There are many types of products that can cause harm to consumers and create liability on the part of a manufacturer. A “defective product” is a term applied to a product that is designed or manufactured in a way that is unsafe for a particular use. Motor vehicles and their component parts, such as brakes, tires, etc. may fail. Or the vehicle may fail to protect the occupants, referred to as “crashworthiness” defects. Ever since the iconic Ford Pinto cases, in which the placement of the gas tank led to fire in a collision, the automotive industry has been more carefully regulated. The concept of a “forgiving design” has led to seat belts and air bags and other features designed to protect consumers even when the driver is negligent in causing a crash – automobiles must be “crashworthy”.
Industrial machinery, likewise, came under scrutiny decades ago to incorporate safety engineering practices. Punch presses, that had taken many fingers and hands, and chainsaws, that can easily slip out-of-hand, began to incorporate what are called “dead-man switches” to shut off the machine when the hand lets go of a lever or switch; more stable ladders and scaffolding, and railings around high places with parts to keep workers from hazards, are now required. Even flooring and stairways must meet certain safeguards. We hear what has become a familiar “beep, beep” when large trucks begin to back up. Medical devices and medications have incorporated safety engineering into the field of medicine. Protective gear is worn by x-ray technicians and worrisome television ads for medications reflect today’s “safety culture”.
Industrial safety has become not only a standard practice, but a sophisticated science with a body of regulations and known concepts and practices that seek to protect the public in almost every walk of consumer life. When a tragic injury happens due to an improper design, American tort law allows a claim for liability to be brought seeking damages. It was said by the great trial lawyer Harry Philo that “the tort system is the hammer that forges a safer society.” He meant that the threat of imposing liability on a manufacturer creates the best incentive to compel industry to take care in designing and building products to be safe under foreseeable uses of the product. While governmental regulations often come into play, there are so many types of consumer products and applications that principles of safety engineering must be considered when evaluating an injury case involving use of a product. These principles happen to have shaped many regulations as well.
Before a product is available to the market it must undergo a process of risk management that includes several features, including a hazard and risk analysis. It would be useful to define some terms:
“hazard” is a condition or changing set of circumstances that present injury potential. An example of “changing set of circumstances” might include a situation in which the product degrades over time and loses its original safety feature, or can be easily rid of that feature such as a lever being removed to facilitate use. Engineers must consider how and under what circumstances the product is to be used.
“risk” can be described as the unreasonable exposure to a hazard. In considering the risk of a product in its foreseeable use, the engineer considers, with a sophisticated eye, such things as the frequency of exposure, the type of exposure conditions, the gravity of the risk (how harmful), and how obvious it is to the user.
“failure mode and effect” identifies how the product may fail, or how conditions may change that can cause harm.
“risk mitigation” is the process of considering alternative designs to the product wound eliminate or reduce the risk of harm.
The basic formula the design engineer applies to a new product is to, first, identify the hazards that exist with the use of the product and how to design the product to eliminate the hazards. Then if the hazard cannot be reasonably eliminated, the next step is to identify and quantify the risks of exposure to the hazard in the foreseeable use of the product and determine if those risks can be reduced or eliminated while maintaining the usability of the product. This is when the engineer must balance the utility of the product against the risks presented. If the balance is such that it is appropriate to continue with the design process, then the engineer considers whether a guard or shut-off switch of some type can be incorporated into the design to prevent exposure to the hazard. Once guards have been incorporated into the design, or if a guard would be of no use, then, and as a last step in the safety engineering process, the engineer must design warnings or safety instructions to be placed on or with the product.
To reiterate the safety design process:
1 – identify hazards to be eliminated;
2 – analyze risks to be mitigated;
3 – place guards;
4 – include warnings for safe use.
The engineering process described above forms the basis for an injury lawsuit for product liability. The lawyer for an injured plaintiff needs a working understanding of how to view the evidence of the product and how it is used and whether the manufacturer cut corners in adhering to the principles of safety engineering. The process is applicable in any type of product of operations in which there is injury potential. While the jury “looks backward” to determine what happened and why, the manufacturer’s safety engineer must “look forward” in designing the product to avoid culpability and, most important, to prevent injury.
The trial lawyer employs the tools of litigation, using the above framework. This facilitates recognition and demonstration that the injury occurred because the manufacturer failed to follow well-known principles of safety engineering.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact H. Micheal Wright at 480.409.2473, log on to udallshumway.com, or contact an attorney in your area.