Product liability refers to a claim or lawsuit against a manufacturer or seller of a product for the recovery of damages related to personal injury, death, or property damage claimed to be caused by a defective product.

The claim or lawsuit may be based on the legal theories of strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories.

Product liability claims may be made against the manufacturer of component parts, an assembling manufacturer, the wholesaler, and the retailer. And product liability claims may be made by the consumer who purchased the product or by someone else who borrowed or used the product.

Product liability laws vary from state to state, and product liability claims may be based on the state’s court opinions (also known as case law or common law) or on the state’s statutes—which are usually the version of the Uniform Commercial Code (UCC) adopted by the state.

For example, under a state’s version of Article 2 of the UCC (dealing with sales of goods) there are implied warranties of merchantability and of fitness of the goods for a particular purpose included in every sale of goods. In some states these warranties may be waived by agreement, but in other states they may not be waived. See U.C.C. §2-314 and U.C.C. §2-315.

And under a strict liability theory of products liability, the amount of care or precaution taken by the manufacturer is not relevant—the manufacturer will be liable for the harm result from the defective product.

To prevail on a products liability claim, the claimant or plaintiff must prove the product:

• was defective in its design (a design defect) because there was a safer alternative design for the product;

• was defective in its manufacture (a manufacturing defect) because its production departed from the intended design, was significantly or materially different from the other products of the same design, did not work as intended, and was more dangerous to the consumer than expected; or

• was defective in its marketing (a marketing defect) because the product’s advertising and instructions for use were inadequate or failed to warn consumers of hidden (latent) dangers in the product.

In New Jersey, product liability is governed by both the New Jersey Product Liability Act (NJPLA) and relevant case law. The NJPLA allows for claims based on strict liability, negligence, or breach of warranty against manufacturers and sellers for damages caused by a defective product. This includes manufacturers of component parts, assembling manufacturers, wholesalers, and retailers. Claims can be made by consumers who purchased the product or by third parties who used the product. Under the NJPLA, a product can be found defective if it has a manufacturing defect, design defect, or inadequate warnings or instructions (marketing defect). A manufacturing defect occurs when the product departs from its intended design, while a design defect exists if there was a safer alternative design. A marketing defect involves failure to provide adequate warnings or instructions. New Jersey follows the Uniform Commercial Code (UCC) regarding implied warranties, including the warranty of merchantability and fitness for a particular purpose, which are presumed in every sale of goods unless properly disclaimed. Strict liability in New Jersey does not consider the manufacturer's level of care; if the product is defective and causes harm, the manufacturer can be held liable. To succeed in a product liability claim, the plaintiff must prove that the product was defective in one of the aforementioned ways and that this defect caused the injury or damage.