Product Liability - Evidence and Defenses

Question 1

In a products liability action based upon strict liability, the plaintiff must prove:

Answer 1

1) The defendant was the manufacturer of the product;
2) The product was defective;
3) The defect existed at the time the product left the factory;
4) The defect was the direct and proximate cause of the accident and injuries.

Question 2

What are the types of evidence the plaintiff may use to prove their claim?

Answer 2

1) Direct evidence
2) Witness Testimony
3) Circumstantial Evidence;
4) State of the Art Evidence;
5) Common Knowledge

Question 3

What is the defense of contributory negligence?

Answer 3

Conduct by the plaintiff which is below the standard to which the plaintiff is legally required to conform for his own protection and which is a contributing cause which cooperates with the negligence of the defendant is causing the plaintiff’s harm.

Question 4

Under the common law, contributory negligence barred recovery or was only a partial bar?

Answer 4

It was a complete bar to recovery. The only jurisdictions that still follow this are Alabama, Maryland, Virginia, North Carolina, and D.C.

Question 5

Who has the burden of proving contributory negligence?

Answer 5

The defendant has the burden of proving the plaintiff’s conduct rose to the level of voluntary or implied assumption of risk.

Question 6

What is the last clear chance doctrine?

Answer 6

This doctrine permits a plaintiff in a negligence action to recover, notwithstanding their own negligence, on a showing that the defendant had the last clear chance to avoid the accident.

Question 7

What is the defense of comparative fault?

Answer 7

There are two types, Pure and Modified. Modified also breaks down into not as great (49%) and No greater than (50%). Under this standard, the defendant’s liability will decrease by the amount of the plaintiff’s liability.

Question 8

What is the Comparative Fault formula?

Answer 8

Plaintiff’s Recovery (R) = Total amount of damages (TD) minus the plaintiff’s percentage of fault (PF%).

PR = TD-PF%

Question 9

What is the defense of misuse of product?

Answer 9

A product is not defective when it is safe for normal handling and consumption. If the injury results form the abnormal handling the seller is not liable.
Misuse of a product is normally a bar to strict liability.