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Three Legal Theories for Products Liability


If you are injured by a product, there are three avenues by which you may recover compensation. These are: (1) Breach of warranty; (2) Negligence; (3) Strict liability.


Breach of warranty is based on contract law, a contract between you and the seller of the product. A warranty is like a guarantee. There are express warranties and implied warranties. An express warranty is a statement by the seller such as “this lotion will cure your baldness in thirty days.” An implied warranty is something that the law imposes on the seller. The two main implied warranties are merchantability and fitness for a particular purpose. Merchantability basically means that the product meet market expectations. A good example will be we all expect an automobile to come with a steering wheel. A warranty for fitness for a particular purpose basically means that this product will do the job for which it is intended. An example would be an off road truck should be able to be used off road.

Breach of warranty is seldom used in product liability claims. Breach of warranty has several limitations which restrict its usefulness. First of all, breach of warranty is based on contract which means there must be privity between the injured person and the seller. Privity basically means direct contact between the parties. Therefore for breach of warranty, the injured person can usually only sue the seller of the product, not the manufacturer or other party who rendered the party defective. A further problem with breach of warrant is that sellers often put limitations on the warranties in the written contract (fine print) which can restrict what claims the injured person can make.


Negligence means lack of ordinary care. If some person’s or company’s negligence causes a product to be defective, they can be liable for the harm caused. The negligent party can be the manufacturer, the designer, distributor and part supplier, or anyone else who is responsible for the product being defective.

This basis for liability is frequently used. It is not subject to the limitations of breach of warranty. With negligence, any party whose carelessness contributed to the product being the cause of the injury can be liable, not just the seller. Attempts to limit warranties don’t matter on a negligence claim.

One problem with the negligence basis is finding the person or party who was actually responsible for the product being defective. In other words, pinpointing the negligent act. This is not always clear and requires detailed investigation.


Strict liability, like negligence, allows the injured party to seek compensation from whoever was responsible for the product being defective. Unlike negligence, the injured person does not need to discover who exactly failed to do their duty. Strict liability requires only that the product be defective and unreasonably dangerous.

Any party in the chain of commerce can be liable under strict liability: The manufacturer, distributor, seller, component parts supplier. This allows the injured party a cheaper, more accessible route to compensation, especially if the manufacturer is located in a foreign country. The distributor or seller in the United States can be sued without requiring that the foreign manufacturer be brought in by the injured person.

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