28-01.3 Products Liability - North Dakota Statutes

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CHAPTER 28-01.3PRODUCTS LIABILITY28-01.3-01. Definitions. As used in this chapter:1."Manufacturer" means a person or entity who designs, assembles, fabricates,
produces, constructs, or otherwise prepares a product or a component part of a
product prior to the sale of the product to a user or consumer. The term includes
any seller of a product who is owned in whole or significant part by the manufacturer
or who owns, in whole or significant part, the manufacturer.2."Product liability action" means any action brought against a manufacturer or seller
of a product, regardless of the substantive legal theory or theories upon which the
action is brought, for or on account of personal injury, death, or property damage
caused by or resulting from the manufacture, construction, design, formula,
installation, preparation, assembly, testing, packaging, labeling, or sale of any
product, or the failure to warn or protect against a danger or hazard in the use,
misuse, or unintended use of any product, or the failure to provide proper
instructions for the use of any product.3."Seller" means any individual or entity, including a manufacturer, wholesaler,
distributor, or retailer, who is engaged in the business of selling or leasing any
product for resale, use, or consumption.4."Unreasonably dangerous" means that the product is dangerous to an extent beyond
which would be contemplated by the ordinary and prudent buyer, consumer, or user
of that product in that community considering the product's characteristics,
propensities, risks, dangers, and uses, together with any actual knowledge, training,
or experience possessed by that particular buyer, user, or consumer.28-01.3-02. Limitation on ad damnum clause. If a complaint filed in a products liabilityaction prays for a recovery of money in an amount equal to or less than fifty thousand dollars, the
amount must be stated. If a recovery of money in an amount greater than fifty thousand dollars
is demanded, the pleading must state merely that recovery of reasonable damages in an amount
greater than fifty thousand dollars is demanded.This action may be superseded by anamendment to the North Dakota Rules of Civil Procedure.28-01.3-03.Alteration or modification of product is defense to action.Nomanufacturer or seller of a product may be held liable in any products liability action in which a
substantial contributing cause of the injury, death, or damage to property was an alteration or
modification of the product, which occurred subsequent to the sale by the manufacturer or seller
to the initial user or consumer, and which changed the purpose, use, function, design, or
intended use or manner of use of the product from that for which the product was originally
designed, tested, or intended.28-01.3-04. Liability of nonmanufacturing sellers.1.In any products liability action maintained against a seller of a product who did not
manufacture the product, the seller shall upon answering or otherwise pleading file
an affidavit certifying the correct identity of the manufacturer of the product allegedly
causing the personal injury, death, or damage to property.2.After the plaintiff has filed a complaint against the manufacturer and the
manufacturer has or is required to have answered or otherwise pleaded, the court
shall order the dismissal of the claim against the certifying seller, unless the plaintiff
can show any of the following:Page No. 1a.That the certifying seller exercised some significant control over the design or
manufacture of the product, or provided instructions or warnings to the
manufacturer relative to the alleged defect in the product which caused the
personal injury, death, or damage to property.b.That the certifying seller had actual knowledge of the defect in the product
which caused the personal injury, death, or damage to property.c.That the certifying seller created the defect in the product which caused the
personal injury, death, or damage to property.3.The plaintiff may at any time prior to the beginning of the trial move to vacate the
order of dismissal and reinstate the certifying seller if the plaintiff can show any of
the following:a.That the applicable statute of limitation bars a product liability action against the
manufacturer of the product allegedly causing the injury, death, or damage.b.That the identity of the manufacturer given to the plaintiff by the certifying
defendant was incorrect.28-01.3-05. Indemnity of seller. If a product liability action is commenced against aseller, and it is alleged that a product was defectively designed, contained defectively
manufactured parts, had insufficient safety guards, or had inaccurate or insufficient warning; that
such condition existed when the product left the control of the manufacturer; that the seller has
not substantially altered the product; and that the defective condition or lack of safety guards or
adequate warnings caused the injury or damage complained of; the manufacturer from whom the
product was acquired by the seller must be required to assume the cost of defense of the action,
and any liability that may be imposed on the seller. The obligation to assume the seller's cost of
defense should also extend to an action in which the manufacturer and seller are ultimately found
not liable.28-01.3-06. Determination of defective product. No product may be considered tohave a defect or to be in a defective condition, unless at the time the product was sold by the
manufacturer or other initial seller, there was a defect or defective condition in the product which
made the product unreasonably dangerous to the user or consumer.28-01.3-07. Declaration of legislative findings and intent.1.The legislative assembly finds that products liability reforms enacted in 1979, 1987,
and 1993 have provided a needed degree of certainty in the laws governing civil
actions against product manufacturers and sellers.2.In recent years it has become increasingly evident that there are still serious
problems with the current civil justice system. As a result, there is an urgent need
for additional legislation to establish clear and predictable rules with respect to
certain matters relating to products liability actions.3.The purpose of sections 28-01.3-08 and 28-01.3-09 is to clarify and improve the
method of determining responsibility for the payment of damages in products liability
litigation; to restore balance and predictability between the consumer and the
manufacturer or seller in product liability litigation; to bring about a more fair and
equitable resolution of controversies in products liability litigation; to reenact a statute
of repose to provide a reasonable period of time for the commencement of products
liability litigation after a manufacturer or seller has parted with possession of its
product; to address problems that have been created by judicial interpretation of our
previous enactments; to enact, with minor changes, several provisions of former
chapter 28-01.1; and to simplify and provide an increased degree of certainty and
predictability to our products liability laws.Page No. 228-01.3-08. Statute of limitation and repose.1.Except as provided in subsections 4 and 5, there may be no recovery of damages in
a products liability action unless the injury, death, or property damage occurs within
ten years of the date of initial purchase for use or consumption, or within eleven
years of the date of manufacture of a product.2.This section applies to all persons, regardless of minority or other legal disability.3.If a manufacturer, wholesaler, or retailer issues a recall of a product in any state or
becomes aware of any defect in a product at any time and fails to take reasonable
steps to warn users of the product defect, the provisions of subsection 1 do not bar a
products liability action against the manufacturer or seller by a user of the product
who is subsequently injured or damaged as a result of the defect.4.An action to recover damages based on injury allegedly resulting from exposure to
asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite,
actinolite, or any combination thereof, must be commenced within three years after
the injured person has been informed of discovery of the injury by competent
medical authority and that the injury was caused by exposure to asbestos as
described in this subsection, or within three years after the discovery of facts that
would reasonably lead to the discovery, whichever is earlier. No action commenced
under this subsection based on the doctrine of strict liability in tort may be
commenced or maintained against any seller of a product that is alleged to contain
or possess a defective condition unreasonably dangerous to the buyer, user, or
consumer unless the seller is also the manufacturer of the product or the
manufacturer of the part of the product claimed to be defective.5.An action to recover damages based on injury to property allegedly resulting from
the presence of products containing asbestos fibers of any type must be
commenced within six years of the date upon which the owner of that property knew
or should have known of facts giving rise to the cause of action.28-01.3-09.Rebuttable presumption against defects.There is a rebuttablepresumption that a product is free from any defect or defective condition if the plans, designs,
warnings, or instructions for the product or the methods and techniques of manufacturing,
inspecting, and testing the product were in conformity with government standards established for
that industry or if no government standards exist then with applicable industry standards, which
were in existence at the time the plans, designs, warnings, or instructions for the product or the
methods and techniques of manufacturing, inspecting, and testing the product were adopted.Page No. 3Document Outlinechapter 28-01.3 products liability