GSNC

§ 99B-1. Definitions.

When used in this Chapter, unless the context otherwise requires:

“Claimant” means a person or other entity asserting a claim and, if said claim is asserted on behalf of an estate, an incompetent or a minor, “claimant” includes plaintiff’s decedent, guardian, or guardian ad litem.
“Manufacturer” means a person or entity who designs, assembles, fabricates, produces, constructs or otherwise prepares a product or component part of a product prior to its sale to a user or consumer, including a seller owned in whole or significant part by the manufacturer or a seller owning the manufacturer in whole or significant part.
“Product liability action” includes any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling of any product.
“Seller” includes a retailer, wholesaler, or distributor, and means any individual or entity engaged in the business of selling a product, whether such sale is for resale or for use or consumption. “Seller” also includes a lessor or bailor engaged in the business of leasing or bailment of a product.

History. 1979, c. 654, s. 1; 1995, c. 522, s. 1.

Editor’s Note.

Session Laws 1979, c. 654, s. 6, provided: “The provisions of this act shall not be construed to amend or repeal the provisions of G.S. 1-17 .”

Session Laws 1995, c. 522, s. 3 provides that this act, which amended existing sections in this Chapter and enacted new ones, shall not apply to product liability actions for injury or death resulting from any silicone gel breast implant implanted prior to January 1, 1996.

Legal Periodicals.

For survey of 1979 commercial law, see 58 N.C.L. Rev. 1290 (1980).

For article, “North Carolina’s New Products Liability Act: A Critical Analysis,” see 16 Wake Forest L. Rev. 171 (1980).

For survey of 1981 tort law, see 60 N.C.L. Rev. 1465 (1982).

For discussion of the “reasonable notice” aspect of warranty law, in light of Maybank v. S.S. Kresge, 302 N.C. 129 , 273 S.E.2d 681 (1981), see 61 N.C.L. Rev. 177 (1982).

For a symposium on the North Carolina Commercial Code, see 18 Wake Forest L. Rev. 161 (1982).

For comment, “The Crashworthy Vehicle: Heading For a Collision in the North Carolina Courts,” see 18 Wake Forest L. Rev. 711 (1982).

For note on the six-year statutory bar to products liability actions, in light of Tetterton v. Long Manufacturing Co., 314 N.C. 44 , 332 S.E.2d 67 (1985), see 64 N.C.L. Rev. 1155 (1986).

For note discussing products liability and the sufficiency of causation evidence to warrant submission of the case to the jury, in light of Owens ex rel. Owens v. Bourns, Inc., 766 F.2d 145 (4th Cir.), reh’g denied, 106 S. Ct. 608 (1985), see 21 Wake Forest L. Rev. 1155 (1986).

For comment on stand against tort reform, see 10 Campbell L. Rev. 439 (1988).

For article, “Toward a Process-Based Approach to Failure-to-Warn Law,” see 71 N.C.L. Rev. 121 (1992).

For article, “Strictly No Strict Liability: The 1995 Amendments to Chapter 99B, the Products Liability Act,” see 74 N.C.L. Rev. 2240 (1996).

For article, “Products Liability — Emerging Consensus and Persisting Problems: An Analytical Review Presenting Some Options,” 25 Campbell L. Rev. 1 (2002).

For note, “Write This Down: A Model Market-Share Liability Statute,” see 68 Duke L.J. 1469 (2019).

CASE NOTES

Purpose. —

This Chapter provides protection for merchants who merely sell products while allowing the purchaser of the product to proceed against the manufacturer of the product. Travelers Ins. Co. v. Chrysler Corp., 845 F. Supp. 1122, 1994 U.S. Dist. LEXIS 11295 (M.D.N.C. 1994).

This Chapter does not adopt strict liability in product liability cases. Smith v. Fiber Controls Corp., 300 N.C. 669 , 268 S.E.2d 504, 1980 N.C. LEXIS 1131 (1980).

North Carolina expressly rejects strict liability in products liability actions. Bryant v. Adams, 116 N.C. App. 448, 448 S.E.2d 832, 1994 N.C. App. LEXIS 1047 (1994).

The North Carolina legislature intended to establish a fixed cut-off date to bar actions brought after six years involving an injury caused by a manufactured good. A defendant escapes liability if the action is not brought within the six-year window provided by G.S. 1-50(6) (now G.S. 1-50(a)(6)). Lindsay v. Public Serv. Co., 725 F. Supp. 278, 1989 U.S. Dist. LEXIS 13901 (W.D.N.C. 1989), dismissed, 732 F. Supp. 623, 1990 U.S. Dist. LEXIS 2896 (W.D.N.C. 1990).

With No Exception for Failure to Warn. —

The statute of repose, G.S. 1-50(6) (now G.S. 1-50(a)(6)), as incorporated into this Chapter, the North Carolina products liability statute, anticipates that the statute includes any action brought for or on account of personal injury. Specifically, the statute includes those injuries caused by or resulting from a warning or lack thereof. Thus, the statute of repose contains no exception for failure to warn. Lindsay v. Public Serv. Co., 725 F. Supp. 278, 1989 U.S. Dist. LEXIS 13901 (W.D.N.C. 1989), dismissed, 732 F. Supp. 623, 1990 U.S. Dist. LEXIS 2896 (W.D.N.C. 1990).

Inadequate Warnings. —

Action against defendant pharmaceutical manufacturers for plaintiff’s personal injury (tardive dyskinesia) allegedly caused by or resulting from the manufacturers’ inadequate warnings associated with a name-brand drug, though brought under a myriad of claims—including negligence. breach of undertaking special duty, misrepresentation by omission, negligent misrepresentation, constructive fraud, fraud by concealment, intentional infliction of emotional distress, negligent infliction of emotional distress, unfair and deceptive trade practices, breach of express warranty, and breach of implied warranties—clearly fell within North Carolina’s definition of a product liability action under G.S. 99B-1(3) . Couick v. Wyeth, Inc., 691 F. Supp. 2d 643, 2010 U.S. Dist. LEXIS 20393 (W.D.N.C. 2010).

Period of Limitations. —

Section 1-50(6) (now G.S. 1-50(a)(6)) was enacted with this Chapter to provide a period of limitations for actions to which this Chapter applies. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982).

Statute of Repose. —

This section does not completely eviscerate the statute of repose in the case of minors and others under disability. If a product is over six years old at the time of injury, which would be the time that the claim accrues, than the statute of repose operates as a total bar on that claim; however, if a claim accrues before the six year statute of repose has expired, this section simply operates to extend the time period within which a minor or other with disability may bring suit under Chapter 99B. Therefore, claims accruing after six years will still be barred. Bryant v. Adams, 116 N.C. App. 448, 448 S.E.2d 832, 1994 N.C. App. LEXIS 1047 (1994).

Recovery for Economic Losses. —

In the context of a products liability suit, purely economic losses cannot ordinarily be recovered in an action for negligence. Chicopee, Inc. v. Sims Metal Works, Inc., 98 N.C. App. 423, 391 S.E.2d 211, 1990 N.C. App. LEXIS 427 (1990).

Recoverable Losses. —

With respect to what losses are recoverable in a products liability suit, North Carolina follows the majority rule and does not allow recovery of purely economic losses in an action for negligence. AT & T Corp. v. Medical Review of N.C. Inc., 876 F. Supp. 91, 1995 U.S. Dist. LEXIS 1999 (E.D.N.C. 1995).

Purely Economic Loss. —

Purely economic loss is not recoverable under tort law in a products liability action in North Carolina. AT & T Corp. v. Medical Review of N.C. Inc., 876 F. Supp. 91, 1995 U.S. Dist. LEXIS 1999 (E.D.N.C. 1995).

Where third party plaintiff claimed it was entitled to maintain an action under the Products Liability Act that would fall within the exception to the privity requirement in the context of breach or implied warranty, but did not allege that defects in the voice mail system resulted in any physical injury or property damage and only alleged economic loss, the general rule regarding privity remained intact and third party plaintiff could not maintain its breach of implied warranty claim. AT & T Corp. v. Medical Review of N.C. Inc., 876 F. Supp. 91, 1995 U.S. Dist. LEXIS 1999 (E.D.N.C. 1995).

The imprinting of retailer’s trademark in shoe was insufficient to bring retailer within the definition of manufacturer in subdivision (2) of this section. Morrison v. Sears, Roebuck & Co., 80 N.C. App. 224, 341 S.E.2d 40, 1986 N.C. App. LEXIS 2152 (1986), rev'd, 319 N.C. 298 , 354 S.E.2d 495, 1987 N.C. LEXIS 1925 (1987).

“Party.” —

G.S. 99B-3 defense could not be relied upon to argue that a car accident victim’s parent placed the seatbelt behind her improperly as neither parent was a “party” to the action under G.S. 99B-1 , as required by G.S. 99B-3 . Stark v. Ford Motor Co., 204 N.C. App. 1, 693 S.E.2d 253, 2010 N.C. App. LEXIS 798 (2010), rev'd, 365 N.C. 468 , 723 S.E.2d 753, 2012 N.C. LEXIS 266 (2012).

“Selling” encompasses delivery of products. Champs Convenience Stores, Inc. v. United Chem. Co., 99 N.C. App. 275, 392 S.E.2d 761, 1990 N.C. App. LEXIS 516 (1990), rev'd, 329 N.C. 446 , 406 S.E.2d 856, 1991 N.C. LEXIS 534 (1991).

Action of Breach of Implied Warranty of Merchantability. —

The implied warranty of merchantability arises under the UCC upon the sale of goods when the seller is a merchant with respect to goods of the kind sold. The term “product liability action” as used in the Products Liability Act includes “any action brought for or on account of personal injury, death or property damage caused by or resulting from . . . the selling . . . of any product.” Therefore, an action of breach of implied warranty of merchantability under the UCC is a “product liability action” within the meaning of the Products Liability Act if the action is for injury to person or property resulting from the sale of a product. Morrison v. Sears, Roebuck & Co., 319 N.C. 298 , 354 S.E.2d 495, 1987 N.C. LEXIS 1925 (1987).

Negligence Action for Injuries Caused by the Warning or Instructing of Products. —

Although the legislature did not undertake to define what “products” are covered by Chapter 99B, subsection (3) of this section anticipates, that a products liability action may include an action for personal injuries caused by or resulting from the “warning or instructing” of any product. Driver v. Burlington Aviation, Inc., 110 N.C. App. 519, 430 S.E.2d 476, 1993 N.C. App. LEXIS 569 (1993).

Where plaintiff’s amended complaint alleged that aircraft manufacturer had a duty to the pilot and his passengers to provide complete and accurate instruction concerning various mechanical functions, and that the manual wrongfully instructed concerning these functions and that the negligence of the aircraft manufacturer actually and proximately caused the damages to the plaintiffs, the allegations were sufficient to state a claim for relief based on a theory of negligence against the aircraft manufacturer in the preparation and publication of the information manual. Driver v. Burlington Aviation, Inc., 110 N.C. App. 519, 430 S.E.2d 476, 1993 N.C. App. LEXIS 569 (1993).

Drug Companies Not Liable for Defective Warnings Issued by Another Drug Company. —

In a case in which two drug companies moved for summary judgment on the claims against them, which were a variety of tort claims, those claims by a patient and his wife were nonetheless product liability claims, and the two drug companies could not be held liable for the warnings issued by a third drug company. The first two drug companies manufactured and distributed metoclopramide under its brand name, the third drug company manufactured and distributed generic metoclopramide, and at no time had the patient purchased or ingested metoclopramide manufactured by the first two drug companies. Stoddard v. Wyeth, Inc., 630 F. Supp. 2d 631, 2009 U.S. Dist. LEXIS 60962 (E.D.N.C. 2009), dismissed, 2013 U.S. Dist. LEXIS 188743 (E.D.N.C. Jan. 30, 2013).

Product Never Used by Plaintiff. —

In a products liability action wherein a North Carolina minor died after being hit in the chest with an electrical control device (ECD) by the police, the federal district court denied the ECD manufacturer’s motion for a judgment notwithstanding the verdict as the court found that the manufacturer’s reliance on North Carolina’s product liability statute, G.S. 99B-4(3), as to contributory negligence, was not applicable because that statute has been held to only apply to when a plaintiff has negligently used a product and the minor never had used the ECD product previously. Fontenot v. Taser Int'l, Inc., 2012 U.S. Dist. LEXIS 55699 (W.D.N.C. Apr. 20, 2012).

Interlocutory Review of Discovery Order. —

When a homeowners’ association sued a manufacturer for product liability under G.S. 99B-1 et seq., and a trial court ordered the association to return documents to the manufacturer that were inadvertently released to the association in discovery, the association could not immediately appeal the order under G.S. 1-277 or G.S. 7A-27(d)(1) on the theory that the order affected the association’s substantial right, because: (1) the association did not identify a right that was affected or show how such a right would be jeopardized without immediate review; (2) unsupported opinions in a memo the association was ordered to return to the manufacturer did not affect a substantial right, as the memo did not show what the manufacturer’s employees, outside testers and experts, knew about the product’s adequacy and when the employees knew the information, and such prior knowledge was not critical to claims against the manufacturer; and (3), if such knowledge were critical, the memo did not contribute significantly to a determination of the issue. Harbour Point Homeowners' Ass'n v. DJF Enters., 206 N.C. App. 152, 697 S.E.2d 439, 2010 N.C. App. LEXIS 1435 (2010).

§ 99B-1.1. Strict liability.

There shall be no strict liability in tort in product liability actions.

History. 1995, c. 522, s. 1.

Legal Periodicals.

For article, “A Plea to North Carolina: Bring Fairness to the Assessment of Civil Battery Liability for Defendants with Cognitive Disabilities,” see 39 Campbell L. Rev. 241 (2017).

CASE NOTES

Claim Dismissed. —

A products liability case in North Carolina in which a patient and his wife asserted strict liability claims against three drug companies arising from the patient’s use of a specific drug was dismissed pursuant to the drug companies’ Fed. R. Civ. P. 12(b)(6) motion to dismiss those claims; under G.S. 99B-1.1 , there is no strict liability in product liability cases in North Carolina. Stoddard v. Wyeth, Inc., 630 F. Supp. 2d 631, 2009 U.S. Dist. LEXIS 60962 (E.D.N.C. 2009), dismissed, 2013 U.S. Dist. LEXIS 188743 (E.D.N.C. Jan. 30, 2013).

§ 99B-1.2. Breach of warranty.

Nothing in this act shall preclude a product liability action that otherwise exists against a manufacturer or seller for breach of warranty. The defenses provided for in this Chapter shall apply to claims for breach of warranty unless expressly excluded under this Chapter.

History. 1995, c. 522, s. 1.

§ 99B-2. Seller’s opportunity to inspect; privity requirements for warranty claims.

No product liability action, except an action for breach of express warranty, shall be commenced or maintained against any seller when the product was acquired and sold by the seller in a sealed container or when the product was acquired and sold by the seller under circumstances in which the seller was afforded no reasonable opportunity to inspect the product in such a manner that would have or should have, in the exercise of reasonable care, revealed the existence of the condition complained of, unless the seller damaged or mishandled the product while in his possession; provided, that the provisions of this section shall not apply if the manufacturer of the product is not subject to the jurisdiction of the courts of this State or if such manufacturer has been judicially declared insolvent.
A claimant who is a buyer, as defined in the Uniform Commercial Code, of the product involved, or who is a member or a guest of a member of the family of the buyer, a guest of the buyer, or an employee of the buyer may bring a product liability action directly against the manufacturer of the product involved for breach of implied warranty; and the lack of privity of contract shall not be grounds for the dismissal of such action.

History. 1979, c. 654, s. 1; 1989, c. 420; 1995, c. 522, s. 1.

Cross References.

As to demand for monetary relief in products liability actions, see G.S. 1A-1 , Rule 8(a)(2).

Legal Periodicals.

For survey of 1979 commercial law, see 58 N.C.L. Rev. 1290 (1980).

For article, “North Carolina’s New Products Liability Act: A Critical Analysis,” see 16 Wake Forest L. Rev. 171 (1980).

For note on requirement of privity and express warranties, see 16 Wake Forest L. Rev. 857 (1980).

For symposium on the North Carolina Commercial Code, see 18 Wake Forest L. Rev. 161 (1982).

For note discussing sufficiency of causation evidence to warrant submission of products liability case to the jury, in light of Owens ex rel. Owens v. Bourns, Inc., 766 F.2d 145 (4th Cir.), reh’g denied, 106 S. Ct. 608 (1985), see 21 Wake Forest L. Rev. 1155 (1986).

CASE NOTES

Subsection (a) as Defense Under UCC. —

The legislature intended that subsection (a) be available as a defense to actions for breach of an implied warranty of merchantability brought under the UCC. Morrison v. Sears, Roebuck & Co., 319 N.C. 298 , 354 S.E.2d 495, 1987 N.C. LEXIS 1925 (1987).

Subsection (a) as Defense in Breach of Implied Warranty Actions. —

In products liability actions arising from breaches of implied warranties, unlike those arising from breaches of express warranties, the defenses provided by subsection (a) are available to defendants. Morrison v. Sears, Roebuck & Co., 319 N.C. 298 , 354 S.E.2d 495, 1987 N.C. LEXIS 1925 (1987).

Intent of Defenses. —

The defenses established in this section were intended to limit the liability of merchants who merely sell products without any knowledge of any defect in the product. Travelers Ins. Co. v. Chrysler Corp., 845 F. Supp. 1122, 1994 U.S. Dist. LEXIS 11295 (M.D.N.C. 1994).

Act Held Inapplicable to Purchaser’s Employee. —

The protections of the Products Liability Act would not extend to the employee of a purchaser where the employee was covered by workers’ compensation insurance. Davis v. Siloo Inc., 47 N.C. App. 237, 267 S.E.2d 354, 1980 N.C. App. LEXIS 3083 (1980).

Where it was undisputed that plaintiff ’s employer purchased potato whitener for use in store, plaintiff used the product in her work, and plaintiff was covered by the Worker’s Compensation Act, this section prevented plaintiff from being a claimant on an implied warranty theory against the manufacturer; therefore, defendant’s motion for summary judgment on the implied warranty was properly granted. Sutton v. Major Prods. Co., 91 N.C. App. 610, 372 S.E.2d 897, 1988 N.C. App. LEXIS 901 (1988).

Essential elements of an action for products liability based upon negligence include: (1) Evidence of a standard of care owed by the reasonably prudent person in similar circumstances; (2) breach of that standard of care; (3) injury caused directly or proximately by the breach, and; (4) loss because of the injury. McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983) (decided under law applicable prior to effective date of this Chapter).

Purely Economic Loss. —

Privity Requirement. —

This Chapter (products liability) expressly abrogates privity requirement in certain claims based upon implied warranty. However, outside exceptions created by this Chapter, general rule is that privity is required to assert claim for breach of implied warranty involving only economic loss. Sharrard, McGee & Co. v. Suz's Software, Inc., 100 N.C. App. 428, 396 S.E.2d 815, 1990 N.C. App. LEXIS 1041 (1990).

Employee who brought a products liability suit pursuant to G.S. 99B-1(3) was required to proffer evidence from which the jury could find that his employer purchased the manhole cover in question because, under the express terms of G.S. 99B-2(b) , the employee could maintain an action for breach of implied warranties only against a manufacturer, and only if he was a buyer of the product in question or an employee of the buyer. McLaurin v. E. Jordan Iron Works, Inc., 666 F. Supp. 2d 590, 2009 U.S. Dist. LEXIS 100226 (E.D.N.C. 2009), aff'd, 410 Fed. Appx. 630, 2011 U.S. App. LEXIS 2718 (4th Cir. 2011).

North Carolina’s Products Liability Act relaxes the privity requirement with respect to a claim for breach of implied warranty. AT & T Corp. v. Medical Review of N.C. Inc., 876 F. Supp. 91, 1995 U.S. Dist. LEXIS 1999 (E.D.N.C. 1995).

Trial court did not err in dismissing general contractor’s breach of implied warranty claims against the manufacturer because there was no privity. Since the generators were installed as a component part of the system, the plant only suffered economic loss and, pursuant to G.S. 99B-2(b) , of the North Carolina Products Liability Act, in order for the general contractor to maintain an action against the manufacturer there had to be privity. Atl. Coast Mech., Inc. v. Arcadis, Geraghty & Miller of N.C. Inc., 175 N.C. App. 339, 623 S.E.2d 334, 2006 N.C. App. LEXIS 58 (2006).

Employee who brought a products liability suit was required to proffer evidence from which the jury could find that his employer purchased the manhole cover in question because, under the express terms of G.S. 99B-2(b) , the employee could maintain an action for breach of implied warranties only against a manufacturer, and only if he was a buyer of the product in question or an employee of the buyer. McLaurin v. E. Jordan Iron Works, Inc., 666 F. Supp. 2d 590, 2009 U.S. Dist. LEXIS 100226 (E.D.N.C. 2009), aff'd, 410 Fed. Appx. 630, 2011 U.S. App. LEXIS 2718 (4th Cir. 2011).

Privity Not Abolished for Employee. —

A buyer’s employee is barred from suit against a seller grounded upon breach of implied warranty in that neither the Act nor the U.C.C. provisions regarding implied warranties abolish the privity requirement in such instance. Nicholson v. American Safety Util. Corp., 124 N.C. App. 59, 476 S.E.2d 672, 1996 N.C. App. LEXIS 1016 (1996), modified, aff'd, 346 N.C. 767 , 488 S.E.2d 240, 1997 N.C. LEXIS 469 (1997).

Lack of Privity. —

This section allows a buyer to bring a product liability action against a manufacturer of a product regardless of the lack of privity of contract. Travelers Ins. Co. v. Chrysler Corp., 845 F. Supp. 1122, 1994 U.S. Dist. LEXIS 11295 (M.D.N.C. 1994).

Seller Representing Itself as Manufacturer Is Not Protected. —

Trial court erred in granting summary judgment for seller because a genuine issue of material fact existed as to whether seller was the apparent manufacturer of the heaters; a seller who holds himself out to the public as the manufacturer of a product is not protected from products liability actions by subsection (a) of this section. Warzynski v. Empire Comfort Sys., 102 N.C. App. 222, 401 S.E.2d 801, 1991 N.C. App. LEXIS 288 (1991).

Principles of Negligence Govern. —

In products liability cases, the duty of the manufacturer in tort must be determined by the principles of negligence. The doctrine of strict liability, except for a few exceptional situations, has not been adopted. McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983) (decided under law applicable prior to effective date of this Chapter).

The failure of manufacturers and distributors to properly inform purchasers of a product’s hazards, uses, and misuses is a basis for rendering them legally liable for injuries resulting therefrom under some circumstances. Millikan v. Guilford Mills, Inc., 70 N.C. App. 705, 320 S.E.2d 909, 1984 N.C. App. LEXIS 3894 (1984), cert. denied, 312 N.C. 798 , 325 S.E.2d 631, 1985 N.C. LEXIS 1735 (1985).

No Duty to Inspect. —

Products liability claims of negligence and breach of implied warranty against a distributor could not stand because the distributor had no duty, pursuant to G.S. 99B-2(a) , nor any reasonable opportunity, to perform diagnostic tests on U-bolts that would have revealed latent defects. McLaurin v. E. Jordan Iron Works, Inc., 666 F. Supp. 2d 590, 2009 U.S. Dist. LEXIS 100226 (E.D.N.C. 2009), aff'd, 410 Fed. Appx. 630, 2011 U.S. App. LEXIS 2718 (4th Cir. 2011).

Liability for Sale of Inherently Dangerous Product. —

Liability may be imposed upon a manufacturer who sells a product that is inherently dangerous. McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983) (decided under law applicable prior to effective date of this Chapter).

Manufacturer of a machine which is dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers. In a case against such a manufacturer, the plaintiff must prove the existence of a latent defect or of a danger not known to the plaintiff or other users. McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983) (decided under law applicable prior to effective date of this Chapter).

Protection Against Obvious Defects Not Required. —

A manufacturer has no duty to equip his product with safety devices to protect against defects and dangers that are obvious. In cases dealing with a manufacturer’s liability for injuries to remote users, the courts have always stressed the duty of guarding against hidden defects and of giving notice of concealed dangers. McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983) (decided under law applicable prior to effective date of this Chapter).

Standard of Care in Product Design. —

As to the standard of care, a manufacturer is under a duty to those who use his product to exercise that degree of care in its design and manufacture that a reasonably prudent man would use in similar circumstances. McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632, 1982 N.C. App. LEXIS 2770 (1982), aff'd, 307 N.C. 695 , 300 S.E.2d 374, 1983 N.C. LEXIS 1116 (1983) (decided under law applicable prior to effective date of this Chapter).

Liability Under Crashworthiness Theory. —

Under the law of North Carolina, an automobile manufacturer would not be held liable for defects in the design and manufacture of a vehicle which neither caused nor contributed to the cause of a collision, but served to exacerbate injuries sustained thereafter. Wilson v. Ford Motor Co., 656 F.2d 960, 1981 U.S. App. LEXIS 18488 (4th Cir. 1981).

Where 1964 Volkswagen occupied by decedents and designed, manufactured and distributed by VW, burst into flames due to an allegedly defective gas tank when it was struck by a 1972 Dodge being operated on the wrong side of the highway, and it was not alleged that the defective gas tank caused the collision, the district court erred in denying VW’s motions for dismissal and for summary judgment in a suit to recover damages for the wrongful deaths of decedents as a result of the alleged failure of VW to design a crashworthy vehicle. Martin v. Volkswagen of Am., Inc., 707 F.2d 823, 1983 U.S. App. LEXIS 27073 (4th Cir. 1983).

A cause of action for enhanced injuries is permissible under North Carolina law. Warren v. Colombo, 93 N.C. App. 92, 377 S.E.2d 249, 1989 N.C. App. LEXIS 127 (1989); Mumford v. Colombo, 93 N.C. App. 107, 377 S.E.2d 258, 1989 N.C. App. LEXIS 135 (1989); Corbitt v. Colombo, 93 N.C. App. 111, 377 S.E.2d 259, 1989 N.C. App. LEXIS 133 (1989); Holmes v. Colombo, 93 N.C. App. 117, 377 S.E.2d 261, 1989 N.C. App. LEXIS 134 (1989); Corbitt v. Colombo, 93 N.C. App. 113, 377 S.E.2d 262, 1989 N.C. App. LEXIS 128 (1989); Albritton v. Colombo, 93 N.C. App. 115, 377 S.E.2d 264, 1989 N.C. App. LEXIS 131 (1989); Mumford v. Colombo, 93 N.C. App. 109, 377 S.E.2d 265, 1989 N.C. App. LEXIS 132 (1989).

Under the negligence theory of enhanced injury, recovery may be allowed when defects in a vehicle enhance or increase plaintiff’s injuries in an accident, although the defect did not cause the accident. Warren v. Colombo, 93 N.C. App. 92, 377 S.E.2d 249, 1989 N.C. App. LEXIS 127 (1989).

In action to recover for death of farm worker who died after drinking pesticide, trial court properly entered summary judgment for the seller of the pesticide where plaintiff did not present any specific facts tending to show that the seller knew or should have known that manufacturer’s written warnings on the product’s label were inadequate, nor did plaintiff demonstrate that seller should have known that purchaser would not appreciate the possible harm involved in using a toxic pesticide which was packaged in a clear plastic container and looked like water. Ziglar v. E.I. Du Pont De Nemours & Co., 53 N.C. App. 147, 280 S.E.2d 510, 1981 N.C. App. LEXIS 2579 , cert. denied, 304 N.C. 393 , 285 S.E.2d 838, 1981 N.C. LEXIS 1506 (1981) (decided under law applicable prior to effective date of this Chapter).

In action to recover for wrongful death of a farm laborer who drank a toxic pesticide, trial court erred in entering summary judgment for the manufacturer of the pesticide where evidence raised questions for the jury as to whether the manufacturer exercised the required degree of due care in its general manufacture and packaging of the pesticide, whether the manufacturer failed to provide adequate warnings on the product’s label to notify others of its toxicity, and whether the manufacturer’s first aid instructions on the product’s label were ambiguous and incomplete. Ziglar v. E.I. Du Pont De Nemours & Co., 53 N.C. App. 147, 280 S.E.2d 510, 1981 N.C. App. LEXIS 2579 , cert. denied, 304 N.C. 393 , 285 S.E.2d 838, 1981 N.C. LEXIS 1506 (1981) (decided under law applicable prior to effective date of this Chapter).

Language in Seller’s Ad Held “Puffing.” —

Seller’s advertisement that it sold “America’s most complete line of reliable, economical gas heating appliances” was, under the Uniform Commercial Code, “a statement purporting to be merely the seller’s opinion or commendation of the goods does not create warranty.” Seller’s statement that the heater was “reliable” could not be regarded by the buyers to be part of the reason for their purchase; therefore, the language in seller’s advertisement was mere puffing and not an express warranty. Warzynski v. Empire Comfort Sys., 102 N.C. App. 222, 401 S.E.2d 801, 1991 N.C. App. LEXIS 288 (1991).

Denial of Relief Held Proper. —

Where defendant distributors acquired and sold potato whitener in sealed cartons, and defendant food service, plaintiff ’s employer, obtained the product in sealed jars, and there was no evidence that they damaged or altered the product, this section constituted a complete bar to recovery on plaintiff ’s implied warranty claims against both defendants. Sutton v. Major Prods. Co., 91 N.C. App. 610, 372 S.E.2d 897, 1988 N.C. App. LEXIS 901 (1988).

§ 99B-3. Alteration or modification of product.

No manufacturer or seller of a product shall be held liable in any product liability action where a proximate cause of the personal injury, death, or damage to property was either an alteration or modification of the product by a party other than the manufacturer or seller, which alteration or modification occurred after the product left the control of such manufacturer or such seller unless:
1. The alteration or modification was in accordance with the instructions or specifications of such manufacturer or such seller; or
2. The alteration or modification was made with the express consent of such manufacturer or such seller.
For the purposes of this section, alteration or modification includes changes in the design, formula, function, or use of the product from that originally designed, tested, or intended by the manufacturer. It includes failure to observe routine care and maintenance, but does not include ordinary wear and tear.

History. 1979, c. 654, s. 1; 1995, c. 522, s. 1.

Legal Periodicals.

For survey of 1979 commercial law, see 58 N.C.L. Rev. 1290 (1980).

For article, “North Carolina’s New Products Liability Act: A Critical Analysis,” see 16 Wake Forest L. Rev. 171 (1980).

For article, “Minor’s Personal Injury Actions and Settlements in North Carolina,” see 34 Campbell L. Rev. 293 (2012).

CASE NOTES

Recovery from Manufacturer Barred. —

Where the forecast of evidence demonstrated that a proximate cause of plaintiff ’s injury was the modification or alteration of machine in question by a party other than the manufacturer after it left the control of the manufacturer, and that the alteration of the machine was contrary to the instructions of the manufacturer and done without its express consent, this section barred recovery from the manufacturer. Rich v. Shaw, 98 N.C. App. 489, 391 S.E.2d 220, 1990 N.C. App. LEXIS 430 (1990).

Product liability claim against a restaurant franchisor based on an employee’s spitting into a customer’s food was properly dismissed; even if the franchisor had manufactured the food, the food was altered in a manner not originally intended by the franchisor, at a time after it left the franchisor’s control and without its express consent. Phillips v. Rest. Mgmt. of Carolina, L.P., 146 N.C. App. 203, 552 S.E.2d 686, 2001 N.C. App. LEXIS 851 (2001).

Manufacturer of a home heater was not liable to consumers for carbon monoxide poisoning under G.S. 99B-3 because the heater had been converted from a natural gas unit to one using liquefied petroleum after it left the manufacturer’s control. Edmondson v. Macclesfield L-P Gas Co., 182 N.C. App. 381, 642 S.E.2d 265, 2007 N.C. App. LEXIS 693 (2007).

Defense Available to Manufacturer. —

When it was alleged that a minor was injured by a defective seat belt system, and G.S. 99B-3 provided a defense to a manufacturer when a “party” altered or modified an allegedly defective product after the product left the manufacturer, it was error to grant the minor a directed verdict that the defense was not available to the system’s manufacturer because (1) sufficient evidence allowed a jury to find the minor’s father modified the seat belt system before the minor’s injuries, and (2) this evidence sustained a judgment applying the statute to relieve the manufacturer of liability. Stark v. Ford Motor Co., 365 N.C. 468 , 723 S.E.2d 753, 2012 N.C. LEXIS 266 (2012).

Misuse of Product Must Be a Proximate Cause. —

In order for this section to act as a bar to plaintiff’s recovery, the minor plaintiff’s misuse of the fence and gate must have been a proximate cause of her injury, and since issues of proximate cause and foreseeability are best left to a jury, summary judgment was improper. Hastings v. Seegars Fence Co., 128 N.C. App. 166, 493 S.E.2d 782, 1997 N.C. App. LEXIS 1278 (1997).

When it was alleged that a minor was injured by a defective seat belt system, a manufacturer could assert the defense provided in G.S. 99B-3 , when a “party” altered or modified an allegedly defective product after the product left the manufacturer, because, as used in the statute, the word “party” was not limited to a party to the litigation, since (1) the word’s use showed the general assembly intended the term to include anyone altering the product, whether or not a party to the litigation, subject to other statutory requirements, (2) one altering the product became a “party,” as used in the statute, at the time of modification, before any litigation, showing the defense applied when anyone other than a manufacturer or seller altered the product, (3) this interpretation was consistent with pattern jury instructions and scholarly commentary, and (4) limiting “party” to a party to the litigation read words into the statute that the general assembly chose not to use. Stark v. Ford Motor Co., 365 N.C. 468 , 723 S.E.2d 753, 2012 N.C. LEXIS 266 (2012).

Negligence of Parent. —

Summary judgment denied. —

Helicopter manufacturer and related defendants were not entitled to summary judgment on product liability claims stemming from the crash of a medical helicopter because a fact issue remained as to whether there was an improper alteration or misuse of the helicopter’s gearbox by the pilot or mechanic under the provisions of G.S. 99B-3 and whether the pilot and mechanic used the product (helicopter) contrary to express and adequate instructions or acted unreasonably under the provisions of G.S. 99B-4 . Indem. Ins. Co. of N. Am. v. Am. Eurocopter LLC, 2005 U.S. Dist. LEXIS 34011 (M.D.N.C. July 8, 2005).

Directed Verdict Proper. —

Court should have directed a verdict for accident victims in their personal injury claim against a car manufacturer, alleging faulty seatbelt design, because one of the victims was five years old, so the requisite element of foreseeability inherent in the proximate cause portion of its G.S. 99B-3 defense could not be proven. Stark v. Ford Motor Co., 204 N.C. App. 1, 693 S.E.2d 253, 2010 N.C. App. LEXIS 798 (2010), rev'd, 365 N.C. 468 , 723 S.E.2d 753, 2012 N.C. LEXIS 266 (2012).

§ 99B-4. Knowledge or reasonable care.

No manufacturer or seller shall be held liable in any product liability action if:

The use of the product giving rise to the product liability action was contrary to any express and adequate instructions or warnings delivered with, appearing on, or attached to the product or on its original container or wrapping, if the user knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings; or
The user knew of or discovered a defect or dangerous condition of the product that was inconsistent with the safe use of the product, and then unreasonably and voluntarily exposed himself or herself to the danger, and was injured by or caused injury with that product; or
The claimant failed to exercise reasonable care under the circumstances in the use of the product, and such failure was a proximate cause of the occurrence that caused the injury or damage complained of.

History. 1979, c. 654, s. 1; 1995, c. 522, s. 1.

Legal Periodicals.

For survey of 1979 commercial law, see 58 N.C.L. Rev. 1290 (1980).

For article, “North Carolina’s New Products Liability Act: A Critical Analysis,” see 16 Wake Forest L. Rev. 171 (1980).

CASE NOTES

Subdivision (3) codifies the common law standard of contributory negligence and does not limit the defense to a plaintiff’s misuse of the product. Nicholson v. American Safety Util. Corp., 346 N.C. 767 , 488 S.E.2d 240, 1997 N.C. LEXIS 469 (1997).

The manufacturer has a duty to warn of known dangers which can be encountered during foreseeable use of the product. Lee v. Crest Chem. Co., 583 F. Supp. 131, 1984 U.S. Dist. LEXIS 19632 (M.D.N.C. 1984).

A manufacturer may be held liable for negligence if he sells a dangerous article likely to cause injury in its ordinary use and the manufacturer fails to guard against hidden defects and fails to give notice of the concealed danger. Smith v. Selco Prods., Inc., 96 N.C. App. 151, 385 S.E.2d 173, 1989 N.C. App. LEXIS 967 (1989).

Continuing Duty to Provide Post-Sale Warnings. —

A manufacturer does not completely discharge its duty to warn simply by providing some warnings of some dangerous propensity of its product at the time of sale; a continuing duty exists to provide post-sale warnings of any deficiencies it learns exist in the product to users. Smith v. Selco Prods., Inc., 96 N.C. App. 151, 385 S.E.2d 173, 1989 N.C. App. LEXIS 967 (1989).

Failure to adequately warn of dangerous propensities of a product may underlie a claim of breach of the implied warranty of merchantability. Lee v. Crest Chem. Co., 583 F. Supp. 131, 1984 U.S. Dist. LEXIS 19632 (M.D.N.C. 1984).

The failure of manufacturers and distributors to properly inform purchasers and other users of a product’s hazards, uses, and misuses is a basis for rendering them legally liable for injuries resulting therefrom under some circumstances. Millikan v. Guilford Mills, Inc., 70 N.C. App. 705, 320 S.E.2d 909, 1984 N.C. App. LEXIS 3894 (1984), cert. denied, 312 N.C. 798 , 325 S.E.2d 631, 1985 N.C. LEXIS 1735 (1985).

In a failure to warn product liability action against a taser manufacturer by the administrator of a decedent’s estate, the district court did not err in denying the manufacturer’s motion for judgment as a matter of law because there was sufficient evidence that the failure to warn taser users to avoid deploying the taser’s electrical current in proximity to the heart was the proximate cause of the decedent’s death and that the manufacturer’s warning was not adequate as a matter of law. Fontenot v. Taser Int'l, Inc., 736 F.3d 318, 2013 U.S. App. LEXIS 23510 (4th Cir. 2013).

This section codifies a form of contributory negligence. Lee v. Crest Chem. Co., 583 F. Supp. 131, 1984 U.S. Dist. LEXIS 19632 (M.D.N.C. 1984).

Subdivisions (1) and (3) merely codify the doctrine of contributory negligence as it applies in actions brought under this Chapter. Champs Convenience Stores v. United Chem. Co., 329 N.C. 446 , 406 S.E.2d 856, 1991 N.C. LEXIS 534 (1991).

In addition to codifying the general doctrine of contributory negligence, this section sets out or explains more specialized fact patterns which would amount to contributory negligence in a products liability action. Champs Convenience Stores v. United Chem. Co., 329 N.C. 446 , 406 S.E.2d 856, 1991 N.C. LEXIS 534 (1991).

Defense of Contributory Negligence Reaffirmed. —

This section specifically reaffirms the applicability of contributory negligence as a defense in product liability actions. Smith v. Fiber Controls Corp., 300 N.C. 669 , 268 S.E.2d 504, 1980 N.C. LEXIS 1131 (1980); Wilson Bros. v. Mobile Oil, 63 N.C. App. 334, 305 S.E.2d 40, 1983 N.C. App. LEXIS 3058 (1983).

What Constitutes Contributory Negligence. —

Plaintiff may be contributorily negligent if his conduct ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety. Smith v. Fiber Controls Corp., 300 N.C. 669 , 268 S.E.2d 504, 1980 N.C. LEXIS 1131 (1980).

People who acquire or use machines and devices usually read and follow the accompanying information, since the failure to do so is evidence of contributory negligence under some circumstances. Millikan v. Guilford Mills, Inc., 70 N.C. App. 705, 320 S.E.2d 909, 1984 N.C. App. LEXIS 3894 (1984), cert. denied, 312 N.C. 798 , 325 S.E.2d 631, 1985 N.C. LEXIS 1735 (1985).

The defense of contributory negligence is not invariably barred by defendant’s failure to warn of a danger, when the facts indicate that plaintiff, in the exercise of ordinary care, should have known of the danger of injury independent of any warning by defendant. Smith v. Fiber Controls Corp., 300 N.C. 669 , 268 S.E.2d 504, 1980 N.C. LEXIS 1131 (1980).

Contributory Negligence as No Defense in Contract Claim. —

Where jury found that plaintiff used walnut finish contrary to expressed and adequate instructions which plaintiff knew or should have known in the exercise of reasonable and diligent care, and defendant claimed plaintiff’s contributory negligence defeated plaintiff’s claim, plaintiff’s breach of contract claim did not fall within the purview or effect of the Products Liability Act; where a plaintiff is able to convince a trier of fact that he or she has suffered damages flowing from the failure of a defendant to meet direct and express contractual obligations, the defense of contributory negligence has no application to that claim. Steelcase, Inc. v. Lilly Co., 93 N.C. App. 697, 379 S.E.2d 40, 1989 N.C. App. LEXIS 374 (1989).

Failure to Follow Instructions. —

Where plaintiff would not have been burned but for her failure to follow express instructions concerning a safety precaution, and the instructions on the product’s label expressly warned of the burn potential, plaintiff’s omission was the proximate cause of the very injury she suffered. Lee v. Crest Chem. Co., 583 F. Supp. 131, 1984 U.S. Dist. LEXIS 19632 (M.D.N.C. 1984).

Warnings regarding surgical implant given in insert to physician were sufficient notice to plaintiff patient. Padgett v. Synthes, Ltd., 677 F. Supp. 1329, 1988 U.S. Dist. LEXIS 640 (W.D.N.C. 1988), aff'd, 872 F.2d 418, 1989 U.S. App. LEXIS 3272 (4th Cir. 1989).

Latent Hazards in Machine Could Have Rendered Warning Inadequate. —

Where an issue arose as to whether or not latent hazards existed in a cardboard box baler, so as to render attached warning label inadequate, trial court erred in finding plaintiff contributorily negligent as a matter of law for failing to heed the warning. Smith v. Selco Prods., Inc., 96 N.C. App. 151, 385 S.E.2d 173, 1989 N.C. App. LEXIS 967 (1989).

Summary Judgment on Issue of Contributory Negligence Held Improper. —

Questions about the design of a cardboard box baler, its violation of OSHA industry standards, and the workplace practice this design provoked, created questions of whether the warning sticker attached to the machine was adequate and whether plaintiff’s action in putting his arm inside the baler involved contributory negligence; therefore, summary judgment based on plaintiff’s contributory negligence was not proper. Smith v. Selco Prods., Inc., 96 N.C. App. 151, 385 S.E.2d 173, 1989 N.C. App. LEXIS 967 (1989).

Evidence that plaintiffs failed to exercise reasonable care under the circumstances in their use of asbestos-containing products because they continued to smoke cigarettes after the hazards of cigarette smoking and the relationship between cigarette smoking and asbestos exposure became widely known, and their smoking, combined with their exposure to asbestos-containing products, was a proximate cause of their injuries and could support a finding of contributory negligence. The district court erroneously did not permit defendant to establish this defense at trial, by granting partial summary judgment on the issue of contributory negligence. Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 1995 U.S. App. LEXIS 31155 (4th Cir. 1995).

Exercise of Reasonable Care. —

The court could not conclude as a matter of law that decedent, killed when the vending machine fell on him, failed to exercise reasonable care under the circumstances, where several students, contemporaries of decedent, testified that it was well known that if the soft drink vending machine at issue was tilted, a canned drink would be dispensed and plaintiff presented evidence that decedent was attempting to retrieve the canned drink for which he had already paid. Morgan v. Cavalier Acquisition Corp., 111 N.C. App. 520, 432 S.E.2d 915, 1993 N.C. App. LEXIS 854 (1993).

Product Never Used by Plaintiff. —

In a failure to warn product liability action against a taser manufacturer by the administrator of a decedent’s estate, the district court properly barred the manufacturer’s defense that the decedent was contributorily negligent because the language of this statute was unambiguous that the claimant had to use the product before the defense could arise, and a police officer, not the decedent, used the taser. Fontenot v. Taser Int'l, Inc., 736 F.3d 318, 2013 U.S. App. LEXIS 23510 (4th Cir. 2013).

Section Held Not Available as Defense. —

Roof manufacturer, who argued that roof was not properly installed by subcontractor and that, thus, under this Chapter, it was not liable, was not able to use this section as a defense, since it had contracted to instruct subcontractor on installation procedures, and since it had assisted subcontractor in the installation of the roof on the building. Westover Prods., Inc. v. Gateway Roofing Co., 94 N.C. App. 63, 380 S.E.2d 369, 1989 N.C. App. LEXIS 448 (1989).

Negligence of Plaintiff. —

A manufacturer or seller can avoid liability under the Act if plaintiff was negligent in his use of the product, or if he used the product even after he discovered a defect or unreasonably dangerous condition. Nicholson v. American Safety Util. Corp., 124 N.C. App. 59, 476 S.E.2d 672, 1996 N.C. App. LEXIS 1016 (1996), modified, aff'd, 346 N.C. 767 , 488 S.E.2d 240, 1997 N.C. LEXIS 469 (1997).

§ 99B-5. Claims based on inadequate warning or instruction.

No manufacturer or seller of a product shall be held liable in any product liability action for a claim based upon inadequate warning or instruction unless the claimant proves that the manufacturer or seller acted unreasonably in failing to provide such warning or instruction, that the failure to provide adequate warning or instruction was a proximate cause of the harm for which damages are sought, and also proves one of the following:
1. At the time the product left the control of the manufacturer or seller, the product, without an adequate warning or instruction, created an unreasonably dangerous condition that the manufacturer or seller knew, or in the exercise of ordinary care should have known, posed a substantial risk of harm to a reasonably foreseeable claimant.
2. After the product left the control of the manufacturer or seller, the manufacturer or seller became aware of or in the exercise of ordinary care should have known that the product posed a substantial risk of harm to a reasonably foreseeable user or consumer and failed to take reasonable steps to give adequate warning or instruction or to take other reasonable action under the circumstances.
Notwithstanding subsection (a) of this section, no manufacturer or seller of a product shall be held liable in any product liability action for failing to warn about an open and obvious risk or a risk that is a matter of common knowledge.
Notwithstanding subsection (a) of this section, no manufacturer or seller of a prescription drug shall be liable in a products liability action for failing to provide a warning or instruction directly to a consumer if an adequate warning or instruction has been provided to the physician or other legally authorized person who prescribes or dispenses that prescription drug for the claimant unless the United States Food and Drug Administration requires such direct consumer warning or instruction to accompany the product.

History. 1995, c. 522, s. 1.

Legal Periodicals.

For article, “Strictly No Strict Liability: The 1995 Amendments to Chapter 99B, the Products Liability Act,” see 74 N.C.L. Rev. 2240 (1996).

For a comment on the effect of direct-to-consumer pharmaceutical advertising on the learned intermediary doctrine, see 20 Campbell L. Rev. 113 (1997).

CASE NOTES

Basis for Claim. —

North Carolina law allows any foreseeable user to state a claim for breach of warranty, but this contention holds true only for claims based on inadequate warning or instruction for a product, pursuant to G.S. 99B-5 . McLaurin v. E. Jordan Iron Works, Inc., 666 F. Supp. 2d 590, 2009 U.S. Dist. LEXIS 100226 (E.D.N.C. 2009), aff'd, 410 Fed. Appx. 630, 2011 U.S. App. LEXIS 2718 (4th Cir. 2011).

Proximate Cause of Harm. —

Failure to Warn Not Proven To Be Proximate Cause of Worker’s Injuries. —

Where a worker sued a clamp manufacturer after the worker was injured when a clamp failed on an irrigation system, the trial court properly directed a verdict in favor of the manufacturer on the worker’s claim that the manufacturer was liable for failing to provide adequate warnings regarding the clamp, as the worker proffered no evidence that the manufacturer’s failure to provide the warnings that were suggested by the worker’s expert was the proximate cause of the worker’s injuries. Evans v. Evans, 153 N.C. App. 54, 569 S.E.2d 303, 2002 N.C. App. LEXIS 1082 (2002).

In plaintiff’s products liability suit against the manufacturer of a vaginal mesh, the district court did not err by awarding partial summary judgment for defendant on the failure to warn claim because plaintiff did not present evidence that any allegedly inadequate warnings caused her injuries; plaintiff cited no evidence establishing that either she or her doctor so much as read the allegedly inadequate warning. Carlson v. Boston Sci. Corp., 856 F.3d 320, 2017 U.S. App. LEXIS 8227 (4th Cir. 2017).

No exception to the Learned Intermediary Doctrine. —

There is no evidence that North Carolina has adopted a direct-to-consumer exception to the Learned Intermediary Doctrine, codified at G.S. 99B-5 . Cowley v. Abbott Labs., 476 F. Supp. 2d 1053, 2007 U.S. Dist. LEXIS 14582 (W.D. Wis. 2007).

Defendant’s Knowledge, or Lack Thereof, Regarding Potential Dangers of its Product Relevant to Issues of Duty and Causation. —

In an action in which defendant pharmaceutical company filed a motion to exclude or limit the testimony of plaintiff individual’s expert witnesses, the company’s motion requesting that the court exclude all evidence regarding side effects of Pondimin other than primary pulmonary hypertension, namely, valvular heart disease or “VHD” was denied; in light of its probative value on the issue of notice to the company, duty to warn, and causation, the probative value of VHD evidence was not substantially outweighed by the risk of unfair prejudice to the company. Smith v. Wyeth-Ayerst Labs. Co., 278 F. Supp. 2d 684, 2003 U.S. Dist. LEXIS 19972 (W.D.N.C. 2003).

Duty to Warn Physician Was Satisfied. —

Drug manufacturer and a distributor were entitled to summary judgment on a patient and his spouse’s product liability action because North Carolina law governed where the patient resided in North Carolina when a resident doctor prescribed the TNF inhibitor for the patient’s rheumatoid arthritis, and under the Learned Intermediary Doctrine, codified at G.S. 99B-5(c) , the manufacturer met its duty to warn the doctor about the drug’s dangers and side effects. Cowley v. Abbott Labs., 476 F. Supp. 2d 1053, 2007 U.S. Dist. LEXIS 14582 (W.D. Wis. 2007).

§ 99B-6. Claims based on inadequate design or formulation.

No manufacturer of a product shall be held liable in any product liability action for the inadequate design or formulation of the product unless the claimant proves that at the time of its manufacture the manufacturer acted unreasonably in designing or formulating the product, that this conduct was a proximate cause of the harm for which damages are sought, and also proves one of the following:
1. At the time the product left the control of the manufacturer, the manufacturer unreasonably failed to adopt a safer, practical, feasible, and otherwise reasonable alternative design or formulation that could then have been reasonably adopted and that would have prevented or substantially reduced the risk of harm without substantially impairing the usefulness, practicality, or desirability of the product.
2. At the time the product left the control of the manufacturer, the design or formulation of the product was so unreasonable that a reasonable person, aware of the relevant facts, would not use or consume a product of this design.
In determining whether the manufacturer acted unreasonably under subsection (a) of this section, the factors to be considered shall include, but are not limited to, the following:
1. The nature and magnitude of the risks of harm associated with the design or formulation in light of the intended and reasonably foreseeable uses, modifications, or alterations of the product.
2. The likely awareness of product users, whether based on warnings, general knowledge, or otherwise, of those risks of harm.
3. The extent to which the design or formulation conformed to any applicable government standard that was in effect when the product left the control of its manufacturer.
4. The extent to which the labeling for a prescription or nonprescription drug approved by the United States Food and Drug Administration conformed to any applicable government or private standard that was in effect when the product left the control of its manufacturer.
5. The utility of the product, including the performance, safety, and other advantages associated with that design or formulation.
6. The technical, economic, and practical feasibility of using an alternative design or formulation at the time of manufacture.
7. The nature and magnitude of any foreseeable risks associated with the alternative design or formulation.
No manufacturer of a product shall be held liable in any product liability action for a claim under this section to the extent that it is based upon an inherent characteristic of the product that cannot be eliminated without substantially compromising the product’s usefulness or desirability and that is recognized by the ordinary person with the ordinary knowledge common to the community.
No manufacturer of a prescription drug shall be liable in a product liability action on account of some aspect of the prescription drug that is unavoidably unsafe, if an adequate warning and instruction has been provided pursuant to G.S. 99B-5(c) . As used in this subsection, “unavoidably unsafe” means that, in the state of technical, scientific, and medical knowledge generally prevailing at the time the product left the control of its manufacturer, an aspect of that product that caused the claimant’s harm was not reasonably capable of being made safe.
Nothing in this section precludes an action against a manufacturer in accordance with the provisions of G.S. 99B-5 .

History. 1995, c. 522, s. 1.

Legal Periodicals.

For article, “Strictly No Strict Liability: The 1995 Amendments to Chapter 99B, the Products Liability Act,” see 74 N.C.L. Rev. 2240 (1996).

CASE NOTES

Jury Instruction Regarding Product Design Was Properly Denied Absent Evidence That Manufacturer Designed the Product in Issue. —

In an action by a worker against a clamp manufacturer after the worker was injured when a clamp failed on an irrigation system, the trial court properly refused to give the worker’s requested jury instruction that a manufacturer had a duty to exercise reasonable care in the design of a product, as there was no evidence that the manufacturer designed the clamp. Evans v. Evans, 153 N.C. App. 54, 569 S.E.2d 303, 2002 N.C. App. LEXIS 1082 (2002).

Duty of Design. —

G.S. 99B-6(a) does not impose a duty of design on a manufacturer; rather, if a manufacturer designs a product, then it has a duty to use reasonable care in the design. Evans v. Evans, 153 N.C. App. 54, 569 S.E.2d 303, 2002 N.C. App. LEXIS 1082 (2002).

No Duty to Protect From Improper Use of Product. —

Manufacturers of a texting system were entitled to dismissal in a negligence action because they were not liable under G.S. 99B-6 where the automobile accident in the case was caused by the driver’s inattention, not any element of the design or manufacture of the texting system; fact that using the system could have resulted in a driver negligently operating a motor vehicle did not create any duty on the part of the manufacturers to protect third parties from a driver’s improper use of the product. Durkee v. C. H. Robinson Worldwide, Inc., 765 F. Supp. 2d 742, 2011 U.S. Dist. LEXIS 9254 (W.D.N.C. 2011), aff'd, 502 Fed. Appx. 326, 2013 U.S. App. LEXIS 188 (4th Cir. 2013).

Summary Judgment Improper Where Conflict Raised by Consumer’s Expert. —

Summary judgment was improperly granted to a motorcycle helmet manufacturer in a consumer’s action alleging that the manufacturer unreasonably failed to adopt a safer, feasible design alternative, where there was a legitimate conflict of evidence raised by the deposition testimony of the consumer’s expert that created a genuine issue of material fact. Howerton v. Arai Helmet, Ltd., 358 N.C. 440 , 597 S.E.2d 674, 2004 N.C. LEXIS 667 (2004).

Summary Judgment Properly Denied. —

Accident victims produced sufficient evidence under G.S. 99B-6 to survive a car manufacturer’s motions for summary judgment and directed verdict in their suit brought to recover for injuries sustained in a car accident as the victims offered evidence that tended to show that the manufacturer made a produce which had the potential to cause the injury suffered by the victims. Though there were alternative designs available at the time which were used by the manufacturer in similar products, the product used by the manufacturer did not include these alternative designs. Stark v. Ford Motor Co., 204 N.C. App. 1, 693 S.E.2d 253, 2010 N.C. App. LEXIS 798 (2010), rev'd, 365 N.C. 468 , 723 S.E.2d 753, 2012 N.C. LEXIS 266 (2012).

§§ 99B-7 through 99B-9.

Reserved for future codification purposes.

§ 99B-10. Immunity for donated food.

Notwithstanding the provisions of Article 12 of Chapter 106 of the General Statutes, or any other provision of law, any person, including but not limited to a seller, farmer, processor, distributor, wholesaler, or retailer of food, who donates an item of food for use or distribution by a nonprofit organization or nonprofit corporation shall not be liable for civil damages or criminal penalties resulting from the nature, age, condition, or packaging of the donated food, unless an injury is caused by the gross negligence, recklessness, or intentional misconduct of the donor.
Notwithstanding any other provision of law, any nonprofit organization or nonprofit corporation that uses or distributes food that has been donated to it for such use or distribution shall not be liable for civil damages or criminal penalties resulting from the nature, age, condition, or packaging of the donated food, unless an injury is caused by the gross negligence, recklessness, or intentional misconduct of the organization or corporation.

History. 1979, 2nd Sess., c. 1188, s. 1; 1989, c. 365; 1991 (Reg. Sess., 1992), c. 935, s. 2; 1995, c. 522, s. 1.

§ 99B-11. Claims based on defective design of firearms.

In a products liability action involving firearms or ammunition, whether a firearm or ammunition shell is defective in design shall not be based on a comparison or weighing of the benefits of the product against the risk of injury, damage, or death posed by its potential to cause that injury, damage, or death when discharged.
In a products liability action brought against a firearm or ammunition manufacturer, importer, distributor, or retailer that alleges a design defect, the burden is on the plaintiff to prove, in addition to any other elements required to be proved:
1. That the actual design of the firearm or ammunition was defective, causing it not to function in a manner reasonably expected by an ordinary consumer of firearms or ammunition; and
2. That any defective design was the proximate cause of the injury, damage, or death.

History. 1987 (Reg. Sess., 1988), c. 1059, s. 1; 1995, c. 522, s. 1.

Legal Periodicals.

For article, “Strictly No Strict Liability: The 1995 Amendments to Chapter 99B, the Products Liability Act,” see 74 N.C.L. Rev. 2240 (1996).

§ 99B-12. Burden of proof in certain cases.

A commodity producer shall be entitled to a rebuttable presumption that the commodity producer was not negligent when death or injury is proximately caused by the consumption of the producer’s raw agricultural commodity if the producer (i) is certified by the United States Department of Agriculture Agricultural Marketing Service Good Agricultural Practices and Good Handling Practices Audit Verification Program or other third-party certification program designated by the Commissioner for purposes of this section; (ii) has a written food safety policy that complies with the certification program’s standard and can provide evidence that the producer trains employees on the policy on an annual basis; (iii) has had no formal administrative findings or sanctions or legal judgments entered against the producer during the previous three years based on a claim that the commodity producer’s negligence was the proximate cause of a plaintiff’s death or injury; and (iv) has had no settlement agreements concluding litigation where the settlement exceeded twenty-five thousand dollars ($25,000), or in which the producer admitted liability, during the previous three years based on a claim that the commodity producer’s negligence was the proximate cause of a plaintiff’s death or injury. This presumption may be overcome only by clear and convincing evidence that the commodity producer’s negligence was the proximate cause of the death or injury.
As used in this section:
1. Commodity producer means a producer of raw agricultural commodities.
2. Raw agricultural commodity means any food in its raw or natural state, including all fruits that are washed, colored, or otherwise treated in their unpeeled natural form prior to marketing, and which is covered by the United States Department of Agriculture Agricultural Marketing Service Good Agricultural Practices and Good Handling Practices Audit Verification Program.

History. 2013-265, s. 2.

Editor’s Note.

Session Laws 2013-265, s. 24, made this section effective August 1, 2013, and applicable to claims arising on or after that date.

Session Laws 2013-265, s. 1, provides: “This act shall be known and may be cited as the ‘North Carolina Farm Act of 2013.’ ”