South Florida Law Firm of Auerbach & Simmons

Serving the Community Since 1974

                     Home About Us LegalCapsules™ Client Information Contact Us


Being a Witness
Corporations & Partnerships
Debt Collection
Medical Malpractice
Personal Injury
Real Estate Ownership
Products Liability

Office Location
1200 N. Federal Hwy., Suite 200
Boca Raton, FL 33432

(866) 502-9200 (Toll-Free)
(561) 470-1099 (Local)

(561) 447-6567 (Fax)

Products Liability


This LegalCapsule,™  prepared by the Auerbach Law Firm, is a plain-English explanation of product liability. In an effort to be brief, many points may be oversimplified. Readers are therefore cautioned to check with our offices or another lawyer as to the particulars of their case; this generalized information should not be construed to be formal legal advice.

Injuries Caused by Defective Products

Strict Liability in Tort


Breach of Warranty

Injuries Caused by Defective Products

Products liability law describes the responsibility of a seller or manufacturer of a defective product to a person who has been injured by the product.

Most courts require certain factors to be present in any products liability claim:

  • The seller or manufacturer must in some way be responsible for the injury;

  • The product must have been sold (some states allow rented goods to qualify); and

  • The injury must have been caused by a defect in the product.

Products liability law usually permits the injured party to assert a claim against any person or entity from the manufacturer to the retailer, including distributors and wholesalers.

Most, although not all jurisdictions, acknowledge the following distinctive legal doctrines establishing responsibility for such injuries.

Strict Liability in Tort

An injured party can assert a claim under "strict liability in tort" by showing the following:

  • There was a sale of a defective product;

  • The defect was unreasonably dangerous when it left the seller's hands; and

  • The defect caused the injury in question.

The importance of "strict liability in tort" is that the injured party does not necessarily have to prove that the seller was guilty of negligent conduct.  Whether the product was "unreasonably dangerous" depends on a number of factors. Sometimes, the danger is apparent. Sometimes it is not.


Products must be manufactured and designed with due care

Manufacturers, like others in our society, have a responsibility to use due care so as to avoid unreasonable risk of harm to others. Thus, they are required to design, manufacture, test, and inspect their products with reasonable care.

A claim based upon negligence therefore requires a showing that the conduct of the manufacturer or seller departed from the standard required of persons in their position, and a defective product causing injury resulted.

In a negligence action, the manufacturer is entitled to defend the claim by asserting that the injured party's own negligence contributed to the injury or that the consumer knew of the risk and used the product anyway.

Breach of Warranty

There are three different types of warranties: express; implied; and warranty of fitness for a particular purpose.

  • Express

An "express warranty" is a promise made directly by the seller, that the goods conform to the terms of the promise, which is relied upon by the buyer in making the purchase.

  • Implied

A warranty used more often in products liability claims is known as the "implied warranty of merchantability." This implied warranty has been adopted by almost all states. To establish a claim, the consumer need only show that:

  • The merchant (or manufacturer) sold the goods;

  • At the time of sale, the product was not fit for its ordinary purpose;

  • The defect caused the injuries; and

  • The seller was notified of the injury.

  • Warranty of Fitness for a Particular Purpose

The "implied warranty of fitness for a particular purpose" has also been adopted by most states. This warranty arises when the seller has reason to know that the buyer is relying upon the seller's special skill and judgment in selecting the product. The implied warranty requires that the product is fit for such a purpose.


Home LegalCapsules Client Information About Us  

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Send mail to webmaster@auerbachlawfirm with questions or comments about this web site. Copyright © 2013, Auerbach Law Firm. All rights reserved.