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Standard of Liability Under the WPLA for Manufacturers

— March 27, 2015

The WPLA defines five categories of potential liability for product manufacturers: construction defects, breach of warranty, design defects, failure to warn, and post-sale duty to warn.

  1. Construction Defects

The WPLA uses the term “strict liability” to describe a manufacturer’s responsibility for products that materially deviate from the manufacturers design specifications or performance standards or materially deviate from otherwise identical units of the same product line. If the deviation proximately causes the claimants harm, the product is not reasonably safe in construction and the manufacturer is strictly liable.

The Washington court of appeals explained in Johnson  that a construction defect existed where, “the manufacturing defect is such that no conceivable performance standard would call for the product to be manufactured that way, expert testimony that such defect caused the product’s failure can be sufficient to establish that the product deviated in some material way from the manufacturer’s design specifications or performance standards, or deviated in some material way from otherwise identical units of the same product line.” Johnson v. Recreational Equip., Inc., 159 Wn. App. 939 (Wash. Ct. App. 2011)

  1. Breach of Warranty

The manufacturer is also strictly liable for any breach of express warranty, or breach of implied warranty, as to any nonconformity rendering the product “not reasonably safe. Product liability claims based on breach of express or implied warranties can be raised either in tort under the WPLA or in contract under the Uniform Commercial Code. Touchet Valley Grain Growers v. Opp & Seibold General Constr., 119 Wn.2d 334, 343 (Wash. 1992)

  1. Design Defects

Although the WPLA uses the term negligence to describe a manufacturer’s liability for claims based on design defects, the Washington Supreme Court equates this statutory negligence with the strict liability standard as defined in the pre-WPLA Washington cases.

A claimant can establish a design defect under either the risk-utility test or the consumer expectations test. The risk-utility test requires a showing that at the time of manufacture, the likelihood that the product would cause the plaintiff’s harm or similar harms, and the seriousness of those harms, outweighed the manufacturer’s burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative would have on the products usefulness. Alternatively a claimant may employ the consumer expectations test, which requires the plaintiff to show that the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer. In Lenhardt, the court found that strict liability under the WPLA was predicated upon a no-fault concept, and evidence that other companies did the same thing as the company did introduced concepts of fault that were not relevant to the reasonable expectation of the ordinary consumer.Lenhardt v. Ford Motor Co., 102 Wn.2d 208 (Wash. 1984)            The existence of a feasible alternative design is a required element of a design defect claim under the risk-utility test. The existence or non-existence of a feasible alternative design also may be relevant evidence under the consumer expectations test, but is not required. The alternative design or product must be technologically achievable and economically viable. Feasibility of the alternative design is assessed at the time of manufacture.

  1. Failure to Warn

The WPLA also adopts a risk-utility balancing test for determining when inadequate warnings or instructions render a product “not reasonably safe” The Supreme Court stated in Macias that common law failure to warn cases were relevant precedent to WPLA failure to warn claims under to the extent they reflected the same principles. Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402 (Wash. 2012)

A product is not reasonably safe because adequate warnings or instructions were not provide with the product, if, at the time of manufacture, the likelihood that the product would cause the claimant’s harms rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate.

As with design defects, strict liability is the standard for inadequate warnings, notwithstanding that the WPLA purports to impose liability only where “the claimant’s harm was proximately caused by the negligence of the manufacturer.” Consequently, “foreseeability” is not an element of a strict liability based on failure to warn.

  1. Post Sale Duty to Warn

The WPLA adopts a common law negligence standard for providing warnings or instructions where the manufacturer learned or should have learned about a danger after the product was manufactured. “The general rule is that a post-sale duty to warn arises after a manufacturer has sufficient notice about a specific danger associated with the product. The manufacturer must act as a reasonably prudent manufacturer must act as a reasonably prudent manufacturer and exercise reasonable care to inform product users.

Consumer Expectations Test

In addition to the five specific categories of liability discussed above, the WPLA provides: “In determining whether a product was not reasonably safe…. The trier of fact shall consider whether product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.” The Washington Supreme Court has determined that “consumer expectations” are not merely a factor to consider under risk-utility balancing; instead, consumer expectations provide an alternative test for manufacturer liability.

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