If a consumer purchased an item that caused an allergic reaction can the seller be liable for medical cost?

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If a consumer purchased an item that caused an allergic reaction can the seller be liable for medical cost?

A consumer purchased a product from me that she hadn’t used before. After purchasing the product she stated that she applied the product behind her ear and now she has some type of skin irritation which has caused her to seek medical attention. Would I the seller be responsible for any of her medical costs.

Asked on August 30, 2011 Maryland

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

This area of law is called product liability. 

The seller of a defective product and the manufacturer are  liable based on negligence and strict liability.  Negligence is the failure to exercise due care (that degree of care that a reasonable seller would have exercised under the same or similar circumstances to prevent foreseeable harm).   Seller is liable even if the seller could not have known the product was defective.

In order to prove negligence, one would have to prove duty of care (mentioned above) breach of duty (failure to exercise due care since product was defective), actual cause, proximate cause and damages.  Actual cause means but for the application of the product would the skin irritation have occurred?  If the answer is no, actual cause has been established.  Proximate cause means were there any unforeseeable intervening acts which would relieve the seller of liability?  If the answer is no, proximate cause has been established.  Damages means the amount of compensation the party is seeking to recover.  Damages in this case would include the medical bills, compensation for pain and suffering, and wage loss (if applicable).  Compensation for the medical bills is straight reimbursement.  Compensation for pain and suffering is an amount in addition to the medical bills.  The medical reports document the nature and extent of the injury and will be used to determine compensation for pain and suffering.  Compensation for any documented wage loss due to the injury is straight reimbursement.

Strict liability means liability whether or not due care was exercised.

You could assert the defense of assumption of the risk to claims of negligence and strict liability.  Assumption of the risk means the party recognized and understood the danger and voluntarily chose to encounter it.  For example, if the product included a warning of skin irritation and consumer used the product anyway, the consumer assumed the risk of injury.  If there wasn't any warning, but the consumer misused the product, assumption of the risk would also be applicable as your defense in a lawsuit for negligence or strict liability.

If you are found liable, you could sue the manufacturer of the product and seek indemnification.  This means you could recover from the manufacturer of the defective product, the amount you paid to the consumer to satisfy her claim for damages. 


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