Legal Causes of Action for Injuries Caused by a Product (Product Liability)
Under Texas’ Products Liability law, when someone has suffered a personal injury caused by a defective product, the injured person (known as the plaintiff) can bring a lawsuit against the person or company that manufactured the product (known as the defendant). The plaintiff and defendant are known as the parties to the lawsuit.
There are several different legal theories that a plaintiff can use to bring the lawsuit and receive compensation for the harm caused by the defendant’s product.
These legal theories are called causes of action.
Each cause of action has a set of factors that the plaintiff must prove in order to recover. These factors are called elements.
Strict Products Liability Theory
Strict liability is an appealing theory to plaintiffs who were injured by a defective product, because the plaintiff does not have to show that defendant was careless or intentionally did something wrong.
This is a lower standard of proof than negligence or breach of warranty, and is frequently used by personal injury attorneys in products liability cases where applicable.
What Are the Elements of a Strict Products Liability Lawsuit?
To recover under a theory of strict products liability, the plaintiff must only prove that:
- The defendant introduced a product into the stream of commerce
- The product was in a defective and unreasonably dangerous condition, and
- The defective and unreasonably dangerous condition of the product caused the plaintiff’s injuries or damages.
Who Can Sue or Be Sued in a Products Liability Litigation under Texas Law?
The plaintiff in a strict liability action can be anyone injured by a defective product after it enters the stream of commerce. This can include:
- The consumer who purchased the product
- Any user of the product (family members, employees, clients)
- In one Texas products liability case, a boy injured in a fire was able to sue the lighter manufacturer, even though his sister had caused the fire.
- An innocent bystander who is injured by the product (the bystander does not even have to know the consumer)
Note (Alteration) – If the product was substantially changed before reaching the plaintiff, for example by the seller, the manufacturer may not be liable.
However, in such cases, sellers or others that altered the product in a way that made it dangerous might be responsible for the injury if they did not properly inform the plaintiff of the danger.
There are several possible defendants in a strict products liability lawsuit:
The person or company that acts as a “designer, formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce.”
Component or Parts Manufacturers
Component or parts manufacturers are only liable for defects in the component or part they provided for the product.
For example, a company that made the electronic guidance software in a car might be liable if the software malfunctioned and caused an accident, but not if there was a defect in the car’s tires.
Company With Its Label On The Product
A company that outsources manufacturing but labels the product so that it appears to consumers that the company made the product may also be responsible, unless the company informs the consumer it is only a retailer (e.g., on the label).
A product’s designer might also be strictly liable for injuries caused by a defect in the product if the defect was a result of its design.
Product Seller or Leasor
Someone who sells or leases a defective product can also be held strictly liable for injuries caused by the defect in some circumstances:
- The seller had a significant part in designing the product
- The seller said something incorrect about the product (e.g., if a hardware store salesperson said a rope was suitable to carry a heavy weight, but the rope was not strong enough, the hardware store might be liable)
- The seller knew the product was defective but sold it anyway (seller may be strictly liable for injuries caused by the known defect)
What is a Product under Texas Products Liability Law?
Strict products liability law focuses on whether the product had a defect that caused the plaintiff’s injury. However, defining what items are a “product” under the Texas products liability law can be somewhat complicated.
The Texas Supreme Court has defined the word “product” broadly, describing it as “something distributed or otherwise placed, for any commercial purpose, into the stream of commerce for use or consumption.”
Generally a product is tangible, but Texas products liability law also includes certain intangible products like electricity if they are distributed in commerce and injure consumers as a result of their defects.
Food and raw materials can also be products under Texas personal injury law if they were sold to a consumer, even though they were grown or mined rather than manufactured.
What Makes a Product Defective?
Under the strict products liability laws of Texas, a product must have one or more defect to be considered defective under the statute. The plaintiff must actually prove there was a defect, it cannot be assumed just because there was an injury.
Specifically, the plaintiff has to prove:
- The product had a defect
- The defect caused the plaintiff’s injury
The Three Types of Product Defects Under Texas Personal Injury Law
Under the Texas products liability statutes and case law, a product can be defective in three main ways:
The particular product that the plaintiff used included a flaw that escaped quality control and caused the danger that caused the plaintiff’s injury.
The design of the product itself made it inherently unsafe.
The product was dangerous in a way that an ordinary manufacturer would expect, and would not have sold the product without warning of the dangers and explaining how to avoid them. This is sometimes known as the duty to warn.
The Duty To Warn of Dangerous Pharmaceuticals in Texas
Under Texas law, manufacturers may not be responsible for personal injuries caused by defective pharmaceuticals and dangerous drugs if they include a warning that was approved by the federal Food and Drug Administration (FDA).
However, manufacturers may still be liable if they concealed information like scientific research from the FDA, or did something that made the FDA-approved warning inadequate to inform consumers about the dangers.
Manufacturers may also be liable if they recommend the medicinal product for uses or illnesses that the FDA has not approved.
Proving Causation In A Texas Products Liability Lawsuit
In addition to showing that a product was defective, plaintiffs in a products liability case must show that they were injured because of the defect. In Texas, even ordinary people can testify to simple causation, like some injuries caused by a car accident.
But proving causation in a Texas products liability action often involves using experts in manufacturing, engineering or medicine who can explain to a judge or jury exactly what the product’s defect was, and how the defect caused the plaintiff’s injury.
It also usually requires an experienced Texas products liability attorney who can question an expert clearly, defend against an insurance company’s legal team, and knows the small details of Texas personal injury law.
- For example, causation cannot be assumed or implied just because a defective product could have caused it, or because there are no other explanations for an injury.
- Experts must use principles and knowledge in the field of their expertise to describe how a defect led to the events that injured the plaintiff.
- Even in the case of a dangerous chemical like asbestos, the plaintiffs must show that they were exposed to a sufficient dose to cause the bodily injury they are suffering.
In order to recover in a Texas products liability lawsuit, the plaintiff must show the defendant’s action was the proximate cause of the injury.
That means the injury was something foreseeable. A reasonable person might expect that the product’s defect would lead to the injury.
In Texas, the rule is that also must prove that the defendant was a “producing cause” of their injury.
In the case of design defect product liability lawsuits in Texas, plaintiffs must show the design defect was the producing cause of the injury.
Definition of Producing Cause
Producing cause refers to an efficient, exciting, or contributing cause, which, in a natural sequence, produced injuries or damages complained of, if any.
Producing Cause Must Be Substantial
Producing cause is defined as “a substantial factor in bringing about an injury, and without which the injury would not have occurred.”
The defect has to play a substantial part in causing the injury.
Multiple Producing Causes
There can be multiple producing causes or a singular producing cause.
Not The Only Cause
The product’s defect does not have to be the only cause of an injury; if the defect made the injury worse, the plaintiff can sue the manufacturer.
- For example, if someone veered off the road to avoid an accident, causing the car to roll over, and a defect in the roof of the car caused it to collapse on the driver, the driver can sue the car manufacturer for the defective roof, even though it did not cause the initial accident.
Failure To Warn
When the product’s defect was a failure to warn or give proper instructions, the plaintiff must prove that the lack of instructions was the producing cause of the injury.
There is a rebuttable legal presumption that the injured party would have read and followed proper instructions if they existed.
The defendant can present evidence to the contrary, for instance that the injured party was illiterate and would not have been able to read the instructions.
- If the consumer ignored a warning that was inadequate, but would have prevented the injury, that is sufficient to rebut the presumption that the consumer would have followed the warning if it had been adequate.
Proportionate Responsibility (Comparative Liability) Applies To Texas Products Liability Lawsuits
The rules of proportionate responsibility apply to strict products liability cases.
A defendant is only liable for the proportion of damages that match the proportion of fault they are found responsible for by the court.
Plaintiffs in a strict products liability suit can recover for personal injury, wrongful death, and property damage – as long as the product itself wasn’t the only property damaged.
Plaintiffs cannot recover under this action for damage to the product itself, also known as “economic loss.” A court may award punitive damages in some cases if there is fraud or malice.
The plaintiff does not have to prove the defendant violated a duty or standard of care. The focus is on the product itself instead of the defendant’s conduct.
However, if the injury occurs before the product enters the stream of commerce, the manufacturer cannot be held strictly liable.
- Products have already entered the stream of commerce if they are on display for sale or promotional samples.
- But products undergoing industrial testing are not in the stream of commerce. In Armstrong Rubber Co. v. Urquidez (1978), the Texas Supreme Court found that a person injured while conducting industrial testing on a tire could not rightly bring a strict products liability action against the tire’s manufacturer.
In a strict products liability lawsuit, the plaintiff always bears the burden of proving the product was defective when it left the hands of the defendant.
- Often the only evidence is circumstantial. For example, if the product is shipped straight from the manufacturer in a sealed container, any defects upon opening the container can be inferred to have existed at the time it left the manufacturer.
- However, if the product undergoes any substantial change causing a defective or dangerous condition after it leaves the defendant’s hands, then the manufacturer cannot be held liable for that defect.
Other Theories of Liability for Injuries Caused By Defective Products
Breach of Warranty
Warranties are assurances by one party to another that a particular statement is true. A person or company that offers a warranty is liable to those who reasonably rely on the warranty. For example, if a seller says a product is suitable for a certain purpose, the seller may be liable to a consumer who uses it for that purpose if the product is unsuitable.
In the products liability context, there are express warranties, which are direct claims about the product made by the seller or manufacturer.
Under certain circumstances, there are also implied warranties, which are claims that a seller is treated as having said, even if they were not said explicitly. This involves a requirement that the seller clarify mistaken assumptions that a consumer might be expected to make from the circumstances.
For example, a motorcycle dealer might be treated as offering an implied warranty that a particular motorcycle is legal to ride on the highway, even if the dealer does not say so expressly. In the interests of safety, a dealer should clarify to the purchaser that the bike is only legal on certain roads.
Implied Warranties Under the Uniform Commercial Code
The Uniform Commercial Code (UCC) is a set of national laws applying to product sales so that buyers and sellers can predict which rules apply to their commercial activity. Texas has adopted many of the UCC laws, including Article 2, which regulates sales of products.
Under the UCC, there are two types of implied warranties that a purchaser of a product can enforce against the seller:
Implied Warranty of Merchantability
A product’s implied warranty of merchantability only applies to merchants, people whose occupation is buying or selling the product.
- Selling your car to a friend might not carry an implied warranty of merchantability if you are not a car dealer.
Texas law provides an implied warranty of merchantability that requires any product sold by a merchant to:
- pass without objection in the trade under the contract description
- in the case of fungible goods, are of fair average quality within the description
- are fit for the ordinary purposes for which such goods are used
- run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved
- are adequately contained, packaged, and labeled as the agreement may require, and
- conform to the promises or affirmations of fact made on the container or label if any.
Implied Warranty of Fitness for a Particular Purpose
The implied warranty of fitness for a particular purpose recognizes that many consumers have to purchase products they know little about, and must rely on the experience and knowledge of sellers to choose the right product.
A product’s implied warranty of fitness for a particular purpose also only applies to merchants, but applies only when:
- A merchant knows the consumer is buying the product for a particular purpose, and
- The merchant knows the consumer is relying on the seller’s knowledge in making the decision to purchase.
A seller can often discharge the implied warranty of merchantability by stating clearly to consumers that the seller does not know if the product is fit for the consumers’ needs, and that consumers can buy at their own risk.
Implied Warranty of Services
Under the implied warranty of services (which applies in Texas), professional builders and repairmen guarantee to consumers that construction and repairs have been performed in a good and workmanlike manner.
For example, a person who repairs an airplane may be liable to its owner and anyone injured if that plane crashes as a result of inadequate repairs.
Comparing Strict Liability and Breach of Warranty
No evidence of a defect is necessary in a breach of warranty for a particular purpose claim.
A claim in breach of warranty of merchantability does require proof of a defect, but “defect” has a different definition than it does for strict products liability.
For warranty of merchantability, a product has a defect if it is missing something needed to be fit for its ordinary purpose. In contrast, a defect for strict products liability means a condition of the product making it unreasonably dangerous.
Damages for personal injury and property damages are recoverable in both breach of warranty actions and strict products liability.
Economic losses, however, are recoverable in UCC breach of warranty actions, but not in strict products liability cases. Breach of warranty claims can also be brought under the Deceptive Trade Practice Act (DTPA).
Just as in a strict products liability action, comparative fault on the part of the injured party can reduce the award for a breach of warranty action.
“Strict liability is when, despite the maker of a product’s best efforts, an injury still occurs.”
Intentional tort is when the maker of a product intends its product to cause harm or it chooses to ignore warnings that its products cause harm and continues to produce its product.
Breach of warranty is when the product does not function as advertised or as expected, causing an injury. There are several types of warranties, but the most common in product liability cases is implied warranty, which covers the expectation that the product can do the job it was designed and advertised to do.
Negligence is the legal term for carelessness.
“Negligence is when the maker of a product does not reasonably investigate potential hazards or test its products.”
A product liability lawsuit can be brought under a negligence cause of action
The root of a negligence action is that the defendant’s breach of a duty owed proximately caused an injury.
Whereas a strict products liability action is based only on the product itself and whether it was defective, a negligence action focuses on the defendant’s conduct, and whether they exercised ordinary care.
Generally, it is more difficult for the plaintiff to prove the defendant did not exercise ordinary care than to prove that the product had a defect.
A plaintiff can assert either negligent manufacture and design, or a negligent failure to warn.
Just as with strict products liability, 3rd party sellers in a negligence action are only liable in limited circumstances and damages do not extend to damage to the product itself.
- Armstrong Rubber Co. v. Urquidez, 570 SW 2d 374 – Tex: Supreme Court 1978
- Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893, 897 (Tex. 2010)
- Houston Lighting & Power v. Reynolds, 765 S.W.2d 784, 785 (Tex. 1988)
- Hernandez v. Tokai Corp. 2 S.W.3d 251, 257 (Tex. 1999)
- Armstrong Rubber Co. v. Urquidez, 570 SW 2d 374 – Tex: Supreme Court 1978
- Tex. Civ. Prac. & Rem. Code 82.001(4)
- McKisson v. Sales Affiliates, Inc. 416 S.W.2d 787, 792, 10 Tex. Sup. Ct. J. 449 (Tex. 1967)
- Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007)
- Tex. Bus. & Com. Code 2.314(b)
- Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867, 871 (Tex. 1978)
An Austin Personal Injury Law Firm That Knows What You’re Up Against
Product Liability Injury Lawsuits Can Be Complex to Prove
Winning a product liability lawsuit in Texas can involve proving that a product was defective, or that manufacturers did not properly warn people taking it of the potential risks.
That can include investigating medical studies, corporate publications and using testimony from experts on how the medication caused an injury. This is not easily done, particularly when drug companies or manufacturers show up with an army of lawyers.
But battling bullies is what Justinian & Associates does.
We Are Warriors For The Injured
Our Austin and San Antonio mass tort lawyers have successfully represented many victims injured by defective products. That’s exactly why we were founded.
As our record demonstrates, we have the legal knowledge, the experience, the resources, experience and trained investigators to take on adversaries of any size.
All we do is fight for injured victims. Our only goal is justice for our clients, whatever that means for them. And we do not accept defeat. Unless we get you money for your injuries, you don’t pay us a dime.
Your Rights Can Be Lost If You Wait
There are laws that limit how much time you have to file a lawsuit after being injured. They are known as statutes of limitation. They may apply to your lawsuit to recover for your metal hip implant injuries. The countdown may already have begun.
Additional limitations may be imposed pursuant to certain settlement agreements with the various device manufacturers.
That’s why if you or a loved one was injured by a defective or dangerous product, the time to act is now.
If you are not sure whether or not you qualify to receive damages, don’t worry. Call, text or email us for a free consultation, with no obligation.
Speak to an Austin personal injury attorney from Justinian & Associates (not a “screener” or paralegal) to understand your rights.
We’re here for you and will do everything we can to help you receive the compensation you deserve. We’re on your side.