What defenses exist to strict product liability actions?

The following defenses affect liability in a strict product liability case.

• Contributory and Comparative Negligence 
• Assumption of the Risk
• Misuse of a Product 

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When is Contributory and Comparative Negligence a defense in Strict Product Liability Actions?

These are generally not defenses to strict products liability actions; though, the negligence of the plaintiff may be used to reduce damage awards.

When is Assumption of the Risk a defense in Strict Product Liability Actions?

 If a plaintiff knowingly undertakes a dangerous activity to which strict liability applies, she may be barred from recovering from the defendant for harms suffered. Individuals may contractually acknowledge their assumption of any risks in a given activity. In most jurisdictions, however, assumption of the risk may constitute a defense.

When is Misuse of a Product a defense in Strict Product Liability Actions?

 Strict product liability depends upon an individual using the product as intended by the manufacturer or in an otherwise reasonable manner. This means that the defendant may avoid liability if the injury to the plaintiff was the result of using the product in a manner that is not intended or is cautioned against.

• Note: Compliance with federal or state standards regarding the manufacture and design of a product is evidence that the product is not defective, but it is not a complete defense. Many states are beginning to adopt a reasonableness standard for design defects, failure to warn, and testing inadequacies. These standards replace the traditional strict liability standard.
• Examples: Handling fireworks while smoking could be an assumption of the risk if the explosive nature of the product is known or expressed to the user. Removing safety guards from equipment is a common misuse that could constitute a defense to strict product liability.

Discussion: How do you feel about the available defenses to strict product liability actions? Should comparative negligence apply to such actions? Why or why not? Why do you think the assumption of the risk is a commonly accepted defense? Should any defense apply differently depending upon who is being sued (manufacturer, distributor, retailer, etc.)? Why or why not?

Practice Question: Mycroft purchases a new Sherlock model of riding lawnmower from Watson's hardware. After using the mower once, he decides to remove the cover guard from the top of the mower deck. This makes it easier for him to clean excess trimming from the deck after use. One day, he accidentally sticks his foot in the pulleys and severely injures his foot. If he sues Watsons and Sherlock, Inc., under strict product liability, what potential defenses apply?

• Generally, product misuse is a defense for strict product liability actions. The defendant can show that the plaintiff was using the product in some way for which it was not designed. Also, the defendant must show that the plaintiff's misuse of the product was not reasonably foreseeable to the defendant, such that if the defendant would have foreseen such actions they could have made changes to suit the circumstances. In the example from the practice question, Watson can likely rely on the defense of misuse of the product, as Mycroft failed to use the lawnmower in the manner prescribed.

Academic Research on Defenses to Product Liability

• Perry, Ronen, From Fault-Based to Strict Liability: A Case Study of an Overpraised Reform (December 29, 2017). Wake Forest Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3094591. On September 25, 1976, the Israeli Road Accident Victims Compensation Act came into force. Prior to its enactment, road accident injuries were subject to the common law of torts, as codified in the Civil Wrongs Ordinance. The statutory reform was intended to achieve a social goal, namely securing prompt and satisfactory compensation to all road accident victims, including many who would not have been entitled to compensation otherwise. To this end, the legislature abolished fault, both as a basis for and as a defense against liability, expanded mandatory insurance, and established the Road Accident Victims Compensation Fund as a residual compensation mechanism. Two secondary goals of this socially motivated reform were extensive loss-spreading and reduction in court congestion and administrative costs. The article provides a critical evaluation of the common perception of this legislation. It challenges the Acts claims to fame, demonstrating that the changes it was intended to bring about did not occur, occurred to a much lesser extent than commonly believed, or could have occurred anyway. This casts doubts about the validity of the rhetoric surrounding the legislative project, and provides valuable lessons for other jurisdictions considering similar reforms. 
• Cantu, Charles, Twenty-Five Years of Strict Product Liability Law: The Transformation and Present Meaning of Section 402A (1993). 25 St. Marys L.J. 327 (1993). . Available at SSRN: https://ssrn.com/abstract=2890796. Twenty-five years ago, the American Law Institute had just published Section 402A of the Restatement (Second) of Torts. As a consequence of this new and innovative rule, the theory of recovery in the area of defective products was expanded from a system based on principles of negligence and warranty to one that also included the doctrine of strict product liability. The promulgation of Section 402A marked the beginning of a growing revolution in the field of plaintiff-oriented litigation in which parties and courts frequently center their inquiry upon the defectiveness of the product and issues related thereto, rather than on the defendant or principles of the law of warrantee. Unfortunately, since the advent of Section 402A, the American legal system has not perfected one uniform doctrine governing recovery. Much has transpired in the law of strict product liability in the last twenty-five years, and reflection upon this history shows that Section 402A does not, as written, represent the true state of the law today. The apparent intent of the drafters has been altered radically by the courts and legislatures, and events and individuals not mentioned in the original section are now able to find recourse under the law. One can barely imagine what additional changes will occur in the realm of product liability law as a new generation advances into the twenty-first century.