Skip to main content
Find a Lawyer
Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

Legal Basis for Liability in Product Cases

When a person injures themselves while using a dangerous or defective product, they may have a legal claim. Depending on the nature of the defect, a plaintiff may have claims against multiple parties, including the product manufacturer, distributor, wholesaler, or retailer.

In a product liability case, any member of the chain of distribution can be found liable. Plaintiffs can even name the manufacturer of component parts in their product liability lawsuit.

The injured party also has several theories of liability on which to base their claim.

This article will discuss the four legal theories of product liability. These include:

We will also explain what possible defenses the responsible party may raise in a product liability action.

Types of Product Liability Claims

There are different types of product liability claims. Most plaintiffs base their case on either a manufacturing defect or a design defect. These lawsuits involve products that, when they enter the market, are unsafe for one reason or another.

In a manufacturing defect case, the product's intended design is safe. It's the way the manufacturer made the product that caused a problem. In design defect cases, the opposite is true. No matter how well the company makes a product, it would be unsafe due to a design defect.

Another type of product liability case involves marketing defects. In these cases, the manufacturer or retailer failed to warn consumers that their product was dangerous. Many cases involve label defects where the retailer or manufacturer should have put a warning label on the product. In other cases, the court would hold the defendant because they failed to warn of inherent dangers in their advertising or marketing campaigns.


In tort law, most personal injury claims are based on negligence. Negligence exists when a defendant fails to behave as a reasonable person would have in similar circumstances. In a case based on negligence, the plaintiff has the burden of proof in showing that the defendant did not behave the way a reasonable manufacturer would have given the circumstances.

To recover under a theory of negligence, a plaintiff must prove the following elements:

  • The manufacturer owed a duty to the plaintiff
  • The manufacturer breached a duty to the plaintiff
  • The breach of duty was the actual cause of the plaintiff's injury
  • The breach of duty was also the proximate cause of the injury
  • The plaintiff suffered actual damages as a result of the negligent act

In a product liability case, the manufacturer must exercise a higher standard of care than found in ordinary personal injury lawsuits. The courts will measure the defendant's behavior against the care exercised by other experts in manufacturing.

Imagine that Jane Smith sues CompanyA for product liability due to negligence. She claims their blender, touted for safety, had a defective auto-shutoff feature that failed, allowing the blades to continue to spin when the user removed the lid. As a result, Jane suffered a hand injury. Jane would have a strong product liability claim.

Even if a plaintiff can prove that a manufacturer has failed to exercise the proper standard of care, they cannot recover unless they prove causation. The plaintiff must first show that they would not have injured themselves without the manufacturer's negligence. The plaintiff must also show that the defendant could have foreseen the risks and uses of the product at the time of manufacturing.

Tortious Misrepresentation

Another theory a plaintiff may base their product liability suit on is misrepresentation. If the manufacturer, retailer, or other supply chain member conveys false or misleading information about a product, they can be held liable for damages.

A person who relies on the seller's information and who is harmed by such reliance may recover damages. Their case does not depend on a defect in the product but on false communication.

Imagine that CompanyB makes statements about their new pain medication that are not true. They overstate the effectiveness of the drug in their advertising campaign. John Davis files a tortious misrepresentation claim against CompanyB. John alleges that CompanyB, a pharmaceutical company, knowingly overstated the effectiveness of their new pain-relief medication in their advertising campaign. John would likely have a valid claim if he could prove that he suffered an injury due to the company's tortious misrepresentation.

Tortious misrepresentation may appear in three forms:

  • Fraudulent misrepresentation: The defendant knows that a statement is false and intends to mislead the plaintiff by making the statement.
  • Negligent misrepresentation: The manufacturer or other party was negligent in ascertaining whether a statement was true.
  • Strict liability: In some jurisdictions, a manufacturer can be liable if they make a public statement about the safety of a product. In a strict liability case, the plaintiff does not have to prove negligence.

Strict Liability

Section 402A of the Restatement (Second) of Torts included a provision that created strict liability on a manufacturer's part. Under this section, a manufacturer is liable for product defects during the manufacturing process, regardless of the level of care the manufacturer employs.

Courts later extended strict liability to include cases that did not involve errors in manufacturing, such as cases involving a failure of a manufacturer to provide ample warnings.

The Restatement (Third) of Torts: Products Liability applies strict liability rules to cases involving errors in the manufacturing process. Whether strict product liability applies to your case depends on your jurisdiction's state statutes.


warranty is a guarantee a seller gives consumers regarding the quality of a product.

Express Warranty

A warranty may be express. This means the seller made certain representations regarding the quality of a product. If the product's quality is less than the representation, the seller could be liable for breach of express warranty.

Implied Warranty

Some warranties may also be implied due to the nature of the sale.

The Uniform Commercial Code (UCC), adopted in part by every state, provides the basis for warranties in the United States. The UCC recognizes express warranties and two types of implied warranties:

  • The implied warranty of merchantability
  • The implied warranty of fitness for a particular purpose

An implied warranty of merchantability is a promise that a product sold is in good working order and will do what it is supposed to do. An implied warranty of fitness for a particular purpose is a promise that a seller's advice on using a product will be correct.

Liability for Used Products

Product liability law is different for companies that sell or repair used products. A person who repairs, rebuilds, or reconditions a product is not held strictly liable for injuries caused by a defective product.

However, if they are negligent in how they treat the product, they may be liable. In some instances, however, a person who re-manufactures a product may be subject to the same product liability rules as the original manufacturer.

State laws regarding the bases of liability for sellers of used products are split. Some states expressly exclude sales of used products from product liability rules. In other states, the general product liability rules apply.

Defenses to Product Liability

A defendant in a product liability suit may employ one of several defenses. One of the more common defenses is that the plaintiff used the product in a manner that was not reasonably foreseeable to the manufacturer.

For instance, assume that a plaintiff wanted to sweep several rocks in his driveway back into a bed of stones. The plaintiff used his lawnmower to shoot the rocks back into the rock bed. One of the rocks strikes and injures the plaintiff. The defendant could argue that using the lawnmower to move the rocks off the driveway was not a reasonably foreseeable use of the product.

Other defenses may argue the plaintiff's negligence in using a product caused their injury, or that the plaintiff assumed the risk associated with the product. Similar defenses apply in breach of warranty claims. In a tortious misrepresentation claim, the primary defense centers on whether a plaintiff's reliance on a seller's statement is justifiable.

Injured by a Dangerous Product? Get Help From a Lawyer

If you injured yourself using a dangerous consumer product, you may have a valid claim for damages. You may wonder if one of the theories discussed here applies to your legal action. It depends on the type of defect the dangerous product you were using had.

Since product liability is a complex area of law, it's best to consult with an experienced product liability lawyer near you today. You want to make sure you meet with an attorney before the statute of limitations period expires. This way, your product liability attorney has ample time to prepare your case.

Was this helpful?

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:

Next Steps

Contact a qualified product liability attorney to make sure your rights are protected.

Begin typing to search, use arrow keys to navigate, use enter to select

Help Me Find a Do-It-Yourself Solution

Copied to clipboard

Find a Lawyer

More Options