Personal Injury · Products Liability
Negligence and Warranty: Two More Ways to Bring a Product Claim
A defective product claim does not have to be brought only one way. Florida law recognizes several theories. A lawyer chooses the ones that fit the facts.
This page covers two of them:
- Negligence. The company was careless.
- Breach of warranty. The product did not live up to a promise, spoken or implied.
The third, strict liability, is covered on the pages about manufacturing, design, and warning defects.
Negligence
A negligence claim looks at the conduct of the company, not just the product. Instruction 403.9 defines it:
"Negligence is the failure to use reasonable care, which is the care that a reasonably careful [designer] [manufacturer] [seller] [importer] [distributor] [supplier] would use under like circumstances." Fla. Std. Jury Instr. (Civ.) 403.9.
The instruction goes on to say that negligence is doing something that a reasonably careful company "would not do under like circumstances" or failing to do something it "would do under like circumstances."
Product negligence claims can look at:
- How the product was designed and tested.
- How it was built and inspected.
- Whether the company warned about the risks it knew about.
- Whether it learned of problems and acted.
The jury is asked: "whether (defendant) was negligent in (describe alleged negligence), and, if so, whether that was a legal cause of the [loss] [injury] [or] [damage]." Fla. Std. Jury Instr. (Civ.) 403.15(g).
The committee notes warn that bringing negligence and design defect together can sometimes lead to inconsistent verdicts (Note on Use 3 to 403.7), so lawyers think carefully about how to present them.
Breach of warranty
A warranty is a promise about a product. Florida's instructions list three kinds.
Express warranty. A promise the seller made in words, orally or in writing. Instruction 403.4:
"A product is defective if it does not conform to representations of fact made by (defendant), orally or in writing, in connection with the [sale] [transaction] on which (name) relied in the [purchase and] use of the product. [The representation must be one of fact, rather than opinion.]" Fla. Std. Jury Instr. (Civ.) 403.4.
A label stating that a toy is safe for children under three is a statement of fact. Calling it the coolest toy ever is opinion.
Implied warranty of merchantability. Instruction 403.5:
"A product is defective if it is not reasonably fit for either the uses intended or the uses reasonably foreseeable by (defendant)." Fla. Std. Jury Instr. (Civ.) 403.5.
Implied warranty of fitness for a particular purpose. Instruction 403.6:
"A product is defective if it is not reasonably fit for the specific purpose for which (defendant) knowingly sold the product and for which, in reliance on the judgment of (defendant), the purchaser bought the product." Fla. Std. Jury Instr. (Civ.) 403.6.
An example: you tell the seller you need a ladder for a roofing job, and the seller recommends one.
Do I have to have bought it myself?
Often not. The committee notes state a general rule: "In general, plaintiffs are not required to prove privity to establish strict liability." Fla. Std. Jury Instr. (Civ.) 403.13, Note on Use 2. The same note points to section 672.318, Florida Statutes, for how strict liability affects warranty claims that once required privity. Privity means a direct buyer-and-seller relationship.
Whether a warranty claim fits your case depends on the facts, so ask.
Why more than one theory?
Each theory asks a different question:
| Theory | The question | |---|---| | Strict liability | Was the product defective? | | Negligence | Was the company careless? | | Warranty | Did the product break a promise, express or implied? |
A product injury can raise all three. Different evidence helps each one. Warranty claims may also have their own notice and deadline rules. See deadlines.
What you need to show
- The product was defective, the company was careless, or the product failed its warranty.
- That caused your injury.
- Your damages.
What to do now
- Get medical care.
- Keep the product, the packaging, any ads you saw, and the receipt.
- Save screenshots of web pages, reviews, and product listings that made promises.
- Write down anything the seller said to you.
- Do not send the product back to the company.
Talk to us
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This page is general information, not legal advice. Every case is different.