Washington

 

 

Statutes of Limitations (WASHINGTON)

 

Personal Injury - 3 yrs. [RCWA 4.16.080]

Wrongful Death - 3 yrs. [RCWA 4.16.080]

Personal Property Damage - 3 yrs. [RCWA 4.16.080]

Real Property Damage - 2 yrs. [RCWA 4.16.130; Will v. Frontier Contractors, Inc., 89 P.3d 242 (Wash. App. 2004)]

Product Liability - 3-yr (rather than 4-yr statute of limitations for breach of warranty) applied to action which stated a product liability claim [Martin v. Patent Scaffolding, 678 P.2d 362 (Wash. App. 1984); RCWA 7.72.060]

Written Contracts - 6 yrs. [RCWA 4.16.040]

Oral Contracts - 3 yrs. [RCWA 4.16.080]

Contracts for Sale (goods)  and Breach of Warranty - 4 yrs. (from tender of delivery) [RCWA 62A.2-725]

 

In determining whether to apply the discovery rule to determine the accrual of a cause of action, the possibility of stale claims must be balanced against the unfairness of precluding justified causes of action. The discovery rule for determining the accrual of a cause of action requires that when a plaintiff is placed on notice by some appreciable harm occasioned by another's wrongful conduct, the plaintiff must make further diligent inquiry to ascertain the scope of the actual harm. For the discovery rule for determining the accrual of a cause of action, a person who has notice of facts that are sufficient to put him upon inquiry notice is deemed to have notice of all facts that reasonable inquiry would disclose [1000 Virginia Ltd. Partnership v. Vertecs Corp., 146 P.3d 423 (Wash. 2006)].

 

 

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Statute of Repose (Products) (WASHINGTON)

 

No liability if product seller proves by preponderance of evidence that the harm was caused after product’s “useful safe life” had expired. “Useful safe life” begins at the time of delivery to its first purchaser.  If the harm was caused more than 12 yrs. after delivery, a presumption arises that the harm was caused after the useful safe life had expired. This presumption may only be rebutted by a preponderance of evidence [RCWA 7.72.060].

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Admissibility of Expert Testimony (WASHINGTON)

 

Washington applies the Frye standard for admissibility of novel scientific evidence (general acceptance in the relevant scientific community) [State v. Copeland, 922 P.2d 1304 (Wash. 1996)].

 

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Causes of Action (WASHINGTON)

 

A single cause of action created by the Washington Product Liability Act (“Act”).  “Product liability claim” includes any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product. It includes, but is not limited to, any claim or action previously based on: strict liability in tort; negligence; breach of express or implied warranty; breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent [RCWA 7.72.010(6)] 

 

The Act creates a single cause of action for product-related harms that supplants previously existing common law remedies. This cause of action does not afford a remedy for economic loss [Wash. Water Power Co. v. Graybar Elec. Co., 774 P.2d 1199 (Wash. 1989)

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Definition of “Defect” (WASHINGTON)

 

In determining whether a product was not reasonably safe under this section, the trier of fact must consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer [RCWA 7.72.030].

 

A product is not reasonably safe because adequate warnings or instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the harm (or similar harms), and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate [RCWA 7.72.030].

 

A product manufacturer is subject to strict liability if the harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s express warranty or to the implied warranties [RCWA 7.72.030].

 

A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line [RCWA 7.72.030].

 

A product does not conform to the express warranty of the manufacturer if it is made part of the basis of the bargain and relates to a material fact or facts concerning the product and the express warranty proved to be untrue [RCWA 7.72.030]

 

A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the harm (or similar harms), and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product [RCWA 7.72.030].

 

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Liability of Sellers (WASHINGTON)

 

A product seller is liable only if the harm was proximately caused by: (1) the negligence of such seller; or (2) breach of an express warranty made by such product seller; or (3) the intentional misrepresentation of facts about the product (or the intentional concealment of information about the product) by such seller [RCWA 7.72.040].

 

However, a product seller will have the liability of a manufacturer if: (1) no solvent manufacturer who would be liable is subject to service of process under the laws of Plaintiff’s domicile or Washington; or (2) the court determines that it is highly probable that Plaintiff would be unable to enforce a judgment against any manufacturer; or (3) the product seller is a controlled subsidiary of a manufacturer, or the manufacturer is a controlled subsidiary of the seller; or (4) the product seller provided the plans or specifications for the manufacture or preparation of the product and such plans or specifications were a proximate cause of the defect in the product; or (5) the product was marketed under a trade name or brand name of the product seller [RCWA 7.72.040].

 

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Defenses (WASHINGTON)     

 

Comparative Negligence – Washington follows pure comparative negligence (Plaintiff can recover even if 99% at fault) [RCWA 4.22.005].  Applies to product liability actions (the Act does not codify the comparative negligence scheme and, per RCWA 7.72.020, all other laws on product liability are modified only to the extent set forth in the Act).

 

Assumption of Risk – Operates as a damage-reducing factor rather than a complete bar to recovery [Campbell v. ITE Imperial Corp., 733 P.2d 969 (Wash. 1987)].

 

Product Alteration/Modification – A user may be barred from recovery if the product undergoes substantial change in its condition after leaving the manufacturer.  The defense appears applicable to claims brought for alleged negligent product designs and negligent failure to warn [Parkins v. Van Doren Sales, 724 P.2d 389 (Wash. Ct. App. 1986)].

 

Product Misuse – Included in the definition of “fault” for the purpose of the comparative negligence scheme [RCWA 4.22.015].

 

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

 

ELD is recognized and passively applied.  Almost case-by-case determination.

 

Whether “sudden and dangerous” test or more evaluative approach is appropriate method for analyzing “risk of harm,” in determining whether damages constitute more than pure economic loss and are recoverable under Washington Product Liability Act, is undecided in Washington [Touchet Valley Grain Growers, Inc. v. Opp & Seibold General Const., Inc., 831 P.2d 724 (Wash. 1992)].

 

Under common law, lack of privity between injured party and manufacturer would not bar recovery from manufacturer under strict liability theory.  “Economic loss,” within meaning of the Product Liability Act, which states that it does not afford remedy for “economic loss,” is determined by employing risk of harm analysis [Washington Water Power Co. v. Graybar Elec. Co., 774 P.2d 1199 (Wash. 1989)]

 

 

 

 

 

 

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

 

Circumstantial evidence may be used to prove that a product was defective when it left the manufacturer [Bich v. GE Co., 614 P.2d 1323 (Wash. Ct. App. 1980)].

 

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Design Defects (WASHINGTON)                                                                                                

 

A product manufacturer is subject to liability if the harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed.  A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the harm (or similar harms), and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product [RCWA 7.72.030].

 

Evidence of custom in the product seller’s industry, technological feasibility, or that the product was or was not in compliance with nongovernmental standards or with legislative regulatory standards or administrative regulatory standards may be considered by the trier of fact [RCWA 7.72.050].

 

When the injury-causing aspect of the product was, at the time of manufacture, in compliance with a specific mandatory government contract specification relating to design or warnings, this compliance is an absolute defense. When the injury-causing aspect of the product was not, at the time of manufacture, in compliance with a specific mandatory government specification relating to design or warnings, the product is deemed not reasonably safe [RCWA 7.72.050].

 

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Failure to Warn (WASHINGTON)

 

A product manufacturer is subject to liability if the harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe because adequate warnings or instructions were not provided.  A product is not reasonably safe because adequate warnings or instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the harm (or similar harms), and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate [RCWA 7.72.030].

 

Evidence of custom in the product seller’s industry, technological feasibility, or that the product was or was not in compliance with nongovernmental standards or with legislative regulatory standards or administrative regulatory standards may be considered by the trier of fact [RCWA 7.72.050].

 

When the injury-causing aspect of the product was, at the time of manufacture, in compliance with a specific mandatory government contract specification relating to design or warnings, this compliance is an absolute defense. When the injury-causing aspect of the product was not, at the time of manufacture, in compliance with a specific mandatory government specification relating to design or warnings, the product is deemed not reasonably safe [RCWA 7.72.050].

 

 

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Independent Cause of Action for Evidence Spoliation (WASHINGTON)

 

Not addressed/recognized.

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