Week 11 - Defenses: Repose, Comparative Fault, Assumption, Misuse, and Modification

Rise of Comparative Fault

Second Restatement Comment n Comment n says that simply failing to notice or guard against a defect is not a defense to strict liability. But knowingly and unreasonably using a product despite a known danger (assumption of risk) does bar recovery.

The Rise of Comparative Fault Since 1964, most states have dropped the all-or-nothing rule and adopted comparative fault, with only five jurisdictions keeping contributory negligence as a total bar. So the real question today is whether comparative fault should partly reduce recovery in product cases.

Pure vs. Modified Systems Under a "modified" system, a plaintiff found 50 or 51 percent at fault gets nothing, and below that their award is reduced. Under a "pure" system, the award is always reduced by the plaintiff's share but never eliminated, which is the approach the Restatement prefers.

Count of State Approaches Eleven jurisdictions use pure comparative fault, ten use a 50 percent bar, and twenty-three use a 51 percent bar. Five jurisdictions still treat contributory negligence as a complete bar.

Applying Comparative Fault to Products Adopting comparative fault in general does not automatically mean it should apply to product cases, since a court must first ask whether a defect and a person's fault can even be compared. The Products Liability Third Restatement §17 says yes, allowing a reduction when the plaintiff's careless conduct combines with the defect to cause harm.

Design and Warning Defects Comparing fault is easier in design and warning cases because the defect is judged by a risk-benefit test that looks like negligence. In manufacturing defect cases, by contrast, a maker can be liable even with the best quality control.

Courts Apply It Across the Board Some courts note the difference between manufacturing and design defects. Most, however, simply apply comparative fault to all types of defects.

Key Rules of Restatement (Third) of Torts: Products Liability § 17

• Plaintiff's Conduct Causing Harm (Subsection a): A plaintiff's recovery of damages for harm caused by a product defect can be reduced if the plaintiff's own non-conforming conduct (such as misuse, failure to discover a defect, or failure to use reasonable care) combines with the product defect to cause the harm. [1, 2]

• Governing Rules of Apportionment (Subsection b): The specific manner and extent to which the plaintiff's damages are reduced—as well as how liability is apportioned among multiple defendants or third parties—are determined by general comparative responsibility rules and state-specific statutory frameworks. [1, 2]

• Role of Misuse and Modification: Conduct like product misuse, alteration, or modification is not treated as an isolated all-or-nothing complete bar to recovery; instead, it is factored into the analysis of comparative fault, legal causation, or whether a defect actually existed. [1]

Webb v. Navistar International Transportation Corp. 692 A.2d 343 (Vt. 1996) Background

Webb Facts In Webb, a passenger riding on a tractor's draw bar, against posted warnings, was badly hurt when an allegedly drunk driver hit the tractor from behind. The jury found for the plaintiff on lighting-related design and warning claims, but the trial court never told the jury it could divide fault.

Legal Reasoning

Justice Dooley: Fairness Justice Dooley held that comparative principles apply in strict product cases mainly because it is fair. Reducing awards by the plaintiff's share keeps careless plaintiffs from recovering as much as careful ones and avoids passing those costs on to other consumers.

Applying Fairness to Webb The plaintiff ignored a warning he understood, blocked the reflector and light, and failed to maintain the lights. Strict liability was meant to spread the costs of defects, not the costs of user carelessness.

Problems With "All or Nothing" Under the all-or-nothing approach, some plaintiffs get windfalls while others get nothing based on hard-to-separate labels like misuse or assumption of risk. Comparative principles spread recoveries more fairly among plaintiffs.

The Minority View A minority of courts, such as those in Ohio and Pennsylvania, refuse to apply comparative fault in strict liability cases. The court identifies two main reasons these courts give for keeping the all-or-nothing rule.

Rejecting the "Confusion" Argument Courts that favor comparison say fairness matters more than neat legal theory. They add that juries already struggle to tell apart misuse, assumption of risk, and contributory negligence.

No Need for Fine Lines; Incentive Argument All of these defenses can simply be grounds for dividing fault rather than separate categories. Opponents argue comparison weakens safety incentives, but the court says the core benefit of strict liability (not having to prove negligence) remains.

Safety Incentives Preserved Some awards may shrink, but more plaintiffs will recover once misuse and assumption of risk stop being total bars. On balance, the court finds comparison fairer and unlikely to reduce safety incentives.

Vermont Statute Does Not Apply Dooley based his ruling on common law, because Vermont's comparative negligence statute covers only negligence actions. Most courts read similar statutes the same way.

Rejecting the "Half-or-Nothing" Rule Dooley refused to bar plaintiffs whose share of fault exceeds the defendant's. He said a manufacturer should always remain responsible for harm its defect causes.

Responding to the Dissent Dooley called the dissent's fears about ending strict liability exaggerated and said a well-designed rule may even increase safety incentives. He noted the jury could find the plaintiff careless in ways unrelated to the tractor, such as riding on the draw bar.

Concurrence - Negligence not Strict Liability

Justice Morse Concurring Morse agreed comparative fault applies but said the case should simply be reversed for the defendant. He reasoned that design and warning claims are really negligence claims, so the statute's bar should apply.

Applying Section 1036 The statute bars recovery when the plaintiff's negligence is greater than the defendant's. Morse said true strict liability exists only for manufacturing defects, not for design and warning cases like this one.

Plaintiff Was Mostly at Fault Morse found the lighting problems minor compared with the plaintiff's failure to maintain the flashing lights. Riding on the draw bar made things worse, so any reasonable juror would place most of the blame on the plaintiff.

Dissent - Don’t reduce liability because of plaintiff

Justice Johnson Dissenting Johnson argued that letting manufacturers reduce liability because of plaintiff carelessness undermines strict liability's main goal of safe products. He saw no legal, policy, or factual reason to extend comparative fault here.

The Majority Is Divided Johnson noted many jurisdictions still reject comparative fault in product cases. Even courts that compare fault disagree sharply on what conduct to compare and how.

Fairness vs. Deterrence Johnson framed the real issue as whether deterring defects should matter more than precisely assigning blame. He rejected the claim that comparison barely affects safety incentives.

Manufacturers Predict Accidents Manufacturers can statistically predict how many accidents will happen and how careless users will be. Lower liability from comparison therefore lowers their incentive to invest in safety.

The $1 Million Example If accidents cost $1 million and a redesign costs $900,000, a maker expecting reduced payouts may choose to pay claims rather than fix the product. Because legal rules drive these calculated choices, strong incentives can prevent thousands of injuries.

Harm to Careful Consumers If reduced damages lead a maker to skip safety features, even careful consumers will be hurt. Money damages do not make up for lost health or lives, so Johnson called this unfair.

Different Kinds of Fault Everyday carelessness, like a moment's inattention, is not equal to designing and selling a dangerous product. Comparative negligence developed for carelessness versus carelessness, so treating these two as equivalent is unfair.

Assumption of Risk Should Still Bar Johnson would fully bar plaintiffs who knowingly take on a risk. He said the personal-awareness element of assumption of risk sets it apart from ordinary carelessness.

Johnson's Summary Manufacturers make informed safety choices and can absorb costs, while consumers lack expertise and their carelessness is predictable. Products should protect careless and inattentive users too, so full liability is fair.

Misuse and Product Alteration

Misuse, Stage One: No Defect Misuse and alteration can matter at three stages, and the first is when a misuse cannot reasonably be designed against, so the product is not defective. Examples include using a buzzsaw to cut hair or deliberately inhaling dust-remover spray.

Misuse, Stage Two: Proximate Cause In the second category, the product is defective, but the use was so unreasonable or unforeseeable that the plaintiff cannot prove the defect legally caused the harm. Courts look at foreseeability as of the time the product was made, and results vary.

Misuse, Stage Three: Shared Fault In the third category, misuse and the defect together cause the harm, and damages are usually reduced. In Jimenez, for example, a grinder user's misuse was treated as a contributing cause rather than a total bar, although Indiana takes a stricter view.

Comparative Fault with Warranty

Fault and Express Warranty Courts once refused to treat plaintiff carelessness as a defense to express warranty claims, as in Bahlman, where a car roof falsely advertised as rugged failed. Now that fault only reduces recovery, courts are more willing to apply it to these claims.

Warranty Cases Follow Suit The Apportionment Restatement applies comparative fault to all tort claims, and courts have applied it to express warranty claims. Courts also apply the same principles to implied warranty of merchantability claims.

Primary vs. Secondary Assumption of Risk "Primary" assumption of risk means the defendant had no duty and bars the claim entirely. "Secondary" assumption of risk is a form of plaintiff fault that usually only reduces damages.

No-Duty Examples A neighbor who warns that the car's brakes are bad has done their duty and should not be liable if the borrower is hurt. Likewise, a ballpark is generally not liable to fans hit by foul balls in unscreened seats.

Why Labels Now Matter When every defense was a total bar, the label did not matter much. Today, calling something "no duty" wipes out the claim, while calling it a defense may only reduce the award.

Courts Are Reluctant Most courts hesitate to find primary assumption of risk and require a risk that was inherent, obvious, and unavoidable. Some courts, however, bar plaintiffs on doubtful facts, as in Green.

Green v. Allendale Planting Co. & the KBH Corp. 954 So. 2d 1032 (Miss. 2007) Background

Green Facts Green, an experienced farmhand, heard a strange noise from a new "mule boy" machine and knelt near the moving chains without shutting it off. He lost his balance, his hand hit the chains, and he lost three fingers.

Procedural Posture

Trial Court Ruling Green sued for failure to warn and for the lack of a safety guard. The trial court granted summary judgment for the maker, finding that Green knowingly and voluntarily approached the danger.

Legal Standard

Mississippi's Statute Mississippi's statute bars design claims when the plaintiff knew of the danger, appreciated it, and deliberately chose to face it. Assumption of risk rests on a mental state close to consent.

Elements and Limits The defense applies only when a person truly could choose whether to face the danger, and no one can assume a risk they do not know about. Usually it is a jury question, but sometimes the facts show awareness as a matter of law.

Legal Reasoning

Green's Own Testimony Green admitted he knew the chains were moving and dangerous and that he could be pulled in if he got too close. He also admitted he simply did not turn the machine off.

Judgment Affirmed Because the danger was open and obvious and Green appreciated it, the court upheld summary judgment. The lower court's judgment was affirmed in full.

Diseent

Dissent The dissent said assumption of risk is a jury question in all but the clearest cases. Green fell by accident and never chose to put his hand in the machine.

Expert Evidence Expert testimony and OSHA rules raised a fact question about whether a guard would have prevented the injury. The dissent would have reversed and sent the case back for trial.

Assumption of Risk Treatment by States

States Using Assumption of Risk as a Total Bar Some states reject comparative fault in strict liability but still treat assumption of risk as a complete bar. Courts in those states must make close calls about whether the elements are met.

Can Plaintiffs Use Comparative Fault as an Affirmative Gambit?

Plaintiff Pleads His Own Fault: Arnitz In Arnitz, a smoker claimed Philip Morris made cigarettes more addictive and more cancer-causing, and he admitted some fault himself. Philip Morris dropped its comparative fault defense, hoping to win outright by arguing smokers knew the risks.

Arnitz Result The plaintiff's strategy worked: the jury split fault 60/40 and he received a partial recovery. The court held a plaintiff may choose the theory under which his case is tried.

Intentional Torts Exception In Schoeff, Florida held that damages cannot be reduced for comparative fault when a tobacco company committed intentional torts. A federal appeals court agreed.

Time-Based Defenses

Open-Ended Time Bars Statutes of limitations usually start running at the time of injury and generally last two to three years. Because injury may occur decades after sale, these rules give manufacturers little protection from old evidence.

When the Clock Starts Depending on the state, the clock starts when the plaintiff knows, or should know, of the injury, its link to the product, and who the defendant is. Different states require some or all of these factors.

Repose refers to an absolute, fixed time limit that cuts off a manufacturer’s or seller’s legal liability starting from a specific event—such as the date the product was manufactured, sold, or delivered—rather than the date an injury actually occurs.

Fixed-Period Time Bars Repose statutes start the clock at sale or first purchase and fully bar claims after four to twelve years. They give certainty to manufacturers but can be quite unfair to injured people.

UCC §2-725 The UCC requires warranty suits within four years of delivery, whether or not the buyer knew of the breach. That limit generally bars only the warranty claim, not a tort suit.

State Repose Statutes: Oregon Many states have passed product repose statutes to close this gap. Oregon's allows suits until the later of ten years from purchase or the repose period of the state where the product was made.

Literal Readings: Barber Greene A Florida repose statute tied to delivery to the "original purchaser" was held not to cover leased products. That result seems odd but follows the statute's words.

Critiques and Post-Sale Warnings Scholars criticize repose statutes as unfair to people whose diseases appear only after long delays. Plaintiffs sometimes try to get around them by suing for failure to warn after the sale.

Misuse, Alteration, and Preemption: Treat them the same

Clearing Up the Misuse Confusion The authors want to stop treating misuse, alteration, and modification as separate affirmative defenses. The confusion comes from the fact that makers must design against some foolish user behavior.

Stick to Basic Terms Since makers must foresee and design against misuse, any finding of "no defect" can be described as "misuse". The authors prefer to use standard first-year torts terms instead.

Three Core Issues Every design case involves duty/breach, proximate cause, and contributory fault. Restatement §17 comment a says misuse can bear on any of these three issues.

Work Through Them in Order Students should resolve the issues in order, since user conduct matters to each in a different way. On duty/breach, the plaintiff must prove the design is defective.

The Shovel Example (Newman) A product must be put to a foreseeable use before strict liability applies. A shovel used to prop open a heavy door is not defective just because it fails at that job.

Proximate Cause Burden Most courts require the plaintiff to prove the defect actually and legally caused the harm. Hughes v. Magic Chef, involving a stove explosion, illustrates this, though the point is debated.

Debate and Fault Burden Some courts treat misuse as part of the plaintiff's case, while others treat it as a defense. Everyone agrees the defendant must prove contributory fault, which reduces rather than eliminates recovery

Not Separate Problems The first two issues are all-or-nothing, but fault under comparative rules usually only reduces recovery. Misuse and alteration should be analyzed under these three issues, not as separate doctrines

Jury Rule in Misuse Cases

Proximate Cause Rarely Decided by the Judge Because safety features protect against even reckless use, foreseeability is usually a jury question. Yet in Morguson, a technician's skipped checks, falsified checklist, and lies were held unforeseeable, which the authors question.

Jurado: Defect May Settle Causation If a design is defective only because it lacks protection against a particular misuse, that misuse cannot defeat proximate cause. Otherwise it would undercut the very reason for calling the design defective.

Jury Steps in Misuse Cases The jury first decides whether the use was foreseeable, and if not, there was no breach. If it was foreseeable and the product is defective, the jury decides causation unless the defect itself predetermines it.

Makers Exempted from Certain Alterations Liability

Robinson Facts In Robinson, an employer cut a hole in a molding machine's safety gate to fit its production needs, and a worker's hand went through it. The worker was seriously injured when the machine cycled.

The Maker Knew The manufacturer had seen the modified gates and refused to change its design. Experts said two fixes could have made the machine safe for this use.

Robinson Holding The court held makers need not build products that can never be abused, and substantial third-party alterations that disable safety features fall outside their duty. Ruling otherwise would amount to absolute liability.

Fuchsberg Dissent The authors question why a maker who knows of dangerous use has no duty to fix it. The dissent noted cheap fixes costing $200 or $400–$500, and said ordinary negligence law already supported liability.

Lopez Distinguishes Robinson In Lopez, the forklift's safety canopy was easily removable and the forklift was more versatile without it. The court sent the case to the jury, finding these facts far from Robinson.

Robinson Still Applied, With an Exception Courts continue to use Robinson to protect makers when products are substantially altered. But under Lopez, makers can be liable when they deliberately design products to work without safety features.

Tech Sellers Being Liable for User Misuse

Tech Products and Third-Party Harm: AirTags Recent cases ask whether tech sellers must anticipate users who harm others. In Hughes v. Apple, some stalking victims' claims survived because they identified specific ways Apple could make AirTags safer.

Lawton: Hyundai Thefts A woman shot by car thieves claimed Hyundai's missing immobilizer, exploited through a TikTok trend, was a design defect. The court found no duty to prevent criminal misuse and held the crime was an intervening cause.

Class Notes

• Pure comparative fault - no bar to recovery, strictly proportionate reduction based on plaintiff’s fault (Third Restatement)

• Modified comparative fault - recovery barred if plaintiff's fault exceeds a certain percentage, often 50% or 51%, lower is a proportionate reduction

• Contributory Negligence/Fault - Even 1% of faul bars recovery, measures each party’s degree of blameworthiness or failure to use reasonable care

• 402a approach - “all or nothing”, assumption of risk (voluntarily encountering a known, unreasonable product defect) must be shown for product liability, not comparative negligence

• Comparative Causation - focused strictly on cause-in-fact and proximate cause—meaning how much a specific action or event actively contributed to bringing about the injury, rather than how "blameworthy" or careless someone was.

• Assumption of risk

  • Know the defect and the dangerous condition

  • Subjectively appreciated the danger from this condition or just so obvious

  • Voluntarily and unreasonably encountered the known risk

  • Defense has burden to prove assumption

• Misuse: unintended and unforeseeable use of the product

  • Bourne: Misuse was not applicable because it was foreseeable

• Misuse is apart of comparative fault, not worried about defective or proximate cause

• 402a, misuse not applicable

• Modification - unforeseeable and substantial alteration of the product

  • Not affirmative defense

• Time limitations

  • Statute of Repose - legislative judgment that after a period of time, no product limitation should be had usually 4 - 12 years, usually 10 years

  • Statute of Limitations - runs of date of injury, usually 1 - 6 years (torts) 1 - 4 years (warranty)

    • Discovery Rule (torts) - Enough to know injury or just relationship between injury and defective, or party responsible