...What makes for a good claim?...What can be recovered?
Ken is seriously hurt when a drunk driver crosses the center line and collides with his car. The drunk driver has little pr no insurance to pay for Ken's medical bills, lost wages, etc. Investigation shows that Ken would not have been seriously injured if his seat belt had worked properly. Ken should be able to recover his losses from the company who made his car.
Federal and state government have many laws and agencies designed to ensure product safety (Food and Drug Administration, Federal Product Safety Commission, etc). However, lawsuits by injured persons likely have been the greatest factor in promoting product safety in the United States. These are commonly known as product liability lawsuits.
Many product liability claims involve defective cars and trucks (seat belt problems, defective brakes and tires, rollover problems, etc.). In the 1970s there were many lawsuits filed alleging that the Ford Pinto's gas tank was located dangerously close to its bumper. When the Pinto was hit from behind it would explode, causing death or serious injury to the passengers.
Claims have also been made based upon many other types of situations involving dangerous products. Some of these include cases involving asbestos, tobacco, children's toys, tires, asbestos, food, breast implants and birth control devices. The cases against Vioxx and other makers of prescription drugs in recent years have been based on product liability.
A seriously inured person can recover damages for his medical bills, lost wages, pain and suffering, scars and disfigurement, and caretaking expenses. His spouse is also entitled to recover for the loss of her spouse's companionship and services.
If the evidence shows that the company knew that the product was dangerous, punitive damages may also be awarded. In one of the Ford Pinto lawsuits, the jury included $128 million in punitive damages in their verdict. This resulted from evidence that Ford was aware of the dangerous condition, but decided that it would be cheaper to defend lawsuits than to spend $137 million ($11 per vehicle) to recall the vehicles and correct the defect. The jury may have been outraged that the company would allow peoples' lives to be in danger rather than spend $11 to ensure the safety of their cars.
In recent years the United States Supreme Court has imposed guidelines which place limitations on the amount of punitive damages which can be recovered in such cases.
It must be shown that the product was in a defective condition which made it unreasonably dangerous. The defect may be in the product's design, or in the way it was manufactured. To win a claim against a manufacturer,the injured person must prove the product was defective when it left the factory.
Manufacturers often defend on the grounds that something happened to the product after it left the factory. For this reason, the injured person usually will also bring a claim against the merchant from whom they bought the product.
Such claims often involve disputes about whether the warnings on the products are adequate. The injured party may claim there should have been a warning, or that the warning given was not adequate. The company will claim that it was adequate, or that the danger was so obvious that a warning was not needed. In an Arkansas case some years ago the injured worker admitted that he never read warnings. The company won on the grounds that,even if its warning was inadequate, it would not have protected the worker since he never read warnings.
If you are injured, it is most important to keep the defective product in your possession.
Product liability claims are often available in addition to other types of claims. In the car collision example above, the injured person can make a claim against both the other driver and against the company who made his car. Suppose a worker seriously injures his hand because assembly-line machinery did not have a proper shield. He would be entitled to workers compensation benefits from his employer. He may also have a product liability claim against the company who made the machinery.
Winning such cases often involves hiring experts who can explain to the jury why the product was dangerous. Companies usually will seriously contest the claims. For example, in spite of years of litigation, until 1998 no payments had ever been made on any claims against a tobacco company. Because of the expense and time-consuming nature of such claims, they are usually only made in cases of very serious injury.
In some cases an injured person can obtain a recovery even when he was partially at fault. For example, suppose a properly seat-belted SUV driver is speeding and his vehicle rolls over and he suffers very serious injuries. Suppose further that investigation by an expert shows that the person's injuries would have been much less serious if the roof of the SUV was properly designed. Such a person is entitled to a recovery based on the fault of the SUV manufacturer.
This article is based primariy on Arkansas law. While the general principles apply in most states, there will be variations in some states. Please feel free to call us (479-968-4747 or toll-free 888-295-4741) even if the incident occurred in a state other than Arkansas. There is absolutely no charge for consultation. If we accept your case there are no lawyer fees owed unless we obtain a recovery for you.
Copyright (c) 2011, Jim Carfagno, Jr., P.A. All rights reserved