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60-3304. Legislative regulatory standards or administrative regulatory safety standards or mandatory government contract specifications; defenses. (a) When the injury-causing aspect of the product was, at the time of manufacture, in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design or performance, the product shall be deemed not defective by reason of design or performance, or, if the standard addressed warnings or instructions, the product shall be deemed not defective by reason of warnings or instructions, unless the claimant proves by a preponderance of the evidence that a reasonably prudent product seller could and would have taken additional precautions.

(b) When the injury-causing aspect of the product was not, at the time of manufacture, in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design, performance, warnings or instructions, the product shall be deemed defective unless the product seller proves by a preponderance of the evidence that its failure to comply was a reasonably prudent course of conduct under the circumstances.

(c) When the injury-causing aspect of the product was, at the time of manufacture, in compliance with a mandatory government contract specification relating to design, this shall be an absolute defense and the product shall be deemed not defective for that reason, or, if the specification related to warnings or instructions, then the product shall be deemed not defective for that reason.

(d) When the injury-causing aspect of the product was not, at the time of manufacture, in compliance with a mandatory government contract specification relating to design, the product shall be deemed defective for that reason, or if the specification related to warnings or instructions, the product shall be deemed defective for that reason.

History: L. 1981, ch. 231, § 4; July 1.

Law Review and Bar Journal References:

"Survey of Kansas Tort Law: Part II," William E. Westerbeke, 50 K.L.R. 225 (2002).

"Kansas Product Liability Law," Patrick A. Hamilton, J.K.T.L.A. Vol. 30, No. 6, 8 (2007).

CASE ANNOTATIONS

1. In case based upon design defect, it is not error for court to define "unreasonably dangerous" in terms of Comment i of § 402A of the Restatement of Torts, Second. Lester v. Magic Chef, Inc., 230 K. 643, 661, 641 P.2d 353 (1982).

2. Instruction proper that "tampon" warning conforming to federal regulations not a defense in strict liability action where prudent manufacturer would have taken additional precautions. O'Gilvie v. International Playtex, Inc., 821 F.2d 1438, 1442, 1443 (1987).

3. Distinction in subsection (a) between design/performance and warning/instructions regulations recognized; conclusive presumption concerning design or performance considered. Alvarado v. J.C. Penney Co., Inc., 713 F.Supp. 1389, 1391, 1392 (1989).

4. Presumptions that warnings herein are adequate but rebuttable determined; error in granting summary judgment. Savina v. Sterling Drug, Inc., 247 K. 105, 127, 795 P.2d 915 (1990).

5. Provision of act on compliance with regulatory standards relating to design or performance ambiguous; legislative history examined. Alvarado v. J.C. Penney Co., Inc., 735 F.Supp. 371, 374 (1990).

6. Nondefective product; compliance with OSHA standards; presumption may be overcome; compliance with voluntary standards issued by private laboratories. Pfeiffer v. Eagle Mfg. Co., 771 F.Supp. 1133 (1991); Reconsidered 771 F.Supp. 1141 (1991).

7. On question certified (60-3201 et seq.), manufacturer's post-sale duty to warn of recall and retrofit defective products examined. Patton v. Hutchinson Wil-Rich Mfg. Co., 253 K. 741, 756, 861 P.2d 1299 (1993).

8. Whether plaintiff failed to overcome nondefectiveness presumption in fabric flammability case for summary judgment purposes examined. Miller v. Lee Apparel Co., 19 K.A.2d 1015, 1020, 881 P.2d 576 (1994).

9. Whether plaintiff failed to establish bicycle was defectively designed for summary judgment purposes examined. Duffee, by and through Thorton v. Murray Ohio Mfg., 879 F.Supp. 1078, 1084 (1995).

10. Under facts, claim of defendant that product was built according to governmental regulations irrelevant. Champlain Enterprises, Inc., v. U.S., 957 F.Supp. 26, 28 (1997).

11. When manufacturer's compliance with federal regulatory standards does not preclude punitive damages discussed. Brand v. Mazda Motor Corp., 978 F.Supp. 1382, 1384 (1997).

12. Fact issues concerning whether clothing was defective precluded summary judgment. Schoen by and through Schoen v. Spotlight Co., 979 F.Supp. 1379, 1382 (1997).

13. Drug manufacturer was relieved of liability for failure to warn drug study participants by providing warnings to clinic. Kernke v. The Menninger Clinic, Inc., 173 F.Supp.2d 1117, 1121 (2001).


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