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 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.


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.


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.

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