Products Liability

Enforcement of manufacturers” legal accountability to consumers helps make products safer and better for all of us. With the influx of questionable products from Chinese manufacturers, the difficulty and complexity of products liability lawsuits has grown. Merely finding and serving papers upon the Chinese manufacturer of a product purchased at Wal-Mart is quite difficult.

That’s just one of the many reasons it is crucial to select a products liability trial lawyer who is experienced in all aspects of litigation. Ken Shigley has years of experience in products liability litigation, and he wrote the legislation to make international service of process a little easier in civil cases in Georgia courts.

Under Georgia law, a manufacturer may be liable for injury or death caused by a defective product under three separate legal theories.

Negligence. A manufacturer may be liable for injury or death caused by failure to exercise ordinary care in any of several ways, including the following:

• Negligent design.
• Failure to adequately test and inspect.
• Failure to provide adequate instructions, warnings and labels.
• Failure to issue an adequate recall notice.
• Strict Liability. If a product is defective, the manufacturer may be held liable for resulting injury or damage, even without proof of negligence.

Strict Liability. The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.

Products liability suits, except for post-sale failure to warn of a hazard, must be filed within ten years from the date of the first sale for use or consumption of the product.

Georgia law generally protects sellers who are not actual manufacturers from liability under the strict liability doctrine.

Implied Warranties. The Uniform Commercial Code establishes contract-based grounds for products liability which are recognized in Georgia.

• Implied warranty of merchantability. The product must be fit for purposes intended by the seller.
• Implied warranty of fitness for a particular purpose. The product must be fit for the buyer’s intended use which was known to the seller.

In Georgia, “privity of contract” is required for recovery under implied warranty theories. Only the buyer or a member of her household can recover. The employee of a corporate buyer cannot recover under an implied warranty theory in Georgia.

Wrongful death claims cannot be based on the breach of an implied warranty in Georgia, though there can be recovery for personal injury not resulting in death. This is due to an anomaly in the nineteenth century wording of the Georgia wrongful death statute. However, wrongful death claims may be based upon a strict liability theory.

Fair Business Practices Act. Occasionally a defective product case also involves unfair or deceptive acts and practices on the part of the seller in violation of the Georgia Fair Business Practices Act, which includes a provision for triple damages, punitive damages and attorney fees. While rarely invoked in this context, the language of the statute allows its use in personal injury and wrongful death cases. Ken Shigley represented the plaintiff in the first known products liability wrongful death case case in which a wrongful death claim was brought under the Fair Business Practices Act by classifying a negligently designed and defective forklift truck attachment as an “office supply.”

A major portion of this firm’s practice over the past decade has been focused on products liability matters, ranging from tires to forklifts, and from SUV rollover, roof crush and seatbelt issues, to a wide variety of industrial equipment.