Statute of Limitations (OKLAHOMA)


Personal Injury - 2 yrs. [12 Okl.St.Ann. § 95]

Wrongful Death - 2 yrs.  [12 Okl.St.Ann. § 1053] - 2 yrs.

Property Damage - 2 yrs. [12 Okl.St.Ann. § 95]

Written Contract - 5 yrs. [12 Okl.St.Ann. § 95]

Oral Contract - 3 yrs. [12 Okl.St.Ann. § 95]

Contracts for Sale (goods) and Breach of Warranty - 5 yrs. (from tender of delivery) [12A Okl.St.Ann. § 2-725]


“Discovery rule” allows limitations in tort cases to be tolled until injured party knows or, in exercise of reasonable diligence, should have known of injury [Reynolds v. Porter, 760 P.2d 816 (Okla. 1988)]









Statute of Repose (Products) (OKLAHOMA)




Admissibility of Expert Testimony (OKLAHOMA)


Daubert applies to all novel expert testimony.  When the evidence is not novel a trial court may make that determination and avoid a prolonged Daubert inquiry.  Daubert provides a list of factors for the trial judge to consider when determining the admissibility of evidence. They include: (1) can the theory or technique be, or has it been, tested; (2) has the theory or technique been subjected to peer review and publication; (3) is there a known or potential rate of error and the existence and maintenance of standards controlling the technique's operation; and (4) is there widespread acceptance of the theory or technique within the relevant scientific community. The inquiry is a flexible one, and focuses on the evidentiary relevance and reliability underlying the proposed submission, and not on the conclusions they generate [Christian v. Gray, 65 P.3d 591 (Okla. 2003)].


Causes of Action (OKLAHOMA)


Strict Liability (also known as Manufacturers’ Product Liability in Oklahoma) – Oklahoma 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 for physical harm to the ultimate user (or to his property) if: (1) the seller is engaged in the business of selling such a product; (2) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold [Kirkland v. GMC, 521 P.2d 1353 (Okla. 1974)].


Negligence – A "defect" also includes a defect caused by some form of negligence [Kirkland v. GMC, 521 P.2d 1353 (Okla. 1974)].


Breach of Warranty – Oklahoma has adopted the standard UCC express warranty [12A Okl. St. § 2-313]; implied warranty of merchantability [12A Okl. St. § 2-314]; implied warranty of fitness for particular purpose [12A Okl. St. § 2-315].  A seller’s warranty (express or implied) extends 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 and who is injured in person by breach of the warranty [12A Okl. St. § 2-318].


Definition of “Defect” (OKLAHOMA)


A product is defective when it is not safe for normal handling and consumption.  An “unreasonably dangerous” product must be 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 [Woods v. Fruehauf Trailer Corp., 765 P.2d 770 (Okla. 1988); Kirkland v. GMC, 521 P.2d 1353 (Okla. 1974)].


In the context of strict liability, only when a defect in a product renders it less safe than expected by an ordinary consumer will a manufacturer be held responsible for damages caused by such defect [Lamke v. Futorian Corp., (Okla. 1985)].


A product is defective in design if something about that design renders it less safe than expected by the ordinary consumer [Wheeler v. Ho Sports, Inc., 232 F.3d 754 (10th Cir. Okla. 2000)].


Also, see discussion below re: design defects. 

Liability of Sellers (OKLAHOMA)


Sellers and suppliers are strictly liable [Spence v. Brown-Minneapolis Tank, Co., 198 P.3d 395 (Okla. Ct. App. 2008)].  For liability to apply, the seller/supplier must be engaged in the business of selling such products.  


Defenses (OKLAHOMA)      


Comparative Negligence – Oklahoma follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [23 Okl.St.Ann. § 13].  Does not apply in strict liability products actions [Kirkland v. General Motors Corp., 521 P.2d 1353 (Okla. 1974)].


Assumption of Risk – Complete defense (defined as voluntary assumption of the risk of a known defect) [Kirkland v. General Motors Corp., 521 P.2d 1353 (Okla. 1974)].


Product Misuse – Complete Defense (misuse occurs where the method of using a product is not that which the maker intended or is a use that could not reasonably be anticipated by a manufacturer) [Treadway v. Uniroyal Tire Co., (Okla. 1988)].


Product Alteration – Manufacturer is not liable for material modification or alteration of the product.  Manufacturer is not held responsible if the modifications or alterations are responsible for the defect and is the intervening and superseding cause of the injuries [Dutsch v. Sea Ray Boats, Inc., (Okla. 1992)].





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


No action lies in manufacturers’ products liability for injury only to product itself resulting in purely economic loss [Waggoner v. Town & Country Mobile Homes, Inc., 808 P.2d 649 (Okla. 1990)].


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


Plaintiff may prove his cause of action by circumstantial evidence and proper inferences drawn therefrom, since actual or absolute proof of the defect in a sophisticated product may be within the peculiar knowledge or possession of the defendant [Kirkland v. GMC, 521 P.2d 1353 (Okla. 1974)].



Design Defects (OKLAHOMA)                                                                                                


A product may be defective because of defective design [Mayberry v. Akron Rubber Mach. Corp., 483 F. Supp. 407 (N.D. Okla. 1979)].


Oklahoma has adopted the consumer expectation test.  A product is defective in design if something about that design renders it less safe than expected by the ordinary consumer. The fact that it is possible to make a product more safe does not render its design defective [Wheeler v. Ho Sports, Inc., 232 F.3d 754 (10th Cir. Okla. 2000)].


If a product is found to be in a defective condition unreasonably dangerous to the user, the manufacturer is not to be excused from liability simply because other manufacturers are producing similar products.  However, state of the art, may be considered relevant to whether the manufacturer is (or should be) aware of various dangers and whether the product was dangerous beyond the expectation of the ordinary customer [O'Banion v. Owens-Corning Fiberglas Corp., 968 F.2d 1011 (10th Cir. Okla. 1992)].



Failure to Warn (OKLAHOMA)


A product may be defective because of failure to supply proper warning about the product’s dangers [Mayberry v. Akron Rubber Mach. Corp., 483 F. Supp. 407 (N.D. Okla. 1979)].


A product is defective as a result of inadequate warning when it is placed in the hands of the ultimate consumer without adequate warnings of the dangers involved in its use. A warning is inadequate particularly where a manufacturer has reason to anticipate danger may result from the use of his product and the product fails to contain adequate warning of such danger [Wheeler v. Ho Sports, Inc., 232 F.3d 754 (10th Cir. Okla. 2000)].


Defendant has a duty to warn if he: (1) knows or has reason to know that the product is (or is likely to be) dangerous for the use for which it is supplied; (2) has no reason to believe that those for whose use the product is supplied will realize its dangerous condition; and (3) fails to exercise reasonable care to inform them of its dangerous condition (or of the facts which make it likely to be dangerous).  The plaintiff must establish that the failure to warn was a proximate, producing cause of the injuries received [Duane v. Okla. Gas & Elec. Co., 833 P.2d 284 (Okla. 1992)].


There is no duty on the part of a manufacturer to warn a consumer of an obvious fact [Lamke v. Futorian Corp., 709 P.2d 684 (Okla. 1985)].


There is ordinarily no duty to give a warning to members of a profession against dangers generally known to members of that profession [Mayberry v. Akron Rubber Mach. Corp., 483 F. Supp. 407 (N.D. Okla. 1979)].


There is a rebuttable presumption that Plaintiff would have heeded any provided warnings [Cunningham v. Charles Pfizer & Co., 532 P.2d 1377 (Okla. 1974)].



Independent Cause of Action for Evidence Spoliation (OKLAHOMA)


Neither spoliation of evidence nor prima facie tort (for acts constituting spoliation of evidence) has ever been recognized as actionable [Patel v. OMH Medical Center, Inc., 987 P.2d 1185 (Okla. 1999)]