The fly repellent product on the tack store shelf caught your eye with irresistible promises: “Guaranteed Fly Protection for Horses,” and “100% Safe — Will Not Harm You or Your Horse.” This product, you thought, can’t fail. You bought it and tried it immediately. But fail it did. Just minutes after applying the fly repellent to your horse’s glistening coat, you noticed that the flies were gone — but so was your horse’s coat. The fly repellent also blistered your hands severely. This terrible ordeal forced you to spend considerable sums of money on veterinary bills and doctor bills, and you lost several days of work. Can someone be liable for what happened?

The answer may be “yes.” When people suffer a personal injury or property damage (such as injury to a horse) because of a defective product, they might have a lawsuit for products liability. Like the many products they involve, products liability lawsuits can be very complex.

Products Liability
In a products liability lawsuit, the injured party claims that a manufacturer or distributor negligently placed a defective product on the market, which caused harm. (The legal standard of negligence was discussed in past article and in the book Equine Law & Horse Sense). Some states apply “strict products liability,” which requires the injured person to prove that a product was dangerously defective and that the defect caused the injury. Other types of products liability lawsuits are described below:

Manufacturing Defects
If a particular product was made differently than others and, as a result, was sold in a dangerous condition, liability may exist for a “manufacturing defect.” This could occur if, in the above example, the fly repellent came from a batch that contained the wrong chemicals.

Design Defects
Products that are inherently dangerous, even when made according to specifications, could have a “design defect.” Unlike a manufacturing defect, in which only a few of a product may be hazardous, all products manufactured with a design defect are equally capable of injuring consumers.

Inadequate Warnings
Manufacturers have been sued when their products allegedly fail to contain proper warnings that the product could cause adverse reactions or serious harm. Similarly, lawsuits have also been brought when the product’s instructions are inadequate and cause injury. In the example above, if the instructions did not clearly specify that the product must first be diluted with water, their might be liability.

Where required, warnings should be conspicuous and reasonably capable of being noticed by product’s user. However, the law does not require manufacturers to warn of all conceivable problems or risks. Usually there must be proof that the manufacturer knew, or had reason to know, that the product could injure a sizable number of people. Going back to the example, if you and your horse have unusually sensitive skin, it is possible that there is no duty to warn.

Express Warranties
Sometimes a manufacturer might be liable for an “express warranty” that turns out to be false (or “breached”). An express warranty is a statement of fact or description of the item sold that has formed the basis of the bargain and creates a warranty that the product will conform to the statement. It is often unnecessary to have words “guarantee” and “warrant” to create an express warranty. Therefore, in the example at the beginning of this article, the words “100% Safe – Will Not Harm You or Your Horse” could qualify as an express warranty.

Who May Be Liable for Defective Products?
In products liability cases, manufacturers (of the entire product and component parts), as well as retailers, distributors, or wholesalers can be liable, depending on the facts.

Several possible defenses may apply in a products liability case, including: the user misused or altered the product beyond the use reasonably anticipated (maybe you added another chemical to the fly repellent in an effort to “improve” it, when, in reality, you caused a dangerous chemical reaction). Other defenses, which vary with the laws in each state, can include: assumption of risk, comparative negligence, or contributory negligence.

The age-old defense of “caveat emptor” (buyer beware) may have been valid in the 1800’s but will likely fail today. With highly sophisticated products on the market, it is virtually impossible for buyers, regardless of how carefully they scrutinize products, to apply the same knowledge of a trained chemist, engineer, or scientist. Also, it is no longer a defense that only the product’s buyer can sue. Consequently, even if you borrowed a product from a friend, you might be able to sue if it turns out to be dangerous and defective.

Can the Product Manufacturer’s Written Disclaimer Prevent a Lawsuit?
Not always. A manufacturer’s disclaimer is not a waiver of liability, even though it may look like one. Sometimes, a seller can legally disclaim certain warranties, and avoid some liabilities associated with them, by using phrases such as “as it” in purchase agreements and sales documents. In some cases, courts have limited or refused to enforce product disclaimers, especially if they have sweeping language designed to completely eliminate the manufacturer’s liability. Reasonable limited warranties, as opposed to a total disclaimer, stand a greater chance of being enforced.

If a Defective Product Harms You, What Can You Do?

  • Seek medical attention promptly. If you are injured, the most immediate concern will obviously be to attend to your medical needs.
  • Preserve evidence. In the example at the beginning of this article, the fly repellent should be stored in a safe place. After something has gone wrong, do not discard or change its contents. Should you pursue legal action, the product is prime evidence and will likely be scrutinized by lawyers, experts, and consultants.
  • Take pictures of the damage. Certainly, good medical and veterinary attention will help you and your horse recover over time. Consider taking photographs or videos of your blistered hand and your horse’s burned skin right now, in case you need this evidence later.
  • Keep product information. Who manufactured the product? Where did you buy it? Is there a serial, model, or identification number? Do you have the instructions that came with the product? Keep this information if you are considering legal action.
  • Legal action. If you are considering legal action, consult with a knowledgeable attorney.

In conclusion, please keep the following ideas in mind:

  • Not everything qualifies as a “product” for a products liability case. For example, some states do not consider certain services to be products. In those states, you risk having no “products liability” case against installers or repairmen but might have legal recourse under other legal theories, such as negligence. Courts in some states have also ruled that horses do not qualify as “products,” either.
  • When you sell equipment or used items at a garage sale, are you liable? The likely answer is no, if you only sell occasionally. The answer might be different for companies that are in the business of selling.

This article is not intended to constitute legal advice. Products liability matters, defenses, and statutes of limitations (the time in which to sue) can vary from state to state. When questions arise based on specific situations, direct your questions to a knowledgeable attorney.

Julie I. Fershtman, Esq.
About the Author

Foster Swift Collins & Smith PC
One Northwestern Plaza
28411 Northwestern Hwy., Ste. 500
Southfield, Michigan  48034

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