Arkansas

 

 

Statutes of Limitations (ARKANSAS) 

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Personal Injury - 3 yrs. [A.C.A. § 16-56-105]

Wrongful Death - 3 yrs. (from death) [A.C.A. § 16-62-102]; but 2 yrs. if Med Mal [Hertlein v. St. Paul Fire and Marine Ins. Co., 914 S.W.2d 303 (Ark. 1996)]

Property Damage - 3 yrs. [A.C.A. § 16-56-105]

All Product Liability Cases involving Personal Injury or Property Damage - 3 yrs. [A.C.A. § 16-116-103; Follette v. Wal-Mart Stores, Inc., 41 F.3d 1234 (8th Cir. 1994)]; discovery rule applies [Martin v. Arthur, 3 S.W.3d 684 (Ark. 1999)]

Written Contracts - 5 yrs. [A.C.A. § 16-56-111]

Oral Contracts - 3 yrs. [A.C.A. § 16-56-105]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [A.C.A. § 4-2-725]

 

No “discovery rule” for actions based on negligence (statute begins to run when injury occurs, not when discovered) [Chalmers v. Toyota Motor Sales, USA, Inc., 935 S.W.2d 258 (Ark. 1996)].

 

 

 

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Statute of Repose (Products) (ARKANSAS) 

 

None.

 

 

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Admissibility of Expert Testimony (ARKANSAS) 

 

Daubert test.  A key consideration under Daubert applied to expert scientific testimony is whether the scientific theory/technique can be or has been tested. Other considerations include whether the theory/technique has been subjected to peer review and publication, the potential rate of error, and the existence and maintenance of standards controlling the technique’s operation. Additionally, general acceptance in the scientific community can have a bearing on the inquiry [Farm Bureau Mut. Ins. Co. v. Foote, 14 S.W.3d 512 (Ark. 2000)]. 

 

 

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Causes of Action (ARKANSAS) 

 

According to Arkansas Product Liability Act of 1979 (“Act”), “Product liability action” includes all actions brought for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging, or labeling of any product [A.C.A. § 16-116-202].

 

Strict Liability – Statutory definition: a supplier of a product is subject to liability in damages for harm: if: (1) the supplier is engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the product; (2) the product was supplied by him in a defective condition that rendered it unreasonably dangerous; and (3) the defective condition was a proximate cause of the harm to a person or to property [A.C.A. § 16-116-101].

 

Negligence – Defendant’s failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence in this case.  To constitute negligence an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner [AMI 302].

 

Breach of Warranty – Arkansas has adopted the standard UCC express warranty [C.R.S. § 4-2-313]; implied warranty of merchantability [C.R.S. § 4-2-314]; implied warranty of fitness for particular purpose [C.R.S. § 4-2-315].  A seller’s warranty (express or implied) extends to any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured by breach of the warranty [C.R.S. § 4-2-318]. 

 

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Definition of “Defect” (ARKANSAS) 

 

“Defective condition” means a condition of a product that renders it unsafe for reasonably foreseeable use and consumption [A.C.A. § 16-116-202].

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A subjective approach to the “consumer expectations test” has been adopted for determining when a product is unreasonably dangerous.  Consumer expectations are the expectations of the actual Plaintiff sitting in the courtroom [Mason v. Mitcham, 382 S.W.3d 717 (Ark. App. 2011)].  A defect alone is not enough; the defect must render the product “unreasonably dangerous” as well.  A product must be both defective and unreasonably dangerous [Mason v. Mitcham, 382 S.W.3d 717 (Ark. App. 2011)].

  

“Unreasonably dangerous” means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable user, assuming the ordinary knowledge of the community or of similar users as to its characteristics, propensities, risks, dangers, and proper and improper uses, as well as any special knowledge, training, or experience possessed by the particular buyer, user, or consumer or which he or she was required to possess [A.C.A. § 16-116-101]
 

Proof that the product is defective is an essential element of a cause of action based on strict liability.  However, proof of a specific defect is not required when common experience teaches that the accident or damage would not have occurred in the absence of a defect [Lakeview Country Club v. Superior Prods., 325 Ark. 218 (Ark. 1996)].

 

Also, see discussion below re: "design defects."
 

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Liability of Sellers (ARKANSAS) 

 

Supplier is subject to liability if: (1) he is engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the product; (2) the product was supplied by him in a defective condition that rendered it unreasonably dangerous; and (3) the defective condition was a proximate cause of the harm [A.C.A. § 16-116-101].

 

“Supplier” means any individual or entity engaged in the business of selling a product, whether the sale is for resale or for use or consumption.  “Supplier” includes a retailer, wholesaler, or distributor and also includes a lessor or bailor engaged in the business of leasing or bailment of a product [A.C.A. § 16-116-202].

 

 

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Defenses (ARKANSAS)  

    

Comparative Negligence – Arkansas follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 50% at fault) [A.C.A. § 16-64-122].  “Fault” includes any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party [A.C.A. § 16-64-122].

 

Product Alteration/Modification and Product Misuse – Most likely, incorporated in the comparative negligence analysis.  If a product is not unreasonably dangerous at the time it leaves Manufacture’s control, but was made unreasonably dangerous by subsequent unforeseeable alteration, change, improper maintenance, or abnormal use, such conduct may be considered as evidence of fault on the part of the user [A.C.A. § 16-116-206].

 

Assumption of Risk – No longer applicable as a separate theory; incorporated into the comparative negligence analysis [Ouachita Wilderness Inst. v. Mergen, 947 S.W.2d 780 (Ark. 1997)].

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (ARKANSAS) 

 

Not applied.  Recovery is possible under strict liability for supplying defective products even when only damages sustained were to the defective product itself [Farm Bureau Ins. Co. v. Case Corp., 878 S.W.2d 741 (Ark. 1994)].

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (ARKANSAS) 

 

Proof of the specific defect is not required when common experience indicates that the accident would not have occurred in the absence of a defect. In such a situation, there is an inference the product is defective, and it is up to the manufacturer to go forward with the evidence [Harrell Motors, Inc. v. Flanery, 612 S.W.2d 727 (Ark. Mar. 2, 1981)]. 

 

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Design Defects (ARKANSAS) 

 

The statutory definition of “Product liability action” includes “design” [A.C.A. § 16-116-202].

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Defective design may provide the defective condition required for proof of strict liability [Hill v. Searle Laboratories, Div. of Searle Pharmaceuticals, Inc., 884 F.2d 1064 (8th Cir. Ark. 1989)].

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Compliance with any federal or state statute or administrative regulation existing at the time a product was manufactured and prescribing standards of design, inspection, testing, manufacture, labeling, warning, or instructions for use of a product is considered as evidence that the product is not in an unreasonably dangerous condition in regard to matters covered by these standards  [A.C.A. § 16-116-205].  

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The existence, practicality, and technological feasibility of an alternative safe design are not necessary elements of Plaintiff’s cause of action, but rather are merely factors that may be considered by the jury in determining whether a product was supplied in a defective condition that rendered it unreasonably dangerous [French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. Ark. 1981)].

 

“State of the art” is not a test used in Arkansas [Forrest City Machine Works, Inc. v. Aderhold, 616 S.W.2d 720 (Ark. 1981)].

 

 

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Failure to Warn (ARKANSAS) 

 

The statutory definition of “Product liability action” includes “warning,” “packaging,” and “labeling” [A.C.A. § 16-116-202]. 

 

Failure to read the label does not automatically preclude a claim for inadequate warning. Plaintiff originally has the burden of proving the warnings or instructions provided were inadequate. Once Plaintiff proves the lack of an adequate warning, a presumption arises that the user would have read and heeded adequate warnings or instructions. This presumption may be rebutted by evidence which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances [Bushong v. Garman Co., 843 S.W.2d 807 (Ark. 1992)].

 

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Independent Cause of Action for Evidence Spoliation (ARKANSAS) 

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Not addressed/recognized.