WPI 110.01 Manufacturer's Duty—Defect in Construction

Use this instruction if there is a claim against a manufacturer that the product was not reasonably safe in construction. If only one of the two tests is being used, modify the instruction accordingly.

Use bracketed material as applicable. The bracketed “at fault” language is intended to be used in conjunction with WPI 110.31.01.02 (defining “fault”) and with WPI 110.31.01.01 (the corresponding special verdict form) for cases involving mixed standards of care (e.g., negligence and strict liability); see the Notes on Use and Comments for WPI 110.31.01.01 (the corresponding special verdict form) and WPI 110.31.01.02 (defining “fault”).

Use WPI 110.04 (Seller—Manufacturer—Defined) with this instruction.

Use either WPI 110.20 (Burden of Proof—Defect in Construction—No Affirmative Defense) or WPI 110.22 (Burden of Proof—Defect in Construction—Assumption of Risk or Contributory Negligence) with this instruction.

RCW 7.72.030(2).

The statute states in part that a “product manufacturer is subject to strict liability to a claimant if the claimant's harm was proximately caused by the fact that the product was not reasonably safe in construction.”

The Washington Product Liability Act (WPLA) provides two different ways for plaintiffs to show that a product was defectively constructed. First, the plaintiff may show under RCW 7.72.030(2)(a) that “when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.” Second, the plaintiff may show under RCW 7.72.030(3) that the product “was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.”

Although Washington cases have not specifically held that the consumer-expectations approach of RCW 7.72.030(3) is independent from the material-deviation approach of RCW 7.72.030(2)(a) in a defective construction case, the case law has held that the consumer-expectations approach is an independent alternative in two analogous contexts: design defects and inadequate warnings. See Comment to WPI 110.02 (Manufacturer's Duty—Design); Comment to WPI 110.03 (Manufacturer's Duty to Provide Warnings or Instructions with Product). The structure of the WPLA and the rationale in the case law implies the same result for construction defect cases. For this reason, the WPI Committee assumes that liability in a defective construction case can be predicated on either a material-deviation theory or a consumer-expectations theory, and that a plaintiff need not prove both theories in order to prevail.

Consumer expectations. The fourth paragraph of this instruction addresses the factors to be used in analyzing the consumer-expectations approach. The paragraph is taken from the statutory language, RCW 7.72.030(3), and derived from cases decided before the enactment of RCW 7.72.030. See Ryder's Est. v. Kelly-Springfield Tire Co., 91 Wn.2d 111, 587 P.2d 160 (1978); Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 542 P.2d 774 (1975); see also Baughn v. Honda Motor Co., 107 Wn.2d 127, 727 P.2d 655 (1986). In Tabert, the court held:

Tabert, 86 Wn.2d at 154.

The rule set forth in Tabert and other pre-WPLA cases that a manufacturer is strictly liable for a product that is unsafe to an extent beyond that which would be contemplated by an ordinary user does not appear to be modified by RCW 7.72.030(3). See Couch v. Mine Safety Appliances Co., 107 Wn.2d 232, 239 n.5, 728 P.2d 585 (1986). RCW 7.72.030(3) provides that the trier of fact shall consider user expectations in determining whether a product is not reasonably safe.

Although RCW 7.72.030(3) does not use the word “reasonable,” case law makes clear that the analysis is based on reasonable consumer expectations. See Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 327, 971 P.2d 500 (1999). Moreover, evidence of compliance with codes or standards is relevant, but not determinative, in analyzing reasonable consumer expectations. Soproni, 137 Wn.2d at 328; Falk v. Keene Corp., 113 Wn.2d 645, 655, 782 P.2d 974 (1989); RCW 7.72.050(1).

Unavoidably unsafe products. See the Comment to WPI 110.02.01 (Manufacturer's Duty—Design—Unavoidable Unsafe Products—Negligence—Comment k); Transue v. Aesthetech Corp., 341 F.3d 911 (9th Cir. 2003) (applying Washington law and holding that the proper legal standard was strict liability and not negligence for comment k cases in which there is an allegation of a production defect).