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Delaware Personal Injury Law Blog

Product Liability FAQs

Each year, thousands of Americans are injured by defective or poorly made products. Despite the government regulations that exist, some manufacturers still produce substandard items that could harm consumers. Read our frequently asked questions for more information. 

1. What is a product liability claim?

A product liability claim is a legal action for injuries or losses resulting from a defective or dangerous product.

2. What types of products are involved in product liability lawsuits?

Any product could be involved in a product liability lawsuit though some tend to appear in lawsuits more often than others. Some products that are commonly subject to product liability lawsuits are: 

  • Medication and pharmaceutical drugs
  • Medical devices
  • Medical equipment
  • Food products 
  • Food containers
  • Childcare products
  • Children’s toys
  • Home improvement tools
  • Lawn equipment
  • Auto parts

 3. Are there different types of product liability claims?

 There are generally 3 types of product liability claim though the laws are different in each state. Your lawyer will advise you which claims you can and should pursue.

Negligence: A product liability claim based on negligence must show that the defendant was careless in some way in the design, manufacture, or marketing of the product, and that this carelessness ultimately caused harm to the plaintiff. A manufacturer or retailer owes a duty of care to the people who will use the product, and if they breach this duty, and it causes harm to the user, they may be held liable in negligence for the damage caused. 

Breach of Warranty: Products can be sold with 2 types of warranty – an express warranty and an implied warranty. An express warranty is a representation or promise made by the defendant about the product. An implied warranty is a guarantee that is automatically imposed by law that the product is fit for purpose, and will not cause harm when used for its intended purpose. In a breach of warranty case, the plaintiff must show that there was a warranty and that the product failed to meet the standard of the warranty, causing harm to the plaintiff.

Strict Liability: Strict liability does not apply to products liability cases in Delaware. Under strict liability, a seller, manufacturer or distributor of goods can be liable for injuries and losses caused by a defective product regardless of their fault. The injured victim does not have to prove that the defendant was careless to win a strict liability case. 

4. What is a defective product? 

A defective product is any product that causes injury or damage when used for its intended purpose or another reasonably foreseeable use. A product could be defective because of a flaw in manufacture (manufacturing defect,) inherently unsafe design (design defect,) or improper labeling (marketing defect.)

5. What types of product defects can lead to a product liability case?

There are 3 potential types of product defect in a products liability case: 

  1. A manufacturing defect is a defect in a product that happens in the faulty manufacture or production of the product. A manufacturing defect typically affects a small percentage of a manufacturer’s product that was improperly made due to errors during manufacture.
  2. A design defect is a defect in a product that happens at the design stage. The product may be accurately produced to the design but because the design itself is defective, the product is defective. This type of defect typically affects a whole product line rather than a single item.
  3. A marketing defect (sometimes referred to as a labeling defect or failure to warn) occurs when a product is inaccurately or insufficiently labeled in such a way that it fails to warn the user about risks associated with using the product.

6. Who can bring a products liability lawsuit? 

Anyone who suffers injury or loss as a result of a defective product may have a valid products liability claim. You do not have to be the original buyer of the product to bring the claim. It is enough that the product was sold to someone, and it was reasonably foreseeable that the injured person could be injured if it was defective. 

For example, if a person buys a defective lawnmower and their spouse and is injured using it, the spouse could bring a legal action for their injuries. The spouse did not actually buy the lawnmower but it was reasonable to expect that they would use it, and be injured if it was faulty.

7. Can I bring a product liability case for damage to property?

Although most product liability cases arise from physical injuries, you can bring a product liability claim for other types of damage, such as property damage or financial loss. However, the compensation awarded in these non-injury claims is often significantly less because plaintiffs who have been physically injured can be awarded additional compensation for pain and suffering. Your lawyer may refer to this as non-economic damages. A products liability attorney can advise you of the compensation that you may be entitled to for property damage, and whether or not it is worthwhile to pursue a product liability claim.

8. What should I do if I have been injured by a faulty product?

If you have been injured by a defective product, you should first seek medical attention for your injuries. Keep a copy of your medical record and expenses because they may be needed for a potential legal claim.

Keep a record of any other expenses that you incur as a result of your injuries e.g. travel to medical appointments, physical therapy, medication, and lost wages. This will be important to the calculation of compensation in a successful product liability claim.

Keep any documentation associated with the product including the receipt of purchase and any warranties. If the salesperson made any oral statements or promises about the product, keep a detailed note of these.

If you still have the defective product in your possession, you should keep it in a safe and secure location without any further alterations to the product.  If the product has been returned to the seller, steps need to be taken to be certain that the product is preserved as potential evidence without any further alterations.

You should also contact a reputable products liability lawyer to find out more about your legal rights. Most lawyers will offer a free initial consultation to discuss your case and your chances of success. Our attorneys at Morris James handle many products liability cases, and are available to discuss your options with you. Contact us via our online form or at your local Delaware Morris James office

9. Who is liable if I have been injured by a faulty product?

 Anyone involved in the design, manufacture, distribution, assembly, sale, or installation of a faulty product could potentially be liable for injuries caused by that product. This could include anyone from a large manufacturing company to a small retail store. A good products liability lawyer will consider everyone in the chain of distribution of the defective product, and help determine which parties should be included in your claim. 

10. Can a retailer be held liable for defective products?

 A retailer (or seller) can be held liable for injuries caused by a defective product that they sold. However, their responsibility will depend on the facts of the specific case and on the law in that state. A retailer is at greater risk of being held liable in a strict liability state. Delaware is not a strict liability state.

Delaware law also gives retailers a sealed container defense. This law states that a seller of a sealed container is not liable for any defects in the design and manufacture of its contents.  If a seller in Delaware sells a product in a closed container, and is unaware of any defect, the seller will not be held liable for any harm caused by the faulty product.

11. Can I sue for injuries from a faulty product that I did not buy?

You can sue for a faulty product if you have suffered injury or loss as a result of the fault, and you meet other legal requirements in your state, such as the time limits for bringing a legal claim (“statute of limitations.”)  The specific legal requirements will differ from state to state.

Buying a faulty product is not enough to bring a legal claim. You must have suffered some injury or loss, which your lawyer will refer to as damages, in order to bring a claim. Most product liability claims are for physical injuries but you can also sue if you have suffered other damages such as financial loss or property damage caused by a faulty product.

14. What compensation can I get in a product liability claim?

The compensation awarded in a product liability claim can be broken down into compensatory damages and punitive damages:

Compensatory damages are intended to compensate the victim for their injury or loss, and may include economic and non-economic damages.  

  • Economic damages include medical expenses, lost wages, property damage, and other monetary damages. 
  • Non-economic damages are awarded to compensate the victim for non-monetary damages such as pain and suffering and loss of consortium. Non-economic damages are only available in claims for personal injury. 
  •  Pain and suffering can include the physical and emotional effects of an injury. 
  • Loss of consortium compensates a victim (or their spouse) for the negative impact of the injury on their marital relationship.

Punitive damages are designed to punish the defendant for their behavior that led to harm to the plaintiff. Punitive damages are limited, and are generally only awarded if the defendant’s actions flagrantly disregarded safety concerns and the law.

12. How soon do I have to file a products liability claim?

In Delaware, a products liability claim must be filed within 2 years of the date of the injury or damage. 

However, the clock does not start to tick on this 2 year statute of limitations period until the injured victim knew, or should have known, about the injury and that it may have been caused by the defective product.

13. What do I have to prove in a product liability case?

To be successful in a product liability case, you must prove:

  • You suffered an injury or loss.
  • The product was defective.
  • Your injury or loss was caused by the product defect.
  • You were using the product as it was intended to be used.

14. What if I am injured by a medical device or pharmaceutical drug?

Defects in medical devices and pharmaceutical drugs lead to many product liability claims. If you have been injured by medical equipment or medication, you should contact your healthcare provider to get medical attention for your injuries, and to make any necessary changes to your future treatment to avoid further harm. Keep a copy of your medical record and expenses because you may need these for a products liability claim.

You should also contact a lawyer. You may be able to bring a products liability claim to compensate you for medical expenses, lost wages, pain and suffering, and other losses caused by the defective medical device or pharmaceutical drug. For more information on claims arising from defective medical devices and drugs, see our Healthcare Products Liability FAQs or contact one of our experienced attorneys at your local Delaware Morris James office.

15. How much does a products liability lawyer cost? 

Most products liability lawyers, including the attorneys at Morris James, work on a contingency fee basis. This means that that their legal fees are paid out of any compensation awarded to you. On a contingency basis, you do not have to pay attorney fees if you lose your case. Before hiring an attorney, you should ask about their fees. Any reputable lawyer will be comfortable discussing their fees with you. 

16. How do I find the right product liability lawyers in Delaware? 

A good products liability lawyer will navigate the legal and administrative hurdles of a products liability claim, negotiate with the parties, and get you the maximum compensation for your injuries. Most product liability lawyers will give you a free initial consultation to discuss your case. This is a good opportunity to not only find out more about your potential claim but also about the law firm and the attorneys that you will be working with. It will be a better experience for you if you choose a law firm that fits your needs. When choosing a Delaware product liability attorney, you should consider:

Experience: Defective products are a specific niche of the law, and you'll want an attorney who has handled these types of cases in the past. Such attorneys will have the best understanding of the law and how to deal with the setbacks that come with any civil case. A high-quality law firm will be forthcoming about its past experience too, so make sure you check.

Results: Has the law firm secured positive results for defective product cases in Delaware before? How recently? You'll want to know specifics, such as settlement amounts. While outcomes will vary from case to case, knowing that a lawyer has had some success will give you confidence in their skills and ability to fight on your behalf.

Reputation: Look for a firm that's respected within the industry and has a long, established history of fighting for those who have experienced personal injury caused by defective products in Delaware.

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