Alaska

Kentucky

 

 

 

Statutes of Limitations (KENTUCKY)

 

Personal Injury (vehicle not involved) - 1 yr. [KRS § 413.140] (discovery rule applies)

Wrongful Death (vehicle not involved) - 1 yr. (if person entitled to bring any action dies before the expiration of the applicable statute of limitation and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within 1 yr. after the qualification of the representative) [KRS §§ 413.140; 413.180]

Personal Injury (vehicle involved) - 2 yrs. after injury or the date of last PIP payment, whichever later occurs [KRS § 304.39-230]

Wrongful Death (vehicle involved) - 2 yrs. after death or the date of last PIP payment, whichever later occurs [KRS § 304.39-230]

Real Property - 5 yrs. [KRS § 413.120]

Personal Property - 2 yrs. (whether tort or contract) [KRS § 413.125]

Written Contracts - 15 yrs. if executed on or before 7/15/14 [KRS § 413.090]; 10 yrs. if executed after 7/15/14 [KRS § 413.160]

Oral Contracts - 5 yrs. [KRS § 413.120]

Contracts for Sale and Breach of Warranty - 4 yrs. (from tender of delivery) [KRS § 355.2-725]

 

Under the “discovery rule,” it is the date of the actual or constructive knowledge of the injury which triggers the running of the statute of limitations [Wiseman v. Alliant Hospitals, Inc. 37 S.W.3d 709 (Ky. App. 2000)].

 

 

 

 

Statute of Repose (Products) (KENTUCKY)

It is presumed (until rebutted by preponderance of evidence) that the product was not defective if the injury/damage occurred more than 5 yrs. after sale or more than 8 yrs. after the date of manufacture [KRS § 411.310].

 

 

Admissibility of Expert Testimony (KENTUCKY)

 

Trials courts may apply the Daubert factors in determining the admissibility of an expert’s testimony including, but not limited to: (1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or other specialized community [Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. Feb. 24, 2000)].

 

Causes of Action (KENTUCKY)

Three causes of actions are allowed: negligence, strict liability in tort, and breach of warranty [Williams v. Fulmer, 695 S.W.2d 411 (Ky. 1985)]

 

Product Liability Act of Kentucky (“Act”) defines a “product liability action” as including any action brought for or on account of personal injury, death or property damage caused by the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, advertising, packaging or labeling of any product [KRS § 411.300].  The purpose of the Act is to codify certain existing legal precedents and to establish certain guidelines which shall govern the rights of all participants in products liability litigation [Monsanto Co. v. Reed, 950 S.W.2d 811 (Ky. 1997)].

 

Strict Liability – Kentucky has adopted Rest. (2nd) of Torts, 402A.  One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability if the seller is engaged in the business of selling such a product, and the product is expected to and does reach the user without substantial change in the condition in which it is sold [Dealers Transport Co. v. Battery Distributing Co., 402 S.W.2d 441 (Ky. 1965)].

 

Negligence – Depends on what a prudent manufacturer, engaged in a business similar to that of a defendant, by the exercise of ordinary care actually should have discovered and foreseen [Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197 (Ky. 1976)].

 

Breach of Warranty – Kentucky has adopted the standard UCC implied warranty of merchantability [KRS § 355.2-314]; implied warranty of fitness for particular purpose [KRS § 355.2-315]; express warranty [KRS § 355.2-313].  Express or implied warranties extend only to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods [KRS § 355.2-318]. 

 

Definition of “Defect” (KENTUCKY)

 

The test for whether a product is in a defective condition and unreasonably dangerous to the user is whether an ordinarily prudent manufacturer, being fully aware of the risks, would have placed the product on the market [Tobin v. Astra Pharmaceutical Prods., Inc., 993 F.2d 528 (6th Cir. Ky. 1993)].

 

Liability of Sellers (KENTUCKY)

A wholesaler, distributor, or retailer who distributes or sells a product is not be liable, if the manufacturer is identified and subject to the jurisdiction of the court, upon showing (by a preponderance of the evidence) that said product was sold by him: (1) in its original manufactured condition or package; or (2) in the same condition such product was in when received by said wholesaler, distributor or retailer.  Such wholesaler, distributor or retailer is liable if he: (1) breached an express warranty; or (2) knew (or should have known) at the time of sale of such product that the product was in a defective condition, unreasonably dangerous to the user [KRS § 411.340]. 

Defenses (KENTUCKY)      

 

Comparative Negligence – Kentucky follows pure comparative negligence (Plaintiff can recover even if 99% at fault) [KRS 411.182].  Applies to product liability actions [Caterpillar, Inc. v. Brock, 915 S.W.2d 751 (Ky. 1996)].

 

NOTE: The Act’s treatment of various defenses is, most likely, no longer correct because Kentucky became a pure comparative negligence state after the Act was adopted.  Therefore, for the purpose of comparative negligence, “fault" includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages [Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467 (Ky. 2001)].

 

Assumption of Risk – Abolished [Parker v. Redden, 421 S.W.2d 586 (Ky. 1967)].  Only a factor in the comparative negligence analysis.

 

Product Alteration/Modification – According to the Act, a manufacturer is liable only for the injury/damage that would have occurred if the product had been used in its original, unaltered and unmodified condition. If Plaintiff performed an unauthorized alteration/modification, and such alteration/modification was a substantial cause of the occurrence that caused injury/damage, Defendant is not liable whether or not said Defendant was at fault or the product was defective [KRS § 411.320].  However, it is not clear whether alternation/modification is a complete defense (or a factor in the comparative negligence analysis) because the Act was adopted before Kentucky adopted the pure comparative negligence standard [Jarrett v. Duro-Med Indus., 2007 U.S. Dist. LEXIS 13163 (E.D. Ky. 2007)].

Producf Misuse – An unknowledgeable user, unaware of the danger, using a product for its intended purpose, is not necessarily negligent as a matter of law in using the product in a different way than the manufacturer intended, when such use is reasonably foreseeable [Burke Enterprises, Inc. v. Mitchell, 700 S.W.2d 789 (Ky. 1985)].

 

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

 

A manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself.  Costs for repair or replacement of the product itself, lost profits, and similar economic losses cannot be recovered pursuant to negligence or strict liability theories but are recoverable only under the parties’ contract, including warranties. There is no “calamitous event” exception in Kentucky. [Giddings & Lewis, Inc. v. Indus. Risk Insurers, 348 S.W.3d 729 (Ky. June 16, 2011)].

 

Economic loss rules does not apply in consumer transactions. [State Farm Mut. Auto. Ins. Co. v. Norcold, Inc., 849 F.3d 328 (6th Cir. Ky. 2017)].

 

An exception may exist where there is kind of harm against which public policy requires manufacturers to protect, independent of any contractual obligation [Williams v. Volvo-White, 2003 WL 22681457 (Ky. App. 2003) - unpublished decision]

 

 

 

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

Plaintiff can prove a product liability claim using the fact of the malfunction if Plaintiff eliminates those causes for which the manufacturer would not be liable. [Siegel v. Dynamic Cooking Sys., 2012 U.S. App. LEXIS 20416 (6th Cir. Ky. 2012)].

 

Design Defects (KENTUCKY)

                                                                                               

Design defect liability requires proof of a feasible alternative design.  Defendant may present evidence of other manufacturers’ designs and how they perform, so that the jury can have a context for evaluating the design of the defendant’s product and the reasonableness of the defendant’s efforts. Evidence of industry practice and designs utilized by other manufacturers is admissible in a product liability case. Compliance with industry custom is evidence of non-negligence (but not determinative).  [Toyota Motor Corp. v. Gregory, 136 S.W.3d 35 (Ky. 2004)].

 

It is presumed, until rebutted by a preponderance of the evidence, that the product was not defective if the design, methods of manufacture, and testing conformed to the generally recognized and prevailing standards or the state of the art in existence at the time the design was prepared, and the product was manufactured. [KRS § 411.310].

 

The trier of fact must employ a risk-utility balancing test that considers alternative safer designs and the accompanying risk pared against the risk and utility of the design chosen to determine whether the manufacturer exercised reasonable care in making the design choices it made. Significantly, the risk-utility test examines what the manufacturer knew or should have known at the time the product was sold [Ostendorf v. Clark Equip. Co., 122 S.W.3d 530 (Ky. 2003)].

 

 

 

 

Failure to Warn (KENTUCKY)

Kentucky law imposes a general duty on manufacturers and suppliers to warn of dangers known to them but not known to persons whose use of the product can reasonably be anticipated [Watters v. TSR, Inc., 904 F.2d 378 (6th Cir. Ky. 1990)]. 

 

In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warnings as to its use (this is ordinarily not required when the danger or potential danger is generally known and recognized and is within common knowledge and understanding) [McCabe Powers Body Co. v. Sharp, 594 S.W.2d 592 (Ky. 1980)].  

 

A duty to warn of product danger is a duty to give a warning which is adequate and sufficient to the danger.  The warning must be fair and adequate, to the end that the user, by the exercise of reasonable care on his own part, shall have a fair and adequate notice of the possible consequences of use or even misuse [Post v. American Cleaning Equipment Corp., 437 S.W.2d 516 (Ky. 1968)].   

 

Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous [Bryant v. Hercules, Inc., 325 F. Supp. 241 (W.D. Ky. 1970)].

 

Independent Cause of Action for Evidence Spoliation (KENTUCKY)

Kentucky Supreme Court has refused to recognize a new cause of action for spoliation of evidence [Monsanto Co. v. Reed, 950 S.W.2d 811 (Ky. 1997)].