5.40B – Manufacturing Defect

5.40B MANUFACTURING DEFECT

Let me give you some applicable concepts which deal with the claim of manufacturing defect, and then I will explain what the plaintiff must prove in order to win in a manufacturing defect case.

A manufacturing defect may be established by proof that, as a result of a defect or flaw which happened during production or while in defendant’s control, the product was unsafe and that unsafe aspect of the product was a substantial factor in causing plaintiff’s accident/injury/harm.

To establish his/her claim for a manufacturing defect, the plaintiff must prove all of the following elements by a preponderance (greater weight) of the credible evidence:

1. The product contained a manufacturing defect which made the product not reasonably safe. To determine if the product had a manufacturing defect, you must decide what the condition of the product as planned should have been according to defendant’s design specifications or performance standards and what its condition was as it was made. If you find there is no difference between the two conditions, then there was no manufacturing defect. If there was a difference, you must decide if that difference made the product not reasonably safe for its intended or reasonably foreseeable uses. If the answer is “yes,” then you have found the product to be defective. Plaintiff need not prove that defendant knew of the defect nor that defendant caused the defect to occur.Whether there was a manufacturing defect in the product may be shown to you by the plaintiff in one of three ways. First of all, it may be demonstrated by direct evidence, such as a defective part. Second, you may infer that there was a defect by reasoning from the circumstances and facts shown. Third, if you find from the evidence that there is no other cause for the accident other than a manufacturing defect, you may find a defect existed.

   This element may be established by proof that the product deviated from the maker’s own design specifications or performance standards.

2. That the defect existed before the product left the control of the defendant.
3. That when the accident happened the product was not being misused, or it had not been substantially altered in a way that was not reasonably foreseeable.Plaintiff must prove that at the time of the accident the product was being used properly for its intended purposes and for an intended or reasonably foreseeable purpose. To prove this, plaintiff must show that the product was not being misused in a way that was neither intended nor was reasonably foreseeable. In this case the defendant contends that at the time of the accident the product was being misused.

   Plaintiff must also show that when he/she used the product, it had not been substantially altered since it left defendant’s control. A substantial alteration is a change or modification made to the product after it was manufactured or sold which both alters the design or function of the product and has a significant or meaningful effect on the product’s safety when used. In this case the defendant contends that the product was substantially altered. In considering this issue, you must determine whether there has been a subsequent misuse/abnormal use or substantial alteration to the product. If you find such to exist, you must determine whether such misuse/abnormal use or substantial alteration was reasonably foreseeable at the time the product left the control of the defendant(s).

   Reasonably foreseeable does not mean that the particular misuse/abnormal use or substantial alteration was actually foreseen or could have been actually foreseen by defendant at the time the product left his/her control.

   This is a test of objective foreseeability. You may consider the general experience within the industry as to what was known or could have been known with exercise of reasonable diligence when the product was manufactured, sold or distributed. Then decide whether a reasonably careful manufacturer, seller or distributor could have anticipated the misuse/ abnormal use or substantial alteration of the product. If the alteration reasonably could have been anticipated, and if the alteration made the product not reasonably safe, the defendant is still responsible. Plaintiff has the burden to show that a typical manufacturer or seller of the product could foresee that the product would be altered or that despite the alteration the original defect was nonetheless a cause of the injury.

4. That the plaintiff was a direct or reasonably foreseeable user, or a person who might reasonably be expected to come in contact with the product.
5. That the manufacturing defect was a proximate cause of the accident/injury.Proximate cause means that the manufacturing defect was a substantial factor which singly, or in combination with another cause or causes brought about the accident. Plaintiff need not prove that this same accident could have been anticipated so long as it was foreseeable that some significant harm could result from the manufacturing defect. If the manufacturing defect does not add to the risk of the occurrence of this accident [or if there was an independent intervening cause of the accident] and therefore is not a contributing factor to the happening of the accident, then plaintiff has failed to establish that the manufacturing defect was a proximate cause of the accident.

   An intervening cause is the act of an independent agency which destroys the causal connection between the effect of the defect in the product and the accident. To be an intervening cause the independent act must be the immediate and sole cause of the accident. In that event, liability will not be established because the manufacturing defect is not a proximate cause of the injury. However, the defendant would not be relieved from liability for its defective product by the intervention of acts of third persons, if those acts were reasonably foreseeable. Where the intervention of third parties is reasonably foreseeable, then there is a substantial causal connection between the product defect and the accident. You must determine whether the [alleged intervening cause] was an intervening cause that destroyed the causal connection between the defective product and the accident. If it did, then the manufacturing defect was not a proximate cause of the accident.

   If plaintiff has proven each element by a preponderance of the credible evidence, then you must find for plaintiff.

   If, on the other hand plaintiff has failed to prove any of the elements, then you must find for the defendant.

6. Was the plaintiff negligent.Defendant contends that plaintiff was at fault for the happening of the accident.

   To win on this defense, defendant must prove that plaintiff voluntarily and unreasonably proceeded to encounter a known danger and that plaintiff’s action was a proximate cause of the accident. The failure of plaintiff to discover a defect in the product or to guard against the possibility of a defective product is not a defense. Rather, to win on this defense defendant must prove that plaintiff had actual knowledge of the particular danger presented by the product and that plaintiff knowingly and voluntarily encountered the risk.

7. Was plaintiff’s negligence a proximate cause of the injury?
8. Comparative Fault; Apportionment of Fault; Ultimate Outcome.If plaintiff and defendant both are found to be at fault which is a proximate cause of the accident/injury, the jury must compare their fault in terms of percentages.