What Is a Defective Product?

In general, a product that is unsafe for its intended use or its reasonable foreseeable use is considered unsafe. Three types of defects may lead to legal liability:

• Manufacturing defect A defectively manufactured product is unsafe because of an error that occurred during the manufacturing or assembly process. The manufacturing defect must have caused the injury.
• Design defect A defective design causes the product to be inherently dangerous. It is a flaw that is present in the product’s design before it is even manufactured or assembled. Even if the product was made exactly according to the manufacturer’s specifications if there is a design defect, the whole line of products is inherently dangerous. Again, the defective design must be the cause of the injury for you to have a design defect claim.
• Marketing defect These claims involve flaws or errors in the way the product is marketed. A marketing defect may consist of improper labeling, inadequate safety warnings, or inadequate or incorrect instructions for use. Failure to warn claims usually involve a product that is dangerous in a way that is not obvious to the user. In other cases, the product may require the consumer to exercise special care when using the product. In some cases, the courts have found a “failure to warn” even if there was a warning, but it was too confusing or hard to see. The failure to warn or improperly instruct must be the cause of the harm.

It may be confusing to know which type of defect you are dealing with. One example may be pharmaceutical drugs. If you buy a liquid medication and a poisonous substance accidentally got into it during the manufacturing product, that would be a manufacturing defect.

However, if the medicine had not been tampered with, but you were harmed because of its intended ingredients, you may have a claim for a design defect.

If the medicine was safe for use and correctly manufactured, but you were harmed because of a failure to warn about possible drug interactions, then your claim may be based on a marketing defect.

Product Liability Law in Washington

Although there are many federal regulations concerning the safety of consumer products, state law governs product liability cases.

Originally, Washington used common law in product liability cases. However, the state legislature enacted the Washington Product Liability Act (WPLA) in 1981 to create a uniform system to protect consumers. Since then, it has been the primary legal remedy for persons injured by defective products in Washington. Most defective product claims in the state are now brought under this statute.

However, it is an extremely complex law. In general, product liability law is more complicated than other types of personal injury claims. It is difficult to determine liability because multiple parties play a part in the manufacturing, distribution, and sale of any particular product.

For example, perhaps you bought a child safety seat. You bought it to protect your child. However, if the seat is defective and your child is injured. Who is responsible? Should you sue the store, the manufacturer, or the wholesaler who acted as a middleman? Many factors affect liability.

The WPLA distinguishes between product manufacturers and non-manufacturer sellers. A product seller means anyone who is selling products for resale, use, or consumption. This includes a manufacturer, wholesaler, distributor, or retailer of a product.

The WPLA, Section 7.72030, deals with the liability of the manufacturer. It states that the manufacturer of a product is liable if the victim’s injuries were “proximately caused by the negligence of the manufacturer.”

This can have several meanings, including:

• The product was “not reasonably safe as designed.”
• The product left the manufacturer’s control in a condition that “deviated in some material way from the design specifications or performance standards of the manufacturer” or of the “same product line.”
• The product was unsafe because it lacked “adequate warnings or instructions.”
• The product failed to conform to an express or implied warranty under Washington law.

A seller other than a manufacturer may be liable under these specific conditions:

• The seller’s negligence is the proximate cause of the victim’s injury. If it were not for the seller’s negligence, the injury would not have happened.
• There is a breach of an express warranty;
• There is an intentional misrepresentation of facts about the product.

To determine whether or not a product is “reasonably safe” under the WPLA, the law requires a judge or jury to examine the facts of the case from the viewpoint of an “ordinary consumer.”

However, if the liability claim is based on defective design, the court will also be required to consider whether or not there was “an alternative design that was practical and feasible” under the circumstances.

If the claim arises from a manufacturer’s failure to provide adequate warnings or instructions, the law requires the manufacturer to use “reasonable care” in notifying customers that a defect has been discovered after the product was manufactured.

Therefore, the manufacturer has a duty to warn anyone who may purchase or use the defective item. Despite the creation of the Washington Product Liability Act, product liability claims can be very confusing. The WLPA sets forth several tests designed to determine whether a product is unreasonably dangerous.

When evaluating a product liability claim, each of the following tests should be carefully examined to see which, if any, might apply to the case.

The Risk-utility test: This test asks the court to consider whether the economic costs (such as lawsuits) are higher than the cost of changing the product design plus the loss of use of the product. To put it another way, a product cannot be considered to have a defective design unless, at the time of manufacture, there existed a feasible alternative.

The court may consider questions such as, what is the likelihood that the product will cause injury or harm similar to the harm suffered by the victim? Were the injuries so serious that any warnings or instructions provided by the manufacturer were inadequate to protect the user? Are there any warnings or instructions that the manufacturer could have provided which would have proved adequate?

Consumer Expectations Standard: This takes the viewpoint of the ordinary consumer. It says that a product is not safe enough if the ordinary consumer would not consider it to be safe enough. Generally, if a product has an unexpected danger or defect, then it does not meet the ordinary expectations of the consumer.

Under this theory, an injured person does not necessarily have to prove that a feasible alternative design was available. The judge or jury may consider the type of product, the nature of the defect, the cost of the product, potential harm, and the cost of reducing or eliminating the risk.

Inadequate Warnings or Instructions: A product is required to include appropriate warning labels and safety instructions. Also, if a manufacturer learns of additional safety information after it has been sold, the manufacturer must take reasonable steps to notify the consumer.

Questions that arise include:

• Was the product warning conspicuous and easy to understand?
• Did the label require special experience on the part of the consumer?
• Was the warning easy to understand? Did it use “warning words,” such as caution, or hazard?
• Were the dangers clearly illustrated using pictures?
• Did the labels or warnings themselves cause the injuries?
• Was the product used for its intended purpose?
• Could better warnings have reduced foreseeable risks?

Breach of Warranty: In some cases, companies may be held strictly liable in product liability product cases under contract law. Strict liability means that the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective.

Therefore, if a product was sold with a warranty, the warranty was breached, and as a result, someone was injured, the company can be held liable for the injured person’s damages.