A basic negligence claim consists of proof of:
1. a duty owed,
2. a breach of that duty,
3. an injury, and
4. that the breach caused the plaintiff's injury.
Over time, negligence concepts have arisen to deal with certain specific situations, including negligence per se (using a manufacturer's violation of a law or regulation in place of proof of a duty and a breach) and res ipsa loquitur (an inference of negligence under certain conditions).
You are probably familiar with the Firestone exploding tires and Ford Rollover cases of two years past? How about the current media coverage of the lead paint found in toys manufactured in China? These are just two examples of product liability cases. A products liability claim is usually based on one or more of the following causes of action:
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design defect
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manufacturing defect
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a failure to warn
The claims may succeed even when products were used incorrectly by the consumer, as long as the incorrect use was foreseeable by the manufacturer (or other party in the "supply chain").
In general, products liability claims are based not on negligence, but rather on strict liability. Under the theory of strict liability, a manufacturer is held liable regardless of whether it acted negligently. It allows recovery for an injured customer who might be in a difficult position to prove what a manufacturer did or did not do in its design or manufacturing process. It is presumed that a manufacturer with its deep pockets may be better situated to absorb the cost of liability and would consider such expense in setting price for its products.
Some legal commentators consider claims of failure to warn to be based on negligence.
