RCW 7.72.060(1) creates a presumption that a product is beyond its useful safe life after twelve years from the date of first delivery, except where there is a warranty promising longer safe life, where there is intentional misrepresentation or concealment, or where there is harmful exposure within the twelve year period and later manifestation of injury. The presumption can be rebutted by the plaintiff by a preponderance of the evidence. RCW 7.72.060(2). WPI (3d) 110.080 assumes that causation is not an issue. The comment states:
This instruction was originally published in the 1984 pocket part to 6 Washington Practice-Washington Pattern Jury Instructions (WPI)-Civil (2nd Ed. 1980). In that pocket part, the first paragraph of this instruction stated:
"A product seller is not liable for injury or damage which is caused because the 'useful safe life' of the product has expired. [The burden is on the product seller to prove by a preponderance of the evidence that the useful safe life had expired and that the age of the product was a proximate cause of the injury or damage.]"
The 1984 instruction was drafted with the belief that the application of the "defense" set forth in RCW 7.72.060(1)(a) was dependent upon a causal connection between the injury and useful safe life of the product. Upon reconsideration, the committee now believes that the operative word in RCW 7.72.060(1)(a) is "after" and that the 1984 instruction inaccurately reflects the terms of the statute. The statute does not appear to require the product seller to prove that the harm was caused "because the 'useful safe life' of the product has expired" or that the "age of the product was a proximate cause of the injury or damage." Accordingly, the instruction has been revised so that it is consistent with the statute. Id. at 550. Although the WPI Committee interpretation seems consistent with the legislative history (Senate Select Committee Report, Jan. 1981, pp. 41-42), no appellate opinion has addressed the causation issue.
Also unresolved is whether the defense applies at all to warnings cases and design cases. The concept for the defense originated in the preliminary draft of what became the 1979 Uniform Product Liability Act at a time when the law regarding design cases was unsettled. In manufacturing defect cases where the issue can be wear and maintenance, there could be some justification for an arbitrary presumed safe life concept. And, after all, an absolute statute of repose cut-off is worse. However, in design defect cases, the product defect existed at the time of manufacture and, if proved, the product was never safe. The same is true of inadequate warnings cases.
In addition, what happens where there is a post-manufacturing failure to warn (RCW 7.72.030(1)(c)) of later acquired knowledge of defect? If there is a duty to warn of post-manufacturing knowledge of a product defect, can that duty be extinguished by the useful safe life defense?
Finally, what is the "product" the defense refers to? Although there is no Washington State court appellate case, the Ninth Circuit addressed the issue in Pardo v. Olson & Sons, Inc., 40 F.3d 1063 (9th Cir. 1994). In Pardo, two separate components were involved, a crane and a truck bed. The court held that the "relevant product" was the component causing the injury, citing the definition of "product" in the Act, RCW 7.72.010(3); to wit: "...the relevant product ... is that product or its component part or parts, which gave rise to the product liability claim." Hence, in a recent case involving a claim of a defectively designed truck fuel system, the Hon. Robert J. Bryan ruled that an allegation that a 1967 truck was beyond its useful safe life was legally insufficient because the fuel tank, not the whole truck, was the "relevant product." Siler v. Ford (C98-5005 RJB, U.S. District Court, Western District of Washington at Tacoma).