Product liability law in North Carolina encompasses many of the same common law elements as most other personal injury claims, but it is unique in that it is governed by a detailed statutory code. The North Carolina Product Liability Act (also known as Chapter 99B) sets forth certain standards and defenses for all product liability actions. The following questions frequently arise when defending against product liability lawsuits.

1. Does North Carolina follow strict liability for product liability claims?

No. North Carolina requires that a plaintiff prove negligence to establish liability in product liability claims, unlike many states that permit recovery through strict liability principles once a product defect is shown. Chapter 99B specifically states that “there shall be no strict liability in tort in product liability actions.” N.C. Gen. Stat. §99B-1.1.

2. How does a plaintiff prove his product liability claim?

Typically, product liability claims in North Caroline are established through one of three theories: manufacturing defects; design defects, or failure to warn.

3. How long does a plaintiff have to file his lawsuit?

There are two time limitations a plaintiff must comply with when filing a product liability lawsuit – the 3 year statute of limitations, and the 12 year statute of repose. A lawsuit based on negligence must be brought within 3 years of the injury or loss, and a claim based on breach of contract or warranty must be filed within 3 years of the breach. Likewise, a product liability lawsuit must also comply with the 12 year statute of repose, which means that the suit must be brought within 12 years of the product’s initial purchase, regardless of whether the plaintiff has complied with the statute of limitations.

4. What defenses are available for product liability lawsuits?

Chapter 99B of the North Carolina General Statutes sets forth a number of affirmative defenses that manufacturers and/or sellers can assert when faced with a product liability lawsuit. See Top 7 Defenses for Product Liability Lawsuits in North Carolina. The most common defense to any negligence claim in North Carolina is contributory negligence by the plaintiff, and this defense completely bars their claim. The concept of contributory negligence exists in various forms throughout Chapter 99B. For example, manufacturers and/or sellers are protected in situations where: 1) there has been an alteration or modification to the product; 2) the use of the product was contrary to the instructions and warnings provided with it; 3) the claimant knew of a defect with the product and nonetheless exposed himself to the danger; or 4) the claimant failed to exercise reasonable care under the circumstances in using the product.

5. Does North Carolina recognize a “sealed container” or “innocent seller” defense?

Yes. North Carolina, like many other states, provides a defense for a product seller or retailer where that party sold the product in a sealed container, or under circumstances in which the seller had no reasonable opportunity to inspect the product in a manner that would have revealed the defect. This defense does not apply where the seller damaged the product, the original manufacturer is not subject to jurisdiction in North Carolina, or if the manufacturer has been judicially declared insolvent.

6. Must the plaintiff be the original purchaser of the product to file suit?

Not necessarily. In addition to the original purchaser, other persons who can file suit over an allegedly defective consumer product include the purchaser’s family members, any guests of the purchaser or his family members, or any employees of the purchaser.

7. What if the plaintiff makes a claim for breach of warranty?

Breach of warranty claims are evaluated separately under the provisions of the Uniform Commercial Code. However, every defense in Chapter 99B that applies to negligence claims, also applies to any breach of warranty claim, unless expressly excluded.