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Damages Under The WPLA

— April 1, 2015

The WPLA is broad in its provisions for recovery with some specific limitations. In general, an individual recovering under the WPLA can recover whatever damages they suffered. The Supreme Court discussed damages under the WPLA in Washington stating, “such damages include “any damages recognized by the courts of this state”. Wash. Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 851 (Wash. 1989) So what are the largest limitations on recovery?

  1. Economic Loss

Under the WPLA, economic loss recovery is prohibited. “Damages for direct or consequential economic loss are not prohibited to product liability claimants, but are simply made unavailable within the scheme of the WPLA.” Id.  The WPLA restricts recovery for direct or consequential economic loss to the law of sales. In drawing this line between contract and tort remedies, Washington has adopted a “risk of harm” analysis for defining “economic loss”.

  1. Remedial Measures

Evidence of subsequent remedial changes is generally inadmissible. The Supreme Court explained that there are two reasons why evidence of subsequent remedial measures may not be admitted to establish culpable conduct or negligence: “(1) it lacks sufficient probative value to have any relevance and (2) to encourage the development of safety improvements by eliminating the risk that liability in a future action could be predicated on the making of such improvements.” Hyjek v. Anthony Indus., 133 Wn.2d 414 (Wash. 1997)

  1. Substantial Alteration/Abnormal Use

A claimant’s damages will be reduced if the product underwent substantial change in its condition after leaving the manufacturer, or if the claimant misused the product.

  1. Crashworthiness

The Washington Supreme Court has recognized a cause of action “premised upon an allegation that the claimed defect did not cause or contribute to the original collision, but caused enhanced injuries.” Seattle-First Nat’l Bank v. Tabert, 86 Wn.2d 145 (Wash. 1975) Under this theory, the manufacturer is liable for the claimant’s injuries to the extent they exceed the harm that would have occurred had the product been reasonably safe.Crashworthiness is a relative concept that reflects the reasonable expectations of the ordinary consumer:

“[E]valuation of the product in terms of the reasonable expectations of the ordinary consumer allows the trier of the fact to take into account the intrinsic nature of the product. The purchase of a Volkswagen cannot reasonably expect the same degree of safety as would the buyer of a much more expensive Cadillac. It must be borne in mind that we are dealing with a relative, not an absolute concept.” Id.

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