Your Civil Rights; Product Liability

[Motolani Olayiwola]

Let me start this by giving an illustration; assuming you bought a new cellphone and charged it for use. On the third day, while making a call with the phone, it suddenly exploded, causing you injuries. Here, the maker of the defective phone will be strictly liable to you under the rule of product liability.
To succeed in your claim, however, you must meet these three conditions:

* You must prove that there was a defect in the product when it left the defendant. In our example above, this will be easy to prove because this was a new phone which was bought just three days ago. Nothing could have caused the phone to explode except that it was defective from the maker.

* You must prove that you are a logical and foreseeable user of the product who used it as it was intended.

* You must prove that you were injured by the use of the product, and that the injury was caused by the product’s defective nature.

Implied in product liability is a manufacturer’s warranty that the product will be safe for use, will not cause harm/injury, and will not be defective. We shall discuss further on breach of warranty in Chapter 8(d) below. Under product liability rule, however, there are three major types of defect any of which will make the maker or manufacturer liable. They are as follows:

* Manufacturing defects – here, the manufacturer of a product will be liable for any irregularity or flaw in any mass-produced item, if that defect makes the product more dangerous. Let me give you a recent example: Takata Corporation is an automotive parts company based in Tokyo, Japan. The company produced airbags for vehicle manufacturers, and has been in the business since 1933. But from 2013, it was discovered there were series of deaths and injuries associated with their airbag inflators. Since then, the company had been forced to recall more than 45 million airbags from the US alone. In June 2017, the company was forced to file for bankruptcy as a result of these defects which have led to several lawsuits against the company.
In another recent example, the giant phone maker, Samsung, was in October 2016 forced to immediately recall its premier Samsung Note 7 Smartphone, following several incidents when the phone exploded as a result of manufacturer’s defect. This was done notwithstanding that hundreds of millions of dollars had been invested to manufacture the devices, and to prevent lawsuits against the company which could be costlier. The above two examples will show you that a manufacturer who sells a product in a defective condition will be strictly liable for any injury or damage caused through the use of that product.

* Designs defects – there have been situations where an entire product line will be rendered defective as a result of a fault or defect in the design. In this instance, the product’s manufacturer will be absolutely liable for any injuries or damage caused by the use of that product. Further to this, the manufacturer of a product with defective designs will also be liable if it could be foreseen that the design would cause injuries, and there is a cost-effective way of reconstructing the product to make it safe, yet the manufacturer continues to produce and sell the defective items in that state.

* Failure to warn – the manufacturer of a product is under obligations to warn the consumers if there is any inherent danger in using the product which may not be open or known to the users. This happens where on the face of it, the product is not defective or harmful, but the process of manufacturing or consumption or a combination of factor would make it defective. Let me illustrate this point by reminding you of the order of a High Court in Lagos State directed at the National Agency for Food and Drug Administration (NAFDAC) sometime in March 2017. NAFDAC was ordered to direct the Nigerian Bottling Company to add a warning statement on Fanta and Sprite bottles, stating that both drinks are poisonous when consumed with Vitamin C. Awarding N2 Million damage against NAFDAC for failing in their regulatory duties, the court held that, “in my respective view, NAFDAC has failed the citizens of this great nation by its certification as satisfactory for human consumption products, which in the United kingdom failed sample test for human consumption, and which become poisonous in the presence of Ascorbic Acid ordinarily known as vitamin C, which can be freely taken by the unsuspecting public with the company’s Fanta or Sprite”. From this case, you would observe that taking Fanta or Sprite drinks on their own does not constitute any problem to the consumer. But, the consumer will be put at risk if the drinks were taken along with Vitamin C. So, the manufacturer is under a duty to warn its consumers to refrain from taking those drinks with Vitamin C, and may be liable if it fails to do this.

Remedies in product liability claims

* In product liability claims, the victim is entitled to general damages for the bodily injury caused him, such as pain or illness. He is also entitled to claim for psychological injury like agony, shock or discomfort. In deserving cases, damages may be awarded on purely economic grounds, e.g., loss of income, loss or damage to property.

* Where the victim was hospitalized or incapacitated for a period of time, he is entitled to claim for loss of business or expectation of profit, that is, the profit or money he would have earned during those days of hospitalization or recuperation.

* Where death results from the defective product use, the dependants of the victim may claim for the loss of life. If there was no death, the victim is entitled to claim general damages for loss of life expectancy. This is to claim that the defective product had, in its effect, shortened his life expectancy.

* The victim is entitled to claim special damages to recover the cost of medical expenses and the cost of purchasing the defective product, so long as he has verifiable evidence in this respect. To succeed in this claim, the victim must present documentary or acceptable evidence like the medical bills, receipts or invoices for the purchase of drugs or other related treatment, and the receipt or invoice for the purchase of the defective product in the first place.

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