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The products liability option: if your client was injured at work, don't assume that workers' compensation is his or her only recourse. If the injury involved an unsafe product, you may be able to pursue a products liability case.

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John is a line foreman at a plant. One day, when something got stuck in one of the machines, he tried to dislodge whatever was jamming it. The machine was not turned off, and John had to take off the chute, which was acting as a guard. When he put his hand inside, it was forced between two rollers, and his fingers were crushed. Later, an Occupational Safety and Health Administration (OSHA) investigator examined the scene and cited the employer for failing to have a procedure in place that would have required the machine to be turned off before any work was done on it. (1)

John comes to you for help. Since OSHA blamed the employer, and workers' compensation laws prevent recovery against the employer, do you have any type of third-party case? If the machine was defective because it lacked a necessary safety feature, yes.

Ask John what caused his injuries: What equipment was he using, and how did the accident happen? Ask about any modifications that coworkers or the employer had made to the machine. After John's accident, was anything taken away or added?

Often, when someone is injured by a product at work, the product lacks an important safety feature. It's your job to determine whether that was true in your client's situation. John's case involves common defects: a removable guard and the lack of an interlocked device that shuts the machine off or prevents it from being turned on or operated when the guard is removed. Other typical examples of product defects in the work place include the following:

* A scaffold does not have guardrails.

* A piece of equipment lacks a pressure-release valve, which allows steam to build up to explosive levels.

* A forklift does not have an audible or visible alarm.

* A scissor lift lacks a pothole protection safety device, allowing it to tip over easily.

Most products liability cases, including those that arise from workplace accidents, are a hybrid of design-defect and failure-to-warn claims. But other theories may be relevant.

Design defect. In such a case, the product is unreasonably dangerous, and the design contains a hazard that existing technology could feasibly make safer. (2) The principles of safe product design are as follows:

* Eliminate the hazard from the product--"design out" the defect.

* If that cannot be accomplished, incorporate safety devices, such as guards and interlocks.

* Provide warning devices. (3)

Look to the marketplace for alternative designs. Does a similar product have a different safety feature? Or does the product manufacturer sell an alternative design as an option? For example, most scaffold manufacturers offer guardrails as an option. They are not included when you purchase the scaffold, even though the manufacturer knows that users fall off scaffolds without guardrails and get injured.

Manufacturing defect. A product may be unreasonably dangerous due to a defect or flaw in the process or materials used to create, assemble, or construct the product. The product does not work as it should or was not manufactured to its intended specifications.

Lack of warning. These cases are based on the argument that one of the known and...

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