Vermont

 

 

Statute of Limitations (VERMONT)

 

Personal Injury - 3 yrs. [12 V.S.A. § 512]

Wrongful Death - 2 yrs. [14 V.S.A. § 1492]

Personal Property Damage - 3 yrs. [12 V.S.A. § 512]

Real Property Damage - 6 yrs. [12 V.S.A. § 511]

Contracts (Oral and Written) - 6 yrs [12 V.S.A. § 511]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [9A V.S.A. § 2-725]

 

Plaintiff does not need to have an airtight case before the limitations period begins to run; fleshing out the facts will occur during investigation of the matter or during discovery after the lawsuit is filed. Limitations period begins to run when the plaintiff has or should have discovered both the injury and the fact that it may have been caused by the defendant's negligence or other breach of duty. [Rodrigue v. VALCO Enterprises, Inc., 726 A.2d 61 (Vt. 1999)]

 

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Statute of Repose (Products) (VERMONT)

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None.

 

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Admissibility of Expert Testimony (VERMONT)

 

Vermont is following the Daubert standard.  The following factors are intended to assist trial judges in determining whether expert testimony is sufficiently supported by scientific knowledge so as to be admissible: (1) whether the scientific technique or methodology involved can be tested; (2) whether the technique or methodology has been subjected to peer review and publication; (3) the known or potential rate of error particular to the technique or methodology; and (4) whether the technique or methodology has been generally accepted in the scientific community. These factors are not exhaustive and the admissibility standard under Daubert is a flexible one [USGen New Eng., Inc. v. Town of Rockingham, 862 A.2d 269 (Vt. 2004)].

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Causes of Action (VERMONT)

 

Strict Liability – Vermont has adopted Rest. (2nd) of Torts, 402A.  Plaintiff must show that the product: (1) is defective; (2) is unreasonably dangerous to the consumer in normal use; (3) reached the consumer without undergoing any substantial change in condition; and (4) caused injury to the consumer because of its defective design [Farnham v. Bombardier, Inc., 640 A.2d 47 (Vt. 1994)].

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Negligence – In addition to proving that the product is defective, and that its defect was the proximate cause of the harm, Plaintiff must show that Defendant was negligent [Webb v. Navistar Int’l Transp. Corp., 692 A.2d 343 (Vt. 1996)].

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Breach of Warranty – Vermont has adopted the standard UCC express warranty [9A V.S.A. § 2-313]; implied warranty of merchantability [9A V.S.A. § 2-314]; implied warranty of fitness for particular purpose [9A V.S.A. § 2-315].  A seller’s warranty (express or implied) extends to any natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [9A V.S.A. § 2-318].

 

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Definition of “Defect” (VERMONT)

 

A product is defective if it is not “safe for normal handling and consumption.”  “Unreasonably dangerous” means the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics [Farnham v. Bombardier, Inc., 640 A.2d 47 (Vt. 1994)].

 

 

 

 

 

Liability of Sellers (VERMONT)

 

Sellers (who are engaged in the business of selling such products) are strictly liable pursuant to the broad definition of strict liability under Rest. (2nd) of Torts, 402A [Zaleskie v. Joyce, 333 A.2d 110 (Vt. 1975)].

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Defenses (VERMONT)     

 

Comparative Negligence – Vermont follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [12 V.S.A. § 1036].  Comparative liability principles are applicable in strict products liability actions [Webb v. Navistar Int’l Transp. Corp., 692 A.2d 343 (Vt. 1996)].  Negligence that consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence, is not a defense at all [Id.].

 

Assumption of Risk – Complete defense.  If the user discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, the user or consumer is barred from recovery [Webb v. Navistar Int’l Transp. Corp., 692 A.2d 343 (Vt. 1996)].

 

Product Misuse – Compete defense [Webb v. Navistar Int’l Transp. Corp., 692 A.2d 343 (Vt. 1996)].

 

Product Alteration/Modification – Usually part of Plaintiff’s prima facie case (that the product reached the user without undergoing any substantial change in its condition) [Farnham v. Bombardier, Inc., 640 A.2d 47 (Vt. 1994)].

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

 

Owners of motor home could not recover, in strict product liability action, purely economic losses resulting from its defective wiring system and related problems [Paquette v. Deere and Co., 719 A.2d 410 (Vt. 1998)]. 

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

 

Vermont Supreme Court has not adopted the “malfunction theory” to prove defect in strict liability case.  At the same time, a federal court has predicted that Vermont Supreme Court would adopt the malfunction theory in light of the fact that: (1) circumstantial evidence is treated similarly under both that theory and Vermont’s breach of warranty law; (2) Vermont Supreme Court has suggested that a plaintiff may rely on circumstantial evidence to establish causation in products liability actions in the same way he or she may in a breach of warranty action; and (3) the malfunction theory is consistent with the policy considerations that motivated Vermont to adopt strict products liability [Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450 (2d Cir. Vt. 2007)].

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Design Defects (VERMONT)                                                                                                

 

According to Vermont Model Jury Instruction 6.10:

 

A manufacturer must use reasonable care, skill, and effort when it designs its product. A manufacturer must reasonably think about the way and place in which the product is normally used. The manufacturer must design the product to minimize those risks that can be foreseen from using the product, but the manufacturer is not required to design a product that is foolproof or incapable of producing injury.  To decide whether the plaintiff has proved that the defendant failed to act reasonably in designing the product, the jury may consider: (1) the purpose of the product; (2) its usefulness and desirability; (3) the likelihood of injury from its ordinary use; (4) the nature and severity of likely injury; (5) the obviousness of danger in the ordinary use of the product; (6) the ability to eliminate the danger without making the product less useful, or creating other risks to the user; (7) the availability of a feasible alternative design; (8) the cost of any alternative design; and (9) the likelihood of consumer acceptance of a product with an alternative design.

 

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Failure to Warn (VERMONT)

 

With respect to Vermont’s doctrine of strict products liability, a manufacturer has a duty to warn users and consumers when it knows or has reason to know of dangers inherent in the product at the time the product is sold, or when the product is dangerous to an extent beyond that which would be contemplated by an ordinary consumer. To establish strict liability for an inadequate warning, a plaintiff must prove that the inadequate warning made the product unreasonably dangerous and was the proximate cause of the injury [Webb v. Navistar Int’l Transp. Corp., 692 A.2d 343 (Vt. 1996)].

 

While strict liability and negligence are analytically distinct claims, they become one where liability rests on a failure to warn. Under Vermont law, to sustain a verdict premised on a failure to warn theory, plaintiff must provide evidence from which a reasonable jury could find: (1) that defendant owed a duty to warn plaintiff; (2) lack of warning made the product unreasonably dangerous, hence defective; and (3) defendant's failure to warn was the proximate cause of plaintiff’s injury [McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. Vt. 1995)].

 

If the plaintiff can demonstrate that the manufacturer had a duty to warn and failed to provide an adequate warning, a causal presumption arises that had an adequate warning been provided, the user would have read and heeded the warning and the accident would have been avoided. A defendant may present evidence to overcome the presumption.  If the user of the product was cautioned of the risk and ignored that advice, there is no reasonable basis to assume that he would have heeded a warning from the manufacturer and, hence, presumption of proximate cause disappears [Town of Bridport v. Sterling Clark Lurton Corp., 693 A.2d 701 (Vt. 1997)].

 

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Independent Cause of Action for Evidence Spoliation (VERMONT)

 

No addressed/recognized.

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