1	Product Liability Motor Vehicle Crashes Jay Trehy Mountain Magic October 2001
2	VEHICULAR CRASHES & LIMITED INSURANCE How many product liability actions does NC preclude? Statute of Repose Contributory Negligence No Strict Liability How many product liability actions go unrecognized?
3	I. CONSIDERATIONS A. Vehicle Age & Condition B. Injured/Decedent C. Resources
4	A. Vehicle Age & Condition 1. SoR & SoLs Act Independently 2. SoR - 1-50(6) Bars actions brought more than Six years after the vehicle’s “initial purchase for . . . use” 3. G.S. 1-17 Disability
5	B. Injured/Decedent 1. Injuries & Damages a. Must justify the risk b. Must justify the expense 2. Identity & Conduct a. Contributory Negligence b. Lack of Foreseeability c. Damages
6	C. Resources 1. Cost of Litigation a. Lost Opportunity b. Daubert Effect 2. Experience and Time a. Quality of Defense b. Time and ability to learn the engineering and science
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8	II. PRODUCT ENGINEERING A. Human Considerations B. Safety Definitions C. Design Safety Hierarchy D. The Harry Philo Axiom E. Reasonable Safety Measures
9	A. Human Considerations 1. Foreseeable uses & misuses 2. Occupant kinematics & biomechanics 3. Products should be made to accommodate people, not to other way around
10	B. Safety Definitions Hazard - a condition or set of circumstances which may present an injury potential Risk - probability of injury Danger - the unreasonable or unacceptable combination of hazard and risk
11	C. Design Safety Hierarchy 1. Eliminate the hazard by design 2. If unable, guard against the hazard 3. If unable to design out or guard against, minimize the risk, and instruct & warn against the remaining hazard and risk
12	D. The Harry Philo Axiom: “Any risk of serious injury or death is always unreasonable and always unacceptable if it can be eliminated or diminished by reasonable accident prevention methods.”
13	E. Alternative Safety Measures 1. Technologically Feasible a. Defense’s Remedial Measures Dilemma b. Added Cost 2. Economically Reasonable a. How to Determine? b. Added Cost
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15	III. LEGAL CONCEPTS A. Negligence B. Express Warranty C. Implied Warranty D. Strict Liability
16	A. Negligence 1. Types of Actions a. Design i. Handling & Control ii. Occupant Protection & Crashworthiness
17	ii. Crashworthiness Duty to anticipate accidents and to design vehicles to avoid unreasonable risk of injury Recovery is allowed when defects in a vehicle enhance or increase plaintiff's injuries, although the defect did not cause the accident. Warren v. Colombo
18	Rollover
19	A. Negligence 1. Types of Actions a. Design i. Handling & Control ii. Occupant Protection & Crashworthiness b. Assembly & Manufacture c. Warning/Instruction d. Sale and Promotion
20	A. Negligence 2. Design: Reasonable Care a. Engineering Standard that looks at available technologies. b. Expert Witnesses are required to prove accident reconstruction & alternative design c. Duty to test Components Red Hill Hosiery
21	A. Negligence Manufacturer is under a duty to those who use his product to exercise that degree of care in its design and manufacture that a reasonably prudent man would use in similar circumstances. McCollum v. Grove Mfg.
22	A. Negligence Duty to use reasonable care extends throughout manufacturing process, including duty to make product free of any potentially dangerous defect in manufacturing or design. Red Hill Hosiery
23	A. Negligence 3. Proof of Product Defect a. Compliance w/ government standard is pertinent, but does not preclude liability b. Cannot infer negligence in design from a product defect which is inferred from product malfunction. DeWitt
24	A. Negligence 4. Accident Reconstruction a. Auto Data Recorders & Computers b. Daubert Effect
25	A. Negligence 5. Alternative Design a. Technologically Feasible i. State of the Art ii. Competing design considerations b. Economically Reasonable i. Determining cost ii. Weighing of Additional Cost
26	B. Express Warranty 1. UCC: GS 25-2-313 a. Contractual relief b. Relates to goods & is part of the basis of the bargain c. Failure to have qualities claimed d. More than “mere Puffing”
27	c. Puffing Seller's statement that the heater was "reliable" could not be regarded by the buyers to be part of the reason for their purchase, but was mere puffing and not an express warranty Warzynski
28	B. Express Warranty 2. Defense BoP: No Reliance Reliance can often be inferred from allegations of mere purchase if natural tendency of representations is to induce purchase Burnick v. Jurden 3. No Privity requirement 4. Irrelevance of fault
29	C. Implied Warranty 1. Limited Class 2. Contractual limitations 3. Proof of Defect 4. Alternative Design 5. Failure to Warn and Instruct
30	C. Implied Warranty 1. Limited Class a. 99B-2(b): No Privity Required for Actions against Manufacturers b. Specific Class of Plaintiffs B, B's family, B’s Guest, B family guest, or B's employee c. Finance Leasing Problem
31	C. Implied Warranty 2. Contractual Limitations a. GS 25-2-316 b. Public policy: Presumption of unconscionability NCGS 25-2-719(3): If warranty remedy provided fails of its essential purpose, U.C.C. reinstates implied warranty as a matter of law
32	C. Implied Warranty 3. Proof of Defect a. No requirement to prove specific defect b. If product put to ordinary use, product defect may be inferred from evidence of product’s malfunction i. Contrast Negligence actions
33	C. Implied Warranty 4. Defense BoP: Nonreliance 5. Alternative Design a. Technologically Feasible b. Economically Reasonable 6. Failure to Warn/Instruct a. Inadequate warning renders product unmerchantable Nicholson
34	IV. 99B DEFENSES A. 99B-2(a) Sealed Container B. 99B-2(b) Privity Retained C. 99B-3 Alteration or Modification D. 99B-4 Contributory Negligence
35	A. 99B-2(a) Sealed Container 1. Distributors and Retail Dealers a. “Mere conduit” seller has no duty to inspect or test Crews b. No Reasonable Opportunity to Inspect
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37	99B-2(a) Sealed Container 2. Defense not available if: a. Manufacturer not subject to Personal Jurisdiction b. Manufacturer is Judicially Insolvent c. Seller mishandles product
38	B. 99B-2(b) Privity Retained 1. Privity only eliminated for limited class of persons as against manufacturers 2. Apparent Manufacturers 3. No Privity with distributors and other sellers
39	C. 99B-3 Alteration or Modification 1. Defense for manufacturer 2. Not done according to instructions 3. Misuse as a proximate cause 4. Alteration or modification as a Misuse
40	D. 99B-4 Contributory Negligence DeWitt – Either: (A) ordinary, reasonable care to avoid injury OR (B) awareness of a known danger and the failure to avoid same.
41	D. 99B-4 Contributory Negligence 1. Product liability comes from human interaction with product 2. Codification & Expansion of Common Law Contributory Negligence 3. Applies to Warranty claims 4. Contributory Negligence Per Se
42	4. Contributory Negligence Per Se Lashlee--Either plaintiff: knowingly exposes self to a known danger when plaintiff had a reasonable choice or option to avoid the danger, OR heedlessly and carelessly exposes self to a danger or risk which he knew or should have known existed
43	D. 99B-4 Contributory Negligence 4. 99B-4(1) Use contrary to instructions or warnings 5. 99B-4(2) Assumption of Risk 6. 99B-4(3) Failure to exercise reasonable care
44	D. 99B-4 Contributory Negligence 4. 99B-4(1) Use contrary to instructions or warning a. express & adequate instructions/warnings b. delivered with or appearing on or attached to product c. when user knew of or should have known of instructions or warnings
45	D. 99B-4 Contributory Negligence 5. 99B-4(2) Assumption of Risk a. Not common law Assumption of Risk, which was limited to employment context b. Elements i. User discovers defect, and ii. User proceeds unreasonably to use the product
46	D. 99B-4 Contributory Negligence 6. 99B-4(3) Failure to exercise reasonable care a. Statutory contributory negligence is greater than or equal to common law contributory negligence Nicholson
47	V. STATUTORY DEFENSES A. Statutes of Limitation 1. Plaintiff’s Burden of Proof B. Statute of Repose a. Plaintiff’s Burden of Proof b. Eliminates all cases based upon old design c. Applies to Duty to Warn
48	VI. FACTUAL DEFENSES A. Lack of Defect 1. Compliance with governmental standards 2. Daubert Effect 3. Summary judgment 4. Cost or Other Considerations
49	VI. FACTUAL DEFENSES B. No Proximate Cause 1. Cause of Accident or Injury a. Accident Reconstruction b. Kinematics & Biomechanics 2. Foreseeability of Misuse
50	VI. FACTUAL DEFENSES C. Lack of Proof 1. Failure to prove defect present at time left plant (negligence) or at time of sale (warranty) 2. Failure to preserve vehicle
51	IV. DEFECTS A. Tire Defect 1. Debeading & Tread Separation 2. Defective Manufacture 3. Not just Firestone AT 4. Tire installation and repair
52	IV. DEFECTS B. Seat Belt Systems 1. Seat Belt Buckle Inertial Unlatching 2. Passive vs. Automatic Restraint Systems 3. Rip Stitching/Load Limiters in Seat Belt Systems 4. Rear Seat Lap Belts
53	IV. DEFECTS C. Frontal Offset Collisions 1. Occupant Survival Space D. Side Impact Protection E. Air Bags
54	IV. DEFECTS F. Vehicle Rollover
55	IV. DEFECTS F. Vehicle Rollover 1. Roof Crush 2. Protrusion/Ejection
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57	IV. DEFECTS G. Motor Vehicle Glass Glazing H. Door Latch Failure I. Sudden Acceleration J. Park-to-Reverse Cases
58	IV. DEFECTS K. Fuel System Fires L. Seat Back Failure M. Vans 1. Conversion 2. 15-Person Vans
59	THE END Be Vigilant!