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Understanding Defective Products in the WPLA

— April 1, 2015

Definition of “Defect”

It is clear that the Washington Product Liability Act (WPLA) protects people from defective products, but what exactly is a defective product? The WPLA avoids the term “defect.” Instead, the statute imposes liability for harm proximately caused by a product that is “not reasonably safe” in its construction, its design, or its nonconformity with express or implied warranties.

Defects in Design and Construction

The WPLA provides the following guidelines to determine what exactly “not reasonably safe” means and what is permissible to admit in evidence.

  1. State of the Art

The WPLA explicitly permits the trier of fact to consider evidence of industry custom and technological feasibility (i.e., “state of the art”).

  1. Other Accidents

Admissibility of “prior accident” evidence is left to trial court discretion.

  1. Malfunction

Circumstantial evidence may be used to infer that a product was not reasonably safe in construction or design. The mere fact a malfunction is generally insufficient to prove that a product was unsafe, unless “common experience” dictates that a particular accident would not occur absent a defect in the product.

  1. Standards and Governmental Regulation

The trier of fact may consider compliance with private, legislative, or administrative standards. Washington recognizes compliance with a “specific mandatory government contract specification” as an “absolute defense” to a design defect claim. Noncompliance with a “specific mandatory government specification” (the word “contract” is not included here) gives rise to an automatic finding that the product is “not reasonably safe”.  Consider the case of In re Estate of  Foster, where the court found that this defense applied to cement products containing asbestos. In  trial, testimony was presented that the cement products were in compliance with certain government specifications requiring that those products contain asbestos. The court found that therefore there was an absolute defense to the defective product claim under the WPLA. In re Estate of Foster, 55 Wn. App. 545, 550 (Wash. Ct. App. 1989)

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