A Video Explaining Defective Design and Construction Defect Litigation
Barry Zalma, Esq., CFE
Insurance claims expert, consultant at Barry Zalma, Inc. and author/Publisher at ClaimSchool, Inc.
Posted on August 24, 2020 by Barry Zalma
Defective Design
See the full video at https://youtu.be/OhgbXFsfwKc
In order to sustain a claim for defective design, plaintiffs must first establish a prima facie case. Two essential elements of a prima facie case are injury and causation. The Restatement (Second) of Torts section 402A requires a plaintiff to prove that a product is in a “defective condition unreasonably dangerous” because the determination of whether a product is unreasonably dangerous is made through a risk-benefit analysis. The plaintiffs bear the burden of proving that the risks outweigh the benefits of the design.
The word “defective” is often used to express a legal conclusion upon which liability may be based. When so used, “defective” is not a test for reaching the legal conclusion, but is merely an abbreviation of the term “defective condition unreasonably dangerous” as used in Restatement (Second) of Torts section 402A. In addition, however, “defective” also is used in design-defect cases to refer to an aspect of the product that, according to the plaintiffs, causes the product to be “unreasonably dangerous.”
“A ‘defect’ does not mean a mere mechanical or functional defect but is anything that makes the product ‘unreasonably dangerous.’” The Colorado Supreme Court concluded that:
First, the open and obvious nature of risk does not necessarily bar a strict liability claim for failure to warn. . . . Second, the plaintiffs, in asserting a design-defect claim, must show injury, causation, and the unreasonable dangerousness of the product according to the risk-benefit analysis. Third, . . . the correct standard with which to determine the existence of “defectiveness” [must be complete]
Improper design includes, but is not limited to, the following:
- failing to account for a structure’s intended usage;
- failing to provide for sufficient nails per square foot to attach wood members;
- failing to account for the existence of expansive soils under a structure;
- increasing span of framing or decreasing size of framing members; or
- failure of the designer to plan for future load and occupancy of a structure
? 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves 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 handling lawyer and more than 52 years in the insurance business. He is available at https://www.zalma.com and [email protected].
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
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