We're here for you.

Injury Lawyers
Experienced & Trusted

Austin · San Antonio · Nationwide

How can we help you?


24 hours a day · 7 days a week

Legal Resources

Personal Injury

  • Product Liability Theories

Products Liability

There are several causes of action a plaintiff can bring when they suffer a personal injury caused by a product.

Strict Products Liability

To recover under a theory of strict products liability, the plaintiff must only prove that: (1) the defendant introduced a product into the stream of commerce, (2) in a defective and unreasonably dangerous condition, and (3) that such condition of the product caused the plaintiff's injuries or damages [1]. Implied is the requirement that the product was not substantially changed before reaching the consumer. This is a lower standard of proof than an action for negligence or breach of warranty. 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.


Since the emphasis of strict products liability is on the product itself, an important requirement is that the item qualifies as a “product”. However, defining “product” can be somewhat complicated. In the 2009 the Texas Supreme Court gave a broad definition for “product” in the case Fresh Coat, Inc. v. K-2, Inc., describing it as “something distributed or otherwise placed, for any commercial purpose, into the stream of commerce for use or consumption [2]."

The Restatement (Third) of Torts can provide more clues on what is considered a product. A product is usually tangible. However, an intangible item that is distributed similarly to a tangible one can legally be considered a product as well. For example, in the 1988 case Houston Lighting & Power v. Reynold’s, the Texas Supreme Court confirmed that electricity is legally a product [3]. Furthermore, products do not need to have been manufactured or produced by humans. Food and raw materials that have not been altered can qualify as products.


For a product to be considered defective for purposes of strict liability, it must have one or more defect. There are three legal categories of defects: manufacturing, design, and marketing. Please see the Product Defects main article for an in depth discussion of these defects.


Plaintiffs in a strict liability action can be anyone injured by a product after it enters the stream of commerce. They can be direct consumers, or anyone else who uses the product: family members, employees, clients, etc. An innocent bystander who is injured by the product can also be an appropriate plaintiff. For example, in the 1999 Texas Supreme Court case, the Court determined a boy could recover from a lighter manufacturer when he was injured in a fire accidentally set by his sister [4]. 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, like 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 [5].

There are several possible defendants in a strict products liability lawsuit.

  • One possible defendant is the defective product’s manufacturer: 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 [6].” A component manufacturer is only liable for a defect in their own component. A company that outsources manufacturing but labels the product so that it appears otherwise might also be liable as a manufacturer, unless it’s clear that the company is merely a retailer.
  • The designer of a product, who is not a manufacturer, might also be strictly liable for a defective product if the product’s defect was a result of its design.
  • In limited circumstances, the seller of a defective product can also be held strictly liable. For example, when the seller had a significant part in designing the product, made an incorrect representation or knew of the defect that caused an injury. The same limited circumstances apply to someone who leases out a defective product as opposed to selling it.

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 [7]. 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.

The plaintiff also must prove that the defendant was a “producing cause” of their injury. Producing cause is defined as “a substantial factor in bringing about an injury, and without which the injury would not have occurred [8].” 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.

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.

Other Theories:

Breach of Warranty

Products often come with both express and implied warranties. Express warranties are direct claims made about the product. Implied warranties arise in certain situations and are more complex. The Uniform Commercial Code (UCC) provides a breach of warranty cause of action for two types of implied warranties: merchantability and fitness for a particular purpose.

The implied warranty of merchantability only applies to merchants: those whose occupation is to deal in similar products. To be considered merchantable, a product must meet the following requirements [9]:

  1. pass without objection in the trade under the contract description;  and
  2. in the case of fungible goods, are of fair average quality within the description;  and
  3. are fit for the ordinary purposes for which such goods are used;  and
  4. run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved;  and
  5. are adequately contained, packaged, and labeled as the agreement may require;  and
  6. conform to the promises or affirmations of fact made on the container or label if any.

The implied warranty of fitness for a particular purpose is more narrow: it is only relevant in situations where the seller knew the consumer was buying the product for a specific purpose and relying on the seller’s knowledge in making a purchase decision. Other implied warranties include suitability for human habitation in real estate, and implied warranty of services performed in a good and workmanlike manner, which is relevant for construction and repair of items.

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.


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. (For an in-depth discussion of negligence actions, please see the negligence articles.) 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 [10]. 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.

Free Case Evaluation

Contact Method




How can we help you?