ALABAMA PRODUCT LIABILITY RESOURCES
- 1 Defect in Design – the feasibility of alternative designs and consumer expectations
- 2 Misuse of Products
- 3 Unanticipated, Unforeseeable, or Unintended Use of Products
- 4 Alteration of Products
- 5 Unavoidably Unsafe Products
- 6 Duty to Warn - Dangerous or Obviously Unsafe Conditions
- 7 State of the Art Defenses
- 8 Government Contractor Defense
- 9 Statutes of Limitation and of Repose
Defect in Design – the feasibility of alternative designs and consumer expectations
Product liability actions in Alabama are generally governed by the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”). This doctrine was developed in Casrell v. Altec Indus., Inc., 335 So. 2d 128 (Ala. 1976) and Atkins v. Am. Motors Corp., 335 So. 2d 134 (Ala. 1976). As described in Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991, 993 (Ala. 1981), “Casrell and Atkins changed products liability in this State from the pure form of negligence theory to a modified version of the Restatement (Second) of Torts, §402A (1965)…” See also Bell v. T.R. Miller Mill Co., 768 So. 2d 953 (Ala. 2000).
Casrell and Atkins are also significant because the Alabama Supreme Court specifically noted that the “fault concept” was being retained in product liability cases. See Brownlee v. Louisville Varnish Co., 641 F.2d 397, 400 (5th Cir. 1981). Further, the court retained the traditional defenses of contributory negligence and assumption of the risk. Thus, negligence has been said to be the foundation of an action brought under the AEMLD. See Andrews v. John E. Smith’s Sons Co., 369 So. 2d 781 (Ala. 1979). Consequently, other causes of action, i.e., negligence and breach of warranty, are not abrogated or subsumed by the AEMLD, but, rather, remain independent causes of action that can be maintained concurrently with, or independently of, an AEMLD claim. See Tillman v. R.J. Reynolds Tobacco Co., 871 So. 2d 28, 34 (Ala. 2003); see also Spain v. Brown & Williamson Tobacco Co., 872 So. 2d 101 (Ala. 2003).
A. Alabama Pattern Jury Instruction (“APJI”) 32.07 AEMLD – Design Defect – Elements (PL)
Plaintiff (name of plaintiff) says that the (name the product) was defective as designed. To recover damages on this claim, (name of plaintiff) must prove to your reasonable satisfaction all of the following elements:
1. (Name of defendant) was a (manufacturer/ supplier/distributor/seller) of (name the product);
2. (Name of defendant) did (manufacture/supply/distribute/sell) the (name the product);
3. The (name the product) was defective;
4. There was no substantial change to (name the product) from the time it left the possession of (name of defendant) until it reached (name of plaintiff);
5. (Name of plaintiff/name of deceased) was caused (harm/death) by the defect in the (name the product); and
6. There was a safer and practical alternative design that (name of defendant) could have used at the time the (name of product) was manufactured.
Further, the “Notes on Use” for APJI 32.07 states that the above instruction should be used in “crashworthiness” cases because there is no distinction between “crashworthiness” and a traditional AEMLD design defect claim.
B. Safer And Practical Alternative Design
Proof of a safer, practical alternative design that could have been used at the time of manufacture is also a specific element of design defect claims in Alabama. APJI 32.07. APJI 32.08 states, “A safer alternative design is one that would have (reduced or eliminated the harm to (name of plaintiff)/prevented the death of (name of deceased)). The alternative design must be of greater overall safety than the design used by (name of defendant).”
This element was first defined by the Supreme Court in the seminal case of Beech v. Outboard Marine Corp., 584 So. 2d 447 (Ala. 1991). In Beech, the Supreme Court held that merely because a guard “could have” been developed was insufficient to show that an “alternative design” did exist. Id. at 450. The Court’s holding specifically followed the Eleventh Circuit decision in Elliott v. Brunswick Corp., 903 F.2d 1505 (11th Cir. 1990), cert. denied, 498 U.S. 1048 (1991).
C. Consumer Expectation Test
APJI 32.01’s definition of “defect” specifically recognizes the consumer expectation test, stating, in pertinent part, “Defective means unreasonably dangerous, that is, that the product does not meet the reasonable expectations of the ordinary consumer as to safety.” However, the “Notes on Use” for APJI 32.01 also recognizes that Alabama case law uses various language when defining defect and that certain plaintiff theories may require alternative or additional definitions. However, alternative or additional definitions should be “the exception rather than the rule.” Taylor v. General Motors Corp., 707 So. 2d 198, 201 (Ala. 1997).
D. Risk Benefit Test
Although not specifically adopted as a definition for defect, key elements of a risk benefit test are incorporated in Alabama’s Pattern Jury Instruction for a Safer and Practical Alternative Design. In addition to the above definition, APJI 32.08 states, in pertinent part, “To decide if (name of plaintiff) has proven a practical alternative design, you may consider the intended use of the (name the product), its styling, cost, desirability, safety features (and other relevant factors if raised by the parties). You may also consider the particular event, the likelihood of injury, and the probable seriousness of injury if that event occurred, the obviousness of the defect, and (name of defendant)'s ability to eliminate the defect.” In Flemister v. Gen. Motors Corp., 723 So. 2d 25 (Ala. 1998), the court rejected a requested charge by plaintiff that the “risk/utility” test be used by the jury in deciding whether a product was “unreasonably dangerous” or “defective.” The Supreme Court of Alabama rejected that approach and maintained the definition of “unreasonably dangerous” as not fit for its intended purpose and that a safer, practical, alternative design was available at the time the product was made.
Misuse of Products
Misuse is a valid affirmative defense in Alabama. Banner Welders, Inc. v. Knighton, 425 So. 2d 441, 448 (Ala. 1982). The burden of proving misuse rests with the defendant, and foreseeable misuse will not relieve the manufacturer of liability. Kelly v. Trigg Enterprises., Inc., 605 So. 2d 1185, 1192 (Ala. 1992); Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018, 1028 (Ala. 1993).
APJI 32.14 AEMLD – Defense – Product Misuse (PL) states as follows:
(Name of defendant) says the (name the product) was misused. (Name of defendant) must prove to your reasonable satisfaction that the (name the product) was used in a way that was not intended or not reasonably foreseeable by (name of defendant) and that this misuse caused the (harm/death).
Importantly, the “Notes on Use” for APJI 32.14 provide that this instruction should be used whether the alleged misuse was by the plaintiff or another user of the product.
Misuse by another may be an efficient intervening or superseding event only if it is unforeseeable. Otherwise, another user’s actions do not break the causal relationship between a defendant’s actions and the plaintiff’s injuries. Kelly v. Trigg Enterprises, Inc., 605 So. 2d 1185, 1190 (Ala. 1992).
Unanticipated, Unforeseeable, or Unintended Use of Products
Please see the comments with respect to misuse or modification of a product. Unforeseeable or unintended misuse by a plaintiff or others is a defense and proof of lack of substantial change or alteration of a product at the time of sale is an essential element of plaintiff’s claims. See also APJI 32.04 AEMLD – Without Substantial Change (PL).
Alteration of Products
Please see the above comments with respect to misuse or modification of a product. Proof of a lack of substantial change or alteration of a product is an essential element of plaintiff’s claim. APJI 32.07. APJI 32.04 AEMLD – Without Substantial Change (PL) provides as follows:
A substantial change in a product is a change:
1. That was made after the product left the possession of (name of defendant);
2. That was the cause of the (harm/death) to (name of plaintiff/of name of deceased); and
3. That was not reasonably foreseeable to (name of defendant).
Substantial change or alteration of a product is judged at the time of sale to the plaintiff whereas defect in Alabama is judged at the time of manufacture of the product. However, Alabama law is clear that the sale to plaintiff may occur long after the product leaves the possession of the manufacturer. Thompson v. Lee, 439 So. 2d 113 (Ala. 1983). Nevertheless, the mere fact that a product has been altered or modified does not necessarily relieve the manufacturer or seller of liability. Johnson v. Niagara Mach. Tool Works, 555 So. 2d 88, 91 (Ala. 1989). A manufacturer or seller remains liable if the alteration or modification did not in fact cause the injury. Id.
Unavoidably Unsafe Products
The Supreme Court of Alabama recognized the unavoidably unsafe product defense in Stone v. Smith, Kline & French Labs., 447 So. 2d 1301 (Ala. 1984). It allowed the defense again in Purvis v. PPG Indus., Inc., 502 So. 2d 714, 718 (Ala. 1987). Purvis, citing Stone, noted that the Supreme Court of Alabama adopted “comment k to Section 402A of the Restatement (Second) of Torts, (1965) that an unavoidably unsafe product, when properly prepared and accompanied by proper directions and warnings, is not ‘defective’ or ‘unreasonably dangerous’ under the Alabama's Extended Manufacturer's Liability Doctrine.” 502 So. 2d at 718. Subsequently, in Ex parte Chevron Chemical Company, 720 So. 2d 922 (Ala. 1998), the Supreme Court clarified that a manufacturer’s duty to warn did not extend to dangers that were “common knowledge” in the industry. Therefore, in this context, the unavoidably unsafe doctrine is also a defense to an AEMLD claim.
Duty to Warn - Dangerous or Obviously Unsafe Conditions
Please see the above discussion regarding duty to warn of dangers that are “common knowledge” in the industry. As stated, Ex parte Chevron Chemical Company, supra., held that under the AEMLD, “unreasonably dangerous” includes the concept that the plaintiff is unaware of the danger of the product. So, if the user is aware of the dangerousness of the product, the product is not “unreasonably dangerous.” Further, although the manufacturer has no duty to warn of “open and obvious defects,” whether the plaintiff appreciated this condition is a question for the trier of fact. Ford Motor Co. v. Rodgers, 337 So. 2d 736 (Ala. 1976); see also Gurley v. Am. Honda Motor Co., 505 So. 2d 358 (Ala. 1987) (citing Rodgers).
State of the Art Defenses
Demonstrating a product’s technology to be state of the art is relevant to proving an absence of defect. See Spurlin v. Gen. Motors Corp., 528 F.2d 612 (5th Cir. 1976); Dunn v. Wixom Brothers, 493 So. 2d 1356 (Ala. 1986). State of the art may also be a factor to consider with respect to availability of a safer and practical alternative design. APJI 32.08. However, state of the art is not a complete defense.
Government Contractor Defense
The defense is available in Alabama. See Pietz v. Orthopedic Equip. Co., 562 So. 2d 152 (Ala. 1989), cert. denied, 498 U.S. 823 (1990). In Pietz, the Supreme Court of Alabama adopted the three (3) prong analysis set forth in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), which is: “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Pietz at 154; quoting Boyle at 512. In addition, the Supreme Court noted that, per Boyle, “whether the facts of the case establish the condition for the defense is a question for the jury.” Pietz at 154.
Statutes of Limitation and of Repose
A.Statutes of Limitation
All tort actions have a two-year limitation period. Code of Alabama § 6-2-38. A breach of warranty action has a four-year limitation period, but if the product is a non-consumer item, the limitation period commences at the time of the product’s tender. Code of Alabama § 7-2-725.
B.Statutes of Repose
Alabama does not recognize a statute of repose for tort claims. The Products Liability Act contained a statute of repose. However, the provision was declared unconstitutional by the Supreme Court of Alabama in Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996 (Ala. 1982). See also Boshell v. Keith, 418 So. 2d 89 (Ala. 1982).