Kansas law regarding strict liability is essentially common law restrained by the KPLA. The KPLA and case law relevant to strict liability contains a number of exceptions and defenses which we need to be aware of. A recent case extending the doctrine of strict liability, Gaumer v. Rossville, 202 P. 3d 81 (2011) contains a very nice summary of Kansas strict liability products law.
There are three types of defects in Kansas strict liability products cases: design defects, manufacturing defects, and warning defects. Kansas strict liability common law essentially mirrors Restatement, 2d Torts, 402A, which states:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property, is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:
(a) The seller is engaged in the business of selling such a product, and
(b) It is expected to reach the user or consumer in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although:
(a) The seller has exercised all possible care in preparation and sale of his product, and
(b) The user or consumer has not bought the product from or entered into any contractual relation with the seller.
Gaumer v. Rossville Truck and Tractor Co., Inc., 202 P. 3d 81 (2011).
In Kennedy v. City of Sawyer, 228 Kan. 439, 445-46, 618 P.2d 788 (1980), this court identified two purposes of strict liability: "a desire to achieve maximum protection for the injured party and [promotion of] the public interest in discouraging the marketing of products having defects that are a menace to the public." The Kennedy decision also went on to endorse what is known as a "chain of distribution" liability theory.
"Under the doctrine of strict liability the liability of a manufacturer and those in the chain of distribution extends to those individuals to whom injury from a defective product may reasonably be foreseen, and then only in those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable it may be used. 228 Kan. at 446.
Delaney concluded with the following useful summary of significant product liability law in Kansas:
"[W]hether a design defect in a product exists is determined using the consumer expectations test. A [p]laintiff must show that the product is both in a defective condition and dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community as to its characteristics. See Lester, 230 Kan. at 649-654. Betts, 236 Kan. at 115-16. Evidence of a reasonable alternative design may be introduced but is not required. Siruta, 232 Kan. at 667-68; Jenkins, 256 Kan. at 636. The fact that a hazard is open and obvious or has been warned against are factors to be considered in analyzing whether a product is defective or unreasonably dangerous. The ultimate determination remains whether the product is defective and dangerous beyond a reasonable consumer's expectations." 268 Kan. at 792-93.
In Kansas, a strict liability theory is not applicable to a manufacturer’s post-sale duty to warn. A negligence analysis is more appropriate. Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 861 P.2d 1299 (1993).
There are also a number of other defenses available to defendants in strict liability cases. First, if the user or consumer discovers the defect, is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it he may be barred from recovery. Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976); Newland v. City of Winfield, 131 Kan. 191; Jelf v. Cottonwood Falls Gas Co. 160 Kan. 112.
In Brooks, The technician testified that he knew of the risk of leaving the pilot light on and that the prudent thing to do would have been to turn the gas to the home off, but that he proceeded to work anyways. The Brooks court stated that a danger must be so obvious and imminent that an ordinary person would not subject themselves to it. The Brooks court also stated that the Plaintiff must fully understand the risks for there to be a bar to recovery, that “mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude the Plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk.” Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976).
Another defense to strict liability is the Kansas Product Liability Act, K.S.A. 60-3306, which was intended to shift liability for defective products from sellers to manufacturers. Jackson v. Thomas 28 Kan. App.2d 734 (2001). This statute provides that a seller is not subject to liability when all of the following are met:
(a) such seller had no knowledge of the defect;
(b) such seller, in the performance of any duties the seller performed, or was required to perform, could not have discovered the defect while exercising reasonable care;
(c) the seller was not a manufacturer of the defective product or product component;
(d) the manufacturer of the defective product or product component is subject to service of process either under the laws of the state of Kansas or the domicile of the person making the product liability claim; and
(e) any judgment against the manufacturer obtained by the person making the product liability claim would be reasonably certain of being satisfied.
K.S.A. 60-3306; Jackson v. Thomas 28 Kan. App.2d 734 (2001).
Additionally, K.S.A. 60-3304 gives an increased legal affect to compliance with legislative or administrative safety regulations:
(a) When the injury-causing aspect of the product was, at the time of manufacture, in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design or performance, the product shall be deemed not defective by reason of design or performance, or, if the standard addressed warnings or instructions, the product shall be deemed not defective by reason of warnings or instructions, unless the claimant proves by a preponderance of the evidence that a reasonably prudent product seller could and would have taken additional precautions.
(b) When the injury-causing aspect of the product was not, at the time of manufacture, in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design, performance, warnings or instructions, the product shall be deemed defective unless the product seller proves by a preponderance of the evidence that its failure to comply was a reasonably prudent course of conduct under the circumstances.
(c) When the injury-causing aspect of the product was, at the time of manufacture, in compliance with a mandatory government contract specification relating to design, this shall be an absolute defense and the product shall be deemed not defective for that reason, or, if the specification related to warnings or instructions, then the product shall be deemed not defective for that reason.
(d) When the injury-causing aspect of the product was not, at the time of manufacture, in compliance with a mandatory government contract specification relating to design, the product shall be deemed defective for that reason, or if the specification related to warnings or instructions, the product shall be deemed defective for that reason.
Additionally, defendants may make a defense based on comment K of the Restatement (Second) of Torts, 402A. Comment k excludes “unavoidably unsafe products” from the coverage of strict liability for design defects. Comment k is meant to shield a manufacturer from liability when the product cannot be designed more safely, not when the product was mismanufactured or was not accompanied by adequate warnings. Savina v. Sterling Drug, Inc., 247 Kan. 105, 115, 795 P.2d 915 (1990). This doctrine was adopted in Kansas in Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318 (1986).
Finally, the Kansas Supreme Court recently ruled in Gaumer, that strict liability claims can apply to the sellers of used products.
Remember, the specifics of your case are unique, call The Law Offices of Jeremiah L. Johnson, LLC, today at 913-764-5010 to discuss your case. Inital consultations are free and you are under no obligation to retain our counsel.