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More Products Liability: Common “Defenses” to Strict Products Liability Claims

On the other hand, reducing recovery for a plaintiff’s fault furthers several goals of tort law. It encourages care by plaintiffs, and causes negligent plaintiffs to share the loss caused in part by their negligence. The common sense of this approach has led many states to apply comparative fault to strict products liability claims as well as negligence claims. In these states, the jury is instructed to assign a percentage of causal responsibility to the seller-defendant, for selling the defective product, and to the plaintiff, for her negligence in using the product. If the jury finds the seller 70 percent responsible, for example, and the plaintiff 30 percent responsible, the plaintiff will recover 70 percent of her damages. Although it may be a bit conceptually messy to assign percentages of “responsibility” to these different types of conduct, experience indicates that juries manage to do it reasonably well, and apportioning responsibility in such cases probably serves the goals of tort law better than ignoring the plaintiff’s fault entirely.[2]

Because the jury compares strict liability to negligence in such cases, some states now call their statutes comparative “responsibility” statutes rather than “comparative negligence” statutes. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. §33.001 (“proportionate responsibility”); see also Restatement (Third) of Torts: Apportionment of Liability, Topic 1 (entitled “Basic Rules of Comparative Responsibility”). Others still call their statutes “comparative fault” schemes, but define fault broadly, to include the sale of a defective product. The Arkansas comparative fault statute, for example, applies to “any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party.” Ark. Code Ann. §16-64-122(c). The broad phrase “breach of any legal duty” surely includes strict liability for selling a defective product. Similarly, the Maine comparative fault statute applies (in addition to negligence claims) to a “breach of statutory duty or other act or omission that gives rise to a liability in tort.” 14 Me. Rev. Stat. Ann. §156. This too would include a strict products liability claim.

Note that adopting comparative negligence in strict products liability cases has a very different impact than adopting it in negligence cases. States switched to comparative negligence in negligence cases to allow plaintiffs some recovery, even if they were partly responsible for their own injury. Under the harsh contributory negligence doctrine, a plaintiff whose negligence contributed at all to her injury recovered nothing. Under comparative negligence, a negligent plaintiff now recovers reduced damages. But switching to comparative negligence for strict products liability claims often leads to a smaller recovery for plaintiffs. Under the approach of §402A cmt. n, the products liability plaintiff recovered fully despite her negligence. Switching to comparative responsibility principles in strict products liability cases means that a negligent plaintiff will recover less than before, because her negligence (ignored before) will reduce her damages.

Today, the effect of a plaintiff’s negligence in a strict products liability case varies from state to state. A few states still adhere to the approach of comment n of the Second Restatement, that a plaintiff’s negligence is irrelevant to a strict products liability claim. In these states, a negligent plaintiff recovers fully despite her negligence in using the product. “A strong majority” [3] of states, however, now treat such negligence as a partial defense to a strict products liability claim. A negligent plaintiff’s damages will be reduced by the percentage of fault the jury assigns to her. If the applicable comparative fault statute bars a plaintiff from recovery if she is 50 percent or more at fault, the same rule is applied to strict products liability claims. See generally Restatement (Third) of Torts: Products Liability §17. Last, at least one state, North Carolina, treats contributory negligence as a full defense to a strict products liability claim. Any negligence of the plaintiff bars her from recovery entirely. See Nicholson v. American Safety Utility Corp., 488 S.E.2d 240, 244 (N.C. 1997). See now N.C. Gen. Stat. §99B-4(3).

[2] [ft] As Judge Richard Posner has wryly observed, the law “is an instrument of governance, not a hymn to intellectual beauty.” Newman-Green, Inc. v. Alfonzo-Larrain R., 854 F.2d 916, 925 (7th Cir. 1988).
[3] [ft] Restatement (Third) of Torts: Products Liability §17 cmt. a.

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