Learning Outcomes
This article outlines the primary defenses available in strict liability actions, including those concerning abnormally dangerous activities and defective products, as well as defenses specifically relevant to products liability claims based on negligence or warranty theories. After reading this article, you will be able to identify and apply defenses such as comparative fault, assumption of risk, unforeseeable product misuse, adequate warnings, and the state-of-the-art defense to MBE-style fact patterns.
MBE Syllabus
For the MBE, you are required to understand the defenses that can be raised against claims based on strict liability (for abnormally dangerous activities or animals) and products liability (whether based on strict liability, negligence, or warranty). You should be prepared to:
- Apply comparative fault principles (including contributory negligence where specified) in the context of strict liability and products liability actions.
- Analyze whether the plaintiff assumed the risk associated with the dangerous activity or defective product.
- Determine if a product was misused in an unforeseeable manner.
- Assess the effect of adequate warnings or instructions provided with a product.
- Understand the state-of-the-art defense, particularly in design defect cases.
- Recognize the limited applicability of disclaimers in strict products liability tort actions versus warranty actions.
- Identify situations involving federal preemption of state tort claims regarding product safety standards.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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A driver knowingly operates a car with brakes she knows are faulty. While driving carefully, the brakes fail, and she hits a pedestrian. The jurisdiction follows traditional contributory negligence rules but applies comparative fault to strict products liability claims. If the pedestrian sues the car manufacturer under strict products liability, and the manufacturer proves the driver was negligent, what is the likely effect of the driver's negligence on the pedestrian's claim?
- It will completely bar the pedestrian's recovery.
- It will reduce the pedestrian's recovery based on the driver's percentage of fault.
- It will have no effect on the pedestrian's recovery.
- It will be relevant only if the driver is also sued.
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A consumer buys an electric knife. The instructions clearly state, "Do NOT use near water." The consumer uses the knife while standing barefoot in a puddle of water, receives an electric shock, and is injured. In a strict products liability suit against the manufacturer, which defense is most likely to succeed?
- Comparative fault.
- Assumption of the risk.
- Product misuse.
- State-of-the-art.
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A pharmaceutical company markets a drug approved by the FDA with warnings about potential side effects based on known research at the time of approval. Years later, new research reveals a previously unknown, serious risk. A patient injured by this newly discovered side effect sues the company under strict products liability for failure to warn. Which defense is the company most likely to raise successfully?
- Federal preemption.
- State-of-the-art.
- Assumption of the risk.
- Product misuse.
Introduction
Defendants facing claims grounded in strict liability, whether for abnormally dangerous activities, animals, or defective products, are not without recourse. While the "strict" nature of the liability means the plaintiff generally does not need to prove fault, certain defenses focusing on the plaintiff's conduct or the nature of the product and its use can bar or reduce recovery. Understanding these defenses is essential for analyzing liability scenarios accurately. These defenses often overlap with those available in negligence actions but may be applied differently in the strict liability context.
Defenses Applicable to Both Strict Liability and Products Liability
Certain defenses apply broadly across strict liability actions, including those for abnormally dangerous activities and defective products.
Comparative Fault/Contributory Negligence
The effect of the plaintiff's negligence varies by jurisdiction.
- Comparative Fault Jurisdictions (Majority): Most states apply comparative fault principles to strict liability actions. The plaintiff's own negligence (e.g., failing to notice an obvious defect, using a product carelessly but foreseeably) reduces their recovery in proportion to their degree of fault. However, the failure to discover a defect or guard against its possibility is generally not considered comparative fault.
- Contributory Negligence Jurisdictions (Minority): In the few jurisdictions still applying traditional contributory negligence, the plaintiff's unreasonable conduct might completely bar recovery, but only if it rises to the level of voluntarily and unreasonably encountering a known risk (similar to assumption of risk). Simple negligent failure to discover or guard against a defect is typically not a defense.
Key Term: Comparative Fault A defense asserting that the plaintiff's own negligence contributed to their injuries, which results in a proportional reduction of the plaintiff's recoverable damages based on their percentage of fault.
Key Term: Contributory Negligence A defense (largely abolished) asserting that the plaintiff's own negligence, however slight, completely bars recovery if it contributed to their injuries.
Assumption of Risk
If the plaintiff (1) knew of the specific risk associated with the abnormally dangerous activity or the defective product and (2) voluntarily chose to encounter it anyway, this constitutes assumption of the risk.
- Express Assumption: Can occur via a written waiver or disclaimer (though often ineffective against public policy for essential services or products liability involving personal injury).
- Implied Assumption: Inferred from the plaintiff's conduct. The plaintiff must have actually known of the particular risk and proceeded unreasonably despite that knowledge.
Assumption of the risk is generally a complete bar to recovery in both contributory negligence and most comparative fault jurisdictions when applied to strict liability claims.
Key Term: Assumption of Risk A defense alleging the plaintiff voluntarily proceeded to encounter a known, specific danger, which may bar or reduce recovery.
Worked Example 1.1
Dynamite Corp. conducts blasting operations near a residential area. Homeowner is aware that Dynamite Corp. occasionally sends rocks flying onto nearby properties during blasts, as signs are posted warning of this danger. Despite this knowledge, Homeowner decides to sunbathe in his backyard during a scheduled blast. A rock lands nearby, startling Homeowner, who jumps up and sprains his ankle. Homeowner sues Dynamite Corp. under strict liability for abnormally dangerous activities. What is Dynamite Corp.'s strongest defense?
Answer: Assumption of the risk. Homeowner knew of the specific risk (flying rocks during blasting) and voluntarily chose to encounter it by sunbathing during a scheduled blast. This knowing and voluntary encountering of the risk likely constitutes assumption of the risk, which would bar his recovery. Comparative/contributory negligence might also be argued, but assumption of the risk, focusing on the knowing and voluntary encounter with the specific danger, is generally considered the stronger defense here.
Defenses Specific to Products Liability
In addition to comparative fault and assumption of risk, several defenses are particularly relevant in the context of products liability claims (whether based on strict liability, negligence, or warranty).
Product Misuse
A manufacturer or seller is generally liable only if the product was defective when used in an intended or reasonably foreseeable manner. If the plaintiff uses the product in a way that is neither intended nor reasonably foreseeable by the defendant, this constitutes product misuse.
- Foreseeable Misuse: If the misuse was reasonably foreseeable (e.g., standing on a chair, using a screwdriver as a pry bar), the manufacturer must still design the product to be safe during such misuse, or provide adequate warnings. Foreseeable misuse is generally not a complete defense, though it might be considered under comparative fault.
- Unforeseeable Misuse: If the misuse was truly unforeseeable, it can be a complete defense, relieving the defendant of liability.
Key Term: Product Misuse Use of a product in a manner neither intended nor reasonably foreseeable by the manufacturer or seller, which may serve as a defense to a products liability claim.
Adequate Warning
In claims based on design defects or failure-to-warn defects (both negligence and strict liability), the presence of an adequate warning or instruction can be a defense. An adequate warning makes a product non-defective by informing the user of potential non-obvious risks and instructing on safe use.
- Obvious Dangers: No duty to warn of dangers that are obvious to the ordinary user (e.g., a knife is sharp).
- Adequacy: The warning must be clear, comprehensible, and reasonably communicate the specific risk and severity involved. Placement and prominence are also considered.
- Heeding Presumption: Some jurisdictions presume an adequate warning would have been read and heeded by the plaintiff; the defendant may rebut this presumption.
Key Term: Adequate Warning A warning that sufficiently informs users of non-obvious risks associated with a product and instructs on safe use, potentially negating a claim of defect.
Worked Example 1.2
A consumer buys a powerful drain cleaner. The label prominently displays in large red letters: "DANGER! CORROSIVE! Wear gloves and eye protection. Do NOT mix with other chemicals." The consumer, ignoring the warning, mixes the cleaner with bleach, causing a chemical reaction that releases toxic fumes and injures the consumer. The consumer sues the manufacturer under strict products liability, claiming the product was defective due to inadequate warning about the specific risk of mixing with bleach. Will the manufacturer likely prevail?
Answer: Yes, likely. The manufacturer provided a clear, prominent warning against mixing the product with other chemicals. This warning specifically addressed the type of misuse that caused the injury. Assuming the warning adequately conveyed the danger of mixing, it likely constitutes an adequate warning defense, negating the claim that the product was defective for failure to warn. The consumer's disregard of the warning might also support defenses of comparative fault or assumption of risk.
Substantial Alteration
If a product is substantially altered by the plaintiff or a third party after leaving the manufacturer's or seller's control, and this alteration causes the plaintiff's injury, the defendant is generally not liable. The alteration must be significant and unforeseeable.
State-of-the-Art Defense
This defense is most relevant in design defect cases. It asserts that the product conformed to the level of scientific and technical knowledge existing at the time the product was manufactured or sold.
- Relevance: Argues the defendant could not have known about or prevented the risk with the technology available at the time.
- Jurisdictional Variation: Some states allow this as a complete defense, particularly in strict liability design defect claims. Others treat it merely as relevant evidence on the issue of reasonableness (in negligence) or whether the design is defective (in strict liability).
Key Term: State-of-the-Art Defense A defense asserting that a product conformed to the level of scientific and technical knowledge existing at the time of manufacture/sale, often relevant in design defect cases.
Government Compliance/Preemption
- Compliance: Mere compliance with applicable government safety standards (e.g., FDA regulations) is evidence that a product is not defective but is generally not a conclusive defense. Non-compliance, however, is strong evidence of a defect.
- Preemption: In some limited instances, federal statutes or regulations may expressly or impliedly preempt state tort law claims regarding product safety or warnings (e.g., certain FDA-approved medical devices or prescription drug labeling). If preemption applies, the state tort claim is barred.
Contractual Defenses (Warranty Claims)
While disclaimers and limitations of remedy are generally ineffective in strict products liability tort actions involving personal injury, they can be effective in claims based on breach of warranty (a contract-based theory), especially concerning economic loss.
- Disclaimers: Must meet UCC requirements (e.g., conspicuousness, mentioning "merchantability").
- Notice of Breach: Under the UCC, a buyer must notify the seller of a breach of warranty within a reasonable time after discovering it, or be barred from any remedy.
Exam Warning
Do not confuse defenses applicable to negligence (like contributory/comparative negligence) with those applicable to strict liability. While comparative fault is now applied to strict liability in most jurisdictions, the historical distinction and the differing applications (e.g., simple failure to discover a defect usually not being fault in strict liability) are important for the MBE. Also, note that traditional contract defenses like disclaimers are far less effective against strict liability tort claims than against warranty claims.
Summary
Defenses in strict liability and products liability cases focus on the plaintiff's conduct (comparative fault, assumption of risk, unforeseeable misuse), the nature of the product and warnings (adequate warning, state-of-the-art), or external factors (government compliance, preemption). Comparative fault is the majority approach for reducing recovery based on the plaintiff's negligence. Assumption of risk can be a complete bar if the plaintiff knowingly and voluntarily encountered the risk. Unforeseeable misuse or substantial alteration can also defeat liability. Adequate warnings may negate defect claims, and the state-of-the-art defense can be relevant, especially in design defect cases. Federal preemption is a potential, though limited, defense. Contractual defenses like disclaimers are generally ineffective in strict tort liability but relevant in warranty actions.
Key Point Checklist
This article has covered the following key knowledge points:
- Comparative fault (majority rule) reduces plaintiff's recovery in strict liability based on percentage of fault.
- Contributory negligence (minority rule) generally does not bar recovery unless plaintiff's conduct amounts to assumption of risk.
- Assumption of risk (knowing, voluntary encounter with specific risk) is typically a complete defense.
- Unforeseeable product misuse is a defense; foreseeable misuse generally is not (though may be comparative fault).
- An adequate warning of non-obvious risks can render a product non-defective.
- Substantial, unforeseeable alteration of a product after it leaves defendant's control is a defense.
- The state-of-the-art defense argues conformity with available technology/knowledge at the time of manufacture/sale.
- Compliance with government safety standards is evidence of non-defectiveness but usually not conclusive.
- Federal preemption can sometimes bar state tort claims regarding product safety/warnings.
- Disclaimers are generally ineffective against strict tort liability for personal injury but may be valid for warranty claims (especially economic loss).
Key Terms and Concepts
- Comparative Fault
- Contributory Negligence
- Assumption of Risk
- Product Misuse
- Adequate Warning
- State-of-the-Art Defense
