If you have developed an illness from exposure to asbestos, even if it wasn't discovered until much later, you may have a claim for damages. The first step, after getting medical attention, is to determine which party is at fault. Legal responsibility for injuries caused by asbestos exposure is typically determined under the law of product liability. A product liability case arises when someone uses, or is exposed to, a dangerous product that injures them. Liability is usually based on one of three theories: breach of warranty, negligence, or strict liability.
Each theory is discussed in greater detail below to help you get started on your asbestos lawsuit. See Asbestos Basics for a general overview.
1. Breach of Warranty
There are two types of warranties: implied warranties and express warranties. In essence, implied warranties provide that a product will be fit and safe for its intended purpose. In an asbestos exposure case, you might be able to recover for a breach of an implied warranty under your state's implied warranty statutes, which are usually found in a state's commercial code. Implied warranties accompany the sale and use of many types of products, including those containing asbestos.
Liability for a breach of express warranty may exist if the supplier or seller of a product containing asbestos made a claim about the product that ultimately caused someone to buy or use the product, and that claim later turned out to be false. For example, if a supplier claims that using a particular asbestos product is safe, but the product is in fact unreasonably dangerous, the supplier may be liable to a person who relied on the supplier's statements and was injured by the product.
Liability based on a negligence theory requires proof of four elements:
Fortunately, in cases where a supplier's negligent conduct may be difficult to prove, courts have developed an alternative theory of liability to allow plaintiffs to recover. That alternative theory is called strict product liability.
3. Strict Liability
Like negligence, the strict product liability theory requires the plaintiff in an asbestos lawsuit to prove four elements:
However, strict liability differs from negligence in two key ways. First, under a strict liability theory, the existence of a duty is shown when there is a commercial supplier that manufactures or retails the product -- not just a casual seller. Second, under a strict liability theory, the plaintiff does not need to show that the breach of duty is the result of any negligent action. The mere fact that the product was dangerous or defective is enough to establish a breach of the supplier's duty.
Proving Causation of Asbestos-Related Injuries
Of the four elements in negligence and strict product liability asbestos cases, causation can often be the most difficult to prove. First, in most lawsuits, defense attorneys will attempt to present scientific reports and studies to try to dispute that asbestos can cause the injury alleged. Second, there is usually a substantial amount of time between exposure to asbestos and the appearance of an injury. Defendants may use that passage of time to argue the injury was caused by exposure to another toxic substance, or a product manufactured by someone else.
Therefore, in order to prove causation in an asbestos lawsuit, the plaintiff must show that the asbestos-containing product can cause the injury claimed, that the plaintiff was exposed to the asbestos in a quantity large enough to cause the injury claimed, and that the plaintiff was not exposed to some other toxic substance or product that could have caused the injury.
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You may not know whether you have been exposed to asbestos, since the symptoms of asbestos and mesothelioma (a type of cancer) often take several decades to appear. You can still file a claim for damages in most cases. If you have been injured from asbestos exposure and need help determining fault, have an experienced injury attorney evaluate your claim absolutely free.
Contact a qualified product liability attorney to make sure your rights are protected.