Learning Outcomes
After reading this article, you will be able to identify and explain the main defenses to strict liability and products liability claims, including assumption of risk, comparative and contributory negligence, and product misuse. You will understand how these defenses operate, their limitations, and how they are tested on the MBE, enabling you to apply them accurately to exam scenarios.
MBE Syllabus
For MBE, you are required to understand the defenses available to strict liability and products liability claims. This includes knowing when and how these defenses apply, their effect on liability, and distinctions between strict liability and negligence-based claims. You should be able to:
- Distinguish between strict liability and negligence defenses.
- Identify the role of assumption of risk in strict/products liability.
- Apply comparative and contributory negligence principles to strict/products liability.
- Recognize the effect of product misuse, alteration, or modification.
- Understand the impact of disclaimers and statutory defenses.
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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Which of the following is generally a complete defense to a strict products liability claim?
- The plaintiff was contributorily negligent.
- The plaintiff voluntarily and knowingly assumed the risk.
- The product complied with government safety standards.
- The plaintiff was not in privity with the seller.
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In a comparative negligence jurisdiction, how does a plaintiff’s own negligence affect recovery in a strict products liability case?
- It completely bars recovery.
- It reduces recovery in proportion to fault.
- It has no effect.
- It only applies if the plaintiff misused the product.
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Which defense is most likely to defeat a strict liability claim if the plaintiff used the product in a way that was unforeseeable to the manufacturer?
- Assumption of risk.
- Comparative fault.
- Product misuse.
- Compliance with industry custom.
Introduction
Strict liability and products liability impose responsibility for harm caused by abnormally dangerous activities or defective products, regardless of fault. However, certain defenses can limit or bar recovery. Understanding these defenses is essential for the MBE, as questions often test your ability to apply them to fact patterns involving injuries from products or hazardous activities.
Defenses to Strict Liability
Strict liability applies to abnormally dangerous activities and certain harms caused by animals or defective products. Defendants cannot avoid liability by showing reasonable care, but some defenses may still apply.
Assumption of Risk
If the plaintiff voluntarily and knowingly encounters a known danger, recovery may be barred.
Key Term: Assumption of Risk
A defense where the plaintiff knew of a specific risk and voluntarily chose to encounter it, thus relieving the defendant of liability.
Comparative and Contributory Negligence
- In contributory negligence jurisdictions, ordinary negligence by the plaintiff is generally not a defense to strict liability, unless the plaintiff’s conduct amounts to assumption of risk.
- In comparative negligence jurisdictions, the plaintiff’s own negligence reduces recovery in proportion to fault.
Key Term: Comparative Fault
A system where the plaintiff’s damages are reduced by their percentage of fault, even in strict liability or products liability cases.Key Term: Contributory Negligence
A rule in some jurisdictions where any negligence by the plaintiff completely bars recovery, unless the conduct rises to assumption of risk.
Product Misuse, Alteration, or Modification
If the plaintiff uses the product in a way that was not intended or foreseeable, or if the product is substantially altered after leaving the defendant’s control, strict liability may not apply.
Key Term: Product Misuse
A defense where the plaintiff’s use of the product was unforeseeable or not intended by the manufacturer, breaking the chain of causation.
Defenses to Products Liability
Products liability claims can be based on strict liability, negligence, or breach of warranty. The main defenses are similar, but their application may differ.
Assumption of Risk (Products Liability)
If the plaintiff knew of the defect and the danger but still used the product, recovery may be barred.
Comparative Fault
Most comparative fault jurisdictions reduce the plaintiff’s recovery in strict products liability cases according to the plaintiff’s share of fault.
Contributory Negligence
In contributory negligence jurisdictions, only “knowing” contributory negligence (i.e., assumption of risk) is a defense. Mere inadvertence by the plaintiff is not a complete bar.
Product Misuse or Substantial Change
If the plaintiff misused the product in an unforeseeable way, or if the product was substantially changed after leaving the defendant’s control, the defendant may not be liable.
Compliance with Government Standards
Compliance with safety standards is evidence that the product is not defective, but it is not an absolute defense unless federal law preempts state law.
Disclaimers
Disclaimers of liability are generally ineffective in strict liability and products liability cases involving personal injury.
Worked Example 1.1
A consumer is injured when a lawnmower explodes after she removes the safety guard and uses the mower to cut thick branches, contrary to the manufacturer’s instructions. The manufacturer raises the defense of product misuse. Is this a valid defense?
Answer:
Yes. The consumer’s use of the mower was unforeseeable and not intended by the manufacturer. Product misuse is a valid defense if the misuse was not reasonably foreseeable.
Worked Example 1.2
In a strict liability jurisdiction, a plaintiff is injured by a wild animal kept by the defendant. The plaintiff knew the animal was dangerous but entered the enclosure anyway. Can the defendant avoid liability?
Answer:
Yes. If the plaintiff knowingly and voluntarily encountered the risk, assumption of risk is a complete defense to strict liability for injuries caused by wild animals.
Exam Warning
In strict liability and products liability, ordinary negligence by the plaintiff is not always a complete defense. Only assumption of risk or unforeseeable misuse will bar or reduce recovery. Always check the jurisdiction’s rules on comparative or contributory negligence.
Revision Tip
On the MBE, look for facts showing the plaintiff knew of the danger and chose to proceed, or used the product in an unforeseeable way. These are strong indicators of a valid defense.
Key Point Checklist
This article has covered the following key knowledge points:
- Strict liability and products liability are subject to certain defenses, but not all negligence defenses apply.
- Assumption of risk is a complete defense if the plaintiff knowingly and voluntarily encountered the danger.
- Comparative fault reduces recovery in most jurisdictions; contributory negligence is only a complete bar if it amounts to assumption of risk.
- Product misuse, alteration, or unforeseeable modification may defeat strict/products liability.
- Compliance with safety standards is evidence, not a complete defense, unless preemption applies.
- Disclaimers are generally ineffective in personal injury cases.
Key Terms and Concepts
- Assumption of Risk
- Comparative Fault
- Contributory Negligence
- Product Misuse
