Product Liability2019-01-21T13:49:46+00:00




If you’ve been hurt by something you own, New York City Product Liability Attorney – Wittenstein & Wittenstein, Esqs., will work with you to find the responsible party or parties and bring them to justice.  When you’ve been injured by a product, you need a negligence attorney that can go the course. If you live in New York City (Queens, Brooklyn, Manhattan, Staten Island, The Bronx) or Nassau County, you also want a lawyer that knows the turf.

What Types of Products?

It doesn’t matter how big or small the item is, or how much you paid for it: if it injured you, you may be eligible to file suit. Items may be as small as a cigarette lighter or as large as a car, the fact remains that these products came with unreasonable risks and resulted in a loss on your part. Similarly, a bouncy ball need not have been particularly expensive for it to cause the need for expensive surgery if your child has the misfortune of swallowing one.  The Consumer Product Safety Commission (CPSC) is a government organization that protects citizens from harmful products by issuing recalls. However, products are sometimes not recalled fast enough, or the notification of the recall may have been insufficient. Common household items recalled by the CPSC include (but are not limited to):

  • Lead paint
  • Children’s toys
  • Cribs
  • Cars
  • Power tools
  • Cigarette Lighters
  • Household chemicals
  • Stoves
  • Washing machines
  • Cosmetics
  • Clothing

Sometimes an individual item, rather than a product line, is defective. This may be a result of a manufacturing error or improper testing. No matter what the cause of the defect, you may be entitled to compensation if you were injured.

How to Prove a Product Liability Case

Strict Liability

This places a tremendous burn on manufacturers, sellers, and distributors of a defective product, as they can be found liable to an injured person, regardless of how much they did to prevent a dangerous defect.  In others words, they are responsible no matter how much they bent over backward to try to make the product safe, it is was distributed to consumers in a defective condition, and somebody got hurt, they are responsible.

The law was changed this way because plaintiffs that were injured by defective products were finding it close to impossible to prove that anything about the defendant’s behavior, so they took that need for proof out of the law and replace it with strict liability.  To prove strict liability, the plaintiff must prove the following elements:

  • That the product was in an unreasonably dangerous condition when it was sold,
  • That the seller intended that the product should reach consumers without any changes made to the product,
  • That the plaintiff was injured or their property was damaged as a result of using the dangerous and defective product.

Defenses to Strict Liability

The term strict liability does not mean that there are no defenses to be asserted by the defendant.  The actions of the plaintiff or third parties can come into play as defenses.

That the plaintiff used the product:

  • in such a manner that the plaintiff KNEW could lead to injury,
  • despite being aware of the defect, and therefore “assumed the risk,”
  • in a way that was not intended or could not be anticipated,
  • carelessly, so that their own actions contributed or were completely the cause of the injury
  • after others persons or events intervened to the extent that the product was not even the cause of the injury

Types of  Defects

  • Design Defects – This is an error in the way the product was conceived that renders the entire product line unreasonably dangerous for the use it was intended for.  Design defects, when they become aware of them, usually result in recalls.
  • Manufacturing Defects – This is when something goes wrong at the factory, so that a particular product comes out defective and dangerous.
  • Inadequate Warnings – There is a duty to warn consumers of risks posed by the use of a product that are not obvious.

Who Can Be Sued for Strict Products Liability?

Retailers, distributors, and manufacturers can all be held liable for strict liability.  Even if the problem was clearly with how the item was manufactured, distributors and retailers are still liable, as the courts have made a “public policy” decision that it is too hard on plaintiffs to prove where the defect occurred.  Plaintiffs generally sue all three, and then the defendants try to prove within themselves who actually caused the problem.

What Elements Need to be Proved?

  • That the product was defective
  • That the defect caused the injury
  • That there is a real injury
  • That there was a duty to the plaintiff

Other Types of Product Liability Claims

Although it is not necessary to prove that the defendant was negligent, these claims are usually made in addition to the strict liability claim.  This entails proving that the defendant breached their duty to the plaintiff by being careless.  Breach of warranty claims can also be brought, claiming that the the defendant broke an actual or implied promise to the consumer.

What Should I Do If I Have Been Injured by a Product?

It’s a good idea to save and preserve the product.  If it is perishable, you might want to put it in your freezer.  Save your receipt for the purchase of the products, the box and any instructions that might have come with the product.  If you have sought medical treatment for your injuries, you should compile a list of the doctors that treated you, and request their reports.

What Damages Can I Recover?

Compensatory Damages: This is damages to reimburse you for your losses.  This category includes, past and future medical bills, lost earnings and property damage.

Pain and Suffering: This is a subjective assessment of how painful your injuries are and how much you have suffered.

Loss of Consortium: This is a somewhat anachronistic damage category, whereby your spouse can collect for the impact your injuries has had on your relationship.  These damages are usually only awarded when injuries are catastrophic.

Punitive Damages: This is when the defendant’s actions are so intentional, willfull and evil that courts want to make a statement that such conduct should not be repeated by awarding a large amount of punitive (punishment) damages to the plaintiff.

New York City Product Liability Lawyer Can Help!

Product liability claims are complicated and require the use of many combined legal theories.  Therefore, they would be extremely difficult for a non-lawyer to do on their own.  Most product liability attorney take cases on a contingency fee, but you are not likely to find a lawyer to do this unless your injuries are serious and your claim is strong.  If you cannot find a lawyer to handle your case on contingency, this means that they have made the decision that it will cost more to make the claim than it is possible to collect and/or the case is too risky (could be lost.)  It is not a great idea to pay a lawyer an hourly fee for this type of case that lawyers won’t take on contingency, as you are likely to lose money by doing this.

Let Wittenstein & Wittenstein, the top Personal Injury Law Firm in Queens, do the work. We are confident that we can track down the parties at fault, whether it is the manufacturers, distributors, retailers, or all of them. With over sixty years of experience, our highly qualified attorneys are ready to assist you in fighting for your rights. If we cannot handle your case, we promise that you will get a very detailed explanation of the reasons why.  Simply contact us at 718-261-8114 or, and we can help you decide how to take the next step.