Defenses to Product Liability Action (2024)

Module5: Defenses to Product Liability Actions

Underproduct liability law, product manufacturers and sellers are expected todistribute safe and reliable products. When they fail to do so, and the usersof these products are harmed, parties in the chain of distribution can be heldliable for damages. The burden of responsibility for defective products is onmanufacturers and sellers who distribute the products rather than on those whopurchase them. This is because those involved in manufacturing and distributionare in a better position to know and control its quality and danger.

However,this rule of liability is not absolute. When users of defective products act ina way that makes the product more dangerous than it was at time of sale, thelaw will sometimes hold the user responsible for his or her own injuries. So,the conduct of the plaintiff, as well as other considerations, can provide avariety of defenses for the defendant in a products liability case. Some of thedefenses are based on general common law principles applicable to other torts,while others are statutory defenses which apply specifically to productsliability cases.

Contributory Negligence of the User

Manufacturersare liable for producing and selling products that are defective and may causeharm to users. However, under general tort law principles, a plaintiff who actsnegligently and contributes to his or her own harm may be limited in theability to recover. In the past, courts have been reluctant to permitdefendants to use plaintiff’s negligence as a defense in product liabilitycases, since product liability concerns the quality of a product ratherthan the conduct of the defendant.[1]

However,contemporary decisions have held that when a user suffers an injury from adefective product due in part to his or her own negligent conduct, this mayreduce or eliminate the liability of the manufacturer.[2] This defense has beenrecognized by most jurisdictions in situations in which the plaintiff’s conductcombines with the product defect to cause injury.[3]

Onecase in which the plaintiff’s negligence was deemed sufficient to serve as adefense to products liability involved a pickup truck that rolled backwards andstruck the driver who had gotten out of the truck. The court found that thetruck was designed defectively, and that the manufacturer did not includeadequate warning of foreseeable dangers. However, the damages awarded to theestate of the victim were reduced by half because the jury found that theplaintiff was negligent in leaving the truck without first properly parking it.[4] This failure to use ordinarycare served as a partial defense even though the truck was defective, and this defectled to the harm.

The standardfor how much the plaintiff’s negligence may reduce an award depends on thejurisdiction.[5]The way a jurisdiction treats contributory negligence in general torts caseswill usually be applied in product liability cases as well.

Defining negligence in product liability cases

Therule of comparative negligence reduces or eliminates the defendant’s liabilitywhen a plaintiff fails to meet a standard of reasonable care, and the lack ofcare is a proximate cause of the injury. This standard includes conduct that would be high risk evenwithout the defect, which combines with the defect to create harm, or make itworse.For example, in one case a plaintiffwas thrown from his car due to a defect in the door latch, but was alsointoxicated, and had failed to use the seatbelt or lock the car door.[6]

Certaintypes of plaintiff negligence are particularly pertinent for products liabilitycases. For example, many commercial products are manufactured with speciallydesigned safety features that protect the user. A failure on the part of thepurchaser to employ these safety features can be considered a form ofnegligence and will reduce the potential damages award. The decision not to usea seatbelt while in a moving car is one example of a failure to use a productwith the proper safety equipment provided by the manufacturer.[7]

Still,even when a plaintiff acts carelessly, the burden for discovering andeliminating defects remains with the manufacturer. So, a failure on the part ofthe user to discover the defect will generally not be considered usernegligence.[8]

Assumptionof Risk

Asimilar defense against products liability claims come from the doctrine ofassumption of the risk. In tort law, the victim of an injury is said to assumethe risk of harm by knowingly engaging in behavior that carries with it risk ofinjury. Assumption of risk serves a defense to a tort claim if the plaintiffknew and understood the risks of the behavior and chose to engage in thebehavior anyway.[9]

Inproduct liability cases, a victim of a product defect has assumed the risk ofharm if he or she knows the nature of the product defect, and unreasonablydecides to use the product in its defective condition.[10]To illustrate, consider the case of someone who was severely injured after thesteering wheel in his pickup truck locked in place, leading to a seriousaccident.

In thisreal-life case, the defendant cited the driver’s own admission that thisproblem with the steering wheel had occurred before, and the driver continuedto drive the truck, knowing that the defect made it unsafe to drive. The courtagreed that such knowing disregard of a product defect would constitute anassumption of the risk on the part of the victim, and would bar him fromrecovery.[11]

Note,however, that assumption of risk does not protect the defendant from allpossible injuries. If the plaintiff uses a product despite being aware of adangerous defect, but is injured by another, unknown defect, there is no bar onrecovery for that other injury.

Finally,in most jurisdictions, assumption of risk in product liability cases is treatedlike comparative negligence, in which damage awards are reduced in proportionto the degree of fault of the plaintiff. Only in a minority of jurisdictions isassumption of risk a complete defense.[12]

Misuse

Thegeneral rule governing product liability is that a seller is required toprovide products for sale that are not unreasonably dangerous when used in anexpected and foreseeable manner. If a product is unreasonably dangerous whenused in a common and foreseeable way, it is considered defective.

Therefore,one avenue open to a defendant in a product liability case is to argue that theharm suffered by the plaintiff was a result of using the product in an unexpectedand unforeseeable way. Thus, misuse can serve as a defense against liability. Themisuse, however, must be unforeseeable. If the seller has reason to know thatthe product would be used in a manner for which it may not be designed, misuse maynot suffice to free the manufacturer from liability.[13]For example, while solid wooden chairs may be made for sitting on and notstanding on, it may certainly be foreseeable that customers would use thechairs to stand on to change light bulbs. That the customer is not using thechair precisely for its intended use may not preclude liability.

To demonstratehow the law treats user misuse and the question of foreseeability, it will beuseful to contrast two types of circ*mstances. Many product liability casesinvolve motor vehicle accidents. Such accidents are usually the result of drivererror or may be nobody’s fault at all. Since such accidents are common, and theconsequences can be extremely severe, the law generally considers carcollisions to be instances of foreseeable misuse of a product. Whilecars are not intended to be used in a way that involves collisions, the lawrequires car manufacturers to design cars to be reasonably safe even when such collisionsoccur.[14]This is known as the crashworthiness doctrine.

So,car manufacturers are required to take steps to mitigate injuries in cases ofmotor vehicle collisions, since such collisions are to be expected even thoughnot intended. In practice, this means designing vehicles with features thatprotect occupants from preventable injury in cases of car crashes, such as byinstalling airbags and head restraints, employing safety cages or crumplezones, and durable car roofs to prevent collapse if the car rolls over.

Atthe other end of the spectrum, are cases in which the misuse of a product iscompletely unforeseeable, and so the manufacturer has no obligation to considerthe risks of such misuses when designing the product.

Followingthe 1993 bombing of the World Trade Center in New York, a lawsuit was broughtagainst the manufacturer of the fertilizer that had been used to create theexplosive device used in the attack. The plaintiff argued that the fertilizercould have been produced in a way that would have made it impossible to use it asan ingredient in an explosive device, and that the failure to do so constituteda design defect. However, the court ruled that such a use of fertilizer, which inand of itself poses no danger, was not reasonably foreseeable. As such, itwould be grossly unfair to impose a duty on the defendant to anticipate anddesign their product in a way that would prevent its misuse as part of anexplosive device.[15] 

Substantial Modification

Liabilityfor defective products attaches to manufacturers when the product in questionreaches the user or the consumer without substantial change from the conditionin which it was sold.[16]If a product is substantially altered from its original condition in such a wayas to render it unsafe, the manufacturer will not be responsible for injuriesresulting from the modification.[17]

Themost common form of modification that absolves the manufacturer of liability isthe removal of safety devices designed to make the product safe for use. Thiswas the situation in a case involving an employee at a meat factory whose handwas severely injured when she used an industrial blender with the safety guardremoved. Since the purpose of the guard was to prevent the specific kind ofinjury the employee suffered, the removal of the guard was deemed to be asubstantial modification of the blender, and the manufacturer was absolved ofliability.[18]

Note,however, that modification of the product is not a blanket defense for amanufacturer. Courts have held that if the modification is reasonablyforeseeable, the manufacturer may still be liable for selling a product that wouldbe unreasonably dangerous if its removable safety device is removed. In fact, thedissent in the meat factory case argued that, since the blender was operablewithout the safety feature, as well as the fact that the safety feature wasshipped separately from the device, and the manufacturer included warningsagainst removal, these could all be evidence that such removal was in factforeseeable. This would mean that the manufacturer would be liable despite the substantial modification.[19] While that argument did notprevail in that case, it illustrates how these cases can be determined on acase-by-case basis.

Thelaw treats foreseeable modification in the same way as foreseeable misuse. Inboth cases, the burden on the manufacturer is to distribute a product that issafe for foreseeable conduct by the product users.

Federal Preemption

Underthe rule of preemption, the legal standards and regulatory schemes enacted in astate legislature are displaced in favor of federal regulations for a specificarea of law. The preemption doctrine is rooted in the Supremacy Clause of theUS Constitution, which establishes the supremacy of the federal government overstate governments as a legal authority. This means that, in some spheres of lawfor which the federal government enacts substantive legislation, state rulesand regulation are preempted in favor of federal standards. When federalpreemption is applicable, state laws that hold product manufacturers liablewill give way to federal law. This opens the way for a defendant in a productsliability case to assert that state laws, which may be more demanding onmanufacturers, are inapplicable due to federal preemption.

Thepreempting of state laws in favor of federal law may be expressly stated infederal legislation. For example, the federal statute requiring labels oncigarette packages warning of the dangers of smoking also explicitly statesthat no other form of warning, aside from what is federally mandated, isrequired.[20]As a result, product liability cases based on the failure of manufacturers toprovide adequate warnings regarding the risks of cigarette smoking arepreempted by the federal standards.[21]

Thereare also other areas of product liability in which the scope of legal claims islimited due to the implied preemption of state law in a specific area. Onesuch area concerns the liability of manufacturers for failing to include driverside airbags in cars. Court have rejected the claim that failure to design acar with an airbag constitutes a design defect, because federal law did notmandate that all cars have airbags. The rationale was that Congressdeliberately rejected a universal airbag requirement out of concerns related tocost, as well as concerns as to how airbags would impact the use of seatbelts.Therefore, a state law that required airbags would conflict with the terms andthe goals of the federal statute.[22]

Courtshave applied the preemption doctrine even without direct conflict between stateand federal law when it is evident that the federal government intends to occupya distinct field of regulation. Courts infer from federal actions andlegislation that the federal government aims to be the sole regulator of anarea of regulation. A strong indicator of preemption based on occupation of anentire field is when there is an evident need for uniform rules acrossthe nation, which would be impeded by divergent state rules.

Onesuch area is the regulation of railroad locomotives. Federal regulations havelong mandated that railroad carriers may only allow a locomotive to run on theirlines if the locomotives meet federal standards and comply with regulations setby designated federal officials.[23] The Supreme Court inferred fromsuccessive pieces of legislation that the federal government was acting toestablish a uniform national standard for railroad locomotive safety. Thismeans that no product liability claims can be brought at the state level in thefield of locomotive equipment, regardless of whether there is any conflictbetween state and federal laws.[24]

Anotherarea of products liability law in which federal preemption arises concerns theregulation of prescription drugs and medical devices. The rationale hasbeen that by passing the Food and Drug Act, a law that organizes afederal agency (the Food and Drug Administration) to regulate the safety andquality of medical devices and prescriptions drugs, the federal government was signalingthat regulation in this area was to be entrusted solely to the expert federal agency.[25]

Conclusion

Thank for you listening to our course on productliability. Product liability is a high-stakes area of tort law that gives riseto many large judgments. It is broken down to actions on four theories:manufacturing defects, design defects, failure to warn and breach of warranty.As we have seen, each theory comes with its own set of standards and potentialdefenses. Best of luck and please contact us with any questions or feedback.