# Title 28 — Judicial Procedure, Civil

## Chapter 28-01.3 — Products Liability

### § 28-01.3-01. Definitions.

As used in this chapter:
1. "Manufacturer" means a person or entity who designs, assembles, fabricates,
produces, constructs, or otherwise prepares a product or a component part of a
product prior to the sale of the product to a user or consumer. The term includes any
seller of a product who is owned in whole or significant part by the manufacturer or
who owns, in whole or significant part, the manufacturer.
2. "Product liability action" means any action brought against a manufacturer or seller of
a product, regardless of the substantive legal theory or theories upon which the action
is brought, for or on account of personal injury, death, or property damage caused by
or resulting from the manufacture, construction, design, formula, installation,
preparation, assembly, testing, packaging, labeling, or sale of any product, or the
failure to warn or protect against a danger or hazard in the use, misuse, or unintended
use of any product, or the failure to provide proper instructions for the use of any
product.
3. "Seller" means any individual or entity, including a manufacturer, wholesaler,
distributor, or retailer, who is engaged in the business of selling or leasing any product
for resale, use, or consumption.
4. "Unreasonably dangerous" means that the product is dangerous to an extent beyond
which would be contemplated by the ordinary and prudent buyer, consumer, or user of
that product in that community considering the product's characteristics, propensities,
risks, dangers, and uses, together with any actual knowledge, training, or experience
possessed by that particular buyer, user, or consumer.
### § 28-01.3-02. Limitation on ad damnum clause.

If a complaint filed in a products liability action prays for a recovery of money in an amount
equal to or less than fifty thousand dollars, the amount must be stated. If a recovery of money in
an amount greater than fifty thousand dollars is demanded, the pleading must state merely that
recovery of reasonable damages in an amount greater than fifty thousand dollars is demanded.
This action may be superseded by an amendment to the North Dakota Rules of Civil Procedure.
### § 28-01.3-03. Alteration or modification of product is defense to action.

No manufacturer or seller of a product may be held liable in any products liability action in
which a substantial contributing cause of the injury, death, or damage to property was an
alteration or modification of the product, which occurred subsequent to the sale by the
manufacturer or seller to the initial user or consumer, and which changed the purpose, use,
function, design, or intended use or manner of use of the product from that for which the product
was originally designed, tested, or intended.
### § 28-01.3-04. Liability of nonmanufacturing sellers.

1. In any products liability action maintained against a seller of a product who did not
manufacture the product, the seller shall upon answering or otherwise pleading file an
affidavit certifying the correct identity of the manufacturer of the product allegedly
causing the personal injury, death, or damage to property.
2. The court shall order the dismissal of the claim against the certifying seller, unless the
plaintiff can show any of the following:
a. That the certifying seller exercised some significant control over the design or
manufacture of the product, or provided instructions or warnings to the
manufacturer relative to the alleged defect in the product which caused the
personal injury, death, or damage to property.
b. That the certifying seller had actual knowledge of the defect in the product which
caused the personal injury, death, or damage to property.

c. That the certifying seller created the defect in the product which caused the
personal injury, death, or damage to property.
3. The plaintiff may at any time prior to the beginning of the trial move to vacate the order
of dismissal and reinstate the certifying seller if the plaintiff can show any of the
following:
a. That the applicable statute of limitation bars a product liability action against the
manufacturer of the product allegedly causing the injury, death, or damage.
b. That the identity of the manufacturer given to the plaintiff by the certifying
defendant was incorrect.
### § 28-01.3-05. Indemnity of seller.

If a product liability action is commenced against a seller, and it is alleged that a product
was defectively designed, contained defectively manufactured parts, had insufficient safety
guards, or had inaccurate or insufficient warning; that such condition existed when the product
left the control of the manufacturer; that the seller has not substantially altered the product; and
that the defective condition or lack of safety guards or adequate warnings caused the injury or
damage complained of; the manufacturer from whom the product was acquired by the seller
must be required to assume the cost of defense of the action, and any liability that may be
imposed on the seller. The obligation to assume the seller's cost of defense should also extend
to an action in which the manufacturer and seller are ultimately found not liable.
### § 28-01.3-06. Determination of defective product.

No product may be considered to have a defect or to be in a defective condition, unless at
the time the product was sold by the manufacturer or other initial seller, there was a defect or
defective condition in the product which made the product unreasonably dangerous to the user
or consumer.
### § 28-01.3-07. Declaration of legislative findings and intent.

1. The legislative assembly finds that products liability reforms enacted in 1979, 1987,
and 1993 have provided a needed degree of certainty in the laws governing civil
actions against product manufacturers and sellers.
2. In recent years it has become increasingly evident that there are still serious problems
with the current civil justice system. As a result, there is an urgent need for additional
legislation to establish clear and predictable rules with respect to certain matters
relating to products liability actions.
3. The purpose of sections 28-01.3-08 and 28-01.3-09 is to clarify and improve the
method of determining responsibility for the payment of damages in products liability
litigation; to restore balance and predictability between the consumer and the
manufacturer or seller in product liability litigation; to bring about a more fair and
equitable resolution of controversies in products liability litigation; to re-enact a statute
of repose to provide a reasonable period of time for the commencement of products
liability litigation after a manufacturer or seller has parted with possession of its
product; to address problems that have been created by judicial interpretation of our
previous enactments; to enact, with minor changes, several provisions of former
chapter 28-01.1; and to simplify and provide an increased degree of certainty and
predictability to our products liability laws.
### § 28-01.3-08. Statute of limitation and repose.

1. Except as provided in subsections 4 and 5, there may be no recovery of damages in a
products liability action unless the injury, death, or property damage occurs within ten
years of the date of initial purchase for use or consumption, or within eleven years of
the date of manufacture of a product.
2. This section applies to all persons, regardless of minority or other legal disability.
3. If a manufacturer, wholesaler, or retailer issues a recall of a product in any state or
becomes aware of any defect in a product at any time and fails to take reasonable

steps to warn users of the product defect, the provisions of subsection 1 do not bar a
products liability action against the manufacturer or seller by a user of the product who
is subsequently injured or damaged as a result of the defect.
4. An action to recover damages based on injury allegedly resulting from exposure to
asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite,
actinolite, or any combination thereof, must be commenced within three years after the
injured person has been informed of discovery of the injury by competent medical
authority and that the injury was caused by exposure to asbestos as described in this
subsection, or within three years after the discovery of facts that would reasonably
lead to the discovery, whichever is earlier. No action commenced under this subsection
based on the doctrine of strict liability in tort may be commenced or maintained against
any seller of a product that is alleged to contain or possess a defective condition
unreasonably dangerous to the buyer, user, or consumer unless the seller is also the
manufacturer of the product or the manufacturer of the part of the product claimed to
be defective.
5. An action to recover damages based on injury to property allegedly resulting from the
presence of products containing asbestos fibers of any type must be commenced
within six years of the date upon which the owner of that property knew or should have
known of facts giving rise to the cause of action.
### § 28-01.3-09. Rebuttable presumption against defects.

There is a rebuttable presumption that a product is free from any defect or defective
condition if the plans, designs, warnings, or instructions for the product or the methods and
techniques of manufacturing, inspecting, and testing the product were in conformity with
government standards established for that industry or if no government standards exist then
with applicable industry standards, which were in existence at the time the plans, designs,
warnings, or instructions for the product or the methods and techniques of manufacturing,
inspecting, and testing the product were adopted.
### § 28-01.3-10. Product liability actions and immunity for a firearm or ammunition

manufacturer.
A firearm or ammunition manufacturer, importer, or dealer may not be held civilly liable for
any physical or emotional injury, physical damage, or death as a third party for the acts of
another person.
### § 28-01.3-11. Pesticide labeling - Duty to warn - Defenses.

Notwithstanding any other provision in this title, any pesticide registered with the agriculture
commissioner under chapter 4.1-33 or the United States environmental protection agency under
the Federal Insecticide, Fungicide, and Rodenticide Act [61 Stat. 163; 7 U.S.C. 136 et seq.]
which displays a label approved by the United States environmental protection agency in
registering the pesticide, displays a label consistent with the most recent human health
assessment performed under the Federal Insecticide, Fungicide, and Rodenticide Act
[61 Stat. 163; 7 U.S.C. 136 et seq.], or displays a label consistent with the United States
environmental protection agency carcinogenicity classification for the pesticide under the
Federal Insecticide, Fungicide, and Rodenticide Act [61 Stat. 163; 7 U.S.C. 136 et seq.] is
sufficient to satisfy any requirement for warning or labeling regarding health or safety under this
chapter and any other provision or doctrine of state law concerning the duty to warn or label, or
any other common law duty to warn.
