Defective product injuries happen in ordinary moments. A pressure cooker lid releases under pressure and scalds a hand. An e-bike battery catches fire in a garage. A ladder buckles at a weld. A space heater ignites a couch. A replacement auto part fails at highway speed. In each case, the injured person is dealing with pain, medical bills, and often damaged property, and the manufacturer, the retailer, and their insurers are already thinking about the evidence.
Product cases are different from most injury cases because the defendant is usually far away, well funded, and familiar with this kind of litigation. The case is built on engineering and documents, and it begins with what you do now.
1. Preserve the product exactly as it is
Do not repair, clean, reassemble, test, or throw away the product or any of its pieces. Do not plug it back in or try to make it work. Put every fragment, including melted or broken parts, into a sturdy box or bag, label it with the date, and store it somewhere dry and secure where no one will disturb it. If the product is too large to move, photograph it in place and keep it untouched. An engineer may later need to examine the failure point under magnification, and any change to the product gives the manufacturer an argument that the evidence was compromised.
2. Do not hand the product to the manufacturer, the store, or an insurer
Manufacturers, retailers, and insurance adjusters sometimes ask the injured person to send in the product "for evaluation," or offer a replacement in exchange for the old one. Politely decline. Once the product leaves your control, you may never see it again, and any testing will be done by people working for the other side. If anyone needs to examine it, that should happen under a written protocol, with your representatives present, and with photographs and video taken before anything is changed.
3. Save the packaging, manual, receipt, and identifying marks
Keep the box, the instruction manual, warning labels, the receipt or order confirmation, and any warranty card. Photograph the model number, serial number, date code, and any certification marks. These details identify which production run the product came from and who made each component. The warnings and instructions matter because a product can be dangerous not only because of how it was designed or built, but because of what the buyer was or was not told about its risks.
4. Get medical care and keep every record
See a physician promptly and follow through with the treatment plan. Tell your providers exactly how the injury happened. Keep the discharge papers, bills, prescriptions, and photographs of your injuries as they heal. Medical records made close to the event are the most persuasive evidence of what the product did to you.
5. Write down what happened and who saw it
While your memory is fresh, write a detailed account: what you were doing, how you were using the product, how long you had owned it, whether it had ever malfunctioned before, and what you saw, heard, or smelled when it failed. List any witnesses with their contact information. If firefighters or other responders came, note the agency so their report can be requested.
6. Check for recalls and report the incident
Search the U.S. Consumer Product Safety Commission's recall listings, or the National Highway Traffic Safety Administration for vehicles and auto parts, for your product. You can also report the incident to those agencies. A recall does not by itself prove your case, and the absence of one does not defeat it, but recall history and prior complaints often show what the manufacturer knew and when.
The Florida rules that matter
The time limits. Florida allows four years for "An action for injury to a person founded on the design, manufacture, distribution, or sale of personal property" that is not permanently incorporated in an improvement to real property (§ 95.11(3)(d)). Claims framed in negligence are subject to the two-year period for "An action founded on negligence" (§ 95.11(5)(a)), and a wrongful death action has a two-year limit (§ 95.11(5)(e)). Because the applicable period depends on how a claim is framed, assume the shorter period applies until a lawyer tells you otherwise.
When the clock starts. Under section 95.031(2)(b), a products liability action runs "from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence."
The 12-year statute of repose. Separately, section 95.031(2)(b) provides that "Under no circumstances may a claimant commence an action for products liability" for harm caused by a product with an expected useful life of 10 years or less "if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee" who was not in the business of selling or leasing it. The statute presumes a useful life of 10 years or less unless an exception applies. Longer periods apply where the manufacturer expressly warranted a longer life and to certain commercial aircraft, vessels, and rail equipment. The repose period can be tolled where the manufacturer's officers or managing agents knew of the defect and took affirmative steps to conceal it.
Comparative fault. Florida's comparative fault statute defines a "negligence action" to include claims based on "negligence, strict liability, products liability" and breach of warranty (§ 768.81(1)(c)). Manufacturers often argue misuse or failure to follow instructions. Under section 768.81(6), a plaintiff found more than 50 percent at fault may not recover.
Punitive damages. A claim for punitive damages requires a reasonable showing by evidence in the record or proffered by the claimant before it can be pleaded, and the standard of proof is clear and convincing evidence of intentional misconduct or gross negligence (§ 768.72).
FDUTPA is not the right tool for injuries. Florida's consumer protection statute does not apply to "A claim for personal injury or death" (§ 501.212(3)). Injury claims proceed under the personal injury and products liability law. Where many people bought the same defective product and suffered the same economic loss, those buyers can sometimes bring claims together as a class action.
“An action for injury to a person founded on the design, manufacture, distribution, or sale of personal property”
§ 95.11(3)(d)
“negligence action”
§ 768.81(1)(c)
“A claim for personal injury or death”
§ 501.212(3)
Your checklist
- Store the product and every fragment untouched in a labeled, secure place.
- Decline any request to send the product to the manufacturer or an insurer.
- Photograph the model number, serial number, labels, and warnings.
- Keep the packaging, manual, and proof of purchase.
- Get medical care and keep every record and bill.
- Write a detailed account and list your witnesses.
- Call a lawyer early, especially if the product is more than a few years old.
How we handle these cases
We secure the product first. We document its condition, set a written inspection protocol, and retain qualified engineers and other independent professionals to identify how and why it failed. We trace the supply chain from the manufacturer through the distributor to the retailer, investigate recall history and prior complaints, and evaluate the deadlines, including the statute of repose, at the outset. We handle product injury cases throughout Florida, including Miami-Dade, Broward, Palm Beach, Tampa, Orlando, and Jacksonville. Meetings are by appointment only. Call Josef Timlichman Law, PLLC at 305-748-3789.
This article is general information, not legal advice for your situation. Reading it does not create an attorney-client relationship. Past results do not guarantee a similar outcome.