HOW A RETAILER CAN KILL YOUR DEFECTIVE PRODUCT PERSONAL INJURY LAWSUIT BY CLAIMING IGNORANCE

Dangerous products commonly injure or kill innocent victims. Our laws have set up many types of lawsuits which can compensate victims for unreasonably dangerous products. In response, corporations, manufacturers, and their distribution chain advocate legal defenses to escape responsibility for the injuries and deaths their products cause.

Why Sue the Seller and Not the Maker?

It is often necessary to file a lawsuit against the retailer (the place where the product was purchased) rather than the manufacturer itself. Sometimes, the manufacturer cannot be identified. Other times, the manufacturer is located in a foreign country and cannot be legally held responsible. Still other times, the manufacturer no longer exists.

Our laws allow for the retailer that sold the product to be sued directly in certain circumstances. These circumstances include strict product liability, where the product is unreasonably dangerous when put to reasonably anticipated use. Another lawsuit is for strict liability for the failure to warn. A third type of lawsuit against a retailer would be for express or implied warranties and negligently supplying a dangerous instrumentality.

The Test for Suing the Seller for Strict Liability for a Dangerous Product

Strict liability for a product defect can be won when the evidence proves:

That the retailer sold the product in the course of its business, and
The product was in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and
The product was used by the customer in a manner reasonably anticipated, and
The victim was damaged as a direct result of the defective nature of the product as it existed when it was sold.

Paraphrase of M.A.I. 25.04 (1978 Revised); Keener v. Dayton Electric Manuf. Co., 445 S.W.2d 362 (7) (Mo. 1969).

What Does “Unreasonably Dangerous” Mean?

There is no need to define the term “unreasonably dangerous” in dangerous product cases. Unreasonably dangerous is determined by the jury. If they think it is unreasonable; it is unreasonable. If the jury believes it is dangerous; it is dangerous. Speck v. Abell-Howe Co., 839 S.W.2d 623 (Mo. App. 1992). The challenge then goes to your evidence and your lawyer’s persuasive abilities.

Failing to Warn the Victim

Retailers can also be found responsible for a personal injury from a dangerous product when the retailer fails to warn its own customers. Remember, the retailer did not manufacture this product. It may lack the ability to change it. It may have only known or should have known of the dangerous nature of what it was selling and didn’t tell the victim.

The Failure to Warn Test

The Supreme Court has set out the failure to warn test for defective products. To sue a retailer for failing to warn, you must prove the following:

That the retailer sold the product in the course of its business, and
The product was unreasonably dangerous when put to a reasonably anticipated use without the person using the product having knowledge of its characteristics, and
That the retailer did not give an adequate warning of the danger, and
The product was used in a manner reasonably anticipated, and
That the victim was damaged as a direct result of the product being sold without an adequate warning.

Paraphrase of M.A.I. 25.05 (1978); Arnold v. Ingersoll-Rand Corp., 834 S.W.2d 192 (Mo. 1992).

What Is An “Adequate Warning?”

This is a matter for the jury to decide. If the twelve people on the jury believe the warning was adequate, there is no failure to warn. If the jury believes the warning, if any, was inadequate, you may win your case. See Lay v. P & G Healthcare Inc., 37 S.W.3d 310 (Mo. App. 2000); Louis v. Envirotech Corp., 674 S.W.2d 105 (Mo. App. 1984).

Ignorance As A Defense

There is a general treatise on how lawsuits can be made. It is known as the Restatement (Second) of Torts. Section 388 of the Restatement of Torts covers how many state laws spell out their requirements for sellers to warn about strict liability defective products. See W. Dudley McCarter, Seller of Product Not Liable Unless Reason to Know Product Dangerous, 71 J. Mo. Bar 76 (2015)(excellent discussion of this topic). This part of the Restatement was adapted by our Supreme Court in the case of Morris v. Shell Oil Co., 647 S.W.2d 39, 42 (Mo. 1971).

In the Morris case, the Missouri Supreme Court ordered that the seller of the defective product is not liable for a resulting injury or death unless the retailer actually knew of the dangerous product or had reason to know. See also Malone v. Schapun, Inc., 965 S.W.2d 177, 184 (Mo. App. 1997).

Deny. Deny? Deny!

A seller of a dangerous product can deny that it had any knowledge that the product was dangerous. It may further deny that it had any reason to know of the dangerous nature of the product. It then falls upon the victim to show compelling evidence that the seller should have known. Remember, the retailer likely did not have a duty to inspect or test the product it sold.

What Did the Seller Know? When Did the Seller Learn?

It is not enough to show that a retailer sold a defective dangerous product. That retailer must be shown to have information from which a person of reasonable intelligence or because of the superior intelligence of the retailer, should infer that the product was unreasonably dangerous.

As a practical matter, the lawyers and the representatives of the retailer that sold the dangerous product will prepare and sign an affidavit swearing they did not know of the dangerous product and had received no information that would allow them to conclude it was dangerous. The manufacturer and retailer lawyers will then make what is called a “summary judgment motion” under Rule 74.04 of the Rules of Civil Procedure. It will then be the responsibility of the victim to come forward with evidence showing that that retailer should have known of the dangerous nature of the product. In other words, ignorance is a defense.

Mandatory Preparation

As one can see, it is necessary to prepare in advance and do a detailed investigation when bringing a defective product case against the retailer itself. Witnesses need to be interviewed. Documents needed to be researched and read. Experts need to be hired and fully briefed.

This is the manner in which you can benefit society by holding the corporations and other entities that harm the public accountable for the damage they cause. Inadequate preparation and evidence is merely a waste of time, money, and effort. Remember, ignorance may be a defense; but don’t let merely the appearance of ignorance rob you of the justice you deserve.

Further information for Defective product lawyers and victims at the link in this sentence.

Author:

Matt Hamilton

Juris Doctor
Trial Attorney