Dailey & Borsellino

Unsafe Products

The attorneys at Dailey & Borsellino, P.C represent clients in products liability claims. In our technological society, we use thousands of products while enjoying most life activities. Massachusetts requires that these products be fit and safe for the purposes they are used. Products liability occurs when people are seriously injured or killed when a product is improperly designed, manufactured or maintained. Massachusetts law allows liability to attach to manufacturers, distributors, sellers, leasers or licensors, designers and marketers of unsafe products.

The type and categories of products are endless. They include household appliances, landscaping equipment, vehicles, toys, cycles, tools, recreational and sports equipment, industrial machines, alarm systems and fire safety devices, household and outdoor chemicals, glass and sharp edged implements.

Breach of Warranty Claims

Massachusetts General Law C. 106, Section 2-314 allows strict liability against defendants who sell or lease products which violate our state’s implied warranty of merchantability. It is not necessary that the injured person directly purchase the unsafe product from its seller or leaser. The injured person may claim against any merchant in the chain of distribution of the product as may persons who are injured by uses of the product, and even misuses, which are foreseeable to the defendant.

A lawyer must prove that there was a design defect in the product when it was sold by the manufacturer. In general, a product must benefit from state of the art safety designs and not be manufactured to be more dangerous than necessary. Government regulations, industry standards, the defendant’s own quality control standards, private and administrative agency studies, and expert analysis are important to help understand whether a product is sold defective.

Manufacturers and sellers of products often attempt to inject warranty disclaimers into the sale of their products. Most disclaimers in the sale of consumer goods are not valid in Massachusetts. Disclaimers attached to the sale of machinery to commercial businesses most often apply only to the actual buyer and not to the primary users of the machines such as the employees of the business.

Massachusetts citizens with warranty claims should be prepared to overcome the defense used by many manufacturers and sellers that the product user was aware of the type and magnitude of the risk of using the product and used it unreasonably. If proven, this defense could provide a complete bar to recovery on a warranty claim.

Failure to Warn

No product can be manufactured or designed to be without risk. Massachusetts requires sellers and leasers of products to provide adequate warnings of non-obvious risks of using a product which help to make the product reasonably safe. Some risks are so likely that a warning will be ineffective and the product design must contain safety devices to alleviate it. When a warning is required, the warning should be understandable by an ordinary user of the product, likely to be observed and contain a message which reasonably addresses the risk. In some cases, a reasonable warning will have to be permanently affixed to a product. In other cases, such as when risks are revealed after sale by experience and scientific studies, a seller may be required to adequately warn second-hand buyers and users of product. Automobile manufacturers, for example, are required in appropriate cases to issue safety bulletins and recalls to redress unreasonable risks or defects in motor vehicles.

Negligence

Manufacturers and sellers of products must exercise reasonable care in bringing their products to the market. Attorneys must evaluate the reasonableness of the behavior of the defendant and relate that behavior to the condition of the product. A defendant is likely argue that the user of the product or some other intervening person or condition caused the injury and harm. In a negligence case, an injured party must prove that the negligence of the defendants, jointly or combined, played a 50% or greater role in causing injury to the plaintiff. Any negligence found on the plaintiff which is 50% or less will be subtracted from the dollar award or verdict for the plaintiff.

For help in vindicating your rights in products liability claims, call Dailey & Borsellino, P.C. at 781-329-9500 or complete our contact form.