By Elaine M. Deering. Personal injury cases often involve items or products that the plaintiff had no reason to fear—a vacuum cleaner, a lawnmower, or.

By Elaine M. Deering

Personal injury cases often involve items or products that the plaintiff had no reason to fear—a vacuum cleaner, a lawnmower, or a termite spray.

These kinds of products, however, have been responsible for horrible injuries, and lawsuits by the injured people have led to design changes in the products.

Until the 1960’s, injured consumers had an almost impossible task to win a case against a manufacturer: they had to prove negligence in the manufacturing process.

In the last thirty years, however, courts began imposing strict liability in a whole new range of human activities, but primarily in manufacturing—a doctrine of law known as products liability.

Under this doctrine, if a defective product causes injury to you, the manufacturer will be liable even if the manufacturer exercised reasonable care in its manufacture, or did not know that the product was defective.

All the plaintiff needs to show is that the product was defective, dangerous, and caused injury.

This is a no-fault basis of liability.

One basis for strict liability is the presence of a manufacturing defect.

A product has a manufacturing defect if it departs from its intended design, even though the manufacturer exercised all possible care or acted “reasonably” in the preparation and marketing of the product.

A product has a design defect if theforeseeable risks of harm posed by the

productcould have been reduced or avoided

byadopting a reasonable, alternative

design.

A product may be held defective becauseof inadequate instructions or warnings insituations where the risk of harm wasforeseeable and could have been avoided if

aproper warning had been given.

In some cases, a manufacturer may be held liable for damages caused by a non-defective product because it failed to provide adequate warnings of hazards or risks resulting from the product’s use.

Strict liability may also apply to harm caused by animals. Persons who keep wild animals are strictly liable for any harm inflicted by the animals.

If a manufacturer fails to exercise due care to make a product safe, any person who is injured by the product can sue the manufacturer for negligence.

Standard elements of negligence are applied: Manufacturer breached a duty of care it owed to plaintiff, causing injury to plaintiff and damages.

When a manufacturer or seller misrepresents the quality, nature, or appropriate use of the product, and the user is injured as a result, the basis of liability may be the tort of fraud.

Whether the claim is based on Strict Liability or Negligence, a number of defenses may be available:

1.Assumption of Risk The risk is obvious and the user

knowingly took that risk.

2. Product Misuse The defendant claims that the plaintiff

misused the product. However, the plaintiff could claim he did not know that the product was dangerous for a particular use.

This doctrine is based on the notion that the plaintiff was partly to blame for the injuries received by his conduct.

The award of damages will be reduced by the extent to which the plaintiff was considered at fault.

This defense applies if the dangers associated with certain products are so commonly known that manufacturers need not warn users of those dangers.

The defendant normally will not be held liable for injuries incurred in the use of that product.

Negligence Per Se• Certain conduct (acts or omissions) may be

treated as negligence per se.

• Negligence per se may occur if an individualviolates a statute or an ordinance providing

fora criminal penalty and that violation causesanother to be injured.

The plaintiff in an action for Negligence Per Se must prove that (1) a statute existed, (2) the statute was enacted to prevent

the type of injury suffered, and (3) the plaintiff was within a class of

persons the statute meant to protect.

Most states now have Good Samaritanstatutes where persons who are aidedvoluntarily by others cannot turn

around andsue the “Good Samaritans” for

negligence.

Many states have passed Dram Shop Acts,under which a bartender may be held liable

for injuries caused by a person who became intoxicated while drinking at the bar or who was already intoxicated when served by the bartender.

Normally, the burden of proof if negligence or any other cause of action is on the plaintiff to show that the elements of the claim have been met.

However, in this Tort, meaning “the thing speaks for itself,”* the presumption of negligence on the part of the defendant arises.

The presumption of negligence arises because

(1) the defendant was in exclusive control of the

situation, and

(2) the plaintiff would not have suffered injury but for someone’s negligence.

The burden then switches to the defendant(s) to prove they were not negligent.

Victoria goes in for major surgery which requires anesthesia. Sometime after the operation, it is discovered that a surgical instrument has been left in her during the operation. She suffers severe injury because of the left-in instrument.

Victoria would be hard-pressed to identify which doctor or nurse had been careless and left the instrument in her body.

(Note: I chose the name of Victoria because it combines the idea of “tort” and “victorious.”)

In this case, the court can apply the doctrine of res ipsa loquitur and place the presumption of negligence on the defendants. (This is the opposite of the criminal presumption of innocence.)

How can a defendant defend against a claim of res ipsa loquitur?

Any defendant who can prove that he or she did not leave the instrument in escapes liability.

Any defendant who does not overcome the presumption by disproving his or her negligence is liable.

(Notice: All 5 vowels are present in the phrase.)

Other typical res ipsa loquitur cases involve

commercial airplane crashes, falling elevators, and the like.

Many paralegals become involved in tasks relating to tort lawsuits. Paralegals working in tort law may be asked to interview clients to obtain information, obtain relevant documents, and locate and interview witnesses to a tortious act.

Cheeseman, H.R. & Goldman, T. (2007). The Paralegal

Professional. 2d ed. Prentice Hall.

Edwards, L.L., & Edwards, J. S. ( 2004). Study guide to

accompany tort law for legal assistants. 3ed ed. Thomson

Delmar Learning. Retrieved from

http://www.delmarlearning.com/companions/content/1401810

829/pdf/Ch7%20Outline.pdf

Steven, D.N. (2001). Negligence primer. Retrieved from

http://www.publishlawyer.com/negligen.htm#strict