It is no secret I typically represent defendants in civil actions.
The defendants are people or companies who are sued, typically for allegedly causing injury or damages to someone else. A common claim we see is a “product liability action.” This includes any action for personal injury, death or property damage due to a defective product.
Products can be defective in different ways: manufacture; construction; design; formulation; development of standards; preparation; processing; assembly testing; warning… the list goes on. These claims can arise as a tort claim, typically in negligence, or a contract claim, for breach of implied or express warranties. North Carolina General Statute 99B provides specifically for these products liability actions and allows several defenses, as well.
In order to prevail on a products liability claim for negligence, a plaintiff has to prove that the product was defective at the time it left the defendant’s control. This timing element is key, and often makes these cases difficult and expensive to prove, since experts are needed to show this defect.
Further, the plaintiff must prove that the defendant knew or should have known of the defect. The plaintiff – the party pursuing the claim – has the burden of proving this defect when it left the defendant’s control, and also that his/her injury or damages were proximately caused by the defendant’s negligence.
A number of defenses are also available under the 99B statute. A seller can claim the “sealed container” defense, in that they did not have reasonable opportunity to inspect or test the product and could not have been made aware of a potential defect.
Additional defenses include alternation or modification of the product by the buyer, the buyer’s use of the product contrary to instructions or warnings or with knowledge of a defective/dangerous condition, or failure to exercise reasonable care by the buyer.
If the claim arises from contract, such as with a warranty, the buyer must typically be in privity with the seller or manufacturer. This means that those parties have a direct relationship and ultimately, lack of privity would prohibit an unrelated party from asserting the contract claim.
Manufacturers want to make safe products. Sellers want to sell safe products. Cases involving product defects are always focused on learning more about why a product malfunctioned and preventing such injuries or damages from occurring in the future.
Deedee Gasch has over a decade of experience litigating catastrophic claims involving serious injury or death. While Deedee’s practice is primarily focused on the defense of premises liability, trucking and commercial vehicle accidents, and medical malpractice, she also has a wide range of civil litigation experience. She spent approximately half of her career representing injured plaintiffs before returning to her first love of civil litigation defense work. This experience on both sides of a case uniquely situates her in negotiations and at trial if settlement is not possible. Deedee is a third-generation Tar Heel and attorney, following in the footsteps of her grandfather, a North Carolina Resident Superior Court Judge (deceased), and her father, a career trial lawyer. She has dual degrees in Journalism and Political Science and earned her law degree cum laude from Florida Coastal School of Law in Jacksonville, Florida, where she attended on a prestigious merit based scholarship. She is licensed to practice law in both North Carolina and Florida.
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