discover or guard against a product defect. The court held as a matter of law that such conduct must be scrutinized under the duty to use ordinary care or other applicable duty. R2 Contributory negligence is not a bar to recovery when such negligence consists merely in a failure to discover the defect in the product or guard against the possibility of its existence Not a defense to product liability Assumption of risk bars recovery R3…most Js Comparative negligence Is it reasonable not to discover? N v. SL You are comparing fault to no fault Apples and oranges Decreases incentives of the manufacturer to make the product safe However, we want incentives to make sure that P’s use the product safely We want P to be risk averse, too Comparative Negligence…courts are split here TX: comparative negligence, except for failure to discover…many Js R3: comparative negligence. No exception…most Js Hidden defects probably will come out the same way under both theories Obvious defects will probably be reduced under R3 Policy Encourages care on part of P P liable for negligence Different types of negligence by P P’s failure to recognize a unreasonable danger that is not open and obvious is NOT N Failure to discover risk is NOT N because the person is normally entitled to assume that a product is not defective in general, P has no reason to expect that a new 17(a), comment d: product contains a defect and would have little reason to be on guard to discover it Assumption of risk will be treated as a form of comparative negligence to the extent the P’s decision to use the product in the face of known risk was unreasonable Ignoring of safety precaution
discover or guard against a product defect. The court held as a matter of law that such conduct must be scrutinized under the duty to use ordinary care or other applicable duty. R2 Contributory negligence is not a bar to recovery when such negligence consists merely in a failure to discover the defect in the product or guard against the possibility of its existence Not a defense to product liability Assumption of risk bars recovery R3…most Js Comparative negligence Is it reasonable not to discover? N v. SL You are comparing fault to no fault Apples and oranges Decreases incentives of the manufacturer to make the product safe However, we want incentives to make sure that P’s use the product safely We want P to be risk averse, too Comparative Negligence…courts are split here TX: comparative negligence, except for failure to discover…many Js R3: comparative negligence. No exception…most Js Hidden defects probably will come out the same way under both theories Obvious defects will probably be reduced under R3 Policy Encourages care on part of P P liable for negligence Different types of negligence by P P’s failure to recognize a unreasonable danger that is not open and obvious is NOT N Failure to discover risk is NOT N because the person is normally entitled to assume that a product is not defective 17(a), comment d: in general, P has no reason to expect that a new product contains a defect and would have little reason to be on guard to discover it Assumption of risk will be treated as a form of comparative negligence to the extent the P’s decision to use the product in the face of known risk was unreasonable Ignoring of safety precaution