Product Liability Complaint - North Dakota

COMPLAINT — PRODUCT LIABILITY — NORTH DAKOTA

TABLE OF CONTENTS

1. Caption
2. Parties, Jurisdiction, and Venue
3. Background Facts
4. Count I — Strict Products Liability: Manufacturing Defect
5. Count II — Strict Products Liability: Design Defect
6. Count III — Strict Products Liability: Failure to Warn / Inadequate Instructions
7. Count IV — Negligence
8. Count V — Breach of Implied Warranty of Merchantability
9. Damages
10. Prayer for Relief
11. Demand for Trial by Jury
12. Reservation of Rights
13. Signature and Service Blocks
14. Verification
15. North Dakota Practice Notes
16. Sources and References

1. CAPTION

STATE OF NORTH DAKOTA

IN THE DISTRICT COURT, [_____________] JUDICIAL DISTRICT

COUNTY OF [________________________________]

CIVIL CASE NO. [________________________________]

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, by and through undersigned counsel, complains of Defendants and alleges as follows:

2. PARTIES, JURISDICTION, AND VENUE

1.1. Plaintiff [PLAINTIFF NAME] ("Plaintiff") is a resident of [CITY], [COUNTY] County, North Dakota, and was a resident at all times material hereto.

1.2. Defendant [MANUFACTURER NAME] ("Manufacturer") is a corporation organized under the laws of the State of [STATE] with its principal place of business at [ADDRESS]. Manufacturer designed, manufactured, marketed, distributed, and sold the [PRODUCT NAME / MODEL NUMBER] (the "Product") that is the subject of this action.

1.3. Manufacturer transacts business in North Dakota, regularly places its products into the stream of commerce knowing those products will be sold to North Dakota consumers, and is therefore subject to the personal jurisdiction of this Court pursuant to N.D.R.Civ.P. 4(b).

1.4. Defendant [SELLER NAME] ("Seller") is a [corporation / limited liability company / sole proprietorship] doing business at [ADDRESS] in [CITY, COUNTY], North Dakota, and is the entity that sold the Product to Plaintiff or to the user from whom Plaintiff received the Product.

1.5. Defendants John Does 1-10 are entities or individuals whose identities are presently unknown but who participated in the design, manufacture, distribution, marketing, or sale of the Product. Plaintiff will seek leave to amend this Complaint to identify them as discovery permits.

1.6. Subject-matter jurisdiction is proper in this Court pursuant to N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06, as this is a civil action seeking damages in excess of the jurisdictional minimum.

1.7. Venue is proper in [COUNTY] County under N.D.C.C. § 28-04-05 because the Product was purchased and/or used and the injury occurred in this County, and/or because one or more Defendants resides or transacts business in this County.

3. BACKGROUND FACTS

2.1. On or about [DATE OF SALE / DATE OF DISTRIBUTION], the Product was placed into the stream of commerce by Manufacturer in substantially the same condition in which it was later acquired and used.

2.2. On or about [DATE OF PURCHASE], [Plaintiff / IDENTIFY PURCHASER] purchased the Product from Seller at [LOCATION].

2.3. The Product was used by Plaintiff for its intended and reasonably foreseeable purpose, namely [DESCRIBE INTENDED USE].

2.4. On [DATE OF INCIDENT] at approximately [TIME], while Plaintiff was using the Product as intended and in a reasonably foreseeable manner, the Product [DESCRIBE FAILURE — e.g., catastrophically failed, ignited, fractured, malfunctioned, exploded, electrocuted Plaintiff] (the "Incident").

2.5. The Incident occurred at [LOCATION] in [COUNTY] County, North Dakota.

2.6. As a direct and proximate result of the Incident, Plaintiff suffered [DESCRIBE INJURIES — e.g., severe burns, traumatic amputation, permanent scarring, traumatic brain injury], requiring emergency treatment at [HOSPITAL] and ongoing medical care.

2.7. The Product had not been altered, modified, or misused at any time prior to the Incident, and was in substantially the same condition as when it left Manufacturer's possession and control.

2.8. The defective and unreasonably dangerous condition of the Product existed at the time it left Manufacturer's possession and control.

2.9. The Incident occurred within ten (10) years of the initial purchase of the Product for use or consumption and within eleven (11) years of its manufacture, and is therefore timely under N.D.C.C. § 28-01.3-08.

4. COUNT I — STRICT PRODUCTS LIABILITY: MANUFACTURING DEFECT

3.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 2.9 as if fully set forth.

3.2. North Dakota recognizes strict products liability under the principles of Restatement (Second) of Torts § 402A.

3.3. The Product was in a defective condition unreasonably dangerous to the user when it left Manufacturer's possession in that the specific unit involved in the Incident deviated materially from Manufacturer's own design specifications and from other ostensibly identical units of the same product line, by reason of [DESCRIBE DEVIATION — e.g., a flaw in the welded seam, missing fastener, contamination of the polymer, defective solder joint].

3.4. The manufacturing defect rendered the Product more dangerous than would be contemplated by the ordinary user with the ordinary knowledge common to the community as to the Product's characteristics.

3.5. The manufacturing defect was a direct and proximate cause of the Incident and of Plaintiff's injuries and damages.

3.6. Manufacturer is strictly liable for the manufacturing defect pursuant to North Dakota common law and Chapter 28-01.3.

3.7. Seller, as a member of the distributive chain, is jointly and severally liable to the extent the manufacturer is not subject to service of process or is judgment-proof, pursuant to N.D.C.C. § 28-01.3-04.

5. COUNT II — STRICT PRODUCTS LIABILITY: DESIGN DEFECT

4.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 3.7 as if fully set forth.

4.2. The Product, as designed, was in a defective condition unreasonably dangerous to the user.

4.3. A safer, technologically and economically feasible alternative design existed at the time the Product was manufactured, including but not limited to [DESCRIBE ALTERNATIVE — e.g., guarded blade, fail-safe shutoff, redundant interlock, safety glass, pressure relief valve], which would have prevented or substantially reduced the risk of the Incident without unreasonably impairing the Product's utility or substantially increasing its cost.

4.4. The risks of the Product's design outweighed any utility associated with that design when measured against the available alternative design.

4.5. The defective design was a direct and proximate cause of the Incident and Plaintiff's injuries and damages.

4.6. Defendants are strictly liable for the design defect.

6. COUNT III — STRICT PRODUCTS LIABILITY: FAILURE TO WARN / INADEQUATE INSTRUCTIONS

5.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 4.6 as if fully set forth.

5.2. At the time the Product left Manufacturer's possession, Manufacturer knew, or in the exercise of ordinary care should have known, of the risks associated with the Product's foreseeable use, including the specific risk of [DESCRIBE HAZARD].

5.3. Manufacturer failed to provide adequate warnings of those risks and failed to provide adequate instructions for the safe use of the Product.

5.4. The warnings and instructions actually provided were defective in that they [DESCRIBE — e.g., failed to identify the specific hazard, were obscured by other text, were placed where they would not be seen during foreseeable use, were inconsistent with the operating manual].

5.5. The risks were not open and obvious to the ordinary user, and Plaintiff was not aware of the specific hazard.

5.6. Adequate warnings or instructions would have prevented the Incident.

5.7. The failure to warn rendered the Product unreasonably dangerous and was a direct and proximate cause of Plaintiff's injuries.

7. COUNT IV — NEGLIGENCE

6.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 5.7 as if fully set forth.

6.2. Manufacturer owed Plaintiff and other foreseeable users of the Product a duty of reasonable care in the design, testing, manufacture, inspection, marketing, distribution, sale, and post-sale surveillance of the Product.

6.3. Manufacturer breached that duty by, among other things:

• Failing to design the Product so that it would be reasonably safe for its intended and reasonably foreseeable uses;
• Failing to perform adequate pre-market testing;
• Failing to inspect the Product before its release;
• Failing to provide adequate warnings and instructions;
• Failing to recall or retrofit the Product after Manufacturer learned, or in the exercise of ordinary care should have learned, of the defects;
• Failing to monitor post-sale performance and adverse-event reports.

6.4. Seller breached its duties of reasonable care to the extent it had actual knowledge of the defective condition, modified or altered the Product, or made affirmative representations regarding the Product's safety upon which Plaintiff relied.

6.5. Defendants' negligence was a direct and proximate cause of the Incident and Plaintiff's injuries and damages.

8. COUNT V — BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

7.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 6.5 as if fully set forth.

7.2. Manufacturer and Seller are merchants of goods of the kind sold under N.D.C.C. § 41-02-31 (U.C.C. § 2-314), and impliedly warranted that the Product was merchantable and fit for the ordinary purposes for which such goods are used.

7.3. The Product was not merchantable in that it would not pass without objection in the trade and was not fit for its ordinary purposes due to the defects described above.

7.4. Plaintiff is a foreseeable user of the Product within the class of persons protected by N.D.C.C. § 41-02-35 (U.C.C. § 2-318).

7.5. Reasonable notice of breach has been or is hereby given.

7.6. The breach of warranty was a direct and proximate cause of Plaintiff's injuries and damages.

9. DAMAGES

8.1. Economic Damages. Plaintiff has incurred and will continue to incur past and future medical, hospital, surgical, rehabilitative, and pharmaceutical expenses; lost earnings; loss of earning capacity; and out-of-pocket expenses, in an amount to be proven at trial and presently estimated to exceed $[________________________________].

8.2. Non-Economic Damages. Plaintiff has suffered and will continue to suffer past and future physical pain, mental anguish, emotional distress, disfigurement, scarring, permanent impairment, loss of enjoyment of life, and inconvenience.

8.3. Property Damage. Plaintiff has suffered property damage in the amount of $[________________________________].

8.4. Exemplary (Punitive) Damages. Pursuant to N.D.C.C. § 32-03.2-11, and subject to leave of court, Plaintiff seeks exemplary damages on the ground that Defendants acted with oppression, fraud, or actual malice in [DESCRIBE — e.g., concealing known dangers, failing to recall after multiple injuries, falsifying test data].

10. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays for judgment against Defendants, jointly and severally, as follows:

• A. For compensatory damages in an amount to be determined by the jury, but in any event in excess of the jurisdictional minimum;
• B. For exemplary damages in an amount sufficient to punish Defendants and deter similar conduct, subject to leave of court under N.D.C.C. § 32-03.2-11;
• C. For pre-judgment and post-judgment interest at the legal rate;
• D. For costs and disbursements of this action, including reasonable attorney's fees where authorized by law or contract;
• E. For such other and further relief as the Court deems just and equitable.

11. DEMAND FOR TRIAL BY JURY

Plaintiff hereby demands a trial by jury of twelve (12) on all issues so triable as a matter of right pursuant to N.D.R.Civ.P. 38 and N.D. Const. art. I, § 13.

12. RESERVATION OF RIGHTS

Plaintiff reserves the right to amend this Complaint to assert additional theories of liability, to add additional parties, and to seek additional relief as facts develop in discovery, subject to N.D.R.Civ.P. 15.

13. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], ND State Bar ID No. [________]

Counsel for Plaintiff

[STREET ADDRESS]

[CITY, ND ZIP]

Telephone: [________________________________]

Email: [________________________________]

14. VERIFICATION

STATE OF NORTH DAKOTA

COUNTY OF [________________________________]

I, [PLAINTIFF NAME], being first duly sworn, depose and state that I am the Plaintiff in the foregoing action; that I have read the foregoing Complaint and know the contents thereof; and that the same is true to my own knowledge except as to those matters stated upon information and belief, and as to those I believe them to be true.

[________________________________]

[PLAINTIFF NAME]

Subscribed and sworn to before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public — State of North Dakota

(My Commission Expires: [__/__/____])

15. NORTH DAKOTA PRACTICE NOTES

• Six-year statute of limitations. North Dakota imposes a SIX-YEAR statute of limitations for personal-injury and product-liability actions under N.D.C.C. § 28-01-16(5) — among the longest in the nation. The discovery rule applies: the claim accrues when a reasonable person would be on notice that a claim exists. Verify accrual carefully; the long limitations window is regularly mistaken for shorter periods (3 or 4 years) used in most states.
• Statute of repose — constitutional caveat. N.D.C.C. § 28-01.3-08 provides a 10-year-from-purchase / 11-year-from-manufacture repose period, with a "useful life" rebuttable presumption. The North Dakota Supreme Court struck down the predecessor statute (N.D.C.C. § 28-01.1-02) on equal-protection grounds in Hanson v. Williams County, 389 N.W.2d 319 (N.D. 1986). The current § 28-01.3-08 was enacted afterward and has been applied by the courts, but counsel should re-verify its current constitutional status before relying on it as a complete bar (or, conversely, before conceding that an older product is barred). Plead "useful life" facts in the complaint when the time-bar is at the margin.
• Pure comparative fault for product cases. Although N.D.C.C. § 32-03.2-02 imposes a 50% bar on general negligence claims, N.D.C.C. § 32-03.2-03 applies PURE comparative fault to product-liability actions. Plaintiff's recovery is reduced by the percentage of fault attributable to plaintiff but is not barred at any threshold. This is a deliberate and important deviation from the general rule.
• Several (not joint) liability. Under N.D.C.C. § 32-03.2-02, liability is several only — each defendant pays in proportion to its percentage of fault — except for parties who acted in concert.
• Section 402A adopted. North Dakota courts apply Restatement (Second) of Torts § 402A. The Restatement (Third) framework has not displaced § 402A in this jurisdiction.
• Innocent-seller protection. The nonmanufacturing-seller statute (N.D.C.C. § 28-01.3-04) shields distributors and retailers, but only when the manufacturer is amenable to service and judgment in North Dakota. Plead the manufacturer's contacts and, where contested, retain the seller as a defendant until that condition is satisfied.
• State-of-the-art evidence. N.D.C.C. § 28-01.3-06 makes compliance with the state of the art a factor — not a complete defense — in determining defectiveness. Affirmatively plead the existence of a feasible alternative design.
• Rebuttable presumption against defects. N.D.C.C. § 28-01.3-09 provides a rebuttable presumption that a product is not defective if it complied with applicable government standards or industry standards in effect at the time of manufacture. Plead facts rebutting any such presumption (e.g., that the standards were inadequate, outdated, or that the product departed from them).
• Exemplary damages — pre-pleading approval. Under N.D.C.C. § 32-03.2-11, a plaintiff may not plead exemplary damages in the original complaint. A separate motion supported by affidavits showing prima facie evidence of oppression, fraud, or actual malice is required, and the motion must be granted before the claim may be added.
• Service of process. Manufacturer defendants may be served under N.D.R.Civ.P. 4(d) and the long-arm provisions of Rule 4(b)(2). For foreign manufacturers, follow the Hague Service Convention where applicable.
• Caveat on Chapter 32-03.2-11. Although exemplary damages are not subject to a fixed cap in product cases, the trial court must conduct a post-verdict reasonableness review under § 32-03.2-12.

16. SOURCES AND REFERENCES

• N.D.C.C. Title 28, Chapter 28-01.3 (Products Liability) — https://ndlegis.gov/cencode/t28c01-3.pdf
• N.D.C.C. § 28-01-16 (Six-Year Statute of Limitations) — https://ndlegis.gov/cencode/t28c01.pdf
• N.D.C.C. Title 32, Chapter 32-03.2 (Fault, Damages, and Payments) — https://ndlegis.gov/cencode/t32c03-2.pdf
• N.D.R.Civ.P. — https://www.ndcourts.gov/legal-resources/rules/ndrcivp
• Hanson v. Williams County, 389 N.W.2d 319 (N.D. 1986) (predecessor repose statute held unconstitutional) — https://law.justia.com/cases/north-dakota/supreme-court/1986/11066-3.html
• Hanson v. Williams County, 452 N.W.2d 313 (N.D. 1990) (subsequent appeal) — https://law.justia.com/cases/north-dakota/supreme-court/1990/890151-3.html
• Dickie v. Farmers Union Oil Co., 2000 ND 111, 611 N.W.2d 168 — https://law.justia.com/cases/north-dakota/supreme-court/2000/990389.html
• Restatement (Second) of Torts § 402A (1965)
• North Dakota Pattern Jury Instructions — Civil (NDJI-Civil)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. Consult a North Dakota-licensed attorney before filing. Statutes, case law, and rules of procedure change; verify all citations and the current constitutional status of N.D.C.C. § 28-01.3-08 before relying on or contesting that provision.