22. What defenses exist to strict product liability actions?
The following defenses affect liability in a strict product liability case.
• Contributory and Comparative Negligence – These are generally not defenses to strict products liability actions; though, the negligence of the plaintiff may be used to reduce damage awards.
• Assumption of the Risk – 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.
• Misuse of a Product – Strict product liability depends upon an individual use 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 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 Watson’s and Sherlock, Inc., under strict product liability, what potential defenses apply?