Kalkstein, Johnson & Dye, P.C. - (406) 721-9800 - 225 N Adams St, Missoula, MT 59802
(406) 721-9800 - 225 N Adams St, Missoula, MT 59802
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Products Liability

Defective or dangerous products cause many thousands of injuries every year. “Products liability” refers to the legal rules and liability imposed upon a manufacturer or seller for placing a defective product into the stream of commerce. These rules can make it easier for an injured person to recover damages from the manufacturer or seller of a dangerous or defective product. The premise underlying products liability law is that the manufacturers and sellers providing a product are typically in the best position to safeguard against the placement of defective products into the marketplace. And if they fail, they should be held legally accountable.

A plaintiff in a products liability case must prove that the injury-causing product was defectively designed or manufactured, or that the consumer was not adequately warned against the product’s potential dangers. The plaintiff must also show not only that the product caused his or her injury, but that the injury occurred while the product was being used in an appropriate way. Under Montana law, a manufacturer or seller cannot escape liability merely because the product was “misused” so long as the alleged misuse was a foreseeable one. Products liability theories typically fall into three general categories – design defects, manufacturing defects, and marketing defects (also known as “failure to warn”):

Design defects exist within the product from the very beginning – before it is even manufactured – insofar as something in the design of the product renders it inherently unsafe. For example, a chair that is designed with only three legs might be considered defectively designed because it tips over too easily. Proving design defect typically requires exploration of the technical decisions made by the manufacturer and will almost always require expert testimony.

Manufacturing defects occur during the course of a product's manufacture or assembly. Typically, these cases are easier to prove than design defect cases. A product has a manufacturing defect when it does not conform to the designer's or manufacturer's own specifications. Thus, the manufacturer's own design or marketing standards can be used to show that the product was defective.

Marketing defects are flaws in the way a product is marketed, such as improper labeling, insufficient instructions, or inadequate safety warnings. Most often, marketing defects are seen in “failure to warn” cases. Marketing defects include improper labeling of products, insufficient instructions, or the failure to warn consumers of a product's hidden dangers.

Legal Theories & Recovery

A number of potential legal theories are available to the victim of a defective product. These include negligence, breach of warranty, misrepresentation and strict liability. The plaintiff must not only show that the defective product caused his or her injury, but also that the product was defective when it left the manufacturer, distributor, or seller’s control.

What is “Strict Liability?”

“Strict liability” is the term most often associated with product defects. It means that, if the plaintiff proves that the product was defective – though not the fault of the defendant – and unreasonably dangerous, the defendant will be held legally responsible. By eliminating the issue of fault, the doctrine allows plaintiffs to recover where they might otherwise be unable to do so. These rules were created as a matter of social policy – between victims who suffer harm from defective products and those who profit from their sale, the profiteers are in the better position to insure against the loss.

If you have been injured by a defective product

  • You should save or retain the product and any documents or packaging that came with it.
  • You should preserve as much information as possible about the product, including the name of the manufacturer, model name and number, place and date of purchase and serial number.
  • Store the product in a safe place and do not modify or change it.
  • Obtain the name, address and telephone number of any witnesses.
  • Do not discuss the case with anyone and do not give any written or recorded statements about it until you have spoken with an experienced personal injury lawyer.