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In an ideal world everyone would do the right thing and conduct themselves in a thoughtful manner to prevent careless actions that harm others. However, people are imperfect beings so our tort laws have carved out avenues for people to seek compensation for their injuries caused by the careless actions of others. Of course, these tort remedies are available to injured people in North Carolina, so long as the injured people are not fully or partially responsible for causing their own damages.
The following blog is a general outline of Products Liability Tort Claims in North Carolina and alternative Civil Actions in Contract Law that can be asserted in Products Liability Actions. Please be aware that this area of law is highly technical and detail-oriented. We strongly recommend that you seek the advice and counsel of a licensed North Carolina Personal Injury Attorney in regards to any potential Products Liability claims that you may have. This blog is not to be construed as legal advice.


In many jurisdictions in the United States, people injured by defects in manufactured products can hold the manufacturer of a defective product liable for consumer injuries caused by the defective product, simply by proving that a particular manufacturer created the product, that the product was defective after leaving the manufacturer, and that the product was not altered prior to the consumer's use of the product. That basically means that a manufacturer is automatically liable when a product produced by the manufacturer injures someone, without the need to prove fault or that the manufacturer failed to act reasonably in some relevant manner. For example, Florida Courts in many instances have imposed strict liability on manufacturers for placing a product on the market knowing that it is to be used by consumers without inspection for defects, which cause injury to a human being. The manufacturer, by placing a potentially dangerous product on the market for use and consumption and by inducement and promotion of such product encouraging the use of these products, thereby undertakes a certain and special responsibility toward the consuming public who may be injured by it. West v. Caterpillar Tractor Co., 336 So. 2d 80, (1976 Fla.). Thus, in Florida, the basic elements a plaintiff in a strict products liability action must prove are:

  1. A defect was present in a "product" at the time the defendant parted with possession of the product;
  2. The defect caused the plaintiff's injury;
  3. The plaintiff sustained damages as a result of the defect;
  4. The product was manufactured for profit and placed into the stream of commerce for sale to the public;
  5. The product was defective and unreasonably dangerous when used; and
  6. he defect in the product was the legal cause of the plaintiff's injuries.
Unfortunately, it's not that easy in North Carolina.


The North Carolina General Assembly terminated Strict Products Liability actions in 1995 with the passage of North Carolina General Statute § 99B-1.1, which simply states, "There shall be no strict liability in tort in product liability actions." This elimination of strict products liability has made it more difficult for injured product consumers to bring products liability actions in North Carolina, although this statute does not make it impossible for injured product consumers to pursue alternative products liability actions.


Under the North Carolina Products Liability Act "product liability action" is defined as "any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging or labeling of any product." N.C.G.S. § 99B-1(3). Pursuant to the Act, a plaintiff may base a products liability action against a manufacturer or seller on contract principles of breach of warranty. Tetterton v. Long Mfg. Co., 314 N.C. 44, 50, 332 S.E. 2d 67, 71 (1985). Where the action is for breach of implied warranty brought by the buyer against a manufacturer, privity is not required. N.C.G.S. § 99B-2(b); Tetterton.


These claims may arise when one or more parties in the manufacturing chain caused the product to be defective through negligence, which caused your injuries. Negligence claims are typically proven through design defects and manufacturing defects in products. For example, in regards to design defects, if a manufacturer designs a product, the manufacturer has a duty to use reasonable care in the design. Evans v. Evans, 153 N.C. App. 54, 569 S.E. 2d 303 (2002). Manufacturers also have a duty to ensure their manufacturing process ensures consumer safety and that adequate warnings are provided for potential dangers a product may cause from foreseeable use of the product. Foreseeable use may include uses of the product that the product is not intended to be used for but are foreseeable uses of the product. An example of this could be someone who is injured by standing on a chair that collapses while replacing a light bulb in his or her home.


Design defects exist before a product is made, which causes the product to be defective when manufactured. N.C.G.S. § 99B-6 states: (a) No manufacturer of a product shall be held liable in any product liability action for the inadequate design or formulation of the product unless the claimant proves that at the time of its manufacture the manufacturer acted unreasonably in designing or formulating the product, that this conduct was a proximate cause of the harm for which damages are sought, and also proves other specific factors provided by the statute. This area is highly technical and will likely require the analysis and testimony of expert witnesses. This process can be very expensive and cumbersome.


Manufacturing defects are those defects that occur while the product is being created. Typically, only a couple products become defective in this process, rather than all products produced by a particular manufacturer. In a products liability case, in general, the plaintiff seeks to prove, through whatever means available under the circumstances of the case, that a product was defective when it left the hands of the manufacturer. In some cases, the plaintiff may be able to prove that the product suffered from a specific defect by producing expert testimony to explain to the jury precisely how the product was defective and how the defect must have arisen from the manufacturer or seller. (Be aware that hiring experts to testify in your case can become quite expensive as previously mentioned.) In cases of a manufacturing defect, such expert testimony is certainly desirable from the plaintiff's perspective, but it is not essential. The plaintiff, even without expert testimony articulating the specific defect, may be able to convince a jury that the product was defective when it left the seller's hands by producing circumstantial evidence. Such circumstantial evidence includes:

  1. The malfunction of the product;
  2. Expert testimony as to a variety of possible causes;
  3. The timing of the malfunction in relation to when the plaintiff first obtained the product;
  4. Similar accidents involving the same product;
  5. Elimination of other possible causes of the accident; and
  6. 6roof tending to establish that the accident does not occur absent a manufacturing defect.
However the plaintiff chooses to present his or her case, the goal is the same: to prove that the product was not only defective, but that such a defect existed when it left the hands of the seller. DeWitt v. Eveready Battery Co., 355 N.C. 672, 565 S.E.2d 140, (2002).


The defects can be a defect in product instructions or warnings of dangers or recommended uses to avoid danger caused by a product. Claims for failure to warn or marketing defects can potentially be based upon a missing line in product directions or even a typo. N.C.G.S. § 99B-5 states: (a) No manufacturer or seller of a product shall be held liable in any product liability action for a claim based upon inadequate warning or instruction unless the claimant proves that the manufacturer or seller acted unreasonably in failing to provide such warning or instruction, that the failure to provide adequate warning or instruction was a proximate cause of the harm for which damages are sought, and also proves one of the following: (1) At the time the product left the control of the manufacturer or seller, the product, without an adequate warning or instruction, created an unreasonably dangerous condition that the manufacturer or seller knew, or in the exercise of ordinary care should have known, posed a substantial risk of harm to a reasonably foreseeable claimant. (2) After the product left the control of the manufacturer or seller, the manufacturer or seller became aware of or in the exercise of ordinary care should have known that the product posed a substantial risk of harm to a reasonably foreseeable user or consumer and failed to take reasonable steps to give adequate warning or instruction or to take other reasonable action under the circumstances. Other technical factors must be analyzed in determining whether you have a failure to warn claim. North Carolina law allows any foreseeable user to state a claim for a breach of warranty, but this contention holds true only for claims based on inadequate warning or instruction for a product, pursuant to N.C.G.S. § 99B-5.


When considering a products liability action, one should consider warranties. Whether written or expressed verbally, in advertising or in person, a warranty tells you that the product should be safe for its intended use. If the product is defective, the warranty is breached and another party can be held liable for your injuries. Many products when sold to consumers come with warranties, whether those warranties are express warranties issued by the seller through specific oral or written words of a manufacturer of a product or a warranty implied at law, which are applicable to many goods regardless of whether the seller or manufacturer issued a warranty on the product or intended to issue a warranty on the product. If you are injured by a defective good it is important to determine whether the good came with a warranty from the seller or the manufacturer. Breach of Warranty Claims provide an alternative path to pursue damages for products liability under the North Carolina Uniform Commercial Code. Before diving into Breach of Warranty Claims you must understand some of the essential terms used in this particular area of contract law.


In North Carolina, Article 2 of the North Carolina Uniform Commercial Code (UCC) generally governs transactions for the sale of goods. It is important that one understands the following legal definitions provided by the UCC in analyzing Breach of Warranty Claims and other products liability claims in North Carolina.

Goods: N.C.G.S. § 25-2-105 defines "goods" as all things (including specially manufactured goods), which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (UCC Article 8) and things in action. "Goods" also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (N.C.G.S. § 25-2-107).

Merchant: N.C.G.S. § 25-2-104 defines a "merchant" as, a person who deals in goods of the kind or otherwise by his occupation holds him or herself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. A few examples of merchants would include an employee at a major athletic shoe store, and a car dealer.

Buyer: N.C.G.S. § 25-2-103(1)(a) defines "buyer" as a person who buys or contracts to buy goods.

Fungible Goods: N.C.G.S. § 25-1-201(18) defines "Fungible goods" as: (a) Goods of which any unit, by nature or usage of trade, are the equivalent of any other like unit; or (b) Goods that by agreement are treated as equivalent.


Implied Warranty of Merchantability: Automatic Warranty at Law

What Products Come with Implied Warranties of Merchantability:

N.C.G.S. § 25-2-314 (1), states, unless specifically excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. (A few examples of goods protected by an implied warranty of merchantability are cars sold at car dealerships, kitchen appliances sold at appliance retailers, and household cleaning products sold at discount stores.) This statute also provides for an Implied Warranty of Merchantability on food and drink, when sold for value to be consumed either on the seller's premises or elsewhere. (This means that food and beverages sold in places such as restaurants and grocery stores are among the products covered by the implied warranty of merchantability.)

Scope of Implied Warranty of Merchantability:

N.C.G.S. § 25-2-314(2) defines the scope of merchantable goods covered by an implied warranty of merchantability as goods when such goods:

Pass without objection in the trade under the contract description as the good sold;
In the case of fungible goods are of fair average quality within the description;
Are fit for the ordinary purposes for which such goods are used;
Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved;
Are adequately contained, packaged, and labeled as the agreement may require; and
Conform to the promises or affirmations of fact made on the container or label if any.
Implied Warranty of Fitness for a Particular Purpose:

N.C.G.S. § 25-2-315 states that where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under N.C.G.S. § 25-2-316, an implied warranty that the goods shall be fit for such purpose. An example of where an implied warranty of fitness for a particular purpose may arise is when a merchant of office equipment sells a commercial scanner to a buyer who requested that the merchant show them which product in their store would make a good boat anchor. Here, the buyer is relying on the merchant's judgment of the office equipment in selecting a piece of office equipment for the particular purpose of being used as an anchor instead of being used as an office scanner is typically used.

Exclusion of Implied Warranties:

N.C.G.S. § 25-2-316 states that words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit a warranty shall be construed wherever reasonable as consistent with each other. The area of warranty exclusions can be highly detailed when analyzing your case but a few important things to note are, subject to subsection (3) of the aforementioned statute, to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness, the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, "There are no warranties which extend beyond the description on the face hereof." Typically, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty. Also, when the buyer before purchasing, has examined the goods or the sample or model as fully as desired, or the buyer has refused to examine the goods, there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to the buyer.


​An express warranty can be created when a seller or manufacturer expresses to the buyer verbally or in a writing attached to goods sold, that expressly states that the seller or manufacturer is providing a warranty on the goods. This is a pretty contractual matter. The party creating the warranty has wide authority in the scope they set on the warranty. An example of an express warranty is when you buy a product such as a home coffee maker that comes with a small written booklet that states that the manufacturer promises to replace the coffee maker if a defect is discovered within a year from the date of purchase. (Your remedies may exceed the limits set by an express warranty provided by the seller if the product injures you.)


A breach of warranty claim requires proof that (1) the defendant warranted the product (express or implied) to plaintiff, (2) there was a breach of that warranty in that the product was defective at the time it left the control of the defendant, and (3) the defect proximately caused plaintiff damage. M. Stuart Madden, Products Liability § 2.7 at 32-33. (2d ed. 1988). Plaintiffs in this scenario do not need to prove that the defendant acted negligently in order to recover damages for breach of warranty. However, before pursuing a claim for damages based on a Civil Claim for liability for Breach of Implied Warranty, one must first have standing to pursue a Breach of Warranty claim in the courts.


The Issue of Privity

In order to have standing to assert a valid claim for Breach of Warranty, one must be in privity with the seller or manufacturer of the goods, which caused the plaintiff injuries. N.C.G.S. § 99B-2(b) states, a claimant who is a buyer, as defined in the North Carolina Uniform Commercial Code, of the product involved, or who is a member or a guest of a member of the family of the buyer, a guest of the buyer, or an employee of the buyer may bring a product liability action directly against the manufacturer of the product involved for breach of implied warranty; and lack of privity of contract shall not be grounds for the dismissal of such action.

Who Can Sue for Damages Arising from Breach of Express Warranty

This analysis is based largely on the content of the express warranty and the judicial precedent regarding the issue of privity and similar warranty clauses to the one being analyzed in a particular case.

Statute of Limitations

Under N.C.G.S. § 1-52, most causes of action for products liability actions must be filed within 3 years from when a party incurs injuries to prevent their claim for being dismissed in the courts for being untimely filed.


As you can see, your case can stand or fall on one minuet detail. Therefore, we strongly encourage you to seek the advice of a licensed Matthews product liability lawyer before you decide to pursue or not to pursue a claim for your injuries. To schedule a consultation today, contact Panchenko Law Firm. Due to the complex and highly technical nature of Products Liability Actions in North Carolina, your case will likely require further legal analysis beyond a consultation, which could require a nominal fee to complete. This blog is not to be construed as legal advice.