Defective – Unsafe Marine Product 402A Strict Liability
A strict liability plaintiff is a consumer, user or foreseeable bystander who has been harmed by a defective product. Having graduated from as an marine engineer from a merchant marine academy, acquired three U.S. Coast Guard engineer licenses and previously represented yacht/boat manufacturers and repair facilities for 19 years, board certified maritime attorney Keith Brais with the law firm of Brais Brais & Rusak is in a unique position to assist consumers who suffer personal injury, death or property damage as a result of an accident involving a defective or unsafe marine product. The lawyers at the law firm of Brais Brais & Rusak with offices in Miami, Florida, Boston, Massachusetts and Houston, Texas are here to help.
In 1976, the Florida Supreme Court joined the national trend and issued its landmark decision of West v. Caterpillar Tractor Co., supra, formally adopting the doctrine of strict liability as promulgated by the Restatement (SECOND) OF TORTS §402A (ALI 1965):
- One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
- The seller is engaged in the business of selling such a product, and;
- Is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
- The rule stated in the first subsection applies although;
- The seller has exercised all possible care in the preparation and sale of his product, and;
- The user or consumer has not bought the product from or entered into any contractual relation with the seller.
Pursuit of a strict liability claim does not require the plaintiff to be in privity, i.e., the direct purchaser of the product. Traditional negligence concept of notice of defect and opportunity to cure are irrelevant. Strict liability applies to cases where the seller is engaged in the business of selling goods and the product reaches the buyer/user without substantial change. It applies only to sales contract, not to contracts for repair and other services.
Defenses to a strict liability claim include:
- Not Engaged In “The Business Of Selling” Product
- Not A “Product”
- Service Providers
- Sellers of Used Products
Strict liability also includes design defects that may be defended against by one or more of the following:
- “State of the Art”
- Unavoidably by Dangerous Products
- Substantial Alterations
- Military Contractor
Strict liability also includes marketing defects, i.e., the failure to warn, the failure to instruct and even the failure to test or inspect for latent defects.
Negligence and strict liability are remedies that provide only tort damages, i.e., losses that are the result of the wrongdoer’s negligence or the defective part, respectively. These damages include: personal injury, wrongful death, diminished value of property, cost of repair or restoration, value of fixtures, personal property and loss of use in certain circumstances. Damages to the defective or dangerous product itself must be recovered under a breach of contract theory, the reasoning being that contracts provide for only “the benefit of the bargain”, i.e., the cost of the product or part itself. Put differently, a contract based claim only allows for the recovery of the 89 dollar part and not the 1.2 million dollar yacht into which the part was installed. This prohibition against the recovery of tort damages is generally known as the “economic loss rule.” Breach of warranty mixes the theories and allows for the recovery of both contract and tort damages depending upon the circumstances. If the breach of the sales contract causes physical harm or damage to property other than the product itself, tort damages are available. If the breach of warranty results in damage to the product itself, contract damages are available.
The attorneys at the law firm of Brais Brais & Rusak have the experience to protect your rights, the compassion to serve your needs, and the skill to obtain the compensation you deserve. To reach our lawyers you may click email the firm, call 1-800-499-0551 from within the U.S., Skype BraisLaw worldwide or click Contact Us to select and complete a form for a free evaluation of your case.
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