Types of Product Liability Claims
You can make three types of claims under the Act:
1) Manufacturing Defect;
2) Failure to Warn or Provide Instructions;
3) Design Defect.
N.J.S.A. § 2A:58C-2.
Manufacturing Defect
Manufacturing defects can be shown in three ways. “Proof of such defects may be demonstrated by direct evidence, by reasonable inferences which may be drawn from the circumstances or by exclusion of other causes.” Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 170 (l979). see Moraca v. Ford Motor Co., 66 N.J. 454, 458 (1975); Scanlon v. General Motors Corp., 65 N.J. 582, 592-594 (1974); The New Jersey Model Jury Charges, Model Jury Charges (Civil), 5.40B, “Manufacturing Defect” (approved Oct. 1998; Revised Aug. 2011), sets forth the elements in establishing a manufacturing defect claim:
1. The [product] contained a manufacturing defect which made the product not reasonably safe; 2. That the defect existed before the [product] left the control of the [defendant]; 3. [Use only when misuse or intentional alteration is an issue and use only applicable portion]. That when the accident happened the product was not being misused, or it had not been substantially altered in a way that was not reasonably foreseeable.; 4. That the [plaintiff] was a direct or reasonably foreseeable user, or a person who might reasonably be expected to come in contact with the [product]; and 5. That the manufacturing defect was a proximate cause of the accident/injury.
Failure to Warn or Provide Instructions
In failure to warn cases, the Act provides that there can be no liability if a warning is given. It sets forth the following at N.J.S.A. § 2A:58C-4:
In any product liability action the manufacturer or seller shall not be liable for harm caused by a failure to warn if the product contains an adequate warning or instruction or, in the case of dangers a manufacturer or seller discovers or reasonably should discover after the product leaves its control, if the manufacturer or seller provides an adequate warning or instruction. An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates adequate information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons by whom the product is intended to be used, or in the case of prescription drugs, taking into account the characteristics of, and the ordinary knowledge common to, the prescribing physician. If the warning or instruction given in connection with a drug or device or food or food additive has been approved or prescribed by the federal Food and Drug Administration under the "Federal Food, Drug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. s. 301 et seq. or the "Public Health Service Act," 58 Stat. 682, 42 U.S.C. s. 201 et seq., a rebuttable presumption shall arise that the warning or instruction is adequate. For purposes of this section, the terms "drug", "device", "food", and "food additive" have the meanings defined in the "Federal Food, Drug, and Cosmetic Act."
As such, if a proper warning is not given, your chances of making a successful products liability claim greatly increase. The New Jersey Model Jury Charges, Model Jury Charges (Civil), 5.40C, “Failure to Warn/Instruct” (approved Mar. 2000; Revised Oct. 2001), sets forth the elements in establishing a failure to warn claim:
1. That the [Product] failed to contain an adequate warning/instruction; 2. That the failure to adequately warn/instruct existed before the [Product] left the control of the [Defendant].; 3. [Use only when misuse or intentional alteration is an issue and use only applicable portion.] That when the accident happened the [Product] was not being misused, or it had not been substantially altered in a way that was not reasonably foreseeable; 4. That the [Plaintiff] was a direct or reasonably foreseeable user, or a person who might reasonably be expected to come in contact with the [Product]; 5. That the [Plaintiff] would have followed an adequate warning/instruction if it had been provided; and 6. That the failure to adequately warn/instruct was a proximate cause of the accident/injury.
Design Defect
You may pursue a claim if you feel that your injury was caused by the defect of a product. “To succeed under a strict liability design-defect theory, a plaintiff must prove ‘that the product was defective, that the defect existed when the product left the defendant's control, and that the defect caused injury to a reasonably foreseeable user.’" Zaza v. Marquess and Nell, Inc., 144 N.J. 34, 49 (1996) (quoting Feldman v. Lederle Labs, 97 N.J. 429, 449 (1984); see Becker v. Baron Bros., 138 N.J. 145, 151 (1994); O'Brien v. Muskin Corp., 94 N.J. 169, 179 (1983); Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 394. (1982).
In order to press a successful design defect claim, you are, “required to prove that a practical and feasible alternative design existed that would have reduced or prevented [your] harm.” Lewis v. American Cyanamid Co., 155 N.J. 544, 560 (2007). see Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69 , 74 (1990); Smith v. Keller Ladder Co., 275 N.J. Super. 280 , 284-85 (App.Div. 1994); see also Restatement (Third) of Torts: Product Liability § 2 cmt. f (Proposed Final Draft, 1997) ("To establish a prima facie case of defect, plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff's harm.").
However, be aware that the Act provides a shield to design defect attendants. The Act sets forth the following at N.J.S.A. § 2A:58C-3(a):
In any product liability action against a manufacturer or seller for harm allegedly caused by a product that was designed in a defective manner, the manufacturer or seller shall not be liable if: (1) At the time the product left the control of the manufacturer, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product; or (2) The characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended, except that this paragraph shall not apply to industrial machinery or other equipment used in the workplace and it is not intended to apply to dangers posed by products such as machinery or equipment that can feasibly be eliminated without impairing the usefulness of the product; or (3) The harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction as defined in section 4 of this act.
However, that shield is inapplicable, “if the court, on the basis of clear and convincing evidence, makes all of the following determinations: (1) The product is egregiously unsafe or ultra-hazardous; (2) The ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the product's risks, or the product poses a risk of serious injury to persons other than the user or consumer; and (3) The product has little or no usefulness.“ N.J.S.A. § 2A:58C-3(b)
As seen above, prosecuting a successful products liability claim in New Jersey can be tricky. However, you can count on V&L to provide you experienced and aggressive representation to effectively press your claim, be it related to a failure to warn, or a design or manufacturing defect. Call us today!