The Burden of Proving Misuse in Products Liability Cases
| Publication year | 1991 |
| Pages | 2307 |
| Citation | Vol. 11 No. 1991 Pg. 2307 |
1991, November, Pg. 2307. The Burden of Proving Misuse in Products Liability Cases
One of the theories defendants advance most frequently in products liability cases is the defense of misuse. The defendant contends that the plaintiffs use of the product in some improper and unforeseeable manner, instead of a product defect, caused the plaintiffs injury. At first blush, the misuse defense seems conceptually similar to a comparative fault analysis in its consideration of the conduct of the plaintiff. Nevertheless, the defense actually has a different theoretical underpinning. As Colorado courts have defined it, misuse does not focus on fault but on causation.
This notion distinguishes misuse from two other common defenses in product liability actions: assumption of the risk and comparative fault. In Colorado, it also has led to some confusion over the precise nature of the defense and its application in certain contexts. Specifically, Colorado law does not seem conclusively to have resolved the question of whether misuse is an affirmative defense or a potential causation factor for a plaintiff to disprove as part of its case. After setting forth the basic parameters of misuse, this article discusses how the Colorado Jury Instructions ("CJI") and the Colorado courts have approached this question. The article also identifies some of the practical ramifications of this issue as they arise in the trial of a products liability case.
Misuse is a products liability defense that has evolved along with the doctrine of strict liability embodied in Restatement (Second) of Torts§ 402A. Strict liability under § 402A, which Colorado expressly adopted in 1975,(fn1)
Because strict liability focuses on the product rather than on the manufacturer's conduct, the plaintiffs contributory negligence historically has not been a defense to strict liability.(fn3) By contrast, if a plaintiff was found to have used the defendant's product in an unintended and unforeseeable manner, the defendant was not liable. Misuse was an exception to the general principle of not focusing on the plaintiff's conduct in determining a defendant's liability under § 402Adoes not rest upon negligence principles, but rather is premised upon the concept of enterprise liability for casting a defective product into the stream of commerce.(fn2)
The stated rationale for the misuse defense was that it focused not on fault but on causation. As the Colorado Supreme Court has noted:
Misuse ... is a question of causation. Regardless of the defective condition, if any, of a manufacturer's product, a manufacturer will not be liable if an unforeseeable misuse of the product caused the injuries.(fn4)
Pattern jury instruction CJI 3d 14:22 (1990) distills the pertinent case law as follows:
As discussed below, application of this straightforward instruction becomes problematic when it is considered in conjunction with other portions of CJI and certain language in the case lawA manufacturer of a product is not legally responsible for injuries caused by a product if: (1) the product is used in a manner or for a purpose other than that which was intended and that use could not reasonably have been expected by the manufacturer; and (2) such use rather than a defect, if any, in the product caused the plaintiffs claimed injuries.
As noted above, misuse is similar to the defenses of comparative fault and assumption of the risk in that they all consider the conduct of the plaintiff in some manner. The distinction between them is that the latter two ultimately focus explicitly on the plaintiff's conduct and not on causation. For example, the plaintiff's contributory negligence is now one of the recognized forms of comparative fault.(fn5) Comparative fault is not a complete defense. Instead, the plaintiffs recovery is reduced by the percentage of fault the jury assigns to him on the verdict form.(fn6)
Assumption of the risk has been defined as 'Voluntarily and unreasonably proceeding to encounter a known danger."(fn7) While in the past it was identified as a complete affirmative defense to strict liability claims,(fn8) CJI now characterizes it as another form of comparative fault which merely reduces the plaintiffs recovery.(fn9) In that connection,
the practitioner should note that in most products cases CJI 14:34 (assumption of the risk as comparative fault) will apply instead of CJI 14:17 (assumption of the risk as a complete defense in certain limited cases).
With comparative fault and assumption of the risk thus typically serving only as damage reduction mechanisms, perhaps the primary practical significance of misuse is its status as the...
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