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Defective Products and You: Contributory Negligence and Assumption of Risk in Strict Liability

— March 2, 2015

So you have been hurt by a defective product, it may seem odd but it is not just the defective product that will examined thoroughly, your actions can come under sudden scrutiny as well.

  • How were you using the product?
  • Were you doing what an ordinary person would do?

Strict liability is a doctrine which excuses a harmed plaintiff from proving privity of contract and that the seller of goods was negligent. In other words, you do not have to prove you purchased the product directly from the manufacturer. You do not need to prove any bad intentions of the manufacturer. Strict liability looks to the defect in the product and not to the conduct of the supplier. But the rule which excuses proof of manufacturer fault is inapplicable, to you as the plaintiff, because your conduct is and ought to be examined to determine whether it was up to standard or was substandard. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex. 1980)

This is the concept of misuse, or using a product in an unpredictable way that was not intended by the manufacturer. The reasoning behind the examination of plaintiff’s action is based on sharing the cost of an accident to all of those that have fault. The court observed that “the fundamental and underlying purpose of [our previous decision to adopt comparative negligence] was to promote the equitable allocation of loss among all parties legally responsible in proportion to their fault. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 425 (Tex. 1984) While expense given to the plaintiff is focused on decreasing risky behavior and plaintiffs hurting themselves, the focus on the defective product and manufacturer, “is an obligation imposed by law to protect public health”. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 789 (Tex. 1967)

This idea of balancing any fault on both sides is called, comparative responsibility. Comparative responsibility is a theory that explains that you as a plaintiff may not recover damages if your percentage of responsibility is greater than 50%. Or put another way, if you are found to be more or equally at fault for your use of your product then the defective manufacturer. Texas law provides certain mechanisms for allocating responsibility to settling parties and responsible third parties.

Consider this iconic example, “let us suppose that [a man] takes his spanking-new car to the country for a test drive. Its brakes have been defectively designed and manufactured. He discovers along the way that he has no brakes at all, but the car rolls harmlessly to a halt on the side of the country road. There is no danger in [the man] leaving his car and walking to the garage, but he has important engagements to make and proceeds to drive his new car very cautiously toward the garage. He does not make it; let us say that a horse walks onto the road. The elements of assumption of risk are clearly present.” Henderson v. Ford Motor Co., 519 S.W.2d 87, 90-91 (Tex. 1974) The question that remains is, were his actions reasonable?

This can be a little tricky because there are a lot of times that a busy schedule can cause someone to overlook squeaky breaks, small problems with home appliances and other signs of potential defects in products. Overlooking these signs could amount to what is called “assumption of risk.” Texas defines assumption of risk as, “[knowing] of the condition that caused the injury, fully appreciate the nature and extent of the danger involve and voluntarily encountered the danger. “

This responsibility should not be overstated. Remember that a consumer has no duty to discover or guard against a defect, it is only conduct other than failure to guard or discover against a product defect is subject to comparative responsibility. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 422-423 (Tex. 1984) You as a user of a defective product are not free of the responsibility to act reasonably or from taking reasonable precautions regardless of a known or unknown product defect.

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