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When a consumer has been injured by a product, he or she often has a legal recourse through product liability litigation. Jurisdictions differ on what a plaintiff's burden of proof is in a product liability litigation case. Within the United States, a plaintiff must prove negligence on the part of the manufacturer, designer, distributor, or retailer. In Europe, a plaintiff must only prove that the product was the cause of his or her injuries, as product liability is a strict liability tort in most of Europe. Product liability litigation generally alleges one of three things — a defective design, a defect in the manufacturing of the product, or a failure to warn.
When the inherent design of a product is defective, an injured consumer may engage in product liability litigation in an attempt to receive compensation for his or her injuries. A design defect is a flaw that is present in all of the product manufactured because the defect is in the design itself. A design defect is sometimes referred to as an intentional defect, not because it was intentionally defective, but because the defect was part of the intentional design. A brake pad that melts when the vehicle reaches a certain speed is an example of a design defect.
Unlike a design defect, a manufacturing defect only occurs in a small majority of the product. In product liability litigation based on a manufacturing defect, something in the manufacturing process itself caused the defect. Manufacturing defects are frequently referred to as unintentional defects because, if the product had been manufactured according to the design, there would have been no defect and, therefore, no injuries. Using the brake pad example, if the machine that grinds the brake pads during manufacturing was not calibrated correctly when some of the pads were being produced causing them to not work properly, that would be a manufacturing defect.
Another area of product liability litigation involves injuries based on a failure to warn. Some products are dangerous regardless of the efforts by the designers or manufacturers to make them safe. For instance, cleaning products often contain harmful chemicals that are necessary for the product to accomplish the intended purpose of the product; however, if inhaled or used improperly, they can be extremely harmful. As a result, products that are inherently dangerous are required to contain appropriate warnings so that a consumer is aware of the danger. When a product has failed to provide the appropriate warning and a consumer suffers injuries as a result, the consumer may have the basis for a product liability lawsuit.