UNAPPROVED DRAFT BILL -- Subject to Change Without Notice!
BILL NO.
INTRODUCED BY
(Primary Sponsor)
A BILL FOR AN ACT ENTITLED: "AN ACT REVISING PRODUCT LIABILITY LAW TO CLARIFY THE CONTENT OF A CLAIM BASED UPON IMPROPER PRODUCT DESIGN; PROVIDING FOR A STATE OF THE ART DEFENSE IN A CLAIM BASED UPON IMPROPER PRODUCT DESIGN; AMENDING SECTION 27-1-719, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 27-1-719, MCA, is amended to read:
"27-1-719. (Temporary) Liability of seller of product for physical harm to user or consumer. (1) As used in this section, "seller" means a manufacturer, wholesaler, or retailer.
(2) A person who sells a product in a defective condition unreasonably dangerous to a user or consumer or to the
property of a user or consumer is liable for physical harm caused by the product to the ultimate user or consumer or to his
the user's or consumer's property if:
(a) the seller is engaged in the business of selling such a the product; and
(b) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(3) The provisions of subsection (2) apply even if:
(a) the seller exercised all possible care in the preparation and sale of his the product; and
(b) the user or consumer did not buy the product from or enter into any contractual relation with the seller.
(4) Subsection (2)(b) does not apply to a claim for relief based upon improper product design. A claim based upon improper product design must allege that the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor or by a predecessor in the commercial chain of distribution and that the omission of the alternative design renders the product not reasonably safe.
(5) Except as provided in this subsection, contributory negligence is not a defense to the liability of a seller, based on strict liability in tort, for personal injury or property damage caused by a defectively manufactured or defectively designed product. A seller named as a defendant in an action based on strict liability in tort for damages to person or property caused by a defectively designed or defectively manufactured product may assert the following affirmative defenses against the user or consumer, the legal representative of the user or consumer, or any person claiming damages by reason of injury to the user or consumer:
(a) The user or consumer of the product discovered the defect or the defect was open and obvious and the user or consumer unreasonably made use of the product and was injured by it.
(b) The product was unreasonably misused by the user or consumer and such the misuse caused or contributed to the
injury.
(c) For a claim based upon improper product design, the product design reflects the safest and most advanced technology that was developed and in commercial use at the time that the product was created.
(6) The affirmative defenses referred to in subsection (5) mitigate or bar recovery and must be applied in accordance with the principles of comparative negligence set forth in 27-1-702. (Terminates on occurrence of contingency--sec. 11(2), Ch. 429, L. 1997.)
27-1-719. (Effective on occurrence of contingency) Liability of seller of product for physical harm to user or consumer. (1) As used in this section, "seller" means a manufacturer, wholesaler, or retailer.
(2) A person who sells a product in a defective condition unreasonably dangerous to a user or consumer or to the property of a user or consumer is liable for physical harm caused by the product to the ultimate user or consumer or to the user's or consumer's property if:
(a) the seller is engaged in the business of selling such a the product; and
(b) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(3) The provisions of subsection (2) apply even if:
(a) the seller exercised all possible care in the preparation and sale of the product; and
(b) the user or consumer did not buy the product from or enter into any contractual relation with the seller.
(4) Subsection (2)(b) does not apply to a claim for relief based upon improper product design. A claim based upon improper product design must allege that the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor or by a predecessor in the commercial chain of distribution and that the omission of the alternative design renders the product not reasonably safe.
(5) Contributory fault is a defense to the liability of a seller, based on strict liability in tort, for personal injury or property damage caused by a defectively manufactured or defectively designed product. A seller named as a defendant in an action based on strict liability in tort for damages to a person or property caused by a defectively designed or defectively manufactured product may assert the following affirmative defenses against the user or consumer, the legal representative of the user or consumer, or any person claiming damages by reason of injury to the user or consumer:
(a) The user or consumer of the product discovered the defect or the defect was open and obvious and the user or consumer unreasonably made use of the product and was injured by it.
(b) The product was unreasonably misused by the user or consumer and the misuse caused or contributed to the injury.
(c) For a claim based upon improper product design, the product design reflects the safest and most advanced technology that was developed and in commercial use at the time that the product was created.
(6) The affirmative defenses referred to in subsection (5) mitigate or bar recovery and must be applied in accordance with the principles of comparative fault set forth in 27-1-702 and 27-1-705."
NEW SECTION. Section 2. Effective date. [This act] is effective on passage and approval.
NEW SECTION. Section 3. Applicability. [This act] applies to causes of action arising on or after [the effective date of this act].
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