Products Liability

Product Liability Defined

When a product is involved in any loss, it’s easy to point fingers at the manufacturer/seller. Our team deconstructs details to identify the true cause of the injury.

Products liability cases require an understanding of medicine in personal injury cases and business valuation in economic loss cases. We have both.

Manufacturers and Sellers

“Manufacturers” include product designers, assemblers, fabricators, or producers – any person or company involved in preparing an item (or a component of an item) for sale. “Sellers” include any individual or company engaged in the business of selling products, such as retailers, wholesalers, or distributors.

Types of Product Liability

Negligent design or negligent warning are the two primary types of product liability claims. “Design” claims, simply put, mean “you should have made it a different way. An example would be something like a car engine catching fire when the brakes are applied a certain way. “Warning” claims occur when a manufacturer or seller fails to adequately warn about hidden dangers associated with the use of the product. An example would be the lack of an instruction against consuming alcoholic beverages while taking certain medications.


Liability for damages can be contractual. Warranty claims and items that do not work as intended are more contractual in nature. Personal injuries for a product that fails or causes personal harm to the purchaser or a bystander – are rooted more in tort law.

How we can help

There are various defenses available to manufacturers and sellers facing a claim for products liability. Lincoln Derr represents manufacturers and sellers of multiple industries, from medical devices to industrial equipment, in identifying potential defenses and limiting their exposure when placing their products on the market.

Products Liability FAQs

What constitutes a product liability claim in North Carolina?

North Carolina places a higher burden of proof on product liability cases than other areas of the country do. In some states, if a product is deemed to have caused an injury, that could merit a claim against the manufacturer. North Carolina law only recognizes three types of product liability claims:

  • Claims based on inadequate warning or instruction (§99B-5)
  • Claims based on inadequate design or formulation ((§99B-6)
  • Claims based on defective design of firearms (§99B-11)

Can manufacturers or sellers be held liable based on strict liability in North Carolina?

No. North Carolina expressly prohibits strict liability in products liability cases.

Is contributory negligence a defense to products liability claims in North Carolina?

Yes. Section 99B-4(3) of the North Carolina General Statutes provides that no manufacturer or seller shall be held liable in any product liability action if the claimant failed to exercise reasonable care under the circumstances in the use of the product, and such failure was a proximate cause of the damages incurred. This has been interpreted as clarifying that contributory negligence is a defense to products liability actions. This includes claims based on negligence and breach of warranty.

Is privity of contract required to assert a products liability claim in North Carolina?

No. North Carolina has extended the traditional privity requirements to allow for claims based on implied warranty by the purchaser, a member of the purchaser’s family, guests of the purchaser’s family members, and employees of the purchaser.

To what extent does a seller have to ensure the products it sells are free from defects?

As a general rule, in North Carolina, the seller of a product manufactured by someone else is under no obligation to test or inspect the product for defects so long as the seller has no reason to know the product is likely to be dangerously defective. North Carolina statute expressly provides that a seller is generally immune from liability if a product is sold in a sealed container or otherwise under circumstances in which the seller was afforded no reasonable opportunity to inspect the product in a way that would have revealed a defective condition. However, there are exceptions to this rule.

Is someone making harmful allegations against your business? Take action today. Contact us to schedule a consultation.
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