Quality and consumer products visualizationMost jurisdictions allow consumers to bring claims under the concept of strict liability, that is, the manufacturer is held to be strictly liable simply for having placed a defective product into the stream of commerce which results in injury to the consumer. Strict liability for consumer products arose as a matter of public policy, with the intent to provide consumers with a means of legal recourse in the event of injuries sustained as the result of a defective product.  Strict liability has often been referred to as no-fault liability, in that, actions permitting claims of strict liability, can allow for recovery without the need to prove manufacturer fault.

Consumer products actions are often brought under claims of breach of warranty. Such claims are generally based on either express warranty or implied warranty. Express warranties are written or oral promises that the manufacturer voluntary makes regarding a product. These warranties may be in the form of advertisement, or formal written warranties provided along with a specific product. Express warranties that are in writing are covered under the Magnuson-Moss Warranty Act. Pursuant to 15 U.S.C. § 2301:

(6) The term “written warranty” means—
(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or
(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking,
which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.

Implied warranties, on the other hand concern the consumer’s reasonable expectations of particular product. There are two recognized types of implied warranties: (1) implied warranty of fitness for a particular product; and (2) implied warranty of merchantability. The availability of such warranty claims are dependent on both federal and state laws.

The implied warranty of fitness for a particular product applies when the buyer relies on the seller or manufacturer to choose the proper product for a buyer’s needs. For example, if a tire sales and installation service recommends specific tires for a buyer’s SUV, and such tires are purchased as a result of the seller’s recommendation, but the buyer, after being involved in an accident, later discovers that such tires were actually intended for use on small cars only, the seller can be held liable for breaching the implied warranty of fitness for a particular purpose. Under the Magnusson-Moss Act, implied warranties cannot be disclaimed in cases where an express written warranty has been provided, or where a service contract is sold in conjunction with the purchase of the product.

The implied warranty of merchantability is the manufacturer’s implied promise that a product will do what products of its kind generally do, without killing or injuring a person, when such product is used for its ordinary and/or intended purpose. For example, when a consumer purchases a lamp, and uses the product for its intended purpose, and in accordance with its instructions, the consumer is provided the automatic protection of an implied warranty of merchantability that the lamp will provide lighting, and will do so without spontaneously bursting into flames.

Product Liability actions can be complex in that they require knowledge of both federal and state laws concerning consumer products, as well as proper application of the appropriate law, in order to determine which theory or theories of liability will provide the best means of recovery. As such, a comprehensive evaluation of a product liability claim typically requires the assistance of a consumer product expert. Further, case law has demonstrated time and time again that many types of product liability actions actually require testimony from a consumer product expert. However, this expert must also be qualified to testify on the particular product giving rise to the cause of action. Such notions are further reaffirmed by the fact that many product liability actions fail when the opposing party’s expert is successfully excluded. The necessity of expert testimony will, of course, depend on the type of claims presented, and the tests employed by a particular court in its determination of unreasonable danger. Although, for the time being, and in the absence of any bright-line rule requiring presentation of evidence by an expert, a general rule can perhaps be relied upon–cases involving consumer products which are scientific, technical, complex, specialized, or which otherwise require knowledge outside of a lay jury’s understanding demand supporting evidence in the form of expert testimony.

By: Alicia McKnight, J.D.