When a person is injured by a defective product, we often call this a “product liability” action. Such actions raise distinct and complex legal issues. In North Carolina, such actions are governed by a complicated web of laws from common law (e.g. negligence), the UCC (uniform commercial code, including implied warranties), “privity,” the statute of repose, and several specific defenses (e.g. misuse or alteration of product). Such an action for property damage can also involve the “economic loss rule.”

Our courts continue to address novel issues in product liability cases. In a case decided by a federal court in North Carolina in February 2012, Manley v. Wendy’s, a customer of Wendy’s consumed burgers and fries at a Wendy’s restaurant. He thereafter began having various physical problems. Doctors later found a foreign object in his lung, which was later revealed to be a plastic fragment from a Wendy’s utensil (e.g. spoon, fork, knife). The customer’s doctors testified that the foreign object caused his physical symptoms. He sued Wendy’s, asserting that the object must have come from a hamburger and that Wendy’s breached the implied warranty of merchantability. The federal judge, however, dismissed the case on the basis that the claim was too speculative. John Kirby represented a party in this case on appeal to the Fourth Circuit Court of Appeals, which affirmed the ruling of the lower court.

In general, the plaintiff in such an action must show either that the manufacturer of the product was negligent, or that it breached an implied warranty. The statute of repose for product liability actions in North Carolina is twelve years from the date of purchase for consumption. (Note that the action must also be filed within the “statute of limitations,” which might be a shorter period.) The claim will be barred if the plaintiff was “contributorily negligent.” There are also several other defenses, such as “misuse” or “alteration” of product.

Products liability is an evolving area of law. In a recent case, a child sued an automobile manufacturer for defects in the seatbelt system, allegedly resulting in injury to the minor. The car manufacturer alleged that the child misused the seatbelt. The North Carolina Court of Appeals held that the child, who was less than seven years old, could not be contributorily negligent as a matter of law, and therefore that the manufacturer could not rely on the defense that the child misused the product (on the basis that the child’s misuse of the product was not foreseeable, and hence was not a proximate cause of the injuries). This case is on appeal to the North Carolina Supreme Court.

This photograph depicts a wooden toybox as the lid closes. A carrot is seen in this picture to simulate the location of a finger. Upon closing, the lid and side of the box slice similar to a pair of scissors, creating a dangerous condition. Further, the box did not contain a spring device to prevent the lid from slamming.

John Kirby has prosecuted and has defended product liability claims in North Carolina. In one case, he represented a young child whose fingertip was amputated by a defectively designed toybox.