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What is Product Liability?

Watching the news in Miami, one will notice that products are frequently recalled because they are either designed or manufactured improperly resulting in loss or injury. As a matter of fact, each year, U.S. federal regulatory agencies announce thousands of product recalls involving such diverse products as toys, electrical and electronic products, fire sprinklers, household appliances, recreational products, motor vehicles, foods, drugs, cosmetics, and medical devices. How do these recalls affect the Miami Product Liability attorney's ability to recover damages for clients who were injured by these recalled items?

Why are products recalled?

The Consumer Product Safety Commission announced more than 350 recalls in 2004. Additionally, the National Highway Traffic Safety Administration announced about 500. What prompts the call to recall so many of products each and every year?

Products are usually recalled after they are placed in the stream of commercial because defects were found with these products and, in most cases, these defects have caused injuries to consumers or loss of property. For instance, car manufacturers have recalled vehicles due to electrical malfunctions which lead to car crashes. Recently, some toys from China have been recalled due to toxic paint that was used injuring children. Many baby cribs have been recalled due to the fact that infant limbs have gotten caught in the bars causing substantial injuries and at times, death. How do these recalls impact an attorney's ability to recover damages?

Recalls cannot be used to establish products liability in Florida.

Under Florida law, recalls cannot be used to establish products liability of the manufacturer. Florida Law specifically states: "evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event." Florida Statutes §90.407. This rule was adopted to encourage manufacturers, who discovered that a product was defective after it was placed in the stream of commerce, to correct the defects with these products without fear that the correction would be used as proof of negligence. As such, a products liability lawyer will not, in most cases, be able to use the recall measures as evidence to establish the liability of the manufacturer. This will not prevent an experienced product liability attorney from recovering damages for a client who was injured by a defective or dangerous product.

Establishing products liability as if no recall ever happened.

Under Florida law, two of the main theories of products liability are strict liability for "defective products" and negligence of the manufacturer. Although the manufacturer's recall measures cannot be introduced into evidence to establish the products liability of the manufacturer, a skilled products liability attorney will be able to establish the liability of the manufacturer as if no recall ever occurred.

In Florida, manufacturers are strictly liable for "defective products." Thus, if a faulty commercial good injures a person, an attorney will not have to establish that the manufacturer was negligent in order to establish the company's liability. Florida courts have held that a product is defective when, at the time of sale or distribution, (a) the product contains a manufacturing defect, (b) the product is defective in design, or (c) the product is defective because of inadequate instructions or warnings. An experienced products liability attorney will have to ignore the recall measures on the product and establish that the product was "defective" when it left the factory by some other means. Additionally, a product liability lawyer will have to demonstrate that the manufacturer was negligent as though the recall measures never happened.

Under Florida law, manufacturers can also be liable for injuries caused by the items they sell if the manufacturer's negligence caused said injuries. The negligence of a manufacturer can be established in many different ways. The following are some examples of such negligence:

(a) The distribution of a product that the manufacturer knew was unreasonably dangerous,
(b) Negligence of the manufacturer in the assembly of a product.
(c) Negligence of the manufacturer in the selection of materials.
(d) A manufacturer's failure to properly test the safety of a product.
(e) Negligence of the manufacturer in the packaging of the product.
(f) Negligence of the manufacturer in the production process.

Thus, a skilled product liability lawyer will be able to establish the negligence of the manufacturer at the time of distribution apart from the measures taken by the manufacturer as a result of the recall.


Although Florida Law does not permit attorneys from introducing recall measures to establish the products liability of a manufacturer, experienced lawyers will be able to ignore the recall measures and establish such liability through some other means. As such, a consumer who was injured by a product should always seek the counsel of an experienced products liability attorney in order to recover damages for the injuries they sustained.

With more than 100 years of combined experience, the Miami-Dade County Product Liability attorneys at the Law Offices of Greenberg Stone and Urbano have helped thousands of victims of defective products, car accidents, tractor trailer accidents, motorcycle accidents, accidents at amusement parks or any other kind of accidents recover the funds they were owed. Call us today at 1-888-499-9700 or 305-595-2400 for a Free Consultation.

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