A person who has been injured by a consumer product (the plaintiff) is not automatically entitled to compensation from the seller or manufacturer of the product (the defendants). The plaintiff is in for a fight, courtesy of high-powered defendants who have lots of money to prolong that fight. This article discusses a number of common defenses in product liability suits.
There are three main types of product liability claims: negligence, breach of warranty and strict liability. A defense may work to defeat one kind of claim, but not another. For example, a defense that the plaintiff "assumed the risk" of his own unwise use of a product will probably defeat a negligence or breach of warranty claim, but not a strict liability claim in some states. Which defenses work with which claims is discussed in each section below.
A defendant can argue that some other factor was the real cause of a plaintiff’s injuries. For this defense to be successful, the defendant must successfully argue that the manner in which the injury was caused could not be realistically predicted, and therefore could not be prevented by design or warned against. In other words, the argument here is that the product did not really cause the injury.
For example, if someone is burned when shoved from behind while using a clothing iron, a judge or jury would find that the shove caused the injury, not the "fact" that the iron was too hot. This defense will work with any type of product liability claim.
Keep in mind that if the kind of thing that led to the injury was predictable and preventable, either by design or warning, the product will still be considered the ultimate cause of the injury.
There is variation among the states in how a rule called "contributory" or "comparative negligence" is applied, but in any state a negligent plaintiff may have trouble winning a case.
Essentially, if a plaintiff was negligent in a way that contributed to the accident, the defendant or defendants will have the amount of damages they owe reduced or eliminated entirely. This rule is applied to negligence and breach of warranty claims, and in most states for strict product liability claims.
Questions of contributory and comparative negligence come up most often when it is alleged that the plaintiff misused the product in a way that was not intended or predictable. Depending on the state, misuse of a product might be treated as contributory or comparative negligence if the product was still defective in some manner, or the misuse might be treated as a new (superseding) cause and get the defendant off the hook entirely.
If a plaintiff knows that the way he or she is using a product could lead to an injury or malfunction, the defendant might win the case under the defense of "assumption of the risk."
Notice the difference between assumption of the risk and contributory or comparative negligence -- a plaintiff does not know that specific results are likely when he or she is negligent. In other words, carelessness leads to negligence, complete disregard of a known risk leads to assumption of the risk. Assumption of the risk works as a defense in negligence and breach of warranty claims. Many states also allow assumption of the risk in strict liability claims, but many do not.
Expiration of the personal injury statute of limitations is a defense to all types of product liability actions. The statute of limitations sets the period of time in which the plaintiff must go to court and start a lawsuit -- if he or she misses the deadline, the case will be thrown out.
A defendant may have a defense if the plaintiff fails to give proper notice to the defendant, or if the warranty was disclaimed.
Many of the different statutes and other regulations affecting breach of warranty claims require the plaintiff to give notice of the claim to the defendant as a prerequisite to the filing of any lawsuit.
It is also possible that when the plaintiff purchased a certain product, he or she "disclaimed" the warranty, i.e. agreed with the defendant at the time of purchase that the warranty did not apply.
For a disclaimer to be effective, a written contract stating the disclaimer is usually necessary. For this reason, a disclaimer defense is usually not at issue for consumer products simply purchased at a store or at another location where there is not much interaction with the seller or manufacturer.