Category Archives: product liability

What Is an Implied Warranty?

Thursday, September 27, 2018

When purchasing products, many people are wary of warranties that could ultimately impact how long a product can receive repairs or even the timeframe we can return the product in. However, warranties can apply in many more situations than getting a costly appliance fixed. Some warranties apply to the quality of the product or the validity of making product liability claims.

Implied and Express Warranties

Many of us are familiar with written and spoken warranties, which include statements of what is and is not part of a warranty. When it comes to products, warranties serve as a guarantee that a product will meet stated quality and reliability standards – often with a money back statement applied. When a product does not meet the expectations of the warranty, a consumer can easily pick out the discrepancies and take the matter up with the manufacturer.

In contrast, an implied warranty does not involve any form of written or verbal agreement – the guarantee of proper operation is an implication. However, this does not make such warranties any less valid or enforceable. If you purchased a toaster that does not produce enough heat to operate as a toaster, then it would be a breach of the implied warranty of the product.

Consumers have several legally enforceable warranty rights that work on the concept of providing fair value for money spent. These warranties fall into two major categories.

Implied Warranty of Merchantability

One of the types of implied warranties is that of merchantability – that the product will work if used for its intended purchase. If you purchase a product that does not work as it should for the intended purchase, like the toaster in our earlier example, you have a right to an exchange or refund. However, if the product doesn’t work because you are using it for an unintended purchase, the warranty of merchantability does not apply.

To be a merchantable item, a product must:

  • Conform to stands of trade as applies to the contract for sale
  • Be suitable for intended purposes, even if a consumer purchased it for another use
  • Be uniform involving quantity and quality
  • Packed and labeled appropriately
  • Meet specifications on package labels

The implied warranty of merchantability is also applicable to used items, given the condition of the product at the time of sale.

Some states allow merchants to mark items as “with all faults” or “sold as is” to avoid implied warranty, often under the argument that the consumer had the opportunity to observe the item before purchase. California is one of these states.

Implied Warranty of Fitness

While all products have an implied warranty of merchantability, others also have a warranty of fitness. Products with an implied warranty of fitness are not only suitable for the merchantable standards, but for an additional, specific purchase. Coming back to the toaster example, if you asked a salesperson for a toaster that could toast four slices of bread at once but it only has the capacity to handle two, then you could return the product for breaching the warranty of fitness.

In most cases, the warranty of fitness comes from a salesperson’s recommendation of an item for a specific purchase. These warranties can apply even if a product meets the standards of merchantability.

Implied warranties work to protect a customer’s rights to functional products that work as intended. They not only serve as grounds for returns and exchanges but can also help to support a product liability case. If you have suffered damages due to an improperly functioning product that violates the implied warranty of merchantability, then you may have grounds to seek compensation. Discussing your potential claim with a Bakersfield product liability attorney is the first step to understanding your warranty rights.

Posted by highrank at 6:50 pm

How Effective Are Disclaimers?

Thursday, September 27, 2018

When it comes to injuries and damages caused by products, it can be legally possible to pursue compensation through a product liability case. These claims allow for consumers to protect their rights to safety when using products. However, as a lawsuit can take up the time and money of a company and cast poorly on its reputation, many manufacturers hope to avoid such procedures altogether.

Product disclaimers are one such strategy to avoid fielding lawsuits and claims for damages from a company. And while a disclaimer may seem discouraging when you read it, the legal effectiveness of these written warnings isn’t as airtight as you may think.

Implied Product Warranties

All manufacturers must uphold two types of warranties that boil down to one conclusion: the manufactured product is safe enough for consumer use, so long as you follow the intended purchase. Even if you don’t see such a warranty written out when you purchase a product, the law implies this safety for all manufactured and sold products.

Because you have these warranty rights, a general written disclaimer has no legal standing. You as a consumer have had no opportunity to bargain or revoke your warranty rights, so a written general product disclaimer would be invalid. Your default warranty rights still hold, and you’d be able to file a product liability lawsuit if you suffered unfair injury during reasonable use of the product.

Reasonable Use and Assumption of Risk

One of the included provisions of implied product warranties that they are only valid so long as a consumer uses a product within the reasonable limitations. For example, if you followed all safety precautions when lighting fireworks and still sustained an injury due to a malfunctioning product, then you would have a chance to file product liability.

On the other hand, if you were handling fireworks in an unsafe manner, such as aiming them at other people or objects, then you would not be using the product in a reasonable way, thus revoking your right to potential compensation for your damages. This is because assumption of risk has come into play.

Assumption of risk is a common defense for manufacturers during product liability cases, where the company purports that the plaintiff was using the product in an unsafe manner and assumed the potential risks of that use. Ways to reinforce this claim involve a product including a specific disclaimer rather than a general one.

General disclaimers often try to claim that the manufacturer has no form of liability through use of its products, no matter the situation. Specific disclaimers focus on stating the company isn’t liable if the consumer misuses the product in any way. If a manufacturer had included such a specific disclaimer with its product, then a court is much more likely to uphold it in court, so long as there is proof of product misuse.

Are There Situations Where General Disclaimers Can Apply?

While a court is much more likely to dismiss general disclaimers, it’s still possible for them to be valid in court. One common scenario is that if a written and signed contract indicates that the consumer has waived his or her warranty rights after given the chance to negotiate. A typical consumer may not see contracts for most purchases, but they can come into play for handmade or customizable products.

Even though general disclaimers aren’t effective in most situations, they can prevent lawsuits by discouraging customers from pursuing legal action – and it can be hard for an average consumer to tell the difference between a legally valid and invalid disclaimer. Seeking the counsel of an experienced Bakersfield product liability lawyer can help you determine if a disclaimer is legally binding. If not, you’ll be able to work with a lawyer to determine if you have a product liability case and start the claims process.

Posted by highrank at 6:39 pm

Can You Sue a Restaurant for Food Poisoning?

Monday, July 23, 2018

Food poisoning is extremely uncomfortable for anyone who has experienced it. If you get food poisoning after going out to eat, you may determine that the restaurant was responsible for your illness. When this is the case, you may be wondering if it’s possible to sue the restaurant for food poisoning.

Is a Lawsuit Possible?

When injury and illness result from another party’s actions, California law allows for victims to pursue rightful compensation from those responsible for their suffering. This means that if the restaurant’s food truly was responsible for your illness, then you may have grounds to file a claim.

Potential claims for food poisoning can include:

  • Product liability. In product liability claims, the restaurant is responsible for providing you with a proper product, which would be food free of bacteria or other illness-causing viruses.
  • Personal injury. These cases work on a basis of negligence – the restaurant’s negligent actions, such as serving spoiled food or not preparing items correctly, led to your illness.

When these circumstances occur, you may be eligible for compensation. However, pursuing a lawsuit over food poisoning may not always be the most worthwhile move.

Chances of Success

Personal injury cases and similar lawsuits require that the plaintiff must prove that the defendant was responsible for their injuries, and the same rules apply to cases of food poisoning. While it may be easy for you to think your meal at the restaurant may have led to your illness, proving this in a court of law can be difficult.

The most critical piece of evidence – your meal – may already be gone. Even if you have leftovers, proving that you didn’t tamper with the food after taking it home can also be difficult. A restaurant may claim that you did not properly refrigerate your leftovers, which then led to your illness. There is also the chance your illness arose due to other circumstances besides your meal.

Proving that your meal caused your food poisoning can involve testing samples of your food and stool for matching bacteria. It is also easier to prove that a food resulted in sickness if several people who ate it fell similarly ill, such as a class action lawsuit due to mass food contamination. If you can confirm these factors, you will have a chance of a successful lawsuit, but it is not always a guarantee.

The Value of a Food Poisoning Case

Even when you have solid proof that the restaurant’s food caused your illness, going to court may not be a worthwhile endeavor. Even though you have suffered through food poisoning, the lack of intense medical bills may not amount to much in terms of damages. The time and cost of court may not be worth the potential payout.

However, situations that have incurred massive damages can result in larger compensation. For example, if your illness caused you to miss work for an extended time resulting in lost wages, you may have a stronger case. Food poisoning that involves more deadly bacteria, such as E. coli or salmonella often requires hospitalization, which results in higher financial damages than cases where you simply needed to stay at home and rest to recover. Class action lawsuits that involve damages to many people also have a higher potential payout.

Determining the exact value of your food poisoning case can be tricky. If you are uncertain if your case is worthy of a claim, schedule a free consultation with an attorney in your area. An experienced Bakersfield personal injury attorney can help you determine if you have solid proof of liability and determine your potential compensation. If you wish to file a claim, you will need an attorney to represent you fully in court.

Posted by highrank at 6:31 pm

Auto Manufacturers With The Most Recalls

Friday, October 14, 2016

When you search for a new vehicle, you may look at safety ratings, consumer satisfaction reports, and the popularity of the car in the marketplace. You may not, however, search for the number of recalls a brand experiences. Today, some car brands seem to announce information for a new recall on a daily basis.

Whether they are cutting corners on the manufacturing floor or failing to vet all of the parts and designs they approve, automakers often take consumer lives into their hands. One of the most notorious recalls lately, the Takata airbag recall, continues to affect cars on the roadways today. The latest estimates suggest that 34 million vehicles are at risk in the United States alone.

AxleGeeks by Graphiq, a company that combines data and identifies trends in various sectors, recently compiled information from the National Highway Traffic Safety Administration. The organization identified the top 10 most recalled vehicle makes based on reports made since January 1, 2015. The most recalled automaker brands in business today may surprise you and include:

  1. Honda Motor Company. With the Honda and Acura brand, this automaker experienced 26 recalls affecting 13,577,460 vehicles.
  2. General Motors. The Buick, Cadillac, Chevrolet, and GMC brand automaker experienced 52 recalls affecting 10,602,714 vehicles.
  3. Toyota Motor Company. With the Toyota and Scion brand under its banner, this automaker experienced 27 recalls affecting 8,420,039 vehicles.
  4. Fiat Chrysler Automobiles. Responsible for Chrysler, Dodge, Fiat, Jeep, and Ram brands, this automaker experienced 10 recalls affecting 6,867,022 vehicles.
  5. Ford Motor Company. The owner of Ford and Lincoln makes experienced 53 total recalls affecting 5,410,495 vehicles.
  6. Mitsubishi. With 10 recalls affecting 4,885,280 vehicles, this car brand saw a dramatic increase in recalls from 2014.
  7. Nissan Motor Company. This automaker of Nissan and Infiniti brands experienced 23 recalls affecting 3,992,606 vehicles.
  8. BMW. In 8th place, the BMW and Mini automaker had 19 recalls affecting 1,568,305 vehicles.
  9. Hyundai. This automaker experienced 15 recalls affecting 1,568,871 vehicles.
  10. Mercedes-Benz. This automaker responsible for the Mercedes-Benz and Smart car brands had 22 total recalls affecting 1,203,210 vehicles.

The sheer number of recalls that occurred during 2015 is astounding, and showcases the pervasiveness of recalls in the motor industry today. As you hunt for your new vehicle, consider the trustworthiness of the brands you choose. You may notice that certain brands do not appear as often in recall lists.

Questions to Ask About the Data

This is only one of the most recent lists of most recalled automakers/vehicle brands online today. As you search for information on recalls, safety, and more, consider the timeframe for data collection, the date of publication, and how the data scientists parsed the information. Compared to sales over the same period of time, these numbers may change. Identifying the true story within the data is much harder than looking at the brand name listed in the number one place.

As you explore the most recalled automakers, keep these questions in mind:

  • Are these automakers really more dangerous, or are they more attuned to the potential risks in their vehicles? Not all recalls occur because consumers suffer injuries. Some automakers recall vehicles if they happen to notice the possibility of a concern during testing and quality control studies.
  • Is a particular model responsible for the majority of recalls? Sometimes automakers release a dud, and the model goes away after a year or two. Consider the past frequency of recalls as well as data on a single model to make your purchasing decisions.
  • Are the recalls about dangerous parts and problems or minor inconveniences? When an airbag explodes or a braking system locks down, you could see your life flash before your eyes. However, when power windows stick, you may not experience much of a life-threatening risk. Consider the severity of the recalls as well as the numbers.

During a car search, we highly recommend that you explore the number of recalls on the vehicles you choose, but consider the context, too. If you do experience an injury as the result of a faulty vehicle part, discuss your ability to seek compensation with an experienced product liability attorney.

Posted by highrank at 9:05 pm