Product Liability

Product liability is the area of law that protects Nebraska consumers from faulty products. There are several things someone thinking of filing a product liability lawsuit should know. This includes: 1. How products can be faulty; 2. Against whom one should bring a lawsuit; 3. What has to be proven in order to win a products liability lawsuit; and 4. How to prove it.

How A Product Can Be Defective

There are three common ways a product can be defective: 1. It can have a manufacturing defect; 2. The product design itself may be defective; or 3. The manufacturer failed to adequately warn users as to the dangers of using the product.

Manufacturing Defect

One way a product can be defective is if the specific item that caused the injury was not manufactured properly. This defect, often called a manufacturing defect, can come from a problem on the assembly line, a broken component that caused the unit to fail, damage during assembly, rough handling when the unit was packaged, etc. The key is that the unit must have been defective when it was purchased by the injured party.

Examples of a manufacturing defect could include:

-A shotgun that has a trigger damaged in the manufacturing process resulting in accidental discharge.

-A car sold without brake shoes installed

-A stump grinding wheel that has loose teeth.

-Medication accidentally mixed with a toxic chemical

-An irrigation pivot with cracked pipes

-A swing set sent out from the factory with a cracked chain

-A skid-steer tractor manufactured with a hole in a hydraulic line

Design Defect

A second way a product can be defective is if the product was manufactured according to specifications but was still inherently dangerous. As opposed to a manufacturing defect, a product with a defective design can be manufactured perfectly but still be unreasonably dangerous.

Examples of a design effect could include:

-A vehicle that has a propensity to rollover. Ralph Nader famously alleged in his book Unsafe At Any Speed that the Chevrolet Corvair had an inherent design flaw that caused the vehicle to be unsafe.

-An over-the-counter pain reliever that has frequent, deadly side effects

-A table saw without a protective shield

-A field mower with exposed cutting surfaces

-A perfume that contains a known skin irritant

-A seatbelt design that automatically releases the belt under swift deceleration

-An electric toothbrush that, when wet, electrocutes the user

Failure to Provide Adequate Warnings or Instructions

The third way a product can be defective is if the consumer was not adequately warned of the dangers of using the product and/or the product failed to include adequate operating instructions. An important distinction between manufacturing and design defects and a failure to adequately warn is that a product may be produced according to the design, and the design may be sufficiently safe, but, given the right circumstances, the manufacturer may still be liable for failure to provide adequate warnings or instructions.

Examples of an inadequate warning or instruction could include:

-A bicycle that looks like it could be used on off-road trails, but was not designed for the rigors of such riding and is being sold without any warning to the consumer that the bicycle may fail if ridden off-road.

-The manufacturer of a trampoline not designed for a certain total user weight failing to include a warning that injury may result if that weight limit is breached.

-Failure to warn purchasers of a coffee urn that the urn may build pressure and explode if left on for too long.

-Failure to warn doctors that a prescription drug may react with commonly-used pain relievers in such a way that may result in debilitating side effects.

How to Prove a Product Liability Case

In Nebraska, an injured person needs to prove three elements in order to prevail on a product liability case: First, the injured party needs to prove that he suffered an injury. Second, he needs to prove the product in question had a manufacturing or design defect, or the manufacturer failed to adequately warn the user of dangers associated with using the product or how to properly use the product. Third, he will have to prove that the defect or failure to warn or instruct caused the injury.


The first element a claimant needs to prove is that he suffered an injury. In the case of product liability, the injury typically suffered by a plaintiff is physical injury. For example, if a farmer is walking through a field inspecting his crops is suddenly hit by shards of metal from a pipe in his irrigation pivot that burst as a result of a crack caused by a manufacturing defect, the the farmer’s injuries, for the purposes of a product liability claim, would be those suffered as a result of the pipe bursting. The injuries would have to be proven in court.

The same is true of a design defect. If, for example, a car is equipped with a seatbelt that, due to a design defect, releases upon the swift deceleration, injury caused by the seatbelt’s design would have to be proven in court in order for a plaintiff to have a valid product liability case. Finally, in the case of a failure to adequately instruct and warn a user as to potential dangers, a person would have to prove in court an injury suffered as a result of the manufacturer’s failure to adequately warn consumers of inherent risks. An example of a product that may be defective because of a failure to warn would be the bicycle that looks like an off-road mountain bike but in reality, was not designed to be used on rough trails. If a consumer assumed the bike was built to go off-road but later crashed and was injured when the wheels fell off, that consumer has suffered an injury and may have a case not only for design defect but for failure to warn as well.

Proof of Injury

It is important to note that an actual injury must be proven. A close call does not count. So, if the farmer in the field noticed the cracked pipe just before it exploded and was able to get out of the way before the metal shards hit him, he would not have sufficient injury for a product liability lawsuit. However, he may be able to collect damages on different legal grounds, however.

Proving injury may seem easy. Being struck by shards of metal or injured in an automobile accident may seem, at first glance, easy to prove but that is not necessarily the case. Proving injury in a Nebraska products liability case can involve multiple visits to doctors or specialists. Records should be meticulously maintained and reviewed by a personal injury attorney.

Proving A Product Defective

The next element in a product liability case requires a plaintiff to prove that the product was defective as the result of a manufacturing defect, a design defect, or a failure to provide adequate warnings and/or instructions. This element is often more difficult to prove than injury because proving a defect may require the assistance of one or more experts and review of potentially voluminous records.

In the case of a manufacturing defect, the plaintiff will be required to show that the allegedly defective unit was not manufactured according to design. In Nebraska, a plaintiff would most likely be required to show that the product was in a defective condition once it left the manufacturer’s or seller’s control. In the example of the irrigation pivot with a cracked pipe, the farmer would have to provide to the court evidence that the pipe was cracked as the result of manufacturing error rather than some intervening cause that occurred after the pivot was installed. In order to do so, the farmer may look at records related to the production of other similar pipes, in the hope of finding other examples of cracked pipes. Or, the farmer may retain an expert to assert that absent a manufacturing defect, there was no way the pipe would have cracked and failed.

Similarly, in order to be successful on a defective design claim, an injured person will most likely try to show that, as a result of how the product was designed, the product was unreasonably dangerous even when used properly, and the risk of harm was greater than what a normal person would contemplate. In the example of the seatbelt that releases upon sudden deceleration, in order to prevail in a Nebraska product liability case based upon a defective design, the injured person would want to show that when the car left the factory, the design of the seatbelt rendered the car unreasonably dangerous even when the seatbelt was being used as intended, and as a result, the risk of harm posed by the defectively-designed seatbelt was greater than what a normal person would expect from a car.

Proving a product defective as the result of inadequate warning or instruction is similar to that of a design defect: a plaintiff will most likely have to provide evidence that the because the product lacked sufficient warning or instructions, the product was unreasonably dangerous even when used as intended, and the risk of harm was greater than a normal person would expect. For example, a bike that was built to look like a mountain bike, with fat, “knobby” tires, and other tough-looking parts, may be expected by a normal purchaser to be able to operate on off-road trails. If the bicycle is taken off-road and the wheels immediately fall off and the cyclist crashes, the cyclist may be able to successfully argue that because the bicycle appeared to be designed to go off-road, the manufacturer should have provided a warning stating the bicycle was not intended to be used off-road.

The Product Defect Caused the Injury

The final element in a Nebraska product liability suit is often referred to as “causation”. This means that the plaintiff must show that the injury suffered was the result of the defective product. Causation can be thought of as a chain-of-events directly connecting the defective product to the injury suffered. This can be difficult to prove and it is likely that the defendants will argue that any accident and injury was the result of the actions of the injured person rather than a defective product. Proving causation can thus be complicated and fact-intensive.

In the example of the cracked irrigation pivot that bursts and results in a farmer being hit by shards of metal, the farmer would mostly like have to show that when the irrigation pipe left the factory, it was defective. He would then have to prove that this defective condition resulted in the cracked pipe exploding under pressure while the pipe was being used as intended. Finally, he would have to show that the exploding pipe caused the metal shards to hit him, thus causing his injuries.

In another example, the person driving the car with the seatbelts that release upon sudden deceleration gets into an accident but is not wearing her seatbelt. The driver would most likely not be able to sue the manufacturer based upon the defective seatbelt because the seatbelt was not being used when she was injured. If, on the other hand, the driver was wearing her seatbelt at the time of the accident, it released when her car was struck, and she was flung from the vehicle, she may have a good defective product liability claim.

The idea of causation is complicated so another example may be helpful: A pickup truck is built with brakes that are defective in such a way that if the brake pedal is held down for more than two seconds, the brakes let go and the truck cannot stop. A person is driving that truck when a deer jumps into the road ahead of him. He does not apply the brakes but instead swerves to avoid the deer and ends up crashing into a ditch. If the driver were to bring a product liability suit against the truck manufacturer based upon the defective brakes, he would most likely lose because it was the swerving, not the faulty brakes, that caused the accident. If, on the other hand, the driver has plenty of time to stop before hitting the deer, and tries to do so only to have the brakes let go causing the truck to hit the deer which flies over the hood and into the cab, injuring the driver in the process, the driver may have a product liability claim against the manufacturer of the truck because were it not for the faulty brakes, the truck would have been able to stop in time and it would not have hit the deer. It is important to note that each case is unique and an attorney can assist in deciding whether to pursue a lawsuit.

Finally, in the case of a failure to adequately warn, the plaintiff must prove that had the manufacturer warned the consumer as to the inherent, but unknown risk, the consumer would not have been injured. In the example of the bicycle that looked ready for rough riding but was not designed for such, the cyclist will need to prove that given the fact the bike appeared to be capable of off-road cycling, the manufacturer should have provided a warning that the bicycle was not designed for such use and that because the manufacturer failed to do so, the bicycle was defective and the defect caused the consumer harm.

Who Is Liable

In a Nebraska product liability case, one of the first things an injured person has to decide is whom to sue. This is typically a fairly easy question to answer: A plaintiff can sue just about anyone who, in the normal course of business, designed, manufactured, or sold the defective product. Thus, it is a good idea for the injured person to collect as much information as possible regarding every stop in the product’s distribution chain in order to maximize the chance of a recovery. In general, however, the first two potential defendants that should be identified are the manufacturer of the product and the retailer who sold it.

The manufacturer is the original source of the product but, depending on how complex the product is, there may be more companies or people to hold liable as manufacturers than just the name brand of the product. For example, if the injury-causing product is the starter battery in a pickup truck, the truck owner could bring suit against not only the automobile company that markets the truck, but also the manufacturer of the battery, the company that made the specific component that was defective, and any quality-control engineers who had a role in the battery’s production. If the defect is a design defect, it may also be possible to name as defendants any engineers or designers who contributed to the faulty product. If a failure to warn claim is included, it may be possible to name as a defendant any experts who helped to write the product instructions. By naming as many of those responsible for the manufacture of the product as possible, the chance of a recovery increases.

Potential defendants are not limited to just those that had a hand in manufacturing; they also include any distributors or wholesalers who passed along the faulty or defective product as well as the retailer from whom the product was purchased.

When deciding whom to sue, there are some important things to keep in mind:

You do not have to be the user of the defective product: A plaintiff who is not the person actually using the product can possibly bring a product liability suit if he is injured by a defective product. For example, if a person’s neighbor is using a stump grinder to grind down a tree stump, and the teeth on the grinder wheel were defectively designed causing a few of them to break off and hit the plaintiff, causing injury, the plaintiff could possibly bring a product liability suit against the manufacturer of the stump grinder, the company who made the defective teeth, a third-party consulting firm who provided expert advice regarding the design, experts who advised the manufacturer on any warnings and instructions that were included, the distributor who acted as the middleman, and the retailer who sold the grinder. The fact that the plaintiff himself was not using the grinder does not preclude him from naming all of those different parties as defendants in a product liability lawsuit.

You do not have to be the buyer: Similarly, even if an injured person did not buy the defective product, he could still bring a product liability claim. For example, a person who borrowed, and was injured by, a friend’s improperly-manufactured car would not necessarily be precluded from bringing a product liability suit against any defendant that the car’s owner himself could brought suit had he been the one injured.

The product does not necessarily have to be new: An injured party may be able to bring a product liability suit even if the defective product was not new at the time of the injury. The general rule is that a seller who does not sell a particular product in the normal course of business is not liable if that product is defective. Depending on the product, however, and whether or not the seller sold the product during the normal course of business, the seller may be liable in a product liability suit even if the product was used at the time of sale.

Statute of Limitations: In Nebraska, in most cases, an injured party or his representatives have four years from the date of injury or death to bring a product liability suit. However, for specific information regarding how much time before a claim is time-barred by law, contact a personal injury attorney.


An injury caused by a defective product can be a life-altering event. Given the complexities of product liability law, it is a good idea to talk to one of the attorneys at Berry Law Firm. Feel free to give them a call at 402.466.8444 and set up an initial consultation.