Who to sue in a products liability action?

“A great ad campaign will make a bad product fail faster. It will get more people to know it’s bad.”

— Bill Bernbach

Products injure.

Not in the sense that you use a product to injure someone, but rather that the product itself causes injury. That’s products liability. Let’s talk about how it’s litigated in California.

Who to sue depends on what theory of liability you assert. Here are 4 theories recognized in California: strict product liability, negligence, warranty, and misrepresentation.

Strict Product Liability

Strict product liability is actually a misnomer. Liability is not actually strict (i.e. imposition of liability without fault), but rather arises from placing a defective product in the ‘stream of commerce.’ Any defendant that participated in making or manufacturing the defective product is liable. And better for you, liability is joint and several: any defendant is responsible for all damages. Defendants under this theory include the manufacturer, distributor, retailer, wholesaler, or supplier.

Negligence

Negligence consists of duty, breach, causation, and damages. At issue is the reasonableness of the defendant’s conduct. Defendants that manufactured the product had a duty to manufacture a non-defective product using the amount of care a reasonable manufacture would follow. Defendants that marketed the product had a duty to market a non-defective product using the amount of care a reasonable marketer would follow. If the requisite amount of care was not followed and that, in turn, caused damage, then you have negligence. Possible defendants include the manufacturer, seller, marketer, and designer.

Breach of warranty

Warranties are either express or implied. Express warranties are usually stated in a product manual. Most, if not all, would state that the product was free from defects. If it wasn’t, well, that’s your breach of express warranty claim. Sue the issuer of the express warranty.

Warranty of merchantability is an implied warranty.  If a defendant was in the business of selling the product, then there’s a warranty that the product was fit for ordinary purposes. But if the product wasn’t fit for ordinary purposes, then you have a breach of implied warranty claim. So sue the seller.

Misrepresentation

Maybe a seller publicly represented that the product was non-defective and you relied on that representation to your harm. And the representation was false. Plus, the seller knew that. Guess what? You have a claim for misrepresentation against the seller.

Conclusion

Your best bet? Sue all of the above under all these theories. Better to dismiss a party wrongly named than miss naming a right party.

Questions? Contact Me for a free consultation.

Evan Walker

Evan W. Walker is a La Jolla attorney who has practiced law since 2008. He is licensed to practice in California, Connecticut, and Louisiana. His entire practice has been in litigation.

Evan is from a small town outside of New Orleans. He attended law school in New Orleans, which was interrupted by Hurricane Katrina. After evacuating to Houston, Evan graduated in 2008 as part of the ‘Hurricane Katrina Class.’

After graduation, Evan worked for a New Orleans insurance defense firm. He defended insurance companies against Hurricane Katrina lawsuits brought by homeowners and business owners.

In 2010, he and his wife moved to New Haven, Connecticut, so his wife could complete a medical residency at Yale. During the next few years, Evan worked for Travelers Insurance Company defending countless personal injury lawsuits.

In 2014, he moved to San Diego so his wife could complete a medical fellowship at UCSD. He then opened his own firm to represent people after years of defending insurance companies.

Evan is a Featured Faculty at Attorney Credits, a CLE company, and a regular contributor to various podcasts and publications. He has also been interviewed by San Diego television stations about his cases and practice.

Evan spent almost a decade as a defense attorney who defended insurance companies from personal injury and property damage lawsuits. He knows how insurance companies bully people and deny claims. And he knows how to fight them.

Bar Admissions: California Connecticut (inactive) Louisiana (inactive)

Acta Non Verba

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