Ark. Code Ann. § 16-116-202 (2020)

Research References

Ark. L. Notes.

Copeland, A Statutory Primer: Article 2 of the U.C.C., — When Do Its Rules Apply?, 1990 Ark. L. Notes 39.

Looney, The Toothless Cow, the Little Bull That Couldn't, and Udder Matters: Livestock Warranties and the Uniform Commercial Code, 1990 Ark. L. Notes 75.

Ark. L. Rev.

Thompson, The Arkansas Products Liability Statute: What Does “Unreasonably Dangerous” Mean in Arkansas?, 50 Ark. L. Rev. 663.

Mark James Chaney, Recent Developments: Eighth Circuit Adopts Narrow View: Only APLA Failure-to-Warn/Mislabeling Claims Against Generic Manufacturers Are Preempted Under Mensing, 66 Ark. L. Rev. 907 (2013).

Frank Griffin, The Trouble with the Curve: Manufacturer and Surgeon Liability for “Learning Curves” Associated with Unreliably-Screened Implantable Medical Devices, 69 Ark. L. Rev. 755 (2016).

U. Ark. Little Rock L.J.

Note, Torts — Product Liability — Arkansas Adopts Comment K as an Affirmative Defense in Prescription Drug Actions. 14 U. Ark. Little Rock L.J. 199.

Case Notes

Defective Condition.

The definitions in this section of the key terms “defective condition” and “unreasonably dangerous,” when applied to the strict liability statute, impose no requirement that a feasible and safer alternative be proven by a plaintiff in a personal injury action, and it is clear that under former § 16-116-104 (now § 16-116-204) the existence, practicality, and technological feasibility of an alternative safer design are not necessary elements of the plaintiff's cause of action, but rather are merely factors that may be considered by the jury in determining whether a product was supplied in a defective condition that rendered it unreasonably dangerous; accordingly, the trial court erred in instructing the jury that the plaintiff had the burden of proving that an alternative safer design was available. French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. 1981).

Vehicle manufacturer was properly granted summary judgment in a driver's product liability suit alleging that injuries he sustained when he struck a tree while driving his vehicle were a result of defects in the air bag and seat belt and that the manufacturer was strictly liable for his injuries. Under former §§ 4-86-102(a), 16-116-102(7)(A) (now §§ 16-116-101(a), 16-116-202(7)(A)), the driver had to prove that the product was unreasonably dangerous because of a design or manufacturing defect for which the manufacturer was responsible and he also had to prove that the product was in a defective condition at the time it left the hands of the particular seller. The driver offered no evidence, however, regarding the existence of a specific defect in the occupant protection system, requiring speculation as to whether it was defective at the time it left the manufacturer's control, and the driver failed to demonstrate liability on the basis of circumstantial evidence because the intricacies of occupant protection systems and their potential design or manufacturing defects were outside the realm of a juror's everyday experience, and there were other potential explanations for the driver's injuries other than a defect for which the manufacturer would be responsible. Ruminer v. GMC, 483 F.3d 561 (8th Cir. 2007).

Defective Design.

The open and obvious danger rule is not an automatic bar to recovery on a strict liability claim in a defective design case. Lockley v. Deere & Co., 933 F.2d 1378 (8th Cir. 1991).

A manufacturer's failure to warn of a danger does not give rise to liability when the dangerous defect is open and obvious, and whether contributory negligence should preclude recovery is generally a question of fact for the jury. Lockley v. Deere & Co., 933 F.2d 1378 (8th Cir. 1991).

District court did not err by refusing to grant tobacco company's motion for judgment as a matter of law because there was sufficient evidence to support the jury's verdict on the claim that its cigarettes had a design defect; the decedant's doctor testified that decedent died from the effects of cigarette smoke, the tobacco company's cigarettes had higher levels of carcinogenic tar than any other brand, and they lacked effective filter technology. Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594 (8th Cir. 2005).

Defenses.

“Common knowledge” is not a defense to strict liability claims for failure to warn of the health risks of tobacco from 1945 to 1969 because there seems to be no clear consensus among the reported cases as to whether the dangers of cigarette smoking were common knowledge, or if they were, when they became common knowledge. Boerner v. Brown & Williamson Tobacco Co., 126 F. Supp. 2d 1160 (E.D. Ark. 1999).

As a matter of Arkansas law, a plaintiff cannot maintain a product liability action, as defined in this section, against the manufacturer of a name-brand prescription drug if the plaintiff consumed only the generic equivalent of that drug. To prevail in such an action, the plaintiff must be able to show that it is more likely than not that exposure to a particular manufacturer's product was a substantial factor in producing his or her injuries, and proximate causation can not be shown if the plaintiff did not consume a product that was actually produced by a sued manufacturer. Fields v. Wyeth, Inc., 613 F. Supp. 2d 1056 (W.D. Ark. 2009).

Two prescription drug manufacturers were granted summary judgment as to a consumer's products liability, negligence, fraudulent misrepresentation, negligent misrepresentation, fraudulent concealment, and breach of implied warranty claims because the factual allegations in the complaint established that the suit was a “product liability action” as defined in this section, such an action required the consumer to show that it was more likely than not that exposure to the manufacturers' products was a substantial factor in producing her injuries, and the consumer could not make that showing because the manufacturers produced only brand-name version of a drug and the consumer stipulated that she had ingested only generic versions of the drug. The manufacturers could not be held liable for failure to warn and failure to label merely because generic drug manufacturers and the consumer's doctor may have relied upon information that they provided with regard to their own name-brand drugs. Fields v. Wyeth, Inc., 613 F. Supp. 2d 1056 (W.D. Ark. 2009).

Manufacturer.

Products liability contemplates that a manufacturer may be responsible for injuries resulting from defective manufacture as well as injuries arising out of erection and assembly of the product. Hergeth, Inc. v. Green, 293 Ark. 119, 733 S.W.2d 409 (1987).

Product.

The supplying of blood for transfusions is a service rather than a product; blood is not a “product” for purposes of imposing strict liability in tort. Kirkendall v. Harbor Ins. Co., 887 F.2d 857 (8th Cir. 1989).

Product Liability Action.

Strict product liability is not extended to include the process by which the shipper secures a product for transportation. Elk Corp. v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987).

Banding of rolls of roofing was not “packaging” for purposes of “product liability action”; the rolls of roofing were the only product, and the act of banding them together was simply part of the loading and transporting process. Elk Corp. v. Jackson, 291 Ark. 448, 727 S.W.2d 856 (1987).

A plaintiff relying solely on a strict products liability theory may bring a claim for punitive damages under Arkansas law. Lockley v. Deere & Co., 933 F.2d 1378 (8th Cir. 1991).

Though majority of courts in the United States hold that a strict liability action cannot be successful if the only damages that occur are to the product itself, Arkansas law endorses the minority view allowing recovery in instances where the only damages are to the defective product itself. Alaskan Oil, Inc. v. Central Flying Serv., Inc., 975 F.2d 553 (8th Cir. 1992).

Retail store chain, as a seller of the product which was the subject of a claim, was “marketing” the product as that term is used in subdivision (5) of this section. Follette v. Wal-Mart Stores, Inc., 41 F.3d 1234 (8th Cir. 1994).

In a case involving the group of diet drugs, popularly known as Fen/Phen, citing the factors involved in applying strict liability to a pharmacist's role as supplier in prescription drug transactions, the court declined to extend the rule of strict supplier liability to pharmacists. Kohl v. American Home Prods. Corp., 78 F. Supp. 2d 885 (W.D. Ark. 1999).

Consumer's suit constituted a “product liability action” as defined in this section because although she asserted products liability, negligence, fraudulent misrepresentation, negligent misrepresentation, fraudulent concealment, and breach of implied warranty legal claims, the allegations in her complaint showed that she was seeking to recover for personal injuries that she allegedly sustained as the result of the failure of three prescription drug manufacturers to adequately warn about the side effects of a prescription drug that she ingested and failure to include adequate warnings on the labels used for the drug. Fields v. Wyeth, Inc., 613 F. Supp. 2d 1056 (W.D. Ark. 2009).

Appellants' warranty claims were barred by the limitations period of the Arkansas Product Liability Act, former § 16-116-103 (now § 16-116-203), instead of the limitations period of the Uniform Commercial Code, § 4-2-725, because a claim for the costs of repairing the buses with corroded flooring would be a claim for property damage within the meaning of the Act, under subdivision (5) of this section. IC Corp. v. Hoover Treated Wood Prods., 2011 Ark. App. 589, 385 S.W.3d 880 (2011).

Consumer's product liability suit alleging a failure to warn of the side effects of a certain prescription drug failed as to claims against brand manufacturers because she only ingested generic products. Bell v. Pfizer, Inc., 716 F.3d 1087 (8th Cir. 2013).

Consumer could not have held the brand manufacturers liable under Arkansas law because the consumer's claims were all product liability actions, so they were only viable if she was able to make a product identification, and the consumer stipulated that she never used the brand drug manufactured or distributed by any of the brand manufacturers. Fullington v. Pfizer, Inc., 720 F.3d 739 (8th Cir. 2013).

Unreasonably Dangerous.

The trial court in a personal injury action committed no error in giving a jury instruction requiring the plaintiff to prove that the defendant's crane “contains some danger other than those all cranes pose, which danger was not and would not reasonably be appreciated by an ordinarily prudent person,” since that instruction, although not exceedingly clear, was consistent with the Arkansas statutory definition of “unreasonably dangerous” under this section. French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. 1981).

The fact that irrigation pumps failed to produce the volume of water desired or expected by the buyer raised issues of warranty, negligence, or misrepresentation, but it did not render the pumps “unreasonably dangerous”; they were, at worst, merely useless. Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983).

The definition of “unreasonably dangerous” indicates the emphasis in the Product Liability Act on determining the product and whether it is defective by its consumer use. The mere fact that under certain circumstances an accident may occur in connection with the use of a product does not make the product unreasonably dangerous for purposes of strict liability. Elk Corp. v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987).

Section 4-86-101, relating to liability for breach of warranty, does not limit strict liability actions to injuries to the ultimate consumer or user; nevertheless, the product has to meet the definition of unreasonably dangerous found in this section. Elk Corp. v. Jackson, 291 Ark. 448, 727 S.W.2d 856 (1987).

Where jury instruction was proffered on the meaning of “unreasonably dangerous” that simply quoted the statutory definition in full, but the court rejected this instruction and gave the jury instead an instruction that tracked only the first sentence of subdivision (7), omitting any reference to the legal definition of unreasonably dangerous as to a minor, it was error to refuse the instruction defining unreasonably dangerous as to a minor. Harris v. Pacific Floor Mach. Mfg. Co., 856 F.2d 64 (8th Cir. 1988).

The degradation of exterior walls was not found to make the house unreasonably dangerous. O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997).

Building owner's strict liability claim against a toilet supply line seller was properly dismissed where the owner did not present sufficient evidence that the danger of water escaping from the line was beyond the contemplation of an ordinary and reasonable consumer, and thus failed to show that the line was unreasonably dangerous. Apex Oil Co. v. Jones Stephens Corp., 881 F.3d 658 (8th Cir. 2018).

Cited: Elk Corp. of Ark. v. Builders Transport, Inc., 862 F.2d 663 (8th Cir. 1988); Kirkendall v. Harbor Ins. Co., 698 F. Supp. 768 (W.D. Ark. 1988); Rogers v. Armstrong World Indus., Inc., 744 F. Supp. 901 (E.D. Ark. 1990); Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992); Lee v. Martin, 74 Ark. App. 193, 45 S.W.3d 860 (2001); Harrell v. Madison County Miss. Mote Co., 370 F.3d 760 (8th Cir. 2004).