Plaintiff may depend on any of different theories as his/her basis for recovery in product liability case. The main theories for recovery are as follows: negligence, breach of warranty, tortuous misrepresentation, and strict liability in tort.

Negligence

The offense of negligence stays as the main part of the law of product liability. A plaintiff must prove the following 5 basic elements to recover under the theory of negligence:

• The manufacturer violated a duty to the plaintiff
• The manufacturer has a duty to the plaintiff
• The violation of the duty was also the immediate cause of the injury
• The violation of duty was the actual cause of the injury of the plaintiff
• The plaintiff has suffered actual damages as a consequence of the negligent act

With a product liability case, the law states that a manufacturer must practice a standard of care that is satisfactory for those who are experts in manufacturing same products. But if the plaintiff can show and prove that the manufacturer was unable to practice the appropriate standard of care, the plaintiff cannot recover without proving the two aspects of causation. The plaintiff must prove that if not for the negligence of the manufacturer, the plaintiff would not have been injured. The plaintiff must also prove that the defendant could have predicted the probable risks and uses of the product during the process of manufacturing.

Warranty

Warranty is a kind of guarantee that a seller provides about the quality of the product. The warranty may be shown, which means that the seller have some representations about the quality of the products. If the product’s quality is less than the representation, then the seller could be held responsible for violation of express warranty. There are several warranties may be inferred because of the nature of the sale.

The Uniform Commercial Code or UCC has been implemented by each state, has given the basis for warranties in US. The UCC acknowledges the express warranties and two kinds of implied warranties:

• Implied warranty of merchantability
• Implied warranty of fitness for specific purpose

An implied warranty of merchantability is a guarantee that the product being sold is in good looking order and will do what it supposed to do. The implied warranty of fitness for specific purpose is a guarantee the seller’s advice on how to use the product is accurate.

Tortious Misrepresentation

The claim in a product’s liability lawsuit may be based on false or misleading information that is expressed by the product manufacturer. The individual who depends on the information stated by the seller and who is injured by such dependence may recover for the misrepresentation. The basis for recovery is not dependent on the defect in the product, but by the false interaction.

The misrepresentation offense may come in three basic forms:

• The individual may have made fraudulent misrepresentation, or deceit, where the person recognized that the statement is not true and it purposely to mislead the plaintiff by making the statement.
• An individual may have committed negligent misrepresentation where the individual was negligent in ensuring that the statement was true.
• Some jurisdictions permit strict liability in cases where the manufacturer made a public statement regarding the safety of the product.

Strict Liability

Section 402A of the Restatement (Second) of Torts has a provision that made a strict liability on the part of manufacturer. Under this section, the manufacturer is held responsible for the defects of the products that occur during the process of manufacturing, aside from the level of care made by the manufacturer. The courts have later extended the strict liability to include the cases that did not entailed mistakes during the manufacturing process, like cases that involve failure of the manufacturer to give sufficient warnings.

The Restatement (Third) of Torts: the products liability uses strict liability policies to cases that involve mistakes in manufacturing, however, employs negligence rules to other kinds of product liability cases. Hence, many states keep on applying the strict liability policies developed in previous cases.

Liability for Used Products

Various rules were created in products liability law for people who sell or fix used products. In cases where the individual who fixes, rebuilds, or reconditions the product is responsible if the individual is negligent in handling the product, but the individual is not subjected to strict liability for defects. However, in cases where the individual who re-manufactures the product can be held responsible to product liability rules just like the original manufacturer. The states are divided about the bases of liability for sellers of used products. There are states that openly exclude the sales of used products from products liability rules, while in other states, the general products liability rules are adhered to.

Defenses to Product Liability

A defendant in a product liability lawsuit may apply one of the many defenses to liability. One of the more popular defenses is that the plaintiff misused the product in a way that was not satisfactorily foreseeable to the manufacturer. For example, we assumed that a plaintiff wanted to sweep several of rocks in his driveway back into a bed of rocks. The plaintiff decided to use the lawnmower to shoot the rocks in his driveway back into a bed of rocks. Then, one of the rocks injures the plaintiff. The defendant could argue that using the lawnmower to move the rocks off the driveway was not reasonably foreseeable use of the product.

Other defenses may be from the plaintiff’s own negligence in using the product or on the plaintiff’s supposition of the risks related with the product. Same defenses may apply in violation of warranty claims. In a tortuous misrepresentation claim, the major defense focuses on whether the plaintiff’s dependence on the seller’s statement is reasonable. If the plaintiff’s dependence is not justified, the lack of dependence beats the essential elements of the plaintiff claims.