A popular riddle about our perception of reality asks: “If a tree falls in a forest but there is no one there to hear it, does it make any sound?”

Courts increasingly are faced with its product liability equivalent: If a product has a possibility of malfunctioning but never actually does so, can the consumer who bought it recover damages because the product is “defective”? Most courts have decided against recovery in these so-called “unmanifested defect” cases because there is no actual injury. Nevertheless, as plaintiffs have become more creative with their legal theories, some courts have refused to dismiss such claims.

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