It is not sufficient for a product to have injured someone for there to be a likelihood of success in a product liability case. There are certain types of products that are by their nature inherently risky or dangerous even if they are designed, manufactured and sold correctly. So does this mean that the manufacturer is responsible for injuries caused as a result of using these types of product? In short it depends whether it is ‘unavoidably unsafe’ or not.
Why Can’t The Product Be Made Safe?
A product that is unavoidably unsafe cannot by its nature be made safe and still fulfill its intended purpose. In other words, if the product were to be made safe it would no longer be capable of being useful for its original purpose. For example, a kitchen knife may be used to cut foodstuffs. It is a sharp object that is capable of causing injury. If it were to be made safe, and the blade made so blunt that it could not cause injury to anyone under any circumstances, it would no longer be able to fulfill the role for which it was intended. Similarly, drain-unblocking liquid is highly corrosive and must not come into contact with skin. If it were to be made safe, it would not be useful for unblocking drains anymore. However, if a bottle was poorly manufactured and had a weakness in the handle that caused the liquid to spill onto someone’s hand, this would be a defect that could give rise to a cause of action.
There are other types of unavoidably unsafe products such as firearms and certain cosmetic items, but by far the most common unavoidably unsafe products are pharmaceutical drugs. In product liability cases involving drugs, courts have to determine whether or not these drugs are automatically classed as being unavoidably unsafe (some courts have ruled that they automatically qualify, whereas others consider their use versus the potential likelihood of harm.) In making this determination, there is also consideration given as to the number of lives that could be saved, as well as those lost, in administering the medication.
Unavoidably Unsafe v Dangerous
When do unavoidably unsafe products become dangerous? There are several elements that are considered when deciding whether or not a product is unavoidably unsafe: the preparation, marketing and risk relating to the product as well as the examination of any alternatives that are available on the market. Preparation relates to the manufacture of the product and the effect of any mistake made during the manufacture. If the mistake makes it ineffective (e.g. in the case of pharmaceutical drugs) or dangerous (e.g. in the case of hardware) then it will no longer be classed as ‘unavoidably unsafe.’
Marketing relates to the warnings provided with the product, which include directions for use as well as possible side-effects. If these are insufficient or not provided at all, the product may not be unavoidably unsafe. There must also be a balancing exercise between benefit and risk. For example, a pharmaceutical cure for the common cold that puts people at a high risk of developing lung cancer will be unlikely to pass this test. This is because its usefulness does not outweigh the dangers associated with it. Looking at the alternative products available, the courts will consider factors such as costs, safety and benefits.
If you or someone you know has been injured as a result of a product you may have a case for a products liability action. It is very important that you speak to a specialist personal injury attorney as soon as possible.