If you or someone you know has been injured by a defective product you may have a claim against the manufacturer or the designer of the product or the retailer, wholesaler or distributor of the product. The consumer or buyer of the product is not the only one who has a claim for injuries caused by a defective product.

An end-user or someone borrowing a neighbor’s tool may also have a claim even if they did not purchase the product themselves. Additionally, an innocent bystander who had nothing to do with the purchase or use of the product may have a claim.

Theories of Liability

Massachusetts’ law recognizes 4 theories of product liability:

  1. breach of implied warranty of merchantability,
  2. negligence,
  3. G.L. c. 93A, and
  4. market share liability.

This is a specialized area of law so it is important for you to hire an attorney that is familiar with these theories.

(1) Breach of Implied Warranty of Merchantability

The most important and powerful theory of liability in a product liability case in Massachusetts is the implied warranty of merchantability. It is easier to find a manufacturer responsible for a breach of implied warranty of merchantability than negligence. In an implied warranty case you do not need to prove the defendant’s lack of reasonable care.

In order to be successful on a a breach-of-warranty claim you must prove:

A. The Defendant was a “Merchant

An implied warranty of merchantability arises when the person making the sale or lease is a Merchant. A Merchant is person who deals in goods of the kind or holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction.

The John Deer lawnmower company and anyone who works for them is considered a “merchant” when it comes to the sale of lawnmowers. A neighbor who makes a single sale of his used lawnmower to a neighbor is not a “merchant.”

B. The product was sold or leased

This warranty is only created in a formal sale of goods.

C. The plaintiff’s use of the product was foreseeable

In order for the warranty to form the product must be “fit for the ordinary purposes for which such goods are used.” A distinction must be drawn between reasonably foreseeable use and unforeseeable misuses of the product. So a plaintiff must prove that their use of the product was foreseeable. Additionally a plaintiff can still collect if they misuse the product but only if that misuse is foreseeable.

A noteworthy case dealing with the issue of misuse involved a defective sauna heater in the men’s locker-room at a gym. In that case a man entered the sauna and removed his towel. He then placed the towel on the heater without realizing it and then sat down. The sauna then burst into flames. The manufacturer argued that the defendant misused the sauna heater by throwing a towel on it. However, the court ruled that it was foreseeable to the manufacturer that people frequently enter saunas with towels and then disrobe and that someone was likely going to place their towel on the heater after taking it off.

D. The product was defective and caused the plaintiff’s injury

The manufacturer must consider all the potential environments the product will be used in and all the different ways the product could be used. The manufacturer then has to design the product to operate safely if used in a foreseeable way or in a foreseeable environment.

Unlike in a negligence case, the focus on a warranty claim is on the product itself and not on the conduct of the seller, designer or manufacturer (i.e. whether they exercised reasonable care in manufacturing the product). So in a breach of warranty claim, unlike in a negligence claim, the manufacturer can still be liable even if they took every possible precaution to ensure the product was manufactured safely.

There are three ways to prove a product is defective.

1. Defective Design: This occurs when there is a flaw in the design/blueprint that makes the product unreasonably dangerous. The manufacturer must design against reasonably foreseeable risks that accompany foreseeable uses of the product. The design defect must exist before it was shipped from the manufacturer.

You can ask some of these questions to determine if a design defect exists:

  • Was it reasonable to assume the design would likely expose the user to grave danger?
  • Was it economically feasible and mechanically feasible to create and manufacture an improved or safer alternative design?

Example of Design Defects

A chainsaw that does not have a guard to protect the user’s hand from getting cut by the blade. In this case it would not cost much money to add a simple plastic guard and it would not be difficult to manufacture or assemble the guard onto the chainsaw. It is likely that someone would expose their hand to the chainsaw blade without a guard. This would also expose the user to grave danger (i.e. severing a hand or finger)

2. Manufacturing Defect: A product has a manufacturing defect if it was not manufactured as intended or if the product was not manufactured to its own specifications or according to its design.

Manufacturing defects can occur in many ways. A component or part of a product may have been omitted during the manufacturing process as would be the case if several screws were not drilled into the frame of a toy to keep the pieces together and prevent the toy from becoming a choking hazard. A product may have been assembled the wrong way as would be the case if a coffee maker wasn’t wire properly making is a fire hazard. A product may have been broken or damaged during the manufacturing process as would be the case if the frame of a swing-set fell and cracked during assembly.

Almost every manufacturer has a quality control department that monitors the manufacturing process. Routine inspections are made and records are kept to make sure the product is being assembled according to guidelines.

It is also important to determine if the defect was in fact caused during the manufacturing process and not after it was sold or shipped from the manufacturer.

3. Failure to Warn: Both manufacturers and SELLERS can be responsible for selling a defective product and for failing to warn foreseeable users about the dangers created by the product. There is a duty to warn even if the product safely designed.

Warning labels need to:

  • Put the user on notice of existing hazards
  • Put the user on notice of the severity of the danger the hazard poses
  • Put the user on notice of how to avoid the hazard

The most common issue deals with the adequacy of the warning. The warning has to be designed so that the average user can comprehend its meaning. The warning must also describe the true nature and extent of the potential danger. The warning should be prominently placed, highly visible, attention grabbing and as close to the potential hazard as possible. Red and yellow labels should be used to convey danger and the need to exercise caution. The writing should be large so that it is easy to read from a distance. A simple illustration should accompany the written warning. That way the message can be conveyed to a user who does not know how to read or who does not speak the language used on the label.

(2) Negligence

In order to bring a successful negligence claim you must prove that your injuries were caused by either the careless design or manufacturing of the product that caused your injuries. First you need to prove the Defendant owed you a duty of care. A vendor of a product has a duty to exercise reasonable care in the sale, design, and manufacture of a product. This duty is owed to anyone that will likely be exposed to or come in contact with the product. Next you need to prove the product was in fact defective or dangerous and that the Defendant either knew or should have known about the defective condition. Finally you must prove that defective product caused your injuries.

So a negligence case focuses on two parts (1) the conduct of the defendant and (2) the condition of the product. The plaintiff in a negligence claim will have one more burden than in a breach-of-warranty case. The plaintiff must prove both that the defendant’s conduct was unreasonable and that the product was unreasonably dangerous.

A manufacturer has a duty of care to inspect the product and to discover and eliminate the defects. This duty requires the manufacturer to exercise reasonable care, not perfection. A manufacturer will not be liable for failing to take precautions against a danger that is remotely possible.

(3) Consumer Protection & Chapter 93A

Anyone found responsible in Massachusetts for selling a defective product in violation of the implied warranty of merchantability will also have violated Massachusetts General Laws Chapter 93A of the Massachusetts Consumer Protection Act. Chapter 93A deals with unfair and deceptive trade practices. This could potentially entitle a prevailing plaintiff to an award of multiple damages and attorneys fees.

Pursuant to G.L. c. 93A, section 2 (c), “[I]t shall be an unfair and deceptive act or practice to fail to perform or fulfill any promises or obligations arising under a warranty.” The implied warranty of merchantability is specifically included in the definition of warranty. As a result, plaintiffs can invoke G.L. c. 93A in product liability cases.

Applying Chapter 93A in a Product Liability case can have a serious effect on your recovery. Chapter 93A could result in the plaintiff receiving double damages and attorney’s expenses.

Free Consultation – No Obligation – No fee If No Recovery

You will need an experienced Massachusetts accident lawyer to get you the compensation you deserve — one who will work hard to obtain you a fair settlement but is willing and able to go to trial on your behalf as well.

At The Law Offices of Gerald J. Noonan, we care about getting our clients the compensation they need to get the medical treatment they deserve both now and in the future. Our personal injury attorneys will aggressively pursue your claim compiling a case that clearly establishes the liability of any party at fault. We understand the stress and anxiety that you are feeling in this most challenging of times. When you hire our team of lawyers to handle your accident case  you can rest assured that your case is being advocated in your best interest to the fullest extent possible.

Contact our law offices today to schedule your free consultation and learn more about your rights and the value of your case.

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