Product Liability
| Publication year | 1987 |
| Pages | 474 |
1987, March, Pg. 474. Product Liability
On this 21st anniversary of the publication of § 402(A) of the Restatement (Second) of Torts, we can look back with astonishment at the changes that have already occurred in the law of product liability and that are still taking place. In drafting § 402(A), William Prosser and Roger Traynor did not standardize the law of product liability. Instead they propounded a legal concept that the courts rapidly adopted in one form or another and that has been under constant change.
Twenty-one years ago, contributory negligence barred recovery in most product liability actions. Comment n to § 402(A) proposed that all forms of contributory negligence be abolished except that "which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk."(fn1) Many jurisdictions that adopted comment n as a defense to strict liability in tort abolished contributory negligence.(fn2)
At the same time, most jurisdictions began adopting some form of comparative negligence or fault, either by judicial edict or by legislation. At last count, twenty-two had adopted some form of comparative negligence by judicial edict,(fn3) and nine had refused to do so judicially.(fn4) A number of jurisdictions have enacted legislation(fn5) that purports to apply comparative negligence or fault principles in strict liability actions.
With judicial or statutory approval of some form of comparative negligence or fault, the early distinctions between misuse, comment n (assumption of risk), and contributory negligence are often blurred. In addition, in some jurisdictions, the pure form of comparative negligence or fault is a damage-reducing factor only,(fn6) and in others, no recovery is permitted if a plaintiff's fault is greater than a defendant's.(fn7)
Initially the interpretation of § 402(A) most favorable to the plaintiff consisted of (1) adopting strict liability in tort when a product is defective or unreasonably dangerous, (2) abolishing contributory and comparative negligence as a defense, (3) permitting assumption of risk as an affirmative defense, and (4) permitting "misuse" as a causation defense only when it was unforeseeable and did not combine with a product defect to cause injury. Many states judicially adopted this concept,(fn8) but the strong trend in that direction slowed as some jurisdictions began judicially to apply comparative negligence as a defense to § 402(A),(fn9) and elsewhere comparative negligence or fault statutes were enacted.(fn10)
Recently, some states have judicially resisted efforts to restore contributory negligence as a defense to 402(A),(fn11) while others have succumbed.(fn12) Where states have refused judicially to apply contributory or comparative negligence, some legislatures have responded with statutory applications.(fn13) Such legislation, however is meeting with varying degrees of success, as courts continue to resist such efforts.(fn14)
Many jurisdictions that have adopted contributory or comparative negligence as a defense to strict liability have excluded failure to discover the defect,(fn15) other types of passive negligence,(fn16) and injuries in the workplace where the victim has no choice of equipment and is a captive of the work environment.(fn17) For example, the Illinois Supreme Court, in using comparative negligence as a damage-reducing factor in strict product liability said, "Negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence."(fn18) The Oregon Supreme Court has said:
An injured person's conduct which in fact was a cause of her injury and which constitutes a "fault," including negligence, is to be considered in a products liability action, unless the user's alleged negligence consists in the kind of unobservant, inattentive, ignorant or awkward failure to discover or to guard against the defect that goes toward making the product dangerously defective in the first place.(fn19)
The West Virginia Supreme Court has permitted comparative negligence "so long as the complained of conduct is not a failure to discover a defect or to guard against it,"(fn20) as has the Florida court.(fn21)
The Minnesota court has ruled that all forms of comparative negligence including misuse and assumption of risk, must be compared with the manufacturer's statutory strict liability, except for failure to inspect or to guard against defects.(fn22)
Many courts, resisting the temptation to adopt all forms of contributory negligence, have continued to apply comment n. In Massachusetts,(fn23) Maine,(fn24) and Montana,(fn25) the courts have ruled that comparative negligence is a damage-reducing defense to strict product liability actions only to the extent that the negligence consists of the assumption of risk as defined in comment n. Some courts(fn26) have refused to apply a state's comparative negligence statute as a defense to strict liability where it would operate to the disadvantage of plaintiff. Instead they have adopted pure comparative "causation," while preserving the limited defenses of comment n and misuse.
Another approach is that of the Texas Supreme Court, which abolished assumption of risk and unforeseeable product misuse as affirmative defenses, but included them among the types of contributory negligence to be used as damage-reducing factors only, and thus created pure comparative causation in strict liability cases based on § 402(A). The Texas comparative negligence statute, which denies recovery to the plaintiff who is more negligent than the defendant, will, however, continue to control actions for breach of warranty and negligence. In ruling that assumption of risk and misuse are subsumed by the defense of contributory negligence in strict liability actions, the Texas court specifically excluded the "negligent failure to discover or guard against a product defect."(fn27)
The North Dakota court has incorporated both assumption of risk and unforeseeable misuse into a system of pure comparative causation.(fn28) Similarly, the Washington Supreme Court decided that assumption of risk would no longer operate as a bar to recovery, but would serve to reduce damages, recognizing that in 1981 the Washington legislature had enacted a pure comparative fault statute. The court said, "While the statute is not applicable here, it does reflect a public policy statement which is persuasive in our determination of judicial policy. We hold that assumption of the risk is a damage-reducing factor, not a bar to recovery."(fn29)
The Michigan court, however, was not so conciliatory. The Michigan Products Liability Act recognizes contributory negligence as a defense on a pure comparative basis as a damage-reducing factor "in all products liability actions" and defines "products liability action" as "any legal or equitable theory of liability" based on "the design, conception, production and marketing of products." The court, however, construed the statute to exclude an action based on breach of warranty.(fn30)
In some product liability statutes "fault" is now being defined as it is in § 1(b) of the Uniform Comparative Fault Act.(fn31)
(b)"Fault" includes acts or omissions that are in any...
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