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Products Liability Law can be complex, but we’re here to help

Most people intuitively understand that if you are hurt by a dangerous product (consumer goods, drugs, toxic foods, etc.), you may indeed have a lawsuit on your hands. However, very few people can tell you how such a case would work, and even fewer could adequately describe what laws allow for suing the manufacturer of a defective product. Simply put, products liability law is easily the least understood area of personal injury law for one simple reason: Most lawyers fail to explain to clients how these cases work.

We think it’s high time to cut through the fog of confusion by explaining in full detail how Texas products liability cases work, from top to bottom.


In this article, we are going to cover:

  • Exactly how products liability cases work
  • When a manufacturer of a product can and cannot be made to pay
  • Whether or not the seller of a dangerous product can be made to pay
  • What you have to prove to win
  • How much a products case is worth

Products cases are not normal personal injury cases

Products liability law isn’t exactly the same thing as injury law. What do we mean by that? Well, normal injury cases are almost all predicated upon asserting a relatively simple theory of “negligence” against the person you’re suing (negligence is any act that is considered to be unreasonable and known to likely cause harm). So whether a car runs a red light or a doctor operates on you while he’s drunk, in order to win a case against either wrongdoer, you would be required to prove to the court that their conduct met the definition of negligence.

The problem with negligence arguments is that the act itself is meaningless, it’s all about the context. If there were a way that, for example, someone could run a red light and hit your car in a non-negligent fashion, then you’d lose your case. If you think about it, that is certainly possible. For instance, if a police officer is responding to an emergency, if a driver is fleeing from an approaching tornado, or if a driver’s brakes failed, those would all be situations where a red light was indeed ran, but there was no negligence. If there was a good reason to do something dangerous, then it wasn’t negligence.

A good way to summarize these thoughts would be to say that in a negligence case, it doesn’t matter what happened, what matters is how or why it happened. There are indeed situations where someone is badly hurt and negligence had nothing to do with it, so you can rest assured that when you are hurt by someone who is negligent, they will, of course, argue that, sure, maybe they did do X, but they had a good reason to do it. If they can convince a jury to see things their way, you lose your case. It’s not enough to prove that they hurt you, you have to prove that their conduct was negligent, and that negligence was what caused your injuries.

Products liability cases don’t follow that model, and here’s why: It is entirely possible to make a product in a non-negligent fashion, yet the product is still inherently dangerous. Think about the old child’s toy called Lawn Darts. These were basically little spears that you could hurl around like footballs, and they were marketed as a game for kids, which, in retrospect, was a fairly ridiculous idea. Now, these Lawn Darts were properly manufactured, well designed, and constructed of high-quality materials, so you can’t logically say that any injuries they may have caused were caused by the manufacturer’s negligence, yet they were still incredibly dangerous. In order to hold a manufacturer like the maker of Lawn Darts responsible for the harm caused by their dangerous product, you need something more to go on than only a negligence-based theory of liability. What lawmakers came up with instead was the standard of “strict liability.”

Historically, strict liability had always been a harsh standard imposed only on certain defendants. For instance, if someone owned a lion or a tiger as a pet, and that dangerous pet got loose and hurt someone, you wouldn’t have to allege negligence against that person or prove that they negligently failed to control their dangerous pet. Instead, you can simply sue them under a theory of strict liability, the idea being that since owning a lion or a tiger as a pet is so obviously dangerous, the owner is inherently responsible for any harm caused by their pet, never mind the owner’s mindset or conduct. They’re effectively “liable by default.”

When lawmakers conceived of laws to hold companies liable for the products they produced, they took a page out the dangerous animal playbook and they applied virtually the same standard to the manufacturers of products: If you sell a dangerous product, it doesn’t matter why it’s dangerous, it only matters that it is dangerous, and you’re liable by default.

Now, the particulars underscoring products liability law are a little more complex than that. In invoking any injury law, you have to consider the law’s “authority,” which really means where the law came from or what its underlying justification is. The underlying authority behind products liability is not injury law. Rather, products liability derives from contract law. Though products liability law comes in a few different flavors (which we’ll cover in more detail momentarily), the bottom line is that when you buy a good from a manufacturer, there is an implicit warranty that the product is not going to hurt or kill you beyond what the manufacturer warns you about. So if a manufacturer sells action figures for little kids and they warn consumers that there may be small parts that pose choking hazards, but they neglect to mention that the paint on the action figures is toxic and that putting the toy in your mouth can cause illness, that is essentially a type of “breach of contract.” And just the same way that if you were to enter into a contract with a construction company to build a new deck on your house and they failed to do so, you don’t care why they breached the contract, you just care that they did.

This same principle applies in products liability cases. If the product was sold and marketed as being safe (and most products are understood to be safe, while others, such as cars, are specifically marketed as safe), and you bought one, you did so based on representations that were made by the product’s maker. If the manufacturer fails to uphold their promise, they’re liable by default, usually.

What The Law Does and Does Not Expect of Manufacturers

What Products Law Is Not

Products manufacturers are not insurance companies. They do not have to compensate injured people for every conceivable injury that they could receive. Manufacturers are not charities and are well within their rights to profit off of even imperfect products. Further, manufacturers are not only allowed a reasonable expectation that adults will never willfully hurt themselves with their products, but also that they will use them responsibly. If manufacturers were on the hook financially every time someone got hurt using a product they made, no company would have the incentive to sell into the marketplace at all. Our society wants full and open exchanges of goods to willing buyers and presumes that the market can ultimately correct most mistakes a manufacturer can make.

What Products Law Does Require

Nonetheless, lawmakers and courts have developed certain baseline rules that manufacturers of products must obey or face serious liability. These expectations, as you’ll see, are generally easy to follow for those who wish to profit from selling goods to everyday people and businesses alike:

  1. Weigh the uses of the product with its potential serious dangers. A product’s usefulness (or “utility”) to society must be balanced against any major harm it can cause. Even products that produce some good shouldn’t be inherently deadly. A good example are drugs. Many drugs have horrible side effects, but they also cure serious diseases. As long as the reward outweighs the risk, these drugs can be sold in their dangerous condition.
  2. Use the best science and engineering available in design. When deciding how a product is made, a manufacturer cannot hide behind its own ignorance. If there’s a method out there that can make a reasonably safer alternative to a dangerous product that is still cost-feasible, then the good’s producer has a duty to employ that technique.
  3. Ensure that the production process doesn’t fail. Designing a safe product is only half the battle. Production protocols must be in place to ensure that while that product goes from blueprint to the consumer, the employees actually making the product in conformity with the safe design.
  4. Where products are dangerous, warn consumers. Some products are not “unreasonably dangerous,” but under certain circumstances may become hazardous. Consumers are entitled to a full warning to avoid circumstances where they might hurt themselves or other.
  5. Honor warranties of safety. To make products more attractive, manufacturers often make claims that their products will protect consumers and their loved ones. Consumers then spend their hard-earned money to buy those products in response. The law will enforce these agreements in court when the products fail to live up to those standards.
  6. Don’t sell wildly substandard products. When a consumer buys a product, he or she has some reasonable expectations that the product will be fit for its ordinary purpose. While the consumer usually doesn’t have an express warranty for their goods, the law assumes some there’s an implicit promise that the products won’t harm the consumer.

Read more:

  • How Texas defective product law works
  • How Texas dangerous product law works

The Three Theories of Liability Applicable to Dangerous Products Cases

In most injury law cases, plaintiffs will have one avenue to pursue a defendant: convincing a court that the defendant acted with “negligence.” This requires a showing that the defendant failed to live up to a “reasonable standard of care.” Victims of defective products, however, can explore three different methods:

  1. Strict Liability For The Most Dangerous Products: In virtually every area of the law, a defendant will only be liable or guilty in court if they’ve acted with some degree of irresponsibility or malice. However, like most of our sister states, Texas doesn’t require those injured by “unreasonably dangerous” products to have to prove any bad intent on the part of the manufacturer. Why? Because we have decided that when products are dangerous such that they have no place being sold at all, then it’s the manufacturers fault … period.
    • How it works: The court will need to decide whether a product actually is unreasonably dangerous. Generally, victims and their attorneys will need to employ an expert witness—someone with years of technical experience in the field (usually an engineer who has worked in manufacturing)—to explain to a jury that the product is so dangerous that no common-sense person would have been forewarned. Another component of proving that a product was unreasonably dangerous is showing that a safer alternative design existed that was both technologically and economically feasible for the manufacturer to have used instead. For instance, 50 years ago, airbags were little more than an imaginary invention. You could not sue an auto manufacturer for not making a car with airbags since it was not technologically or economically feasible to install airbags in cars at the time. Nowadays, however, airbags are relatively inexpensive and the technology is relatively easy to apply. As such, an auto manufacturer would have no excuse not to install airbags. If you sue a manufacturer on the basis that their product is unreasonably dangerous, but the only way they could make their product safer would be to use technology that is out of reach or to drastically increase cost, you have not proven that there is a safer alternative. Some products simply must be dangerous since there is no better way. Once there becomes a better way, then society expects the manufacturer to employ these new methods and make the product safer. Lastly, it is important to note that an injured party cannot hold a manufacturer liable for a product that was significantly modified.To recap, in a products liability case, the focus is not on the manufacturer’s conduct, but solely the product’s attributes. If the jury feels that the product is unreasonably dangerous, then the manufacturer is held liable. Here are some examples:
      • Example 1: Asbestos was used in manufacturing and construction for years. Prolonged exposure led to many diseases, including cancer, in victims. Courts found that the usefulness of the product—keeping buildings’ temperatures in line, industrial filters, pipe fittings, etc.—was massively outweighed by its deadly side effects.
      • Example 2: Pill bottles were produced for years without child locks. Considering how dangerous pills can be, how children might think the pills are candy, and the relative cheapness of fitting bottles with protective caps, courts found that unguarded caps posed an unreasonable hazard.
      • Example 3: Many consumers fit autos with aftermarket enhancements to make them faster or otherwise perform better. While these cars might be “unreasonably dangerous,” they have been modified by the consumer. The manufacturer cannot be held liable.
    • The good news: Victims of unreasonably dangerous products get to skip the arduous task of proving the company knew or should have known that the product was faulty. Further, victims do not have to prove “proximate cause,” (one of the main elements of negligence) meaning, they do not have to prove to a court that their injuries were foreseeable. Instead, the must only show that the defect was the “producing cause” of their injuries.
      • How producing cause and proximate cause differ
    • The bad news: Proving a product is unreasonably dangerous is difficult. Doing so requires credible expert witnesses who can withstand a barrage of criticism from deep-pocketed companies’ lawyers. Courts are also understandably anxious about declaring that a product should never have been produced.
    • Deadline to bring a claim: From the time of the incident, you have two years to file a lawsuit.
  2. Breach of Warranty: Most people know what warranties are: if your phone stops working and it’s within its warranty period, you get your phone fixed. Warranties are creatures of contract law, so it may seem strange to see this topic discussed in the defective products realm. But companies often sell products to consumers with explicit assurances that they are safe. When the products do not live up to these promises—or even reasonable standards—and cause injuries or death, the law requires the company to pay.
    • How it works: Manufacturers have two types of contractual obligations: those they’ve agreed to or those the law imposes on them. Or, “express” and “implied.” Express warranties involve clear statements consumers relied upon that a product will be safe. Implied warranties are assumed agreements that consumers make when they purchase a product.
      • Example 1: Sally pays extra for an airbag system that the car company’s ads claim will protect the car’s passengers better than the standard set. When her car is in an accident, the airbags fail to deploy. She and her passengers have a claim against the car company (for any damages airbags would have prevented) under an express warranty claim.
      • Example 2: Bob is transporting Company A’s acid in the containers they sell the acid in. The acid is known to be dangerous, yet it’s an important product that has wide usage in various industries. While bob is carrying the acid, the containers break and Bob is injured by the acid. Even though there was no contractual promise that the containers wouldn’t break, since the acid was sold in the containers, Company A made an implied warranty that its containers were sufficient for carrying the dangerous substance. Bob can bring a claim against the company.
      • Example 3: Frank, the next customer to buy Company A’s acid containers, is required to sign a plainly-visible disclaimer that Company A is selling the product as-is, without any implied warranties. He could not thereafter bring a claim like Bob’s.
    • The good news: Safety is a huge concern for most consumers, and marketers exploit that by touting their goods’ supposed protective qualities. Juries don’t like companies that go back on their word. Further, courts can “create” warranties where they don’t even exist if the company failed to live up to reasonable industry standards.
    • The bad news: Much like identifying negligent behavior, establishing a breach of a warranty—express or implied—is an uphill battle. Manufacturers never want news reports of their warranties being breached, so they’ll fight you tooth-and-nail.
    • Time to bring a claim: Warranty cases are unique in injury and wrongful death law. In most cases, victims have two years after the incident to file suit against the person that hurt them. However, in warranty cases, The date the injury occurred is inconsequential. Instead, you have four years from the date you purchased the product in which to file suit based on an injury. So if your injury happens five years after you purchased the product, you can’t sue under a theory of breach of warranty.
  3. Negligence: We mentioned early on in this article that most products liability cases are not based on a theory of negligence. Well, in some products liability cases you can and should sue the manufacturer of a product for negligence. The point of this article is simply that suing under a theory of negligence isn’t the only avenue you can pursue.
    • How it works: Manufacturers owe a duty of proper care in the production of their goods. This means that they don’t have to make perfect products, but the law assumes that manufacturers make a reasonable effort to take safety into account. For example, everyone knows that cigarette lighters produce a flame: no one can claim that flicking a lighter on and holding it to their arm isn’t their fault. But what if the lighter was dangerous in ways you couldn’t foresee, but the manufacturer could have?
      • Example 1: Company A designs the cheapest cigarette lighter on the market. The problem? Due to its flimsy design, the fuel tank tends to split open during ignition and catch its user’s hand on fire. This is a dangerous product because a user cannot have reasonably anticipated that would happen. Thus, the lighter isn’t dangerous because it produces fire, but because it produces fire in the wrong way.
      • Example 2: Company B’s cigarette lighter is designed to be perfectly safe, except Company B’s floor managers badly oversee their production. Because of manufacturing errors, many of the lighters’ fuel tanks split open and catch fire just like Company A’s. Again, the badly-produced lighters are unsafe products.
      • Example 3: Company C’s cigarette lighter works fine, except when it gets too cold. During extreme weather, its fuel tank splits open and causes the same fire. Such a product is not necessarily dangerous if Company C pastes a clearly-visible warning on the lighter not to use in the cold.
    • The good news: Victims can hold manufacturers responsible for their faulty products. Often, there are paper trails of evidence showing that producers knew what they were doing wasn’t sufficient. Victims are also usually filing suit against companies with the financial and insurance resources sufficient enough to pay their claims. In many injury cases, victims face judgement-proof defendants.
    • The bad news: Manufacturers can defend themselves by showing they made reasonable efforts to ensure their products were made safely—unlike unreasonably dangerous products, victims must prove the company did something wrong, not just that they got hurt. Further, they can sow doubt by blaming the victim for his own injuries.
    • Time to bring a claim: Negligence lawsuits must be filed within two years of the incident.

Sellers’ Liability

As a general rule of thumb, the seller of a product (which later turns out to be dangerous or defective) is not usually liable. The exceptions to this rule are when the seller does something that significantly modifies the product, when they take an active role in telling you how to use the product, or when the manufacturer who is really responsible for your injuries goes out of business. That last one may seem a little harsh, but the bottom line is that many businesses will make dangerous products and then either cash out or get shut down, meanwhile the retailer made profit off of the sale of this dangerous product, so the court may make them redistribute to the injured consumer.

Compensation Available to Victims of Defective Products

As you can imagine, every defective products victim is different. Fortunately, no matter what whether you sue for negligence, strict liability, or breach of warranty, you can recover nearly all of your losses.

  1. Personal injury damages
    • Medical bills
    • Physical impairment
    • Disfigurement
    • Past wages
    • Future wages
    • Mental suffering
  2. Wrongful death
    • Lost income
    • Loss of consortium
    • Loss of household services
    • Survival damages
  3. Loss of consortium
  4. Property damage
  5. Punitive damages
  6. Bystander claims

What Can Hurt Your Claim

Products can cause serious injury or death when they are produced defectively. Any attorney who has practiced in this area will tell you that there are several mistakes victims sometimes make that can hurt — or even ruin — their case. Keep these in mind:

  1. Missing the statute of limitations: As noted above, you have a brief window to bring your claim against the responsible parties. In the most serious cases, victims have lost loved ones and filing a lawsuit is the last thing on their minds. Still, the law doesn’t let you sleep on your rights. As you may have noticed above, with claims brought according to certain theories of liability, there are other limits beyond the statute of limitations. Timely reaction to your injuries is crucial.
  2. Waiting: Even cases brought within the statute of limitations could be hurt due to lost evidence. People with direct knowledge of how your product was made change jobs, lose files, and have their computers crash.
  3. Altering the evidence: If a product has hurt you, it’s best not to do anything to it. Defense lawyers will have a field day claiming that you made the product defective yourself.
  4. Disobeying your doctor: If you’ve been hurt, go to the doctor. Whatever your doctor tells you to do, it’s probably wise to follow that advice. Plaintiffs are required to “mitigate damages,” meaning you must make the best of a bad situation.
  5. Not keeping the product: You can’t sue someone for selling you a dangerous or defective product if the product is not longer in existence. Your lawyer needs to be able to physically take possession of the product so that it can be analyzed and used a evidence.
  6. Talking with an insurance company: Many victims understandably reach out to the manufacturer who caused them pain. This can trigger a call from the company’s insurance adjuster who will want a statement. Do. Not. Say. Anything. Wait until you talk to a lawyer.

As you can see, this is an area of Texas law that is multifaceted and nuanced. If you have suffered an injury or if a loved one has lost their life due to a dangerous product, you will need to consult an experienced and knowledgeable attorney. If you have any questions about this area of the law, feel free to call one of our attorneys anytime.

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