t run out on you.

"Injured by a Defective Product?

Don't Wait Too Long to Make Your Claim

Gorilla Testifies Before ABA
Ever since my children, Miriam and Sara, were little (they're grown now) we have been fascinated with Koko the gorilla, stemming in large part from her ability to learn and use language. Koko is not a novelist but she can communicate ideas, feelings and needs. I will never forget her describing brussel sprouts as “stink balls.” She got that right, didn’t she? Then there is her famous work, “Koko Loves Kitten,” the story of Koko’s pet cat whom she called “All Ball” and which she would hold gently and lovingly like a ball in her lap.

Because Koko speaks American Sign Language, she is perhaps the only member of the animal world that can speak to humans, that’s why she was chosen to testify before the Animal Law Committee of the American Bar Association on behalf of the animal kingdom. The testimony was given in the form of a 20-minute video showing Koko’s abilities. There was nary a dry eye at the end of her testimony. This video shows how similar the intellectual, emotional and behavioral capabilities of the great apes are to humans. You can find more about the experience at Koko.org

Koko is an ambassador from the animal kingdom, reminding us of our role as stewards rather than captors.

Henry I. Langsam

New Mortgage Tax Breaks
The Mortgage Forgiveness Debt Relief Act, passed by Congress is response to the subprime mortgage crisis, contains three significant new tax breaks: 1) forgiveness of up to $2 million of mortgage debt on a principal residence is tax-free (normally the forgiven amount would be considered taxable income); 2) qualified mortgage insurance premiums are fully deductible for taxpayers whose adjusted gross income doesn't exceed $100,000; and 3) the full home-sale gain exclusion for primary residences was extended to apply to a surviving spouse who sells the home within two years of the deceased spouse's death (formerly the survivor only qualified for half the exclusion).