Product Liability, as defined by Black’s Law Dictionary is:
… the legal liability of manufacturers and sellers to compensate buyers, users, and even bystanders, for damages or injuries suffered because of defects in goods purchased. …
Because Product Liability cases often involve a substantial cost to the plaintiff, it must be determined that the potential award is sufficient to warrant bringing the cause of action. Awards are primarily calculated based on damages and damages are typically associated or equated with a physical injury.
You can typically recover four different types of damages from a products liability case:
Compensatory damages – are based on expenses incurred as a result of the defective
Pain and suffering – these damages are for the pain that you endured as a result of an injury.
Loss of consortium – is to compensate a spouse for the negative effect that the incident had on your relationship.
Now, with increasing frequency, plaintiffs are requesting damages or compensation based on emotional distress. Emotional distress is difficult to prove and more difficult to calculate a compensatory value. Emotional distress can be in conjunction with a physical injury or in absence of a physical injury. It is easier to demonstrate emotional distress when it is a result of or in combination with a physical injury. The emotional distress appears to be commensurate with the severity of the physical injury. When is it permissible or appropriate to seek damages based on emotional distress when accompanying an injury? And when is emotional distress compensable if no physical injury was sustained? The answer is different and varies for each state. The lack of definition and unified standard is what makes it one of the most difficult injuries to prove. The following are ways of demonstrating or supporting a claim of emotional distress
- Intensity. The severity of the distress. The more significant the mental anguish, the greater chance you have of proving that your emotional distress was profound enough to warrant compensation. In some cases, courts will require some sort of physical injury as well.
- Duration. The period of time that the pain persists. A consistent and or recurring pain with a significant duration may support claims of mental anguish.
- Belated Bodily Harm. The physical manifestation of emotional distress. Emotional distress can result in ulcers, headaches, hives and other physical ailments. The existence of these stress-related ailments may be demonstrative of emotional stress.
- Underlying Cause. The more extreme the underlying cause of the emotional distress, the more likely a court will find emotional distress. The severity of the incident that caused the emotional distress is directly commensurate the emotional stress suffered.
A recent case in which emotional stress damages were awarded was brought by a Seattle, Washington Sheriff’s Deputy. The Deputy went through a Burger King drive-thru and was served a whopper. He did not eat any of the burger, but because of an uneasy feeling, he decided to inspect what lay under the bun. The slimy substance he encountered was later analyzed by a lab and determined to be the saliva of a Burger King employee. He claimed the discovery caused him emotional stress that resulted in ongoing vomiting, nausea, food anxiety and sleeplessness. The court, in a 6-3 decision Thursday, said state law permits relief for emotional distress damages, in the absence of physical injury, caused by being served a contaminated food product, if the emotional distress is a reasonable reaction.