People familiar with the legal system are more likely to sue.

Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17, 226

However, the court found the manufacture of a sports bra not liable. The plaintiff in this case sued for burns she received while wearing a sports bra. The bases of the claim were burns the plaintiff received allegedly from the chemicals in the materials used to manufacture the bra. However, the plaintiff also laid out in the prison court yard wearing the black sports bra in over 100 degree heat. She suffered a few burns that were 1 to 3 centimeters in size.

The plaintiff argued failure to warn, negligence, and strict products liability claims.

The court dismissed the failure to warn and negligence claims because the plaintiff did not have any proof, other than her own statements, that there was a duty or a breach of the duty to her. No other witness or more importantly expert witness corroborated her claims. To prove negligent design under North Dakota law the plaintiff must prove “that the defendant failed to use reasonable care in designing the product and that failure resulted in a defective product.” The plaintiff was never able to connect that the design of the bra was the cause of her burns. There was no legal or even reasonable connection between her burns and the fabric, the construction or design of the bra.

Under a strict liability theory in North Dakota the plaintiff had to prove.

…by a preponderance of the evidence the product was defective in design or manufacture; the defect rendered the product unreasonably dangerous to the consumer; the defect existed when the product left the manufacturer; and the defect was a proximate cause of the plaintiff’s injuries.

The key is unreasonably dangerous. Simply having a product that produced an injury is not enough to prove a strict liability defect claim. You must supply a connection between the injury and the product AND that the problem with the product was unreasonable. Again, here is where the court said an expert witness was needed to prove the defect and whether that defect was unreasonable.


There is a good discussion of North Dakota product liability law in this case, no matter the facts. The issue to remember, unlike negligence, which is uniformly defined and applied in all 50 states, each state has a slightly different approach to product liability claims.

The information contained here is good, but best only for North Dakota.

However, to win a product liability case you must state a cause of action. Injuries alone are not enough.

Familiar with the legal system usually means lawyers and paralegals. However, in this case it also included prisoners. Once you understand the legal system, and in this case have a lot of time on your hands, you are more likely to sue.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law,

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