Defenses
There are defenses to product liability claims. In some cases, the plaintiff’s own behaviors contribute to his or
her injuries, based on his or her own negligence. This situation is known as contributory negligence.
Contributory negligence, when determined by the court, prevents any recovery of damages by the plaintiff
(Baime, 2018). So, if the court finds contributory negligence, the plaintiff is unable to recover any damages for
the injury. Two forms of contributory negligence are assumption of risk and misuse.
Assumption of risk is one defense. In some cases, the defendant can argue that the user assumed the risk of
using the product if he or she used the product while knowing that the defect in the product created a risk
(CCBC Legal Studies, n.d.). An individual who purchases a saw and sees that the guard is too small to cover the
teeth, but decides to use it anyway, is assuming the risk of using the product. If the saw cuts the individual,
then the manufacturer could argue that the person assumed the risk because he saw the defect, understood
the risk, and used the saw anyway.
Another defense is product misuse. In some cases, an individual will use a product in ways that it is not meant
to be used (CCBC Legal Studies, n.d.). The user might not be aware of a defect, and he or she proceeds to use
the product incorrectly. Misuse by the individual would be to blame for any resulting harm.
Figure 6.7
Using a chainsaw with bare feet could be dangerous and add to the risk of use without a guard. If
the plaintiff suffered harm because his bare foot could not hold the wood down properly, he could be
responsible for comparative negligence. (Credit: edman_eu/ pixabay/ License: CC0)
Plaintiffs might also be responsible for comparative negligence. With comparative negligence, the plaintiff’s
own actions in the use of the product contributed to the harm caused by the product, but the plaintiff might
still receive damages (CCBC Legal Studies, n.d.). The amount of negligence on behalf of each part (plaintiff and
defendant) is compared to determine the damages to which the plaintiff is entitled (Baime, 2018). If a plaintiff
is found to be 30% responsible, and the defendant 70% responsible, then the plaintiff would be entitled to 70%
of the damages suffered.
Chapter 6 The Tort System
71