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Why should I care if a product qualifies as 'unavoidably unsafe'?

If there is one thing that people who live in Texas may be thankful for it is that they do not live in some other state that tends to push the envelope when it comes to identifying things that can cause you possible harm.

In California, for example, nearly everything carries some form of caution about cancer risk. From experience we can tell you that if you buy a cotton-polyester blend shirt, it will carry a warning stating that the product contains compounds that may cause cancer.

The presence of that label does not mean you should be concerned. The fact is that a broad percentage of common things, including ingredients found in cookbooks, have been studied for cancer risks and there isn't much of anything that doesn't carry some level of threat. But you'd have to be exposed to or ingest mountains of something to elevate the chances.

Of course, there are products consumers use every day that can be risky and sometimes they can be inherently dangerous by design. Guns might fall into this category, as might some prescription medications. So, this might prompt you to ask, can a maker of a product that is deemed unavoidably unsafe be held liable for illness or injury it might cause? The answer is, maybe.

Products liability claims tend to be based on evidence of defect in either design, manufacturing or insufficient marketing. Courts have found that just because a product is by nature unsafe doesn't make it dangerous and so a label of unavoidably unsafe can serve as a shield.

What may pierce that shield is if there's an error in the preparation of the product. If a vaccine becomes tainted and fails to work or is dangerous, liability may attach. If a drug fails to carry adequate warnings about dosage and possible side effects, the unavoidably unsafe exception might not hold, either.

Risk-reward is an important gauge as well. If you have an ointment that can cure a rash but kills half of those who use it, it could likely be targeted under a liability claim. And if an alternative over-the-counter cream might take care of the rash just as well, that too might lift the shield and allow accountability.

You can see that determining whether an action is possible can be complicated, which is why consulting skilled legal counsel is so important.

Source: FindLaw, "What Is an Unavoidably Unsafe Product?" accessed Oct. 2, 2015

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