North Dakota

 

 

Statute of Limitations (NORTH DAKOTA)

 

Personal Injury - 6 yrs. [NDCC, 28-01-16]

Wrongful Death - 2 yrs. (form death) (if malpractice involved, from discovery of malpractice, but no later than 6 yrs. from act/omission) [NDCC, 28-01-18]

Property Damage - 6 yrs. [NDCC, 28-01-16]

Contracts (Oral and Written) - 6 yrs. [NDCC, 28-01-16]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [NDCC, 41-02-104]

 

Courts use an objective standard for the knowledge requirement under the discovery rule. The focus is upon whether Plaintiff is aware of facts that would place a reasonable person on notice a potential claim exists, without regard to Plaintiff's subjective beliefs [Kuntz v. Muehler, 603 N.W.2d 43 (N.D. 1999)]

 

 

 

 

 

 

 

 

Statute of Repose (Products) (NORTH DAKOTA)

 

None (declared unconstitutional).

 

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Admissibility of Expert Testimony (NORTH DAKOTA)

   

Daubert rejected. Courts have broad discretion to determine whether a witness is qualified as an expert and whether his testimony will assist the trier of fact.  North Dakota Supreme Court is reluctant to interfere with the broad discretion given to a trial court to decide the qualifications and usefulness of expert witnesses.  A trial court does not abuse its discretion in admitting expert testimony whenever his specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or special certification [State v. Hernandez, 707 N.W.2d 449 (N.D. 2005)].

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Causes of Action (NORTH DAKOTA)

 

Statutory Definition – “Product liability action” means any action brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product [NDCC, 28-01.3-01].

 

Strict Liability – North Dakota has adopted Rest. (2nd) of Torts, 402A.  One who sells a product in a defective condition unreasonably dangerous to the user (or to his property) is subject to liability for harm caused to the ultimate user (or to his property) if: (1) a seller is engaged in the business of selling such a product; and (2) the product is expected to and does reach the user without substantial change in the condition in which it is sold [Johnson v. American Motors Corp., 225 N.W.2d 57 (N.D. 1974)].

 

Negligence – If Plaintiff can prove negligence and strict liability, he is entitled to have the jury instructed on both separate theories, to have fault assessed separately on each theory, and to have judgment entered on the theory which provides the greater recovery [Butz v. Werner, 438 N.W.2d 509 (N.D. 1989)].

 

Breach of Warranty – North Dakota has adopted the Standard UCC express warranty [NDCC, 41-02-30]; implied warranty of merchantability [NDCC, 41-02-31]; implied warranty of fitness for particular purpose [NDCC, 41-02-32].  A seller’s warranty (express or implied) extends to any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured by breach of the warranty [NDCC, 41-02-30].

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Definition of “Defect” (NORTH DAKOTA)

 

No product may be considered to have a defect or to be in a defective condition, unless at the time the product was sold by the manufacturer or other initial seller, there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer [NDCC, 28-01.3-06].

 

“Unreasonably dangerous” means that the product is dangerous to an extent beyond which would be contemplated by the ordinary and prudent user of that product in that community considering the product’s characteristics, propensities, risks, dangers, and uses, together with any actual knowledge, training, or experience possessed by that particular user [NDCC, 28-01.3-01].

 

 

 

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Liability of Sellers (NORTH DAKOTA)

 

In a products liability action against a non-manufacturing seller, the seller must file an affidavit certifying the correct identity of the manufacturer.  After the plaintiff has filed a complaint against the manufacturer and the manufacturer has answered, the court will order the dismissal of the claim against the certifying seller (with some exceptions) [NDCC, 28-01.3-04]

 

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Defenses (NORTH DAKOTA)     

 

Comparative Negligence – North Dakota follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 50% at fault).  Applies to product liability actions [NDCC, 32-03.2-02]. 

 

Assumption of Risk – Included in the comparative negligence analysis [NDCC, 32-03.2-02].

 

Product Misuse – Included in the comparative negligence analysis [NDCC, 32-03.2-02].

 

Product Alteration/Modification – Complete defense [NDCC, 28-01.3-03].

 

 

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (NORTH DAKOTA)

 

Under ELD, contract law, and not products liability tort law, governs actions of persons seeking redress for damages when the injury is confined to the defective product itself [Leno v. K & L Homes, Inc., 803 N.W.2d 543 (N.D. 2011)].  ELD applies to consumer purchases as well as to commercial transactions [Clarys v. Ford Motor Co., 592 N.W.2d 573 (N.D. 1999)]

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (NORTH DAKOTA)

 

Conclusive proof is not necessary to show existence of a defect; it can be done by circumstantial evidence. It is not enough simply to show that an accident or mishap occurred to establish a defect, but the nature of the defect need not be precisely established, especially if a complex product is involved. A defect may be inferred from proof that the product did not perform as intended by the manufacturer. Expert testimony is of great value in establishing defectiveness [Herman v. General Irrigation Co., 247 N.W.2d 472 (N.D. 1976)].

 

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Design Defects (NORTH DAKOTA)                                                                                               

 

The statutory definition of “product liability action” includes “design” and “formula” [NDCC, 28-01.3-01]

 

“Unreasonably dangerous” means that the product is dangerous to an extent beyond which would be contemplated by the ordinary and prudent user of that product in that community considering the product’s characteristics, propensities, risks, dangers, and uses, together with any actual knowledge, training, or experience possessed by that particular user [NDCC, 28-01.3-01].  Therefore, it appears that North Dakota uses a combination of the consumer expectations test and the risk/utility test. 

 

There is a rebuttable presumption that a product is free from defects if the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product were in conformity with government standards established for that industry or if no government standards exist then with applicable industry standards, which were in existence at the time the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product were adopted [NDCC, 28-01.3-09].

 

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Failure to Warn (NORTH DAKOTA)

 

The statutory definition of “product liability action” includes “packaging,” “labeling,” and “failure to warn or protect against a danger or hazard” [NDCC, 28-01.3-01].

 

An adequate warning is one that would in the ordinary course have come to the user’s attention. The failure to give such a warning permits the inference that it would have alerted the user to the danger and forestalled the accident.  When no warning is given, the plaintiff is entitled to the benefit of a presumption that an adequate warning, if given, would have been read and heeded [Butz v. Werner, 438 N.W.2d 509 (N.D. 1989)].

 

There is no automatic preclusion of liability based solely upon “obviousness” [Olson v. A. W. Chesterton Co., 256 N.W.2d 530 (N.D. 1977)].

 

There is a rebuttable presumption that a product is free from defects if the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product were in conformity with government standards established for that industry or if no government standards exist then with applicable industry standards, which were in existence at the time the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product were adopted [NDCC, 28-01.3-09].

 

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Independent Cause of Action for Evidence Spoliation (NORTH DAKOTA)

 

Not addressed/recognized.