The previous chapter considered the elements a plaintiff must establish to recover on a claim for “strict products liability.”We saw that strict products liability allows an injured party to recover against a seller for personal injury or property damage caused by defective products. We also saw that proof that a product was defective depends on the type of defect alleged. A plaintiff who claims injury from a manufacturing defect may recover by proving that the product was dangerously defective, but need not prove that negligence by the manufacturer led to the defect. However, in design defect and failure to warn cases, the plaintiff must make a showing that looks very much like negligent conduct by the manufacturer.
This chapter considers a number of “defenses” that are commonly asserted in strict products liability cases to defeat liability. The word “defense” is in quotation marks because several of these issues are probably not, strictly speaking, affirmative defenses. The term affirmative defense refers to evidence offered by a defendant that may avoid liability, even though the plaintiff proves the basic elements of her claim. Several of the issues covered here are true affirmative defenses, including comparative negligence and assumption of the risk. But others, such as the state-of-the-art “defense,” the argument that a danger was “open and obvious,” and the “defense” of misuse, might better be characterized not as defenses, but as challenges to the plaintiff’s ability to make a prima facie case of product defect.
While the issues reviewed in this chapter arise in products liability cases in every state, their treatment varies considerably from one state to another. For example, a plaintiff’s negligence may bar a products liability recovery entirely in one jurisdiction, reduce it in others, and have no effect at all in others. This chapter emphasizes basic arguments that defendants commonly raise in products cases to avoid liability, and the various approaches the states have taken in analyzing those arguments. Remember that tort law is state law, so every state makes its own. Thus, states may, and do, take different approaches to defenses in strict products liability cases.
Let’s start with a true affirmative defense, contributory or comparative negligence. In strict products liability cases, as in traditional negligence cases, defendants frequently argue that the plaintiff should be barred from recovering because her own negligence contributed to her injury. For example, suppose that Accu-Cut Corporation makes a saw with a blade that tends to stick if used to cut stock that is thicker than one inch. Ramirez, the plaintiff, uses the saw and senses that something isn’t right, but continues to work. On one cut, the saw sticks and the board kicks back, injuring Ramirez. The saw may well be defective, because it tends to throw the work back (or because of failure to warn not to use it for thicker cuts). However, Ramirez may also have contributed to his injury, by continuing to cut the stock despite this problem.