The State of North Carolina does not provide for strict liability in cases involving claims for product liability. Statutory law governs the rights, remedies and defenses in product liability actions which sound in negligence and breach of implied and express warranties. In order to recover, a plaintiff has to show that there is a defect in the product at the time of sale, which proximately caused the injury. The plaintiff can prove defect by evidence that the product was put to its normal use and malfunctioned, expert testimony as to possible cause or causes, similar incidents of malfunction, elimination of other causes, and the fact that an accident would not have occurred absent a manufacturing defect.
A plaintiff in a products liability action can base a defect on inadequate warnings or instruction. NC Gen. Stat. Section 99-B-5. The inadequate warning must have created an unreasonably dangerous condition that the manufacturer or seller knew or should have known posed a substantial risk of harm. Warnings as to conditions which are open and obvious or matters of common knowledge are not required.
Also, a products liability claim based on a defect in design or formulation must be accompanied by proof that a safer, practical, feasible and otherwise reasonable alternative design or formulation could have been adopted that would have prevented or substantially reduced the risk of harm without impairing the usefulness, practicality, or desirability of the product. In the alternative, a product liability plaintiff can show that at the time the product left the control of the manufacturer, the design was so unreasonable that a reasonable person aware of all relevant facts would not use or consume a product utilizing this design. Section 99-B-6.
In determining whether a manufacturer acted reasonably in designing or formulating the product, several factors to be considered are the nature and magnitude of the risks of harm associated with the design in light of the reasonably foreseeable uses, the likely awareness of product users of those risks, whether the design conforms to applicable government standards in effect, the utility of the product, the economic and technical feasibility of using an alternative design, and the nature and magnitude of any foreseeable risks.
The retailer of a product in North Carolina has a defense if the retailer is a "mere conduit" of the product, or when the seller has no reasonable opportunity to inspect in such a manner as would reveal the condition complained of. 99-B-2(a). The seller does, however, have a duty if seller knows or has reason to know of a product's dangerous propensity and fails to warn of same.
In claims based upon an implied warranty, a plaintiff must show a warranty by the defendant, either express or implied, that the product is defective or unmerchantable at the time it left the defendant and that the defect was the proximate cause of the damages sustained by the plaintiff. Section 25-2-314 (2) 1986. The failure to provide adequate warning may also render the product unmerchantable.