is buried in an owner’s manual instead of on the product where it is likely to be seen during use, the manufacturer can be held liable. The science of human factors — how individuals interact with the product — are considered in such cases. Expert testimony is often used to address where a reasonable person would look and what they would understand. 2. Failure to provide any warnings: Manufacturers can also be held liable if they are aware of a danger but fail to issue any warning at all. In Georgia, there is not a cause of action for the failure to recall a dangerous product, but a manufacturer has an ongoing duty to warn users about dangers in its product even if it learns of the danger after the product is sold. Can I file a product liability lawsuit even if I had not purchased the product which caused my injury or death of my member? Yes. The requirement of privity of contract, or direct purchase, has been eliminated. People who are injured by a user of a product can bring claims for product liability if it was foreseeable that the injured party could be hurt. This principle applies in contexts such as auto accidents, where a person driving a defective vehicle may cause harm to others in a crash. I represented a young woman who was badly burned when she crashed her car into a pickup truck with a known propensity to explode when struck on the side. We were able to secure a settlement for her even though she wasn’t even riding in the defective truck. This is also a frequent fact pattern in workplace injuries involving defective machinery. The factory workers are not the machine purchasers, but they are the intended and foreseeable users. We recently represented a factory worker who was injured when a machine he was working on exploded. The fact that he was not the machine purchaser was irrelevant. In what ways can a product be considered “defective” for purposes of a product liability lawsuit? 1. Defective in intended use: If the product is not safe when used for its intended purpose, it is defective. That includes situations where a foreseeable accident occurs while using the product, such as a foreseeable car crash. 2. Defective due to misuse: A product can be defective if it is unsafe when misused, but the misuse must have been foreseeable. The manufacturer should reasonably anticipate potential ways in which consumers might misuse the product, and if that leads to harm, it can be a basis for a product liability claim. 3. Defective warnings: As discussed, a product also may be defective if warnings are inadequate or missing. Are there any specific limitations or restrictions with product liability claims? Like other injury claims, product liability claims in Georgia must generally be filed within two years from the date of physical injury. As mentioned, in Georgia, product liability claims are also governed by a 10-year statute of repose. If a case is filed more than 10 years after the first sale of the product, a strict liability claim is entirely barred. A negligent design claim can proceed after 10 years if the claim involves a drug causing a birth defect or where the manufacturer has exhibited a willful, reckless, or wanton disregard for life or property. Older products are evaluated based on the state of the art at the time of manufacture, considering factors such as safety features available during that era. For instance, a Model T without a seatbelt would be judged based on the standard lack of safety measures during its production period in the early 1900s. While the challenge is greater, it is not insurmountable, as we saw in the September 19, 2023 decision in Ford Motor Co. v. Cosper, in which the Georgia Supreme Court made clear that reckless design conduct is enough to except a claim from Georgia’s statute of repose. It requires a nuanced understanding of the legal landscape and a comprehensive approach to presenting evidence. My firm represented a client who was rendered quadriplegic in a rollover in her 12-yearold SUV. We were able to gather evidence from other manufacturers to show that there were reasonable alternative designs being used at the time of the car’s design that would have strengthened the roof. We also were able to show that the manufacturer knew the roof could fail in rollovers before they sold the car, because it had multiple rollovers with roof failures during the design and testing phase. Despite the car’s age, we were able to resolve the case for a significant amount that will provide for our client’s long-term needs. Finally, there is no statute of repose for failure to warn of a known danger, and manufacturers have an ongoing duty to warn about dangers in their products, even after they are sold. 30 LAWYER MONTHLY DECEMBER 2023 Like other injury claims, product liability claims in Georgia must generally be filed within two years from the date of physical injury.
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