AMI 1008 Products Liability—Issues—Strict Liability in Tort—Burden of Proof

If two or more theories of liability are involved use AMI 1013.

Do not use the first bracketed paragraph when there is proof of a specific defect.

Do not use the final bracketed paragraph when affirmative defenses such as unforeseeable misuse are in issue. See, e.g., AMI 1014.

Do not use the final bracketed paragraph if the case is submitted on interrogatories.

For definition of “defective condition,” see AMI 1016. For definition of “unreasonably dangerous,” see AMI 1017.

For an instruction regarding proof by circumstantial evidence that the product was in a defective condition, see AMI 1016.

This instruction was cited with approval in Mason v. Mitcham, 2011 Ark. App. 189, at 4.

This instruction is based on Ark. Code Ann. § 4-86-102. For discussion of the background of this doctrine see Restatement (Second) of Torts § 402(a). These elements were recited in West v. Searle & Co., 305 Ark. 33, 37, 806 S.W.2d 608, 610 (1991), appeal after remand, 317 Ark. 525, 879 S.W.2d 412 (1994), and E.I. DuPont De Nemours & Co. v. Dillaha, 280 Ark. 477, 480, 659 S.W.2d 756, 757 (1983).

Definitions of the terms “manufacturer,” “product,” “supplier,” “defective condition,” “product liability action,” “anticipated life,” and “unreasonably dangerous” are found in Ark. Code Ann. § 16-116-102. AMI 1016 contains a definitional instruction for “defective condition” and AMI 1017 contains one for “unreasonably dangerous.” See Berkeley Pump Co. v. Reed–Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), for a discussion of the “unreasonably dangerous” requirement. For analysis of the requirement that the product be “defective,” see Elk Corp. of Ark. v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987), opinion supplemented on denial of reh'g, 291 Ark. 448, 727 S.W.2d 856 (1987) (discussing whether the alleged defect involved packaging).

It is “an essential constituent of proof” required under the statute that “the product was in a defective condition at the time it left the hands of the particular seller.” Yielding v. Chrysler Motor Co., 301 Ark. 271, 274–75, 783 S.W.2d 353, 355–56 (1990). See Campbell Soup Co. v. Gates, 319 Ark. 54, 889 S.W.2d 750 (1994) (same).

Proof of a specific defect is normally required, unless “common sense tells us that the accident would not have occurred in the absence of a defect.” Harrell Motors, Inc. v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981). See also Yielding, 301 Ark. at 274–77, 783 S.W.2d at 355–56 (recognizing doctrine but affirming grant of summary judgment on other grounds); Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479 (1987) (applying doctrine and finding its predicates not met); Higgins v. Gen. Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985) (same); S. Co. v. Graham, 271 Ark. 223, 607 S.W.2d 677 (1980) (upholding application of doctrine). For the case to proceed to the jury on such a theory, the plaintiff must produce evidence that tends to negate other causes of the observed product failure. Williams, 292 Ark. at 382–84, 730 S.W.2d at 482–83; Higgins, 287 Ark. at 392, 699 S.W.2d at 743; Campbell Soup, 319 Ark. at 60–62, 889 S.W. at 753–54 (presence of beetle larvae in noodle packets more than a month after manufacture and shipment held not sufficient to negate other causes). See also Kaplon v. Howmedica, Inc., 83 F.3d 263, 266–67 (8th Cir. 1996) (concluding that evidence was insufficient to negate other causes for failure of orthopedic device). For a case noting that the plaintiff is not required to negate other causes when there is proof of a defect, see Nationwide Rentals Co., Inc. v. Carter, 298 Ark. 97, 104, 765 S.W.2d 931, 935 (1989). For an instruction on this issue, see AMI 1016.

Arkansas has amended its products liability statute to exempt from the definition of “product” real estate and improvements located on real estate. Ark. Code Ann § 4-86-102(c)(2)(A). The amendment contains two exceptions to this exemption: “Any tangible object or good produced that is affixed to, installed on, or incorporated into real estate or any improvements on real estate” are considered to be “products” under the statute. Id. at § 4-86-102(c)(2)(B). Further, “[i]f environmental contaminants exist or have occurred in an improvement on real estate,” the improvements are considered “products” under the statute. Id. at § 4-86-102(c)(2)(C). Before that amendment, the courts had ruled that a street in a residential subdivision is not a “product.” Milam v. Midland Corp., 282 Ark. 15, 665 S.W.2d 284 (1984); Englehardt v. Rogers Group, Inc., 132 F. Supp. 2d 757, 759–60 (E.D. Ark. 2001) (granting summary judgment on basis, inter alia, that a highway is not a “product” under the Arkansas products liability statute).

Intervening negligent acts of a third party do not avoid liability “unless the third party's negligence is the sole proximate cause of the injury. If the intervening act is a normal response to the situation created by the original actor's conduct, then there is no intervening cause.” Nationwide Rentals Co., Inc., 298 Ark. at 101–02, 765 S.W.2d at 934 (reviewing cases).

The duty to warn the ultimate user of the product's risk generally exists under either a negligence or strict liability theory. West, 305 Ark. at 42, 806 S.W.2d at 613; Lee v. Martin, 74 Ark. App. 193, 200 45 S.W.3d 860, 865 (2001). “If a plaintiff meets his initial burden of proving that a warning is inadequate, a presumption arises that he would have read and heeded an adequate warning; however, the presumption may be rebutted by evidence that an adequate warning would have been futile under the circumstances.” Lee, 74 Ark. App. at 200, 45 S.W.3d at 865 (citing Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992)). An exception to the duty to warn is the “learned intermediary” doctrine, under which “a drug manufacturer may rely on the prescribing physician to warn the ultimate consumer of the risks of a prescription drug.” West, 305 Ark. at 42, 806 S.W.2d at 613 (applying learned intermediary doctrine to oral contraceptives).

Damages for economic loss may be recoverable under strict products liability in the absence of any personal injury or any damage to property other than the product, provided that the defective product is unreasonably dangerous such that it poses an actual danger to persons or property. See Berkeley Pump, 279 Ark. at 390–91, 653 S.W.2d at 131 (concluding that irrigation pumps that failed to pump an adequate volume of water were not unreasonably dangerous); Farm Bureau Ins. Co. v. Case Corp., 317 Ark. 467, 471–73, 878 S.W.2d 741, 744 (1994) (concluding that a tractor that caught fire was unreasonably dangerous); Alaskan Oil, Inc. v. Cent. Flying Serv., 975 F.2d 553, 555 (8th Cir. 1992) (affirming the jury's finding that a plane, which had never crashed but had a history of corrosion problems, was unreasonably dangerous).