Products Liability


Introduction to Product Liability

Manufacturers of products and medicines have a duty to us as consumers to put forth products that are free from defects when we either use them or consume them. When people use a product there is an expectation that the product is safe and will not harm us. This duty and expectation extends to the amusement parks we visit with our families to the cars we drive to the food we eat every day.

Product Liability Law

As product liability lawyers, one of the first things we do is identify what type or types of defects are at issue. The type of defect will often determine what your most appropriate theory of recovery might be. If you’ve been injured or harmed by a product, it will fall into one or more of the following categories:

There are three essential types of defects in products liability cases.

1. Manufacturing defect: A manufacturing defect occurs when one or a small number of units of an otherwise adequately designed product line malfunctions due either to a flaw in the component parts of the product or due to some flaw in the manufacturing process.

Proving the Case

The difficult thing about manufacturing defect cases is often how you prove the case. How do you prove the defect existed at the time it the manufacturer’s control as opposed to something happening to the product after it was out in the world?

Intellectually we know that products cannot be perfect. The amount of money a company would have to spend to even aspire to make a perfect product would be so cost prohibitive that we would never be able to afford the product. Emotionally, when we buy a product we expect it to perform. If it fails to perform and we are injured, we expect a remedy. It’s heart vs. head.

The concept of defect is not self-defining when a product contains a flaw. Since all products are flawed at some technological level, the decision must still be made as to when a flaw emerges as a defect.

As a matter of law, when a small imperfection becomes a significantly legal defect, you need to call The Justice Law Center and protect your rights and recover money for your injuries. Call us today: 702.731.0000.

2. Design Defect: A design defect occurs when the plaintiff alleges that the entire product line is defective due typically to the defendant’s failure to comply with state-of-the-art technology or information at the time of manufacture. The classic example is the Ford Pinto. The entire product line is dangerous. The two analytical tools that will guide you in design defect are:

1. The Risk Utility Test; and
2. The Consumer Expectation Test.

3. Warning Defect: Based upon state-of-the-art information and science at the time of manufacture, did the defendant have a duty to warn?

1. Failure to Warn Claim: If they had a duty to warn and they did not provide a
warning; or

2. Inadequate Warning Claim: They had a duty to warn and they provided a
warning, but for some reason the warning inadequately conveyed the magnitude
of the known risk.

Based upon state-of-the-art information at the time of manufacture, did the manufacturer have a duty to warn and yet fail to warn you? If they had a duty to warn, and they provided a warning but the warning failed to convey the magnitude of the known risk and was thus inadequate?

If you’ve been injured because a manufacturer failed to warn you or perhaps there was a warning but it was inadequate, we will attack its effectiveness. In many product liability cases, a design defect and a warning defect will coexist.

In virtually every product liability case, the attorneys representing the manufacturer will somehow attempt to get your conduct into the case as a defense – i.e. misuse of a product, comparative fault principals, proximate cause, assumption of the risk, and the sophisticated user defense – that based upon your subjective knowledge, a different standard should apply to you.

Warnings for Dangerous Chemicals

A manufacturer who undertakes to produce and sell to the general public a product with high risk of human harm must provide specification, instruction, and warning so that it is reasonably safe for ordinary persons to use it, not only for the purposes for which it is produced and intended to be used but also all other necessarily incidental and attendant uses (such as storage or disposal) and to give reasonable notice and warning of after or delayed effect or latent or lingering dangers not known or reasonably to be expected by the ordinary user, but which are “foreseeably probable” to the manufacturer with his expertise.

You need to hire a skilled products liability attorney to help defend you. Call our office today if you or a loved one has been injured because of a defective product at 702.731.0000.


There are essentially three theories of recovery:

1. Negligence. Negligence remains extremely important in product liability claims despite the advent of strict liability in tort. We want to show that a company knew something and failed to act in the face of that knowledge.

2. Strict liability in tort. When an article is placed on the market by a manufacturer who knows the product will be used without inspection for defects, the manufacturer will be strictly liable in tort for any injury caused by a defect in the product.

3. Contract theories:

i. UCC 2-313 (Express Warranty)
ii. UCC 2-314 (Implied Warranty of Merchantability)
iii. UCC 2-315 (Fitness for a Particular Purpose)

The UCC theories are most critical in cases of economic loss only whereas in cases of personal injury typically you are going to be in a negligence or strict liability regime.

Example: If you go out and purchase a new boat and on its maiden voyage the boat takes on water. Nobody gets hurt and there is no substantial property damage. It’s a case of direct economic loss. You paid $25,000.00 for a boat, but in its defective state, it’s only worth $10,000.00. That’s a products liability claim – the boat is defective. In a case like that, your theory will probably be under the UCC. That is where you will really need 2-313 and 2-314.


The development of theories in products liability is very interesting. The way that you learn tort law is you are led to believe that strict liability is this grand and majestic thing. We have a tendency to back away from negligence a bit thinking that strict liability is all the rage. Negligence based theories remain the heart and soul of product liability litigation. Most products liability cases at some level, conjure up notions of the defendant’s fault or conduct. In fact, it is the relatively rare case in which there is true strict liability.

More people injured by a product would prefer to present their respective cases to a jury on a negligence, theory rather than on a strict liability basis. Negligence is “hot” and strict liability is “cold.” It is easier to prevail by showing that the defendant did something wrong than that there is something technically defective about the product.

It has been our experience that juries seem to be more receptive to plaintiff’s causes of action that sound in negligence, meaning, juries in products liability cases will have an easier time finding fault if an injured plaintiff can show the jury fault on the part of the manufacturer. For example, some of the Vioxx cases have been multi-million dollar verdicts. Why? Because juries have been sitting there listening to testimony about what corporate people knew regarding the dangers of Vioxx – it’s a negligence based case. In order to ever get to punitive damages as a practical matter, unless you find a lot of dirt you’re never going to get past compensatory damages in a products liability claim.

That’s why we are here – to guide you through the maze of a products liability case. If you’ve been injured by a dangerous product, call us today for a free consultation regarding your rights. We believe so strongly in helping people that our motto is: Help. Defend. Liberate. And we stand by that with every client.

More About Negligence in a Products Liability Case

Many judges have stated that the basis of strict liability in design and warning cases is similar – if not identical – to negligence liability. It has been our experience that negligence and strict liability are functionally the same in this context. Jurors respond more favorably to injured plaintiffs – in terms of both the likelihood of success and verdict size – whose claims are based on negligence rather than strict liability.

“Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.”

In a manufacturing defect case, strict liability will often be necessary. In a design defect, negligence is critical because a failure to adopt a reasonable alternative design will be a breach of reasonable care. Negligence in its purest form is the lynch pin of warning defect cases as well.


A manufacturer incurs strict liability when an article that is placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings. Even if there is no negligence, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health.

People who are injured are not prepared for its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.

The retailer, even though not equipped to test a product, is under strict liability to his customer and should apply to all products, not just unwholesome foods.

Why Do We Have Strict Liability?

The purpose of strict liability is to ensure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.

The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trademarks

Las Vegas Product Liability Lawyers

As Las Vegas product liability attorneys, we believe that the general layperson cannot ascertain a latent defect anyway, but even to the extent that if a layperson could, because of the bombardment of advertising, that person is not inclined to. As a skeptic of the consumer expectations, should the expectations that we bring to a product have any ultimate relevance in terms of whether that product is adequately designed?

We at the Justice Law Center believe that in order to establish a manufacturer’s liability it is sufficient that someone suffering personal injury prove that he or she was injured while using a product in a way it was intended to be used. This may suggest that misuse may negate a strict liability claim as a result of a defect in design and manufacturer of which an injured plaintiff was not aware. It is entirely possible to suggest that notions of contributory or comparative negligence may temper a potential strict liability claim that makes a particular product unsafe for its intended use.

A word of caution: Many sweeping opinions on strict liability in tort suggest that if a manufacturer puts a product out there, and you get injured using that product, the manufacturer is going to pay you – but let’s not be so fast. A manufacturer of a product may not have to pay you if you are misusing the product or if you have knowledge of the danger and you proceed in the face of a known risk.

Two important terms of art in Strict Liability Law (402A):

(1) One who sells; What constitutes a seller of a product for purposes of strict liability? It will also include retailers, distributors, wholesalers and those who are in the business of leasing products and renting cars.

Example: You go to a plastic surgeon for breast augmentation. He does numerous implants every week using Dow Corning implants because he has a bulk-sale discount with Dow Corning and only uses Dow implants. Suppose that this surgeon gives you a defective implant that ruptures. Should that surgeon be held strictly liable? Is he a seller of a product? The word seller is not always obvious – and that’s why you need to hire an experienced products liability lawyer for your case.

…any product, Is an animal purchased at Wal-Mart considered a product? The third Restatement says yes.

Example: If you buy a hamster at Wal-Mart and it gives you a communicable disease, is Wal-Mart liable? Yes, pets are products for strict liability treatment.

Example: Electromagnetic Fields (EMF). Some of the science was a bit dubious but one of the threshold issues was whether or not EMF’s, generated by high tension power lines, constituted a product for purposes of 402A. Some jurisdictions said yes it was a product.

…in a defective condition unreasonably dangerous. That statement has not withstood the test of time. It’s a dual requirement – you’ve got to show it’s defective and it’s really bad. Most jurisdictions today, in their basic definition of strict liability, when a judge is giving a jury instruction, they’ll say something like – you must find that the product was not reasonably fit, suitable and safe. That’s much more modern language.

…to the user or consumer (or to the foreseeable bystander – a bystander would have the same claim that you would have) or to his property (Indicating that 402A principals apply to both personal injury and property damage).

(a) If the seller is engaged in the business of selling such a product, The implied warranty of merchantability only applies to those who are merchants with respect to those goods. The person who is an occasional seller is not subject to strict liability.

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold A frequent issue is, what happened to that product from the time it left the warehouse to the time you were hurt? (Substantial Alteration Defense). Judge Traynor was talking about misuse toward the end of Greenman, 402A is talking more about alteration.

(2) This rule applies although

(a) the seller has exercised all possible care in the preparation and sale of his product The intent of (2)(a) is to distinguish this regime from negligence but this has not withstood the test of time. We know today that strict liability and negligence have a lot of similarity. The ALI was trying to suggest that strict liability would be different from negligence.

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Also suggesting that this regime is supposed to be different from warranty theories.

Comment m:

The rule stated in this Section does not require any reliance on the part of the consumer. Why sue under 402B, where you have to show reliance, when you can sue under 402A where right in the terms of the comments of 402A we are told by the ALI that there is no reliance requirement. The rule stated in this Section is not governed by the UCC so it’s not affected by limitations, i.e. 2-719, disclaimers, or notice of breach – none of those apply.


Express Warranty

UCC § 2-313. Express Warranties by Affirmation, Promise, Description, Sample

(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates
to the goods and becomes part of the basis of the bargain creates an express
warranty that the goods shall conform to the affirmation or promise.

402B requires actual reliance. The conceptual similarity here is under express warranty you have to show that the warranty became a basis of the bargain.

Express warranties must be read in terms of their significance in the trade and relative to what would normally pass in the trade without objection under the contract description. For example, if you are eating an olive from a can and you bite into a pit, it is unrealistic to impart to a manufacturer that the olives in the can are entirely free of pits or pit fragments unless the can is marked: “pit free”. In order for olives to be merchantable, every now and again an olive still might have a pit in it and therefore, no breach of an express warranty.

As Nevada product liability attorneys, if we can show that the warranty was a basis of the bargain between you and the manufacturer, then there was an express warranty and it has been breached. This type of recovery is not about fault. Moreover, we don’t have to show a defect other than a failure to conform to the warrantor’s representations. What we need to show is that the manufacturer made a promise – a warranty – and they didn’t keep it.

Implied Warranty of Merchantability

UCC § 2-314. Implied Warranty: Merchantability; Usage of Trade

(1) A warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.

(2) Goods to be merchantable must be at least such as

(c) are fit for the ordinary purposes for which such goods are used;

If you sell a used car to a friend and that car malfunctions, a claim for breach of the implied warranty of merchantability will not succeed because you are not a seller or merchant with respect to those goods.

Shoes must have their heels attached so that they will not break off under normal use, but if those shoes are used for mountain climbing, there is no implied warranty that the heels will be fit for this extraordinary purpose.

There is a sense of misuse in (2)(c). Not only do we need a merchant but we need the goods to be used for their reasonably foreseeable purpose.

Potential pitfalls for a person injured by a defective product plaintiff are the affirmative defenses that the defendant manufacturer may raise. For instance: warranty disclaimed, notice of breach not timely, assumption of the risk, or statute of limitations.

Yes the UCC giveth, creating theories upon which to bring a products liability claim, but it may taketh away as well. It also indicates that implied warranties are more easily disclaimed than are express warranties.

UCC § 2-316. Exclusion or Modification of Warranties
(2) The language must mention merchantability and in case of a writing, it must be conspicuous.
(3) (b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed.
Open and Obvious Dangers: If the buyer discovers the defect and uses the goods anyway, or if he unreasonably fails to examine the goods before he uses them, resulting injuries may be found to result from his own action rather than proximately from a breach of warranty. In a case like that, the implied warranty will not even apply.

Limitations Under the UCC

UCC § 2-719. Contractual Modification or Limitation of Remedy

(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

A disclaimer clause is a device used to exclude or limit the seller’s warranties; it attempts to control the seller’s liability by reducing the number of situations in which the seller can be in breach. An exclusionary clause [limitation of remedies] on the other hand, restricts the remedies available to one or both parties once a breach is established. Assume for example that a new-car buyer sues for breach of warranty, and the seller raises defenses based on disclaimer and exclusionary clauses. The disclaimer defense denies the existence of any cause of action. The exclusionary-clause defense, on the other hand, denies that the buyer is entitled to the remedy he demands – for example, consequential damages.

Consumer Goods: Goods used or bought for use primarily for personal, family or household purposes, e.g., family car, etc. Approximately one-half of all products liability cases involve commercial, rather than consumer goods.

UCC 2-302: Unconscionability

If a court finds a limitation of remedy to be unconscionable, this section permits the court in its discretion to refuse to enforce the contract as a whole, if it is permeated by the unconscionability, or to strike any single clause or group of clauses which are so tainted or which are contrary to the essential purpose of the agreement, or to simply limit unconscionable clauses so as to avoid unconscionable results. Thus, any clause purporting to modify or limit remedies in an unconscionable manner is subject to deletion and will not be given effect.

No matter how serious your injury is, call The Justice Law Center. Our consultations are free and we welcome the opportunity to represent you in your Nevada product liability case. Manufactures of defective products have lawyers too and they will do everything they can to keep you from recovering damages. Call us today at: 702.731.0000. We are here to Help, Defend, and Liberate.

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About Attorney Bret Whipple

Bret Whipple is one of only four Board Certified Criminal Trial Specialists in the entire State of Nevada. He has extensive experience in every Nevada county, including the Nevada Supreme Court. Bret is also licensed to practice in Arizona. When you choose a national board certified trial attorney, you know that your Nevada Lawyer is the best in the business.