Great Falls Product Liability Lawyers

Great Falls & MontanaProduct Liability

Great Falls & Montana Product Liability Lawyers: Defective Products, Dangerous Products and Recalled Products

Boland Aarab PLLP.

Our attorneys: Caitlin Boland Aarab · Samir F. Aarab

If a defective product injured you or a family member in Great Falls or anywhere in Montana, the manufacturer and the sellers can be held strictly liable, which means you do not have to prove they were careless. You must prove the product was defective and unreasonably dangerous and that the defect caused the injury. Keep the product, and act quickly: Montana now has a 10-year statute of repose for most products.

Key Takeaways

• A person who sells a product in a defective condition unreasonably dangerous to a user or consumer is liable for the physical harm it causes, even if the seller exercised all possible care (§ 27-1-719, MCA).
• Montana recognizes design, manufacturing and warning defects, and it bars “state of the art” evidence in strict-liability cases (Sternhagen v. Dow Co., 935 P.2d 1139 (Mont. 1997)).
• The statute’s defenses include unreasonable use of a known defect, unreasonable misuse, and comparative fault, and a seller may assert a 10-year statute of repose with specific exceptions (§ 27-1-719(4), (6)).
• Most injury claims must be filed within 3 years (§ 27-2-204, MCA).

On this page: Strict liability · Types of defects · Who is liable · Defenses · Statute of repose · Recalls · Preserve evidence · Damages and deadlines · Why Boland Aarab · FAQ

Hurt by a defective product? Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

What is strict product liability in Montana?

Strict product liability means a manufacturer or seller is responsible for injuries caused by a defective, unreasonably dangerous product, whether or not it was careless.

The Montana Supreme Court adopted strict product liability, based on section 402A of the Restatement (Second) of Torts, in the 1970s (Brown v. North American Manufacturing Co., 176 Mont. 98, 576 P.2d 711 (1978)). The Legislature later codified the rule in § 27-1-719, MCA. Under the statute, a seller is liable when:

1. The seller is engaged in the business of selling the product;
2. The product was sold in a defective condition unreasonably dangerous to the user or consumer or to their property; and
3. The product reached the user or consumer without substantial change in its condition.

Liability applies even if the seller “exercised all possible care” and even if the injured person did not buy the product from that seller. A worker hurt by a machine the employer bought, a passenger hurt by a defective car part and a child hurt by a toy purchased by a relative can all bring claims.

Montana’s rule is also demanding on manufacturers in one important respect. In Sternhagen v. Dow Co., the Court held that “state of the art” evidence, meaning evidence of what the manufacturer knew or could have known about the danger when it sold the product, is not admissible in a strict-liability case (935 P.2d 1139 (Mont. 1997)). The focus is on the product, not the manufacturer’s conduct.

What kinds of product defects support a claim?

Montana recognizes three kinds of defects: manufacturing defects, design defects and warning defects.

Each type calls for different proof. A manufacturing defect is often shown by comparing the failed product with others from the same line. A design defect usually requires engineers who can explain how the design created the danger and how a safer design would have prevented the injury. A warning claim turns on what the warning said, what it should have said, and whether an adequate warning would have changed what happened.

The statute also defines “product liability action” broadly. It covers claims based on the manufacture, design, formula, installation, assembly, testing, packaging, labeling or sale of a product, and on a failure to warn or to give proper instructions, regardless of the legal theory used (§ 27-1-719(9)).

Who can be held liable for a defective product?

The manufacturer, the maker of a defective component, and the distributors and retailers in the chain of sale can all be liable.

The statute defines a seller as a manufacturer, wholesaler or retailer, and a manufacturer as anyone who designs, formulates, builds, rebuilds, fabricates, produces, processes or assembles a product or a component part and places it in the stream of commerce.

Montana now gives some protection to retailers and distributors who did not make the product. A seller that is not the manufacturer may be dismissed unless the injured person proves one of several circumstances listed in the statute, including that the seller:

• exercised substantial control over the design or manufacture of the part that caused the harm;
• altered or modified the product without authorization;
• failed to use reasonable care in assembling, maintaining or passing along warnings;
• made its own express warranty that the product failed to meet; or
• knew of the defect when it sold the product.

A non-manufacturing seller also stays in the case if the manufacturer cannot be identified, cannot be brought into a Montana court, or is bankrupt with no recoverable assets (§ 27-1-719, MCA). Identifying the manufacturer early, including foreign manufacturers of parts, is part of building the case.

What defenses will the manufacturer raise?

The statute lists the defenses a seller may raise, and they reduce or bar recovery only under Montana’s comparative-fault principles.

Under § 27-1-719(4), the defenses to a strict-liability claim are:

• Known or obvious defect. The injured person discovered the defect, or the defect was open and obvious, and the person unreasonably used the product anyway.
• Unreasonable misuse, including use against an express warning or instruction.
• The injured person’s own negligence or fault.
• The fault of other parties to the case, or of parties who settled or were released.

These defenses “mitigate or bar recovery” and must be applied under Montana’s comparative-fault statutes (§ 27-1-719(5)). In other words, a manufacturer that proves some fault on your part generally reduces your recovery; it does not escape liability unless your share is greater than the defendants’ combined (§ 27-1-702, MCA).

Two further defenses were added to the statute in 2023:

• No reasonable alternative. A seller may argue that the design, or the methods of manufacturing, inspecting, testing and labeling the product, could not have been made safer by a reasonable alternative available when the product was first sold (§ 27-1-719(6)(a)).
• Compliance with mandatory standards. A product is rebuttably presumed not defective when it complied with applicable mandatory government safety standards, received required premarket approval, or is an FDA-approved drug or device (§ 27-1-719(7)). A presumption can be overcome with evidence.

What is Montana’s 10-year statute of repose for products?

A statute of repose sets an outer limit on when a product claim can be brought, measured from when the product was first sold, not from when you were hurt.

Under § 27-1-719(6)(b), a seller may defend on the ground that the action was not commenced within 10 years of the date the product was first sold or leased to any person or otherwise placed into the stream of commerce. The statute lists exceptions, including when:

• the seller knowingly concealed the defect or unsafe condition that directly caused the harm;
• the product was the subject of a government-mandated recall related to the cause of the injury;
• the claim involves real property or improvements to real property;
• the product caused a latent respiratory disease or malignancy that can take longer than 10 years to appear, and the seller is the manufacturer; or
• the seller warranted a useful life longer than 10 years, in which case the action must be commenced within 2 years after that period ends.

This defense matters in Montana, where farm equipment, pickups, snowmobiles, furnaces and power tools are often used for decades. An older product claim is not necessarily barred, but it requires careful analysis at the start.

Does a recall help my case?

A recall can help, but it is not required, and a recall alone does not prove your particular injury.

Federal agencies oversee recalls of many products: the National Highway Traffic Safety Administration for vehicles and vehicle equipment, the Consumer Product Safety Commission for consumer products, and the Food and Drug Administration for drugs, devices and food. A recall notice, the manufacturer’s own reports to the agency, and consumer complaints can show that the manufacturer knew about a defect.

A government-mandated recall related to the cause of your injury is also one of the exceptions to the 10-year statute of repose. And many product claims involve defects that were never recalled at all. The absence of a recall does not mean the product was safe.

Why is preserving the product so important?

The product is usually the most important evidence in the case, and without it, proving a defect can be very difficult.

1. Keep the product exactly as it is. Do not repair it, discard it, or return it to the store or manufacturer.
2. Keep the packaging, manuals, warnings and receipts, and write down where and when you bought it.
3. Photograph the product and the scene.
4. Do not let an insurer or manufacturer take the product for “testing.” Inspections should be done under an agreed protocol, with your own engineer present.
5. Tell the owner to preserve it if someone else has it, such as an employer, a rental company or a towing yard. A lawyer can send a written preservation demand.
6. Save electronic data. Vehicles, machines and many consumer devices record data that can be lost.

What can you recover, and how long do you have?

Montana law allows recovery for the full harm a defective product causes, including past and future medical care, lost earnings and earning capacity, pain and suffering, and loss of the established course of life. When a defective product causes a death, the family may bring wrongful death and survival claims (§§ 27-1-513, 27-1-501, MCA).

Defective products frequently cause burn injuries, traumatic brain injuries, amputations and crush injuries.

Deadlines:

• 3 years to file most injury and wrongful-death claims (§ 27-2-204, MCA).
• 10-year statute of repose from first sale, subject to the exceptions above (§ 27-1-719(6)(b)).
• Workplace injuries: a claim against the maker of a defective machine is a third-party claim that can proceed alongside workers’ compensation (§ 39-71-412, MCA). See our workplace injury page.

The Boland Aarab Way

We are trial lawyers, and we prepare every case as if it will be tried and then appealed. Product manufacturers defend these cases with national law firms and in-house engineers. They take a claim seriously when the injured person’s lawyers are prepared to take it to a jury in Montana.

• We protect verdicts. The Montana Supreme Court reinstated a $168,500 jury verdict for our client in Voegel v. Salsbery, 2023 MT 137 (case summary).
• We try cases. Our firm has tried more than a dozen jury trials, in Cascade, Phillips, Meagher and Yellowstone Counties, and our attorneys have spent more than 4,000 hours in the courtroom. See our results.
• We know federal and appellate court. Product cases against out-of-state manufacturers are often removed to federal court. Our attorneys have handled more than 40 cases in the U.S. District Court for the District of Montana over nine years, and Samir Aarab has argued twice before the Ninth Circuit. The Boland Aarab appellate record reaches back to 1977.
• You work with the lawyers. Caitlin Boland Aarab and Samir Aarab handle your case themselves. Both are members of the American Association for Justice and the Montana Trial Lawyers Association; Caitlin serves as an AAJ Governor and on the MTLA Board.

Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

Where do we handle product liability cases?

Our office is at 18 6th Street North, Suite 200, Great Falls, MT 59401. We handle defective product cases across Montana, including Great Falls, Billings, Missoula, Helena, Bozeman, Butte and Kalispell. We also handle ATV and UTV accident, toxic exposure and car accident cases.

Where do we handle product liability cases?

We are based at 18 6th Street North, Suite 200, in Great Falls, and handle product liability cases across Montana. Our attorneys travel for depositions, hearings and trial. For local information, see our pages for Billings product liability lawyers, Missoula product liability lawyers, Helena product liability lawyers, Bozeman product liability lawyers, Butte product liability lawyers, Kalispell product liability lawyers and Havre product liability lawyers.

Frequently Asked Questions

Do I have to prove the manufacturer was negligent? No. In a strict-liability claim, you must prove the product was defective and unreasonably dangerous and that the defect caused your injury; the seller’s care is not a defense (§ 27-1-719, MCA).

Can I sue the store that sold me the product? Sometimes. Montana now allows a retailer or distributor that did not make the product to be dismissed unless one of the statute’s exceptions applies, such as the manufacturer being unidentifiable, beyond the court’s reach or bankrupt.

What if I was using the product in the wrong way? Unreasonable misuse is a defense, but ordinary, foreseeable use is not misuse. Any fault on your part is weighed under Montana’s comparative-fault rules and usually reduces, rather than bars, a recovery.

Does the product have to be recalled for me to have a case? No. Many defects are never recalled. A recall can be strong evidence, and a government-mandated recall related to the injury is an exception to the 10-year statute of repose.

What if the product is more than 10 years old? A seller may raise Montana’s 10-year statute of repose, but the statute has exceptions, including knowing concealment, certain recalls, latent diseases and longer warranties. Have a lawyer review it promptly.

Should I give the product to the manufacturer or its insurer? No. Keep it, and let any inspection happen under an agreed protocol with your own engineer present. Losing the product can seriously weaken the case.

Can I bring a product claim if I was hurt at work? Yes. A claim against the maker of a defective machine or tool is a third-party claim that can proceed alongside workers’ compensation (§ 39-71-412, MCA).

How long do I have to file a product liability lawsuit in Montana? Generally 3 years from the injury (§ 27-2-204, MCA), subject to the 10-year statute of repose in § 27-1-719(6)(b).

Talk to a Great Falls Product Liability Lawyer

Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

Sources: § 27-1-719, MCA · § 27-1-702, MCA · § 27-2-204, MCA · § 39-71-412, MCA · § 27-1-513, MCA · § 27-1-501, MCA · Brown v. North American Manufacturing Co. (1978) · Sternhagen v. Dow Co. (1997)

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.