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Legal Facts: Plaintiff Negligence and Strict liability

— August 3, 2015

Strict liability generally holds all persons in the chain of distribution for component parts or final products strictly liable to any consumer or ultimate user of the product for any harm caused by their defectively designed or manufactured products. There is an exception to this rule if a product has been substantially changed; for a plaintiff to bring a product liability action, the plaintiff must not be more at fault for the harm than the persons in the chain of distribution.

Historically, courts have found that contributory negligence or plaintiff negligence was an absolute bar to plaintiff recovery. This rigid rule had given way to the more modern approach of comparative negligence.Hawaii Revised Statutes § 663-31 states: “Contributory negligence shall not bar recovery in any action by any person or the person’s legal representative to recover damages fornegligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person or in the case of more than one person, the aggregate negligence of such persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made.”HRS § 663-31

If the plaintiff is negligent the court will instruct the jury or make findings of fact as to:

1)    The amount of the damages which would have been recoverable if there had been no contributory negligence; and

2)    The degree of negligence of each party, expressed as a percentage.

These facts will be used to reduce the amount of recovery on behalf of the plaintiff in proportion to the percentage negligence attributed to the plaintiff. The statute explains that while a plaintiff’s negligence is not an absolute bar to recovery, it is an important consideration because:

1)    if the plaintiff is equally or more negligent than the defendant the plaintiff can not recover; and

2)    if the plaintiff is less negligent than the defendant than the plaintiff’s recovery is offset by whatever negligence is attributed to the plaintiff.

In Bissen, Hawaii Supreme Court applied this doctrine of comparative negligence, discussing that comparative negligence comes in at least two forms which may be characterized as “pure” and “partial”. In the pure or pristine form of comparative negligence, the concept of recovery according to fault is extended to its logical limits without regard to whether the plaintiff’s negligence is greater than the defendant’s. On the other hand, “partial” comparative negligence usually limits recovery to those situations where the negligence of the plaintiff is less than that of the defendant. [By Hawaiian Statute], where the plaintiff’s negligence is greater than the defendant’s, the plaintiff is completely barred from recovery just as he was under the admittedly unjust doctrine of contributory negligence. Thus if the plaintiff is 51% negligent, he does not recover; but if he is 49% negligent, he may recover.Bissen v. Fujii, 51 Haw. 636 (Haw. 1970)

Thepublic policy oriented goal of the comparative negligence doctrine is to efficiently punish wrongdoers with attributing to them proportional responsibility. The system in this form is particularly important not onlyto compensate an injured party for all of the harm attributable to the wrongdoing of the defendant; but for when multiple defendants are involved, all are liable to the plaintiff for their respective shares of the loss, even though some may have been less negligent than he [or she].Ozaki v. Association of Apt. Owners, 1998 Haw.(Haw. 1998)

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