See the entire video at https://youtu.be/OhgbXFsfwKc  In order to maintain a claim for defective design, the plaintiff must first establish a prima facie case. Two essential elements in a case prima facie are injury and causation. Restatement (Second) of Torts section 402A requires a plaintiff to prove that a product is in "defective condition unreasonably dangerous" because the determination of whether a product is unreasonably dangerous is made by a risk-benefit analysis. The appellant bears the burden of proving that the risks outweigh the benefits of the design.
The word "defective" is often used to express a legal conclusion on which liability can be based. When used, "defective" is not a test to reach the legal conclusion, but is only an abbreviation of the term "defective condition unreasonably dangerous" used in paraphrase (others) in torture section 402A. In addition, however, "defect" is also used in cases of design defects to refer to an aspect of the product which, according to the plaintiffs, causes the product to be "unreasonably dangerous."
"A" defective "means not only a mechanical or functional defect but everything that makes the product" unreasonably dangerous. "The Colorado Supreme Court concluded that:
First, the open and obvious nature of the risk not necessarily a strict liability for failure to warn … Secondly, when claiming a design defect, complainants must show damage, causation and the unreasonable hazard of the product according to the risk-benefit analysis, thirdly … the correct standard for determining the occurrence of "defective" [must be complete]
Incorrect design includes, but is not limited to, the following:
- fails to account for the intended use of a structure;
- fails to provide for sufficient nails per square foot to attach wood elements;
- which do not account for the presence of expansive soils under a structure;
- increasing span for framing or decreasing size of framing elements; or
- the designer's failure to plan for future loading and coating of a structure.
© 2020 – Barry Zalma. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance industry. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award.
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