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Product Liability

Kansas City and Johnson County Product Liability Attorneys

Many injuries are caused by products that should have been designed or manufactured more carefully. Here at The Law Offices of Jeremiah L. Johnson, LLC, we pursue money damages for clients injured by defects in automobiles, SUVs and trucks as well as defective small appliances. In many instances, we can represent clients similarly affected by a defective product in a single class action lawsuit. While these product liability claims may be challenging to prove, we are often successful in winning money damages such as medical expenses, lost work time and future needs.

Looking Out for Your Interests

We work on contingency, so we get paid only if we win compensation for your product liability claim. That inspires us to work harder and smarter in order to negotiate a settlement, or win through litigation.

If you or a loved one is injured or killed due to a defective product or product design, call the skilled personal injury attorneys at The Law Offices of Jeremiah L. Johnson, LLC, in Olathe, Kansas, at 913-764-5010. Your first meeting is free, and you are under no obligation to retain our firm as counsel. We want to answer your questions, and advise you on the strength of your product liability claim, so contact us today.

Pursuing Compensation due to Poor Product Design

Here at The Law Offices of Jeremiah L. Johnson, LLC we have significant experience pursuing compensation for clients injured in SUV and truck rollovers.

Dangerous roads and highways contribute to the high rate of rollover accidents, though most of the problem lies with the design of the truck or SUV itself. A loved one is 10 times more likely to die in a rollover accident than a typical car accident. Many SUVs are designed with a center of gravity than is higher than most passenger cars, leading to instability on slippery roads, curves and in emergency situations. We will protect your rights in an auto recall or manufacturing defects claim.

Tackling the Tough Cases

Product liability cases such as a tire recall or manufacturer recall, are demanding, as are we. We have experience challenging insurance companies, which tend to be slow to validate claims and settle. Large manufacturers mantra usually is "Delay, Deny and Discourage" in hopes that we will go away.

Not a chance. We are willing to pursue class-action claims in federal court, and bring in expert testimony to prove your personal injury claim. We research similar personal injury cases exhaustively, and do not quit until we win compensation for our clients.

For a free initial consultation with a qualified product liability lawyer, contact our Olathe, Kansas law offices today.

 

Additional Information: General Overview of Products Liability in Missouri

There are three types of theories of recovery in a products liability case, strict liability, general negligence and breach of warranty. Under the strict liability category there are three basic types of cases, based on allegations of: a manufacturing defect, a design defect or a failure to warn. The statue of limitations for the following are generally five years.

Statute of Limitations:

Strict Liability in Tort: These cases are governed by the five year statute of limitations. RSMo § 516.120. The statute begins to run and the action is deemed to have accrued when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained. . RSMo § 516.100.

Negligence: All actions for personal injuries which arise as a result of another's negligence are generally governed by the five year statute of limitations. . RSMo § 516.120. As with strict liability and other personal injury claims, the statute begins to run and the action is deemed to have accrued when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained. . RSMo § 516.100. If a claim is brought under the wrongful death statute, though, it is governed by the three year statute of limitations. . RSMo § 537.100.

Breach of Warranty: Under Missouri law, warranty claims for transactions that occurred after July 1, 1965, are generally governed by the four year statute of limitations. . RSMo § 400.2-725(2). This time period is measured from the date of delivery. Under Missouri law, the applicable statute of limitations does not commence until the fact of damage is ascertainable. However, if the warranty the warranty extended to future performance, it will be governed by the five year statute of limitations. . RSMo § 400.2-725(2). Moreover, if a warranty for future performance exists, the cause of actions accrues upon discovery of the breach and not from the date of delivery. Stated differently, the statute of limitations runs from the date on which the defect was or should have been discovered.

To constitute a warranty for future performance for statute of limitations purposes, the terms of the warranty must unambiguously indicate that the manufacturer is warranting future performance of goods for a specified period of time. A warranty that a product is free from defect in quality or workmanship is a warranty for future performance. Language limiting the remedy to repair or replacement of the defective materials does not automatically render a warranty a replacement commitment rather than a warranty for future performance.

Cases based upon breach of warranty within the scope of the Uniform Commercial Code (UCC) are to be governed by the four year statute of limitations set forth in . RSMo § 400.2-725. However, a breach of implied warranty involving personal injuries is governed by a five year statute of limitations. RSMo § 516.120.

Misrepresentation: Cases alleging misrepresentation are governed by the five year statute of limitations. RSMo § 516.120. It should be noted that the cause of action is deemed not to have accrued until discovered by the aggrieved party, as long as this time is within ten years of the facts constituting fraud. If the fraud is not discovered within ten years, the cause of the action is deemed to accrue at the end of the ten year period and the plaintiff has an additional five years to file his or her action. Thus, an action for fraud is barred after fifteen years of the commission of the fraud. RSMo § 516.120. The statute of limitations for fraud actions is tolled if the perpetrator of the fraud prevents discovery. The statute of limitations can be tolled for up to ten years if the defrauded party is unaware of the fraud.

Statute of Repose:

While there is no specific statutory provision with regard to a defective product, any tort action against builders of defective improvements to real property must be brought within ten years of the completion of the improvement. RSMo § 516.097. The statute applies only to the actions against any person whose sole connection with the improvement is performing or furnishing, in whole or in part, the design, planning or construction, including architectural, engineering or construction services, of the improvement. RSMo § 516.097.2. If such a suit is brought, that defendant may commence an action or a third party action for contribution or indemnity for damages sustained or claimed in any action because of economic loss, personal injury, property damage or wrongful death arising out of a defective or unsafe condition of any improvement to real property, within one year of the filing of the original action. RSMo § 516.097.3. There are exceptions, and the statute of repose shall not apply if a person conceals a defect or deficiency in the design, planning or construction, if the defect or deficiency so concealed directly results in the defective or unsafe condition for which the action is brought, nor will it apply to limit any action brought against any owner or possessor of real estate or improvements on such real estate. RSMo § 516.097.4.

Requirements for a Proper Plaintif:

Strict Liability: Missouri case law provides that under a strict liability theory of products liability, purchasers, users, lessees, bailees, bystanders, survivors of those killed by a defective product, and indemnitees entitled to contribution, are proper parties to assert a claim against the party who may be ultimately liable. Bystanders may even sue for emotional distress under a strict liability theory. While no privity is required, the plaintiff must establish some kind of a casual relationship between the defendant and the injury-producing event.

Negligence: Those who may bring a cause of action under a negligence theory are purchasers, users, bystanders, and survivors of those killed by a defective product. Survivors of a descendent, include an equitably adopted child. It should be noted that under both theories, because there is not requirement of privity between the injured party and the one whose negligence caused the injury, any purchaser, user or bystander injured by the product has a right to sue the negligent party. This is because Missouri has found it appropriate to place the responsibility on manufacturers, to make products fit and safe for ordinary consumers when used in the manner and for the purpose for which they are manufactured and sold.

Theories of Liability Available to Plaintiffs:

Plaintiffs may bring a cause of action for products liability based on theories of strict liability, general negligence and breach of warranty. In bringing a products liability cause of action under strict liability, a plaintiff may allege manufacturing defects, design defects or failure to warn defects. Under a theory of strict liability in tort, one who sells any product in a defective condition unreasonably dangerous to a user or consumer, or to his property, is subject to liability for physical harm caused to the ultimate user or consumer or to his property, if the seller is engaged in the business of selling such product and it isexpected to and does reach the user or the consumer without substantial changes in its condition. By definition, negligence of the manufacturer or seller is not required in a strict liability case. Contributory negligence is not a defense to strict liability.

Strict Liability-Manufacturing Defect. The theory of strict liability in tort was first applied in Keener v. Dayton Electric Manufacturing Co., wherein a manufacturing defect was alleged. Eight years later, the Supreme Court of Missouri determined that design defect was also a submissible strict liability theory. Blevins v. Cushman Motors. It has since been held that under Missouri law, the required elements for submission of a claim of manufacturing defect mirror the elements for submission of a claim of design defect. In fact, MAI 25.04 is intended to be used in both manufacturing and design defect cases. It states that a jury must find that: 1) the defendant sold the product in the course of the defendant's business 2) the product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use 3) the product was used in a manner reasonably anticipated, and 4) the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold. MAI 25.04

Strict Liability-Design Defect. Again, the elements are essentially the same as those addressed above for a manufacturing defect claim. Under Missouri's rule of strict tort liability, a products design is deemed defective, for purposes of imposing liability, when it is shown by a preponderance of evidence that the design renders this product unreasonably dangerous. The same elements from MAI 25.04, apply in these types of cases. Thus, the case law cited above, is also applicable to a case brought under the design defect theory of strict products liability.

Strict Liability-Failure to Warn. Under a failure to warn theory, the plaintiff must show that: 1) the defendant sold the product in the course of his business 2) the product was unreasonably dangerous when put to a reasonable use without knowledge of its characteristics 3) the defendant did not give adequate warning of danger 4) the product was used in a manner reasonably anticipated and 5) the plaintiff was damaged as a direct result of the product being sold without adequate warning. Whether the failure to warn resulted in the injury complained of, remains a question for the jury.

Negligence. When bringing a products liability cause of action under a theory of negligence the plaintiff must show that: 1) the defendant manufactured or designed the product 2) the product had a defect or hazard 3) defendant failed to use ordinary care to either manufacture or design the product to be reasonably safe or adequately warn of the risk of harm from the defect/hazard and 4) as a direct result of such failure plaintiff sustained damage.

Breach of Warranty. In bringing a cause of action for products liability under a theory of breach of implied warranty, the plaintiff must show: 1) the defendant sold the product 2) the defendant knew or should have known of the use for which the product was purchased 3) the plaintiff reasonably relied upon defendant's judgment that the product was fit for such use 5) that within a reasonable time after the plaintiff knew or should have known the product was not fit for use, the plaintiff gave defendant notice thereof 6) as a direct result of the product being unfit for such use, plaintiff was damaged. MAI 25.03. There is also a cause of action for Breach of an Express Warranty, and breach of implied warranty of merchantability, that are causes of action under the umbrella of a products liability theory.

Warranty Actions:

Statutory Citation. In Missouri, Article II of the Uniform Commercial Code governs warranties made concerning the sale of goods. In addition, the Magniuson-Moss Warranty Federal Trade Commission Improvement Act requires certain disclaimers with regard to products.

Express Warranty. Section 2-313 of the U.C.C. (RSMo § 400.2-313) provides that express warranties may be created in four ways: 1) by the affirmation of a fact 2) by a promise 3) by a description and 4) by sample or model. In addition, § 2-313 includes two conditions which must be met prior to the creation of an express warranty: 1) affirmations of fact or promises must be made by the seller to the buyer and relate to the goods 2) in all instances, the affirmation, promise, description, or sample or model must be a "part of the basis of the bargin." It should be noted that the seller does not have to use words of art such as "warrant" or "guarantee." RSMo § 400.2-313(2). Moreover, the product's seller does not have to intend to make a warranty in order to create one. However, the Uniform Comercial Code maintains that an affirmation merely of the value of a good, or a statement which purports to be merely the seller's opinion of the good, does not rise to the level of a warranty. It is not necessary for the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee."

Implied Warranty of Merchantability. The U.C.C. sets forth implied warranties for merchantability and fitness of purpose. See generally RSMo § 400.2-314 and 400.2-315. Specifically, RSMo § 400.2-314 provides that, unless excluded or modified, a warranty that a good is mechantable is implied in a contract for its sale if the seller is a merchant with respect to the goods of that kind. The serving of food or drink to be consumed either premises or elsewhere is considered to be a "sale".

To be a "merchantable" a good must: 1)pass without objection in the trade under the contract description 2) in the case of funigible goods, they are to be of fair average quality within the description 3) be fit for the ordinary purposes for which the good is used 4) be of a like kind, quality and quantity within each unit and among all units involved 5) be adequately contained, packaged and labeled as the agreement may require and 6) conform to the promise or affirmations of fact made on the container or label if exists RSMo § 400.2-314(z). In addition, other implied warranties may arise from a course of dealing or usage of trade.

Pursuant to Missouri Revised Statute RSMo § 400.2-104, "merchant" includes a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods included in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. "Actual knowledge" on the part of the product seller or the buyer's reliance on the seller's skill and judgment is not necessary to the buyer's reliance on the seller's skill and judgment is not necessary to create and implied warranty if fitness for a particular purpose. All that is required is the seller have "reason to know" of the buyer's needs or reliance on the seller's skill. However, the buyer must actually rely on the product seller in good faith in asserting an action based on an implied warranty.

Implied Warranty for Particular Purpose. Essentially, this warranty arises where a seller at the time of contracting has reason to know any particular purpose for which the goods are required and the byer relies on the seller's skill or judgment in selecting such a good for that purpose. RSMo § 400.2-315.

Disclaimers. A seller may properly disclaim all implied warranties, both implied warranties of merchantability and fitness for a particular purpose, if the seller follows Section 2-316 of the U.C.C. To disclaim an implied warranty of merchantability, or any part of it, the seller must include language which specifically mentions "merchantability" and this writing must be conspicuous. To exclude all implied warranties of fitness, it is sufficient if the seller's language states "there are no warranties which extend beyond the description on the face hereof". RSMo § 400.2-316. It is important to note that RSMo § 400.2-316 states that when disclaiming a warranty of merchantability, the disclaimer must be part of the contract for sale. A product's seller may also attempt to limit a buyer's remedies unless doing so would be considered to be unconscionable. U.C.C. § 2-719. Section 2-302 of the U.C.C. allows a court to refuse to enforce an unconscionable contract. Specifically, if the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable result. In addition, when it is claimed or appears to the court that the contract or any clause thereof may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.

Requirements for a Proper Defendant:

As a general rule, strict liability applies to any person engaged in the business of selling products for use or consumption. The isolated sale of a product by an occasional seller does not subject that entity to the rule of strict liability. The theory was adopted in part to insure that the costs of injuries resulting from defective products are borne by the manufacturers (and sellers) that put such products on the market rather than by the injured persons who are powerless to protect themselves. Neither making a profit on a transaction nor mere participation in the market is sufficient to impose liability. Further, in Missouri, sellers of used goods are not subject to strict liability. For negligence cases, plaintiffs cannot sue all parties in the chain of distribution or manufacture as is allowed under a strict liability theory. Under a negligence theory, there must be a duty toward the plaintiff of the part of the particular defendant against whom suit is brought. In a negligence action, whether a duty exists is entirely a question of law for the court.

                        Remember, the specifics of your case are unique, call The Law Offices of Jeremiah L. Johnson, LLC, today at 913-764-5010 to discuss your case.                                          Inital consultations are free and you are under no obligation to retain our counsel. 

 

 

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