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May 3, 2018

All too often the usefulness or pleasure of an item you have purchased is ruined because that item is defective. Whether it is a bicycle, a blender or a band saw, a broken or malfunctioning consumer item can bring you tremendous pain and even permanent injury. Fortunately, if you find yourself a victim of a defective device, remedy awaits you. All that’s required is that you know the types of product liability under California law.


U.S. Courts typically recognize negligence, product liability, breach of warranty and certain consumer-protection claims. Each type of claim has certain requirements which must be met to place liability on a party.  Let us look at each individually.


Negligence constitutes a part of claims related to yet another form of product liability. A claim based on negligence requires that the following elements be proven:

  1.  A duty was owed by the defendant to the plaintiff;
  2.  Defendant breached such duty; and
  3.  The breach caused actual injury to the plaintiff.


Section Two of the Restatement (Third) of Torts provides three main types of defect claims:

  1.  A defect attributable to the manufacturing process is known as a manufacturing defect.
  2.  A defect attributable to a dangerous or obsolete design is known as a design defect.
  3.  Any defect of an unapparent yet dangerous sort that causes a consumer injury because the manufacturer neglected to provide adequate warning is known as a failure to warn or marketing defect.


Product liability also includes breach of warranty. A warranty is a statement by a manufacturer or seller about the product during a commercial transaction. A warranty dispute may require what is known as “privity” which is direct interaction between the injured party and the defective good’s manufacturer or seller.  Claims based on breach of warranty break down into four types:

  1.  Breach of express warranty. An express claim about a product by the manufacturer.
  2.  Breach of implied warranty of merchantability. An implied warranty common to all products, unless  stated otherwise by the manufacturer or seller.
  3.  Breach of warranty of implied fitness for a specific purpose. An implied warranty in which a buyer relies on the seller to select a good fit to a specific request.
  4.  Breach of implied warranty of habitability. An implied warranty of habitability concerns residential property and involves a lessor’s promise that the property is fit for human habitation and will remain so for the duration of the lease.


California’s consumer protection laws are among the strongest of all U. S. states. The California Department of Consumer Affairs (DCA), which operates under the auspices of The California State and Consumer Services Agency (SCSA), works on behalf of California consumers to promote sound business practices and to discourage unscrupulous behavior on the part of manufacturers and merchants.
The DCA deals with issues such as those related to California’s Lemon Law. Briefly, this law provides that if the manufacturer or dealer cannot repair a serious warranty defect in your vehicle after a “reasonable” number of attempts, the manufacturer must either replace the vehicle; or refund its purchase price (whichever you prefer).

A “reasonable” number of repair attempts is not set by law.  However, California’s Lemon Law Presumption contains the following guidelines for determining when a “reasonable” number of repair attempts have been made:

  1. The manufacturer or dealer hasn’t fixed the same problem after four or more attempts; or
  2. Your vehicle’s problems could cause death or serious bodily injury if it is driven and the manufacturer or dealer has made at least two unsuccessful repair attempts; or
  3. The vehicle has been in the shop for more than 30 days (not necessarily in a row) for repair of any problems covered by its warranty.


Any product liability claim which focuses exclusively on the product rather than negligence on the manufacturer’s part is a claim of strict liability. Even if no evidence of negligence on the manufacturer’s part is proven, strict liability law can hold the manufacturer responsible for injury to a plaintiff. Product liability lawsuits usually rely on strict liability.

Strict liability also permits buyers and other interested parties to sue for damages suffered as a consequence of being injured by a defective product. In fact, even if a seller has exercised all possible care in the preparation and sale of a product, the seller may be held liable for damages.

However, elements of negligence law have been incorporated into California strict liability law including a risk/benefit doctrine (see Merrill v. Navegar, Inc. (2001) 26 C4th 465). For example, a plaintiff may base a claim on a defect in either the design or manufacture of a product (Soule v. General Motors Corp. (1994) 8 Cal.4th 548). In a strict liability action based on defective design, “a product is defective either (1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if the benefits of the challenged design do not outweigh the risk of danger inherent in such design (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413)


Plaintiffs also are required to mitigate damages in tort cases.  What this means is Plaintiffs must make reasonable efforts to reduce the amount of damage caused by Defendants.


Note that plaintiffs may be found to have contributed to the damage claimed.  In some states, a finding of negligence on the Plaintiff’s part can bar such plaintiff’s recovery completely.  However, California is a pure comparative negligence state.  This means that even if a plaintiff is over 50% at fault, such plaintiff still is permitted to recover damages in California.


If you find yourself the victim of a defective product, file a claim as soon as possible. California imposes a statute of limitations, which limits the time you have to sue for product liability. A claim will be denied after this period, its validity notwithstanding. Many states do, however, have some form of “delayed discovery” rule, which stipulates that the statute does not begin to run until the plaintiff’s injury is discovered. California’s statute of limitations is two years with discovery.

Two years may seem like plenty of time. But why chance it? An attorney trained in California product liability law can help you receive the justice you demand and the compensation you deserve.

Find more like this: Personal Injury

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