SHOULD MY DEFECTIVE DANGEROUS PRODUCT CASE REQUEST PUNITIVE DAMAGES TO PUNISH THE MANUFACTURER?

Dangerous products cause accidents that harm Americans every day. Manufacturers fall “in love” with their own designs and fail to see how their product will injure or kill their customers. Instead, manufacturers blame the victim. Corporations ignore notices they have sold a dangerous product to an innocent customer. Too often, when a manufacturer becomes aware that its creation is dangerous, the company attempts to hide the evidence. Corporations too often do not warn the users of their products of hidden dangers that injure and kill.

The Benefit of Defective Product Lawsuits

Lawsuits often are necessary to receive compensation for injury and death because of defective products. Punitive damages to punish the manufacturer are often not considered. This “extreme” accusation is often appropriate but not used. Defective product claims benefit society by motivating those that design, test, and manufacture to be more diligent in preventing personal injury and wrongful death. This article teaches when punitive damages are appropriate.

The Benefit of Punitive Damages

Punitive damages were created to benefit society. They are a means of taking money from a defendant who has harmed or killed by their outrageous conduct or complete indifference to the safety of others. In this manner, society benefits from safer products. Innocent victims benefit by warnings that put them on notice of the dangers of deadly products.

Challenges to Winning Punitive Damages

There are many challenges to winning punitive damages claim from an injury accident. Courts are reluctant to approve punitive damages. This is because of their unusual and rare use. This is also because of the difficult legal standard to prove punitive damages.

A second challenge is when corporations hide the evidence of their own wrong-doing. When evidence is thin, passing the legal test for punitive damages is difficult. Third, the accusation of punitive damages adds complexity to already complex cases. Many lawyers are unable to manage this added complexity. Other lawyers do not bring the claim because of ignorance of punitive damages law. Still other lawyers do not bring punitive damages claims because they are uncomfortable with litigation of the punitive damages issue because of inexperience. Fifth, the punitive damages claim can be a distraction from other necessary elements in a case, if the punitive damages claim will not proceed to the jury. These five barriers to the bringing of punitive damage claims in accident injury cases makes them rare.

The Test to Win Punitive Damages

The test for a punitive damages claim in an injury accident is as follows:

Clear and convincing evidence is needed so that a reasonable jury could conclude that it was highly probably that the defendant’s conduct was recklessly indifferent.

In a defective product case, the following test is often used:

Did the manufacturer or corporation place the defective product into commerce?
Is the product unreasonably dangerous?
Did the manufacturer have actual knowledge of the defective?
Did the defendant consciously disregard the safety of others?

Clear and Convincing; Not Just More Likely Than Not

Ordinarily, a more likely than not or greater than 50% likelihood is standard for civil cases. Punitive Damages evidence must past a heightened test of being both clear and convincing. This clear and convincing evidence standard is a difficult one to pass.

The heightened clear and convincing evidence also adds difficulty to other case aspects. This has been discussed in detail in cases such as Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 164-65 (Mo.App. W.D. 1997). The courts require evidence that the defendant showed a “complete indifference or conscious disregard of the safety of others.” See Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 659 (Mo.App. W.D.1997). In Barnett, the court discussed in detail the various standards and the differences between punitive damages, strict product liability lawsuits, and ordinary negligence cases.

What is Complete Indifference?

The “conscious disregard or complete indifference” standard for punitive damages in accident cases includes circumstances where the person doing the wrongful act or failing to do a proper act is “conscious from the knowledge of the surrounding circumstances and existing conditions that their conduct or failure to act will naturally and probably result in injury.” In short, the wrongdoer does not need a specific intent to injure you or kill. The death or injury merely needs to be the natural and probable result.

Is Proof of Evil Motive Needed?

Defendants often argue that the conduct must be outrageous and include an evil motive. This is indeed the standard discussed in cases such as Blue v. Harrah’s North Kansas City, LLC, 170 S.W.3d 466, 477 (Mo.App. W.D. 2005). However, the lawyer must keep in mind the phrase that follows all the evil motive discussion.

The standard includes actions that show a “reckless indifference to the rights of others.” This “reckless indifference” language arose from a case where a person fired a pistol into a crowd. The perpetrator did not have a specific intent to harm any particular person. The defendant did not intend to injure or kill and lacked an evil motive. However, it was reckless. Firing a bullet into a crowd will naturally and probably result in injury; in spite of a lack of specific intent to kill or an evil motive. This is the genesis of punitive damages and should be used in your case.

How Likely Was Injury?

There is a further ability to get punitive damages. This is in cases where the defendant either knew or had reason to know there was high probability that their conduct would result in injury. The Supreme Court of Missouri spoke about this in detail in the case of Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 160 (Mo. banc 2000). In Lopez, the defendant’s conduct was tantamount to an intentional wrongdoing. This was because the natural and probable consequence of their conduct was injury.

In your case, the circuit court will need to determine whether your evidence (giving full credit to the jury’s right to determine witness credibility, weigh the evidence, and draw inferences from it) is sufficient to permit a reasonable jury to conclude with convincing clarity that it was highly probable that their conduct was outrageous because of reckless indifference. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

What is the Benefit of Claiming Punitive Damages?

I encourage you to go through the full analysis of punitive damages for the evidence in your case. There are many benefits to bringing punitive damages in the matter. It increases the likelihood of settlement. It increases the value of cases. It increases the willingness of defendant to become reasonable. It allows added flexibility during trial. It will increase the chances that you will have reasonable value for your case.

Most importantly, punitive damages are is the only real means of convincing indifferent manufacturers and corporations to stop harming innocent victims and change the way in which they do business. Punitive damages are a real opportunity for you to benefit society.

Matt Hamilton

Juris Doctor
Trial Attorney

More Relevant Articles:

Dudley McCarter, Seller of Product is Not Liable Unless Shown to Have Reason to Know, 71 J. Mo. Bar 76 (2015).

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.

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