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Defenses in Products Liability Lawsuits

Products liability is an area of law that covers personal injuries and property damage caused by defective products. A product might be defective because it was improperly designed or manufactured. If a defective product causes personal injuries or property damage, anyone involved in the manufacture or distribution of the product might be liable for injuries caused by the defect. In many states, you can sue the manufacturer, the wholesaler, the distributor, or the store where the defective product was purchased. There are several defenses that can be raised in a products liability lawsuit. This article covers the following defenses: statutes of limitations, contributory negligence and comparative negligence, product misuse and assumption of risk.

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Statutes of Limitations and Statutes of Repose

Products liability law deals with personal injuries and property damages caused by defective products. Statutes of limitations and statutes of repose set time limits for filing lawsuits. A lawsuit that is filed after the time period set out in the statute of limitations or the statute of repose is barred and will be dismissed by the court. It is important to check with an attorney to determine the time limit for filing a lawsuit if you have been injured or a defective product has damaged your property.

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Food Contamination

Food-borne illness is fairly common in the United States. The main cause of food-borne illness is the improper handling of food, which allows it to become contaminated by bacteria, parasites, fungi or viruses. This can happen when the food is being manufactured or packaged. It can also occur at a restaurant where the food is being prepared and served. Under products liability law, a consumer who is injured as a result of eating contaminated food can take legal action to recover money damages for any injuries.

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The FDA Modernization Act of 1997

In 1997, Congress passed legislation amending the Federal Food, Drug, and Cosmetic Act relating to the regulation of food, drugs, devices, and biological products. The legislation, called the Food and Drug Administration Modernization Act, reduces the approval time for drugs and medical devices while seeking to maintain patient safety. In addition, the Modernization Act provides the U.S. Food and Drug Administration (FDA) with additional resources to devote to expediting the drug and medical device review process.

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Statute of Limitations in Products Liability Litigation

Limitation on Right to Sue

When a person suffers personal injury or property damage due to a product that is defectively designed or manufactured, the injured person has a set time period (called the statute of limitations) in which to file a lawsuit. Statutes of limitations restrict the time period a person has to file a lawsuit. Statutes of limitations vary from state to state. They also vary depending upon the type of lawsuit filed. For example, Ohio law allows a person six years to sue for breach of an oral contract and 15 years to sue for breach of a written contract. The Ohio wrongful death law requires a lawsuit to be filed within two years after the death occurs.

If a claim expires due to the statute of limitations, the defendant has to raise the statute of limitations as a defense in the lawsuit. If the defense is raised in court, the lawsuit will be barred. If the defendant fails to raise the defense, it is waived and the lawsuit can proceed.

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Miscellaneous Driving Rules

In addition to rules regarding parking a motor vehicle, starting and stopping a motor vehicle, signaling and turning a motor vehicle, and the right-of-way of a motor vehicle, most vehicle and transportation codes contain other driving rules with regard to motor vehicles. Such rules include railroad crossings, mountain driving, and rules with regard to passengers.

A driver has a duty to exercise reasonable care at a railroad crossing. The driver must also yield the right-of-way to any train that is approaching the railroad crossing. Although the driver may not have the duty to stop his or her vehicle at the railroad crossing, the driver has a duty to look in both directions in order to yield the right-of-way to an approaching train.

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Wrongful Death & Survival

Every state has some type of wrongful death statute that allows for a decedent’s beneficiaries to recover damages after a defendant willfully or negligently causes the decedent’s death.

Filing an Action

Some statutes require that any wrongful death action be filed by the decedent’s personal representative, while others require that it be filed by the decedent’s spouse or next of kin.


Wrongful death statutes generally permit recovery for funeral expenses, loss of support, and loss of consortium, which includes comfort, companionship, instruction, guidance, counsel, and sexual relations. Some statutes provide that the decedent’s parents cannot recover unless the decedent had no children. Wrongful death statutes generally do not allow damages for the decedent’s pain and suffering and medical care between the time of the injury and the time of death or for the decedent’s loss of future earnings. The damages are generally awarded to the decedent’s heirs at law or to the estate representative as the trustee of the heirs. Some statutes allow the court to consider the culpability of the defendant in determining the amount of damages to award. Creditors have no claim to the damages.

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Federal Volunteer Protection Act — Applicability

Covered Persons

The federal Volunteer Protection Act (VPA) applies to “volunteers.” Under the VPA, a “volunteer” is a person (including a director, officer, trustee, or direct service volunteer) who performs services for a “nonprofit organization” or a governmental entity and does not receive:

(1) compensation (other than reasonable reimbursement or allowance for expenses actually incurred); or

(2) any other thing of value in lieu of compensation, in excess of $500 per year.

The VPA defines a “nonprofit organization” as:

(1) any organization that is described in section 501(c)(3) of the Internal Revenue Code and is tax exempt under section 501(a) of the Internal Revenue Code; or

(2) any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes.

An organization that commits a hate crime within the meaning of the federal Hate Crimes Statistics Act does not qualify as a nonprofit organization under the VPA.

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Dram Shop Laws

Under a “dram shop law,” a business that sells alcohol to an intoxicated customer may be liable when the customer injures a third party. Most dram shop cases involve drunk driving. For example, a customer becomes intoxicated at a bar and then attempts to drive home. On his way home, the customer hits a pedestrian with his car. If the pedestrian lives in a state with a dram shop law, he or she can file a personal injury action against the owner of the bar to recover for the injuries caused by the customer.

Dram shop cases sometimes involve other types of injuries. For example, instead of driving home from the bar, the customer drives to a dance club. While at the club, the customer assaults a bouncer. If the bouncer lives in a state with a dram shop law, he or she can file a personal injury action against the owner of the bar to recover for the injuries caused by the customer.

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Interference With a Contract

When parties come together to form a contract, a third party may interfere with the performance of that contract or induce one party to breach it. In such a case, the injured party may bring an action against the third party for interfering with his economic relations with the other contracting party or parties.

Example: A property owner hires a contractor to build a structure. A third party, who is also a contractor, destroys the contractor’s materials to prevent him from performing the contract so that the property owner will hire the third party instead. The third party may be liable for interference with a contract.

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