The March 6, 2006 issue of ENR has an interesting legal note about a case in which a Connecticut court allowed the plaintiff to sustain a lawsuit for defective design where no damages were alleged. Instead, the plaintiffs were suing to recover costs incurred in "self-help" actions to replace what the plaintiffs considered to be a product that had been defectively designed ---- before
there was any actual damage.
Relying on the Connecticut Product Liability Act, the court said that the law does not "require a victim to choose between allowing such damage to occur and then suing, or paying to prevent the damage at its own expense and waiving its right to sue."
It would seem that proving defective design would be very difficult without also showing that such design proximately resulted in damages.