What recourse do I have against the company that sold me a faulty water purification system?
Full Question:
We purchased a water purifying system in Oct 06 and it has never worked. We have had numerous service calls over this period and it has just not worked. The company we purchased it from has been very difficult to work with: ex. not return calls, misrepresented product, repairmen not showing up, etc. Anyhow, the company we financed this through is wanting paid. It has been in their dispute dept., but fees are adding up. Do I have any legal recourse against the company we purchased the system from?
11/14/2007 |
Category: Consumer |
State: Ohio |
#12233
Answer:
The following are Ohio statutes:
§ 2307.73. When manufacturer is liable for compensatory damages; evidence
of defect.
(A) A manufacturer is subject to liability for compensatory damages
based on a product liability claim only if the claimant establishes, by a
preponderance of the evidence, both of the following:
(1) Subject to division (B) of this section, the product in question
was defective in manufacture or construction as described in section
2307.74 of the Revised Code, was defective in design or formulation as
described in section 2307.75 of the Revised Code, was defective due to
inadequate warning or instruction as described in section 2307.76 of the
Revised Code, or was defective because it did not conform to a
representation made by its manufacturer as described in section 2307.77
of the Revised Code;
(2) A defective aspect of the product in question as described in
division (A)(1) of this section was a proximate cause of harm for which
the claimant seeks to recover compensatory damages.
(B) If a claimant is unable because a product in question was destroyed
to establish by direct evidence that the product in question was
defective or if a claimant otherwise is unable to establish by direct
evidence that a product in question was defective, then, consistent with
the Rules of Evidence, it shall be sufficient for the claimant to present
circumstantial or other competent evidence that establishes, by a
preponderance of the evidence, that the product in question was defective
in any one of the four respects specified in division (A)(1) of this
section.
§ 2307.74. When product is defective in manufacture or construction.
A product is defective in manufacture or construction if, when it left
the control of its manufacturer, it deviated in a material way from the
design specifications, formula, or performance standards of the
manufacturer, or from otherwise identical units manufactured to the same
design specifications, formula, or performance standards. A product may
be defective in manufacture or construction as described in this section
even though its manufacturer exercised all possible care in its
manufacture or construction.
§ 2307.75. When product is defective in design or formulation.
(A) Subject to divisions (D), (E), and (F) of this section, a product
is defective in design or formulation if, at the time it left the control
of its manufacturer, the foreseeable risks associated with its design or
formulation as determined pursuant to division (B) of this section
exceeded the benefits associated with that design or formulation as
determined pursuant to division (C) of this section.
(B) The foreseeable risks associated with the design or formulation of
a product shall be determined by considering factors including, but not
limited to, the following:
(1) The nature and magnitude of the risks of harm associated with that
design or formulation in light of the intended and reasonably foreseeable
uses, modifications, or alterations of the product;
(2) The likely awareness of product users, whether based on warnings,
general knowledge, or otherwise, of those risks of harm;
(3) The likelihood that that design or formulation would cause harm in
light of the intended and reasonably foreseeable uses, modifications, or
alterations of the product;
(4) The extent to which that design or formulation conformed to any
applicable public or private product standard that was in effect when the
product left the control of its manufacturer.
(5) The extent to which that design or formulation is more dangerous
than a resonably prudent consumer would expect when used in an intended
or reasonably foreseeable manner.
(C) The benefits associated with the design or formulation of a product
shall be determined by considering factors including, but not limited
to, the following:
(1) The intended or actual utility of the product, including any
performance or safety advantages associated with that design or
formulation;
(2) The technical and economic feasibility, when the product left the
control of its manufacturer, of using an alternative design or
formulation;
(3) The nature and magnitude of any foreseeable risks associated with
an alternative design or formulation.
(D) An ethical drug or ethical medical device is not defective in
design or formulation because some aspect of it is unavoidably unsafe, if
the manufacturer of the ethical drug or ethical medical device provides
adequate warning and instruction under section 2307.76 of the Revised
Code concerning that unavoidably unsafe aspect.
(E) A product is not defective in design or formulation if the harm for
which the claimant seeks to recover compensatory damages was caused by an
inherent characteristic of the product which is a generic aspect of the
product that cannot be eliminated without substantially compromising the
product's usefulness or desirability and which is recognized by the
ordinary person with the ordinary knowledge common to the community.
(F) A product is not defective in design or formulation if, at the time
the product left the control of its manufacturer, a practical and
technically feasible alternative design or formulation was not available
that would have prevented the harm for which the claimant seeks to
recover compensatory damages without substantially impairing the
usefulness or intended purpose of the product.
§ 2307.76. When product is defective due to inadequate warning or
instruction.
(A) Subject to divisions (B) and (C) of this section, a product is
defective due to inadequate warning or instruction if either of the
following applies:
(1) It is defective due to inadequate warning or instruction at the
time of marketing if, when it left the control of its manufacturer, both
of the following applied:
(a) The manufacturer knew or, in the exercise of reasonable care,
should have known about a risk that is associated with the product and
that allegedly caused harm for which the claimant seeks to recover
compensatory damages;
(b) The manufacturer failed to provide the warning or instruction that
a manufacturer exercising reasonable care would have provided concerning
that risk, in light of the likelihood that the product would cause harm
of the type for which the claimant seeks to recover compensatory damages
and in light of the likely seriousness of that harm.
(2) It is defective due to inadequate post-marketing warning or
instruction if, at a relevant time after it left the control of its
manufacturer, both of the following applied:
(a) The manufacturer knew or, in the exercise of reasonable care,
should have known about a risk that is associated with the product and
that allegedly caused harm for which the claimant seeks to recover
compensatory damages;
(b) The manufacturer failed to provide the post-marketing warning or
instruction that a manufacturer exercising reasonable care would have
provided concerning that risk, in light of the likelihood that the product
would cause harm of the type for which the claimant seeks to recover
compensatory damages and in light of the likely seriousness of that
harm.
(B) A product is not defective due to lack of warning or instruction or
inadequate warning or instruction as a result of the failure of its
manufacturer to warn or instruct about an open and obvious risk or a risk
that is a matter of common knowledge.
(C) An ethical drug is not defective due to inadequate warning or
instruction if its manufacturer provides otherwise adequate warning and
instruction to the physician or other legally authorized person who
prescribes or dispenses that ethical drug for a claimant in question and
if the federal food and drug administration has not provided that warning
or instruction relative to that ethical drug is to be given directly to
the ultimate user of it.
§ 2307.77. Conformance to representation.
A product is defective if it did not conform, when it left the control
of its manufacturer, to a representation made by that manufacturer. A
product may be defective because it did not conform to a representation
even though its manufacturer did not act fraudulently, recklessly, or
negligently in making the representation.
§ 2307.78. Liability of supplier.
(A) Subject to division (B) of this section, a supplier is subject to
liability for compensatory damages based on a product liability claim
only if the claimant establishes, by a preponderance of the evidence,
that either of the following applies:
(1) The supplier in question was negligent and that,[fn†] negligence
was a proximate cause of harm for which the claimant seeks to recover
compensatory damages;
(2) The product in question did not conform, when it left the control
of the supplier in question, to a representation made by that supplier,
and that representation and the failure to conform to it were a proximate
cause of harm for which the claimant seeks to recover compensatory
damages. A supplier is subject to liability for such a representation and
the failure to conform to it even though the supplier did not act
fraudulently, recklessly, or negligently in making the representation.
(B) A supplier of a product is subject to liability for compensatory
damages based on a product liability claim under sections 2307.71 to
2307.77 of the Revised Code, as if it were the manufacturer of that
product, if the manufacturer of that product is or would be subject to
liability for compensatory damages based on a product liability claim
under sections 2307.71 to 2307.77 of the Revised Code and any of the
following applies:
(1) The manufacturer of that product is not subject to judicial process
in this state;
(2) The claimant will be unable to enforce a judgment against the
manufacturer of that product due to actual or asserted insolvency of the
manufacturer;
(3) The supplier in question owns or, when it supplied that product,
owned, in whole or in part, the manufacturer of that product;
(4) The supplier in question is owned or, when it supplied that
product, was owned, in whole or in part, by the manufacturer of that
product;
(5) The supplier in question created or furnished a manufacturer with
the design or formulation that was used to produce, create, make,
construct, assemble, or rebuild that product or a component of that
product;
(6) The supplier in question altered, modified, or failed to maintain
that product after it came into the possession of, and before it left the
possession of, the supplier in question, and the alteration,
modification, or failure to maintain that product rendered it defective;
(7) The supplier in question marketed that product under its own label
or trade name;
(8) The supplier in question failed to respond timely and reasonably to
a written request by or on behalf of the claimant to disclose to the
claimant the name and address of the manufacturer of that product.
[fn†] In division (A)(1), the placement of the comma is the result of the
amendment by SB 108 (149 v — ). It does not appear in the HB 1
enactment.
