We are all at risk from dangerous and defective consumer items. But simply being injured by an item doesn’t necessarily mean that you’ll win a injury case. You’re about to learn why.
Consumers in the U.S. are sold far too many defective items. In 2015, more than 4,000 product recalls were issued by federal agencies – for everything from drugs to power tools to car parts.
If you’re injured by a defective consumer item, you are more likely to prevail with an injury claim than if you are injured by a product the courts consider “unavoidably unsafe.”
WHAT IS THE DEFINITION OF A “DEFECTIVE” PRODUCT?
What is the difference, and why is that difference important if you or someone you love is injured while using a consumer item?
Here is how the courts define a “defective” product. A consumer product can be defective in one of three ways:
1. Defective design: If a consumer product is designed in a way that could cause injury, and if a different design would have reduced that risk, the product has a design defect.
2. Defective manufacturing: If an item is designed and marketed properly, but a mistake or a flaw emerges in the manufacturing stage, the item has a manufacturing defect.
3. Defective marketing: If a consumer product is marketed, advertised, or sold with insufficient warnings and/or instructions, the product has a marketing defect.
If a consumer item has a design, manufacturing, or marketing defect that injures a user of the item, then the designer, manufacturer, or retailer may be liable for injuries caused by the defect.
IF YOU’RE INJURED USING A DEFECTIVE PRODUCT, WHERE CAN YOU TURN?
If you are injured while using a product that was defective in one of these three ways, discuss your legal options – immediately – with an experienced Fresno personal injury attorney.
If you’ve been injured while using any consumer product that should have been safe to use, you are entitled to full compensation for your medical expenses and all related losses and damages.
However, the courts distinguish between “unavoidably unsafe” products and “defective” products, and that distinction can make a difference if you seek compensation after being injured.
WHAT IS THE DEFINITION OF AN “UNAVOIDABLY UNSAFE” PRODUCT?
Precisely what is the distinction between an unavoidably unsafe item and a defective item? An unavoidably unsafe consumer product is a product that cannot be made safe for its intended use.
The four criteria for determining if an item is unavoidably unsafe rather than defective are:
1. Marketing: If a defective product is not properly sold, advertised, and marketed, it is a marketing defect, but the product itself is not necessarily unavoidably unsafe.
2. Manufacturing: If a mistake happens in the manufacturing process that makes a consumer product defective, the actual product itself is not necessarily unavoidably unsafe.
3. Utility vs. Risk: An unavoidably unsafe item has value that outweighs the risk. Some beauty products and birth control medicines, for instance, are deemed useful despite the risks.
4. Available Alternatives: A product may be unavoidably unsafe if there is no other way to achieve its purpose. If an equally effective option is safer, the item is not “unavoidably” unsafe.
WHAT TYPES OF EVERYDAY ITEMS ARE “UNAVOIDABLY” UNSAFE?
Many unavoidably unsafe consumer products are in common use, including prescription drugs, dry cleaning solvents, hair dye, hair bleach, and a number of different cleaning products.
Thus, an unavoidably unsafe consumer item is not necessarily “defective” or dangerous.
Instead, a consumer product that is unavoidably unsafe is an item that cannot be made safe and still fulfill its intended purpose.
The courts have also determined that vaccines, blood products, and a number of medical devices are unavoidably unsafe items.
HOW DO JUDGES DECIDE THAT AN ITEM IS UNAVOIDABLY UNSAFE?
In cases involving these items, the judges consider the research conducted on a drug or a device, and they may also consider any published findings of the Food and Drug Administration.
Other everyday consumer products that are also presumed by the courts to be unavoidably unsafe include firearms, bleach, acetone, benzine, and dye.
If you’re curious, automobiles and gas stoves are not considered unavoidably unsafe, although they are in fact among the consumer items most frequently recalled as defective.
What about injury cases involving a prescription drug or an over-the-counter drug?
In such a case, the court must decide if the drug should be automatically classified as unsafe or treated as a consumer item which may be defective but is not necessarily unavoidably unsafe.
WHAT MUST YOU DO FIRST IF YOU ARE INJURED BY A CONSUMER PRODUCT?
Consumer product-related injuries can be catastrophic or even fatal. If you are injured using any consumer product, you must seek medical treatment at once. It’s imperative.
And this too is vital – do not speak to or settle with an insurance company before discussing your rights and options with an experienced Fresno personal injury attorney.
Californians do not tolerate irresponsibility and negligence in the marketplace. If you are injured using a consumer product in California, the law will be on your side.
And when an injury is catastrophic or permanently-disabling, the maximum available compensation must be sought.
HOW ARE AWARDS DETERMINED IN PERSONAL INJURY CASES?
Thus, the settlements and verdicts in these cases are sometimes quite substantial, but only for victims who are represented by a knowledgeable, experienced personal injury lawyer.
To prevail with a California injury claim, a plaintiff (that is, the injured consumer) must have been using the product in question as it was intended to be used.
Injury claim awards may cover the complete cost of medical care, full reimbursement for lost wages, compensation for personal pain and suffering, and punitive damages as well.
Punitive damages are intended to punish defendants whose negligence was egregious.
In some states, juries are awarding more punitive damages in injury cases, but in California, punitive damage awards remain rare and exceptional.
HOW CAN A PERSONAL INJURY LAWYER HELP?
Injury cases in California are exceedingly complex, and cases involving unavoidably unsafe products are typically even more complicated.
If you are injured using any consumer product in California, you must be advised and represented by a good personal injury lawyer.
An experienced lawyer can review your case – free of charge – determine if you qualify to take legal action, and recommend the best way forward.
Your health and your future are your priorities. If you’ve been injured by a consumer product, you have the right to compensation, and you have the right to justice.