1	PRODUCTS LIABILITY IN NORTH CAROLINA By Jay Trehy
2	I. PRIOR TO NCGS CHAP 99B (1979) A. Traditional Negligence Concepts B. Express Warranty C. Implied Warranty Under UCC 1. Merchantability 2. For a Particular Purpose
3	II. SCOPE OF 99B A. Does Action Fall Within Act's Parameters? B. Direct Actions Against Manufacturers 1. 99B-2(b): No Privity Required for Implied Warranty Actions 2. Specific Class of Plaintiffs
4	II. SCOPE OF 99B cont’d C. Sealed Container Defense 99B-2 D. Alteration/Modification of a Product 99B-3 Defense for manufacturer
5	II. SCOPE OF 99B cont’d E. Codification of Contrib Defenses: 99B-4 1. No Change in Common Law Negligence 2. Applies to Warranty claims F. Statutes of Limitation and of Repose
6	III. IMPACT OF 99B ON N.C. LAW A. Broader Class of Plaintiffs Can Apply "Strict Liability" B. Privity: Still a Barrier for Many Consumers
7	III. IMPACT OF 99B ON N.C. LAW cont’d C. Similar Occurrence Rule Diminished in Importance D. Affirmative Defenses Have Changed Very Little
8	IV. POTENTIAL DEFENDANTS A. Manufacturer B. Assember for or Supplier to Manufacturer
9	IV. POTENTIAL DEFENDANTS cont’d C. Apparent Manufacturer D. Sellers
10	IV. POTENTIAL DEFENDANTS cont’d E. Co-employees Who Design F. Contractor When Working for Subcontractor
11	V. PROOF OF DEFECT Boudreau v. Baughman Design Defect Manufacturing Defect Bernick v. Jurden No Evidence of Specific Product Defect Recovery Permitted
12	V. PROOF OF DEFECT cont’d City of Thomasville Evidence of Fire Suppression System’s Malfunction Supports “Fair Inference” of Product Defect Maybank v. Kresge New Flashcube Explodes and Causes Harm Is Not Merchantable
13	V. PROOF OF DEFECT cont’d Goodman Compliance With Government Standards Is Pertinent to Issue of Warranty Breach But, Compliance Does NOT Preclude Recovery for Breach
14	V. PROOF OF DEFECT cont’d Jolley v. General Motors Corp For negligent manufacture, plaintiff has BoP that defect was present at time it left manufacturer’s plant For breach of warranty, plaintiff has BoP that defect existed at time of sale
15	V. PROOF OF DEFECT cont’d Red Hill Hosiery If Product Malfunctions Under Ordinary Use, Then Product Defect May Be Inferred No Requirement to Prove Specific Nature of Defect
16	V. PROOF OF DEFECT cont’d Red Hill Hosiery cont’d Intentional Spoliation Warrants Inference That Evidence Would Have Been Detrimental
17	V. PROOF OF DEFECT cont’d Buckman Compliance With Daubert required for expert engineering testimony St. Clair Expert testimony required to show that airbag, which failed to deploy, was defective
18	VI. CHOICE OF LAW A. Lex loci delicti: common law rule for Negligence claim B. “Appropriate relation” test for warranty claims – Place of Performance
19	VII. STRICT LIABILITY A. Overwhelming majority of jurisdictions B. Specifically rejected by G.S. Chap. 99B C. Simplifies the issue at trial: Whether the product was unreasonably dangerous
20	VIII. PRODUCT LIABILITY AND ENGINEERING A. Human Considerations B. Products must be designed to accommodate people, not the other way around
21	VIII. PRODUCT LIABILITY AND ENGINEERING C. Safety Definitions 1. Hazard - a condition or changing set of circumstances which may present an injury potential 2. Risk - probability of injury (%) 3. Danger - the unreasonable or unacceptable combination of hazard and risk
22	VIII. PRODUCT LIABILITY AND ENGINEERING D. Important, Fundamental Concept: “Any risk of serious injury or death is unreasonable or unacceptable if reasonable accident prevention methods can [could] eliminate it.”
23	VIII. PRODUCT LIABILITY AND ENGINEERING E. Reasonable Accident Prevention Measures 1. Eliminate the hazard 2. If you cannot, guard the hazard 3. If you cannot eliminate or guard against the risk, minimize the risk, and instruct and warn against the remaining hazard and risk
24	VIII. PRODUCT LIABILITY AND ENGINEERING F. Hazard Recognition vs. Risk Recognition G. FMEA - Failure Modes and Effect Analysis H. Fault Tree Analysis I. Fail-Safe Design J. Safety System Program
25	IX. MOTOR VEHICLES & PRODUCT LIABILITY A. Tire Defect B. Restraint Systems 1. Seat Belt Buckle Inertial Unlatching 2. Passive Restraint Systems 3. Rip Stitching/Load Limiters in Seat Belt Systems 4. Rear Seat Lap Belts
26	IX. MOTOR VEHICLES & PRODUCT LIABILITY C. Vehicle Rollover D. Roof Crush E. Motor Vehicle Glass Glazing F. Air Bags G. Side Impact Protection
27	IX. MOTOR VEHICLES & PRODUCT LIABILITY H. Sudden Acceleration I. Park-to-Reverse Cases J. Fuel Systems K. Seat Back Failure L. Van Conversion
28	The End