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Product Liability

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Product Liability

Every day American consumers purchase products that they feel are beneficial to there development. Where that lies depends on the consumer. However, One underling variable is a constant when it comes to purchasing the product. That variable is whether or not the product is right for them. When the consumer purchases a product, they are liable for whatever mishaps may occur and accidents that may happen. But producers are not completely free from the liability of their product to their consumers. This is where product liability legal issues come from, a segment of the law which has seen its fare share of turmoil and difficulties.

Product liability is the producer's requirement to warn the consumer of and any possible troubles associated with the product. This is usually done with a warning label attached to the product, or is found via flyer form in the instruction manual. Sports and recreational equipment cause serious injuries everyday. There are many reasons for the cause of injury, but most cases of injury are due to product defects. These defects are manufacturing, design, and failure to adequately warn. Besides the product defects, consumers are exposed to other forms of potential mishaps, which are negligence, breach of warranty, and strict tort legal responsibility.

Because America is a society largely dependent upon the outside means in which to entertain themselves, many Americans are changing from the casual spectator to that of the exuberant participator. Therefore, the number of accidents associated with products has risen. Subsequently, so have the court cases and trials.

Product liability comes into play when the product breaks, or doesn't perform up to regulation standards set forth by the producer. In more cases than not, there is some form of injury sustained due to product defect or claims. So in short, the definition of product liability is the responsibility of the manufacturer to the user if the use of its product results in personal injury or property damage (Legal Concepts, 122).

Sports and recreational equipment cause serious injuries everyday. There are many reasons for the cause of injury, but most cases of injury are due to product defects (Swartz). These defects are manufacturing, design, and failure to adequately warn. As I have already stated in the beginning of this analysis, product liability has three main theories under which recovery can be made. These recoveries are:

* Negligence

* Strict liability

* Breach of warranty

Negligence is the understanding that the producer or manufacturer has the responsibility or duty to applicate a reasonable degree of care. Many people fail to realize that a negligence action in not under a duty to insure that its product will not cause injury; rather, the product merely has to be reasonably safe. The most common incidence of negligence is the manufacturers failure to inspect or test a product. Another common incidences of negligence is the defendants failure to sufficiently caution the user of the dangers the defendant knew about. Another is breach of warranty. Studies have shown that the care taken by manufacturers to warrant reasonable process to the consumer has a lot to be desired. From 1982 to 1984 there were 161 deaths and 128,000 injuries caused by ATV's . This lack of duty can be as much to blame for there petulance as it does to their marketing exploits.

One of the most common incidences of negligence associated with products in the manufacturers failure to inspect or test the product. When inspecting the product could have led to discovery of an injury-causing defect, the producer is liable. McCormick V. Lowe & Campbell Athletic Goods disclosed a variety of factors on the reasonableness of the inspection. These factors can include industry advances, the seriousness of the possible harm, the likelihood of the possible harm, and the feasibility of the inspection. In McCormick V. Lowe, the plaintiff claimed the defendant company furnished a vaulting pole that broke while the plaintiff was attempting to use it. The plaintiff brought a negligence action to recover the injuries he sustained in the fall that resulted in the inferior product. The court held that a manufacturer of a product is under a duty to exercise ordinary care to test products to determine whether or not such products contain defects, which can be rendered unsafe when used for an intended purpose. The court concluded that a failure to perform such a duty will leave the manufacturer liable to the person who is injured as a result of that violation.

When inspecting the product could have led to discovery of an injury-causing defect, the producer is liable. The infamous Bernick v. Judern case reiterates this understanding. A hockey mouth guard shattered when the player was struck between his nose and lips. The product was advertised as providing "maximum protection to the lips and teeth." It was alleged that there was a breach of express and implied warranties. The plaintiff's upper jaw was fractured, three of his teeth were totally knocked out, and part of a fourth tooth was broken off. The plaintiff sued the manufacturer of the mouth guard alleging breach of express and implied warranties. The trial court had entered summary judgment for the defendants, and the appellate court reversed and remanded. The court also noted that, although the plaintiff's mother purchased the mouth guard, the plaintiff was a third-party beneficiary and was therefore entitled to the same express warranty which she received as the purchaser. In addition, the court disagreed with the defendant's contention that the plaintiff's claim for breach implied warranty was barred by lack of privity, and stated that privity was not required.

In some cases the duty of a retailer to inspect for defects, however, is limited when it would be reasonable for the retailer to rely on the manufacturers expertise or skill. Outwater V. Miller is an example of a suit brought forth against the wrong party. Apparently, Outwater, an importer and distributor purchased a partially assembled bike in a sealed carton from the manufacturer, and sold the bike, still in package, to a wholesaler, who then in turn sold the bike to a retailer. The retailer assembled the bike and sold it to the plaintiff. Some days later, the front tire came off the bike causing injuries to the plaintiff. The plaintiff, angered, brought a negligence action against the importer, wholesaler, and the retailer.

The court however, explained that in a negligence action, if a



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