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Product Liability

A claim against the maker or seller of a product that injured someone because of how it was designed, how it was made, or what it failed to warn about - and the federal rules that can shut some of those claims down.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

Looking for a lawyer rather than a definition? Skip to the state-by-state list of law firms for this.

What it means

A product liability claim alleges that a product was defective and the defect caused injury. The law recognizes three kinds of defect. A manufacturing defect means the particular item departed from its own design - a contaminated batch, a weld that failed, a missing guard on one unit. A design defect means the product was made as intended but the design itself was unreasonably dangerous, judged in most states by whether a safer alternative design was reasonably available or, in others, by whether the product performed as an ordinary consumer would expect. A warning defect means the product carried a risk that was not obvious and the instructions or warnings did not adequately disclose it.

The claim can usually be brought against everyone in the chain of distribution - manufacturer, component supplier, distributor and retailer - although many states let a non-manufacturing seller step out of the case once the manufacturer is identified and solvent. Depending on the state and the theory, the claim sounds in strict liability, negligence, or breach of warranty, and the three are commonly pleaded together. Misuse of the product, alteration after sale, and the injured person's own fault are the standard defenses.

Federal law overrides some of these claims entirely. Where a federal agency has approved a product's design or labeling under a statute that expressly preempts state requirements, a state-law claim that would impose a different requirement may be barred; the Supreme Court has held that to be so for medical devices approved through the most rigorous federal premarket process, and not so for brand-name drug labeling. Which side of that line a product falls on is often the first and last question in the case.

Where this comes from

Product liability is state law, framed by Restatement (Second) of Torts § 402A and the Restatement (Third) of Torts: Products Liability §§ 1-2, which many state courts follow in defining the three defect types. Federal preemption turns on the particular statute: Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) (premarket-approved medical devices, claims preempted) and Wyeth v. Levine, 555 U.S. 555 (2009) (brand-name drug labeling, claims not preempted) mark the boundaries. Recalls and the federal safety agencies are covered under the vehicle safety recall entry.

When people hire a lawyer for this

Keep the product, the packaging and the receipt, and do not let anyone - including the manufacturer - take the item for "testing" without a lawyer involved, because the physical evidence is the case. These claims are expert-driven and expensive to bring, which is why they are typically taken on contingency only where the injury is serious; a lawyer will tell you quickly whether the injury and the product together clear that bar.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

Find a lawyer for this in your state

Choose your state. Each link opens the Dangerous Products directory page for the city in that state with the most currently published law firms that list this work; where a state has more than one, the others open under it. The list is generated when this page loads, so a state whose listings have lapsed drops out rather than becoming a dead link.

Alabama (Birmingham)
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- Montgomery
Alaska (Anchorage)
Arizona (Chandler)
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Arkansas (Little Rock)
California (Anaheim)
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- Fremont
- and 7 smaller
Colorado (Denver)
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Connecticut (Bridgeport)
Delaware (Wilmington)
District of Columbia (Washington)
Florida (Jacksonville)
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Georgia (Atlanta)
Hawaii (Honolulu)
Idaho (Boise)
Illinois (Chicago)
Indiana (Fort Wayne)
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- Indianapolis
Iowa (Des Moines)
Kansas (Wichita)
Kentucky (Lexington)
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Louisiana (Baton Rouge)
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- New Orleans
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Maine (Portland)
Maryland (Baltimore)
Massachusetts (Boston)
Michigan (Detroit)
Minnesota (Minneapolis)
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Mississippi (Jackson)
Missouri (St. Louis)
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Montana (Billings)
Nebraska (Lincoln)
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- Omaha
Nevada (Henderson)
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New Hampshire (Manchester)
New Jersey (Jersey City)
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- Newark
New Mexico (Albuquerque)
New York (Buffalo)
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- New York City
- Rochester
North Carolina (Charlotte)
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North Dakota (Fargo)
Ohio (Columbus)
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Oklahoma (Oklahoma City)
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- Tulsa
Oregon (Portland)
Pennsylvania (Pittsburgh)
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- Philadelphia
Rhode Island (Providence)
South Carolina (Columbia)
South Dakota (Sioux Falls)
Tennessee (Nashville)
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- Memphis
Texas (Garland)
+12 other cities
Utah (Salt Lake City)
Vermont (Burlington)
Virginia (Richmond)
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Washington (Seattle)
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- Tacoma
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West Virginia (Charleston)
Wisconsin (Madison)
+1 other city
- Milwaukee
Wyoming (Cheyenne)

Related terms

Other entries in the same area of law, each written from the same primary sources.

Assumption of Risk and Liability WaiversThe defense that a person who knowingly took on a danger cannot complain of it - and the signed waiver that tries to make that agreement explicit before the gym, the ski slope or the trampoline park.
Comparative and Contributory NegligenceRules that decide what happens to a claim when the injured person was also partly careless - and they differ sharply from state to state.
Contingency FeeA fee arrangement in which the lawyer is paid a percentage of what is recovered, and is paid no fee if nothing is recovered.
Damages in a Personal Injury ClaimThe categories of loss an injured person can be compensated for - the bills and lost earnings, the pain and the lost enjoyment of life - plus the separate and rarer category meant to punish, and the state caps that limit some of them.
Dog Bite LiabilityWho pays when a dog injures someone - the strict-liability statutes most states have and what they cover, the older "one-bite" rule that survives in the rest, negligence and leash-law claims that exist under either, the defenses of trespass and provocation, landlord and keeper liability, how homeowners' insurance responds, and the dangerous-dog proceedings that run alongside the civil claim.
Dram Shop and Social Host LiabilityWhen a bar, restaurant, liquor store or private host can be held responsible for injuries caused by someone they served alcohol to - the statutes that create the claim in most states and the very different standards they set (visibly intoxicated, under the legal drinking age, or both), the states with no claim at all, social-host rules for minors, what must be proved, the notice requirements, and who can sue.
Emotional Distress Claims (IIED and NIED)When the law compensates psychological harm on its own, without a physical injury - the intentional-infliction tort and its "outrageous conduct" threshold, the negligent-infliction claim and the limits states put on it (the impact, zone-of-danger and bystander rules), the proof a claim needs, and how these differ from the emotional-distress damages that ride on any ordinary injury claim.
Independent Medical ExaminationAn examination by a doctor chosen and paid for by the other side - routine in injury, disability and workers' compensation claims, and not treatment.
Insurance Bad FaithAn insurer's duty to deal fairly with its own policyholder - and the separate claim that arises when it does not.
Joint and Several LiabilityWhat happens when more than one person is responsible for the same injury - the traditional rule that each is liable for the whole judgment, the modern rules in most states that limit it by share of fault or by type of damages, contribution between defendants, the effect of settling with one of them, and why the rule decides who actually pays when one defendant is uninsured or bankrupt.
Loss of ConsortiumThe claim of a spouse - and in some states a child or parent - for what an injury to a family member took from the relationship itself: companionship, affection, household services and the marital relationship, what has to be proved, why it is derivative of the injured person's claim, and how it is pleaded, valued and settled.
NegligenceCarelessness that the law treats as a legal wrong because it fell below the level of care a reasonable person owed to someone else.
Negligence Per SeThe rule that breaking a safety statute - running a red light, serving alcohol to a minor, violating a building code - can itself establish that the defendant was careless, without the jury deciding what a reasonable person would have done.
Premises LiabilityThe responsibility of whoever owns or controls property for injuries caused by its condition - the slip on the wet floor, the broken stair, the unlit car park - and the rules that make the visitor's reason for being there matter.
Res Ipsa LoquiturThe doctrine that lets an injured person prove negligence from the accident itself when the cause is unknown but the event is one that does not ordinarily happen without carelessness - its elements, the exclusive-control requirement and how it has loosened, what the doctrine does procedurally (an inference, or a presumption shifting the burden), and where it is and is not used.
Strict LiabilityLiability for harm without any showing of carelessness - the rule for abnormally dangerous activities, for defective products in most states, and, under many state statutes, for the owner of a dog that bites.
Subrogation and Medical Liens on a SettlementWhy an injured person does not keep the whole settlement - the right of health insurers, Medicare, Medicaid, ERISA plans, workers' compensation carriers and hospitals to be repaid from a recovery for the treatment they paid for, how each kind of lien is created and enforced, the rules that reduce them, and why the liens have to be resolved before the check is cashed.
Suing the Government for an Injury (Tort Claims Acts)Why an injury caused by a government employee or a public property defect follows different rules - sovereign immunity and the statutes that waive it, the written claim that must be presented to the agency before any lawsuit and the short deadline for it, the exceptions that keep immunity (discretionary functions, most intentional torts, certain activities), damage caps, and the no-jury and no-punitive-damages rules.
Vicarious Liability (Respondeat Superior)The rule that makes an employer liable for harm its employee causes while doing the job - the reason the trucking company, the hospital or the delivery firm is the defendant, and the reason "independent contractor" is fought over so hard.
Workers' CompensationThe state no-fault system that pays medical care and part of lost wages for an injury at work without any proof of fault - and, in exchange, takes away the right to sue the employer, though not the right to sue anyone else who caused it.
Wrongful Death ClaimA claim brought by surviving family members or an estate when someone dies because of another party's wrongful act.

« All glossary terms

Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programs provide free help with many of these problems: civil legal aid programs by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.