By Jay Wasserman
Most serious injuries have an obvious human cause: a driver who ran the light, a business that left a spill on the floor. Product cases are different, because the defendant is a design decision made years earlier in another state, and the injured person usually has no idea a claim exists. A lithium battery that vents in a garage, a tire that delaminates at highway speed, a ladder whose locking mechanism fails, a machine guard that a manufacturer removed to speed production, a medication whose warning label omitted the risk that materialized. In each case the person hurt did nothing wrong, and in each case the proof lives inside a corporation that has no reason to volunteer it.
A word of caution before anything else: do not repair, discard, return, or let anyone take the product. This is the single most consequential thing a family can get wrong. Insurers and manufacturers routinely ask to “inspect” a failed product, and once it leaves your possession the case can end. The same is true of the vehicle after a crash, which salvage yards crush on their own schedule, and of the packaging, manuals, and receipts that establish what was sold and what warnings came with it. Photograph everything, keep the product in the condition it was in, and get a preservation demand out before anyone else touches it. Product cases are proven by the artifact.
This guide explains how Florida product liability claims work: the theories available, what a design defect actually means under Florida law, the defenses manufacturers rely on, and the two separate clocks that govern these claims.
Three defects, two main theories
Florida recognizes product liability claims under both strict liability and negligence, and most cases plead both. Strict liability, adopted in Florida in West v. Caterpillar Tractor Co., asks whether the product was defective and unreasonably dangerous when it left the manufacturer’s control, not whether the manufacturer was careless. Negligence asks about the manufacturer’s conduct. A third route, breach of warranty under Florida’s version of the Uniform Commercial Code in Chapter 672, can matter where the product failed to meet an express promise or was unfit for its ordinary purpose.
Whichever theory, the defect falls into one of three categories:
- Manufacturing defect. The product departed from its own intended design. One unit came off the line wrong. These are the most straightforward to prove and the rarest, because the comparison is to the manufacturer’s own specification.
- Design defect. The product was built exactly as intended, and the intention was dangerous. Every unit shares the defect, which is why these are the cases manufacturers fight hardest.
- Failure to warn. The product’s risks were not adequately disclosed, or the instructions were inadequate for foreseeable use. A product that is unavoidably dangerous can still be defective if it was sold without the warning that would have prevented the injury.
Liability is not limited to the manufacturer. Under Florida law it can extend along the distribution chain to distributors and retailers, though Fla. Stat. § 768.1257 and related provisions shape the exposure of sellers who did not create the defect, and a non-manufacturing seller’s role in the case is often procedural rather than substantive.
The design defect standard: consumer expectations
Florida’s approach to design defect is more claimant-friendly than the standard applied in many states, and the reason is a specific decision. In Aubin v. Union Carbide Corp. (2015), the Florida Supreme Court declined to adopt the Third Restatement’s risk-utility test with its requirement that a claimant prove a reasonable alternative design, and reaffirmed the consumer expectations test drawn from the Second Restatement: a product is defective in design if it fails to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner.
That does not mean alternative designs are irrelevant. Florida’s standard jury instructions permit a risk-utility analysis as well, and in practice good product cases prove both: that the product disappointed reasonable safety expectations, and that a feasible, cost-effective safer design existed and was known to the industry at the time. Design history, internal testing, complaint databases, prior claims, and the industry standards the manufacturer chose not to follow are the substance of that proof, and nearly all of it is obtained in discovery.
Failure to warn cases turn on adequacy and causation, and one Florida doctrine reshapes an entire category of them. Under the learned intermediary doctrine, a manufacturer of a prescription drug or medical device generally satisfies its duty by warning the prescribing physician rather than the patient, which makes the physician’s testimony about what they knew and what they would have done with a proper warning the pivot point of the case.
The defenses that shape these cases
- Comparative fault. Product liability actions are subject to Fla. Stat. § 768.81, and since House Bill 837 took effect in March 2023 Florida applies modified comparative negligence: recovery is reduced by the claimant’s share of fault, and a claimant found more than 50 percent at fault recovers nothing. Expect an aggressive argument about misuse, ignored warnings, or removed safety devices.
- Misuse and alteration. A manufacturer is not responsible for uses it could not reasonably foresee, or for injuries caused by someone else’s substantial modification. The fight is almost always over foreseeability, because manufacturers frequently know that users bypass an inconvenient guard.
- The government rules defense. Fla. Stat. § 768.1256 creates a rebuttable presumption that a product is not defective if it complied with applicable federal or state codes and regulations at the time of manufacture, and, importantly, the same statute creates a presumption that it is defective where the product violated them. It cuts both ways, and the second half is often overlooked.
- Federal preemption. For medical devices approved through the FDA’s premarket approval pathway, for certain drug labeling claims, and for products governed by comprehensive federal safety standards, preemption can bar state law claims outright. This is a threshold question, not an afterthought.
- Crashworthiness apportionment. In enhanced injury cases, where a defect did not cause the collision but made the injuries worse, Florida law now permits the jury to consider the fault of the party who caused the underlying crash, which changed the landscape from the earlier rule under D’Amario v. Ford.
Hypothetically: a Fort Lauderdale warehouse worker loses a hand in a packaging machine whose interlock had been disabled at the factory-authorized installation. The manufacturer argues misuse. Its own service bulletins, produced in discovery, show it knew installers routinely disabled the interlock to meet throughput specs and it never redesigned the switch. That is the case, and none of it existed in the plaintiff’s possession on day one.
The two clocks: limitations and repose
Product cases are governed by two separate deadlines, and missing either one ends the claim.
The statute of limitations in Fla. Stat. § 95.11 sets the period for filing, measured from when the cause of action accrues, which in latent-injury cases is generally when the injury and its cause are or should have been discovered. House Bill 837 shortened Florida’s general negligence limitations period from four years to two years for claims accruing on or after March 24, 2023, and warranty claims run on their own UCC clock. Because the applicable period depends on the theory pleaded and the accrual date, the only safe approach is to calendar the earliest arguable deadline rather than the most favorable one.
The statute of repose in Fla. Stat. § 95.031(2)(b) is the harder rule, because it runs from an event unrelated to the injury: a product liability action is generally barred 12 years after delivery of the product to its first purchaser, regardless of when the injury occurred, subject to exceptions including products with a stated useful life longer than 12 years, aircraft used in commercial or contract carrying of passengers or freight, and improvements to real property, which carry their own regime. A 15-year-old machine that maims someone tomorrow may present no viable claim against its manufacturer at all, which is why the manufacture and delivery dates are among the first facts to establish.
What these claims recover, and where to look for a pattern
A successful claim recovers economic damages for medical care, lost earnings, and diminished earning capacity, and non-economic damages for pain, suffering, disability, disfigurement, and loss of enjoyment of life. Where a defect kills, the claim proceeds under Florida’s Wrongful Death Act. Punitive damages require the showing under Fla. Stat. § 768.72 of intentional misconduct or gross negligence, and in product cases they usually depend on documents showing the manufacturer knew about the hazard and made a business decision to ship anyway.
Before assuming an injury is isolated, check for a pattern. NHTSA publishes vehicle recalls and complaints, the Consumer Product Safety Commission maintains recall and incident databases, and the FDA publishes device adverse event reports and drug safety communications. A recall does not by itself prove a defect caused a specific injury, and the absence of one proves nothing either, but a documented history of the same failure mode transforms both discovery and settlement posture.
Frequently asked questions
Do I have a case if the product was recalled? A recall helps, but it is not the claim. You still must prove the defect existed, that it caused your injury, and that you were using the product in an intended or reasonably foreseeable way. Conversely, no recall does not mean no defect; most defective products are never recalled.
The manufacturer’s insurer wants to inspect the product. Should I let them? Not without counsel and a written protocol. Inspections in product cases are done jointly, under an agreed procedure, with all parties present and often with an agreement that nothing destructive happens without permission. Handing the item over informally can be irreversible.
How long do I have to file a product liability claim in Florida? Two deadlines apply. The limitations period runs from when the claim accrues, and HB 837 shortened the general negligence period to two years for claims accruing on or after March 24, 2023. Separately, § 95.031(2)(b) bars most claims 12 years after the product was delivered to its first purchaser, with limited exceptions.
I was hurt at work by a machine. Can I still sue? Workers’ compensation is generally your exclusive remedy against your employer, but it does not bar a claim against the manufacturer of the equipment, the installer, or a maintenance contractor. Third-party product claims are one of the main routes to full recovery for a serious workplace injury.
What if I modified the product? It matters, but it is not automatically fatal. The questions are whether the modification caused the injury and whether the manufacturer should have foreseen it. Modifications that manufacturers know are common in the field are treated very differently from unforeseeable ones.
Who pays for the engineering experts? In a contingency-fee product case the firm advances those costs. Product litigation is expensive precisely because it requires metallurgists, biomechanical engineers, human factors experts, and design specialists, which is why these claims are evaluated carefully at intake.
Talk to a Florida product liability attorney
Product cases are decided by physical evidence and internal corporate documents, and both are perishable in their own way: the artifact gets discarded, and the repose clock runs quietly from a delivery date nobody thought to look up. KWBR’s product liability practice, working alongside our broader personal injury and wrongful death teams, investigates equipment failures, vehicle and component defects, and dangerous consumer products for Florida families and businesses. If you or someone in your family has been seriously hurt by a product, contact us for a free consultation, and keep the product exactly as it is until you have spoken with a lawyer.
This article is for general informational purposes and is not legal advice. The example above is a hypothetical illustration, not a real case. Every claim turns on its specific product, dates, and evidence; consult a qualified Florida attorney about your situation.