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Products Liability: User Misconduct Defenses David G University of South Carolina Scholar Commons Faculty Publications Law School Fall 2000 Products Liability: User Misconduct Defenses David G. Owen University of South Carolina - Columbia, [email protected] Follow this and additional works at: https://scholarcommons.sc.edu/law_facpub Part of the Torts Commons Recommended Citation David G. Owen, Products Liability: User Misconduct Defenses, 52 S.C.L.Rev. 1 (2000). This Article is brought to you by the Law School at Scholar Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Scholar Commons. For more information, please contact [email protected]. PRODUCTS LIABILITY: USER MISCONDUCT DEFENSES DAVID G. OwEN* I. TRADITIONAL USER MISCONDUCT DEFENSES: AN OVERVIEW ....... 3 A. Common Law ......................................... 3 B. Reform Legislation ..................................... 5 II. CONTRIBUTORY NEGLIGENCE ................................ 9 A. In General ........................................... 9 B. Warnings Cases ...................................... 15 C. Children ............................................ 15 D. Employees ........................................... 16 E. ContributoryNegligence as a Defense to Strict Liability in Tort Claims ........................................ 17 F. Contributory Negligence as the Sole Proximate Cause of an Accident ........................................ 21 III. ASSUMPTION OF RISK ..................................... 23 A. In General .......................................... 23 B. Knowledge andAppreciation ............................ 26 C. Voluntary Encounter .................................. 31 D. Assumption of Risk as a Defense to Strict Liability in Tort Claims ........................................ 36 E. Reform ............................................. 39 F. Express Assumption ofRisk ............................. 42 G. Fireman'srule ....................................... 44 IV. MISUSE ................................................ 45 A. In General .......................................... 45 B. Development of the Doctrineand Availability as a Bar to Various Liability Claims ...................... 47 C. Misuse as a "Defense" and Burden of Pleadingand Proof ............................................... 49 D. The ForeseeabilityLimitation ........................... 51 E. Failureto Follow Warnings and Instructions ............... 55 F. ComparativeFault .................................... 57 0 2000 David G. Owen * Carolina Distinguished Professor of Law, University of South Carolina. Another version of this Article will appear as a chapter in 2 DAVID G. OWEN, M. STUART MADDEN & MARY J. DAVIS, MADDEN & OWEN ON PRODUCTS LIABILITY (forthcoming 2000). Thanks to James Callahan, Forrest Norvell, Stephanie Borsanyi, James Bums, Nikki Lee, and Mike Dimbauer for research, editorial, and technical assistance. Thinking that Pat Hubbard's intimate, personal familiarity with the subject of this Article, human fraility, might compromise his objectivity, I did not seek his counsel. 2 SOUTH CAROLINA LAW REVIEW [Vol. 52: 1 V. DEFENSES TO WARRANTY CLAIMS ........................... 59 A. In General .................................... 59 B. ContributoryNegligence andAssumption of Risk ........... 60 C. Misuse .............................................. 62 D. U.C.C.Article 2 ...................................... 63 E. Express Warranty ..................................... 67 F. ComparativeFault .................................... 68 VI. DEFENSES TO MISREPRESENTATION CLAIMS .................... 71 A. In General .......................................... 71 B. Justifiabilityof Reliance ................................ 73 C. Contributoryand ComparativeNegligence, Assumption ofRisk, and Misuse .......................... 77 VII. CONCLUSION ............................................ 80 When a person is injured while using a product, the accident may be attributable to some defect in the product. But even if a product is defective in some respect, most product accidents are caused more by the consumer's risky behavior in using the product than by the product's defective condition. In the estimation of a former chairman of the Consumer Product Safety Commission, "over 2/3 of all injuries related to consumer products have nothing to do with the design or the performance of the product. They relate to the misuse or abuse of the product."' If a product accident is caused in whole or in part by a user's behavior that was by some measure improper, or that was informed and voluntary, the manufacturer or other seller of a defective (or misrepresented) product may avoid responsibility for some or all of the resulting damages. An improper or deliberately risky use of a product which results in injury to the user often gives rise to one or more of the traditional conduct (or "misconduct") 2 defenses,3 the subject of this Article.4 This Article examines the nature and effect of the traditional defenses arising out of the plaintiff's misconduct, largely separate from the doctrine of comparative fault which is treated in detail elsewhere.' First considered are the traditional user misconduct defenses-contributory negligence, assumption of 1. Mary Fisk, An Interview with John Byington, 14 TRIAL, Feb. 1978, at 25, 25. 2. User conduct defenses normally involve "misconduct" in the sense of the user's failure to conform to some standard of proper behavior. Although the conventional definitions of product misuse and assumption of risk do not require a formal showing that the conduct was "improper," the type of behavior that qualifies for both defenses ordinarily may be fairly characterized as "misconduct." Accordingly, the terms "user conduct" and "user misconduct" are interchanged throughout this Article. 3. See generally David G. Epstein, Products Liability: Defenses Based on Plaintiff's Conduct, 1968 UTAH L. REV. 267 (1968); Dix W. Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 VAND. L. REV. 93 (1972). 4. A user's conduct which results in injury to a third party may raise an issue of superseding causation, a topic which is outside the scope of this Article. 5. The doctrine of comparative fault, an approach to plaintiff misconduct which cuts a broad swathe across the law of torts and products liability, is examined fully elsewhere. See generally 2 DAVID G. OWEN ET AL., MADDEN & OWEN ON PRODUCTS LIABILITY ch. 15 (forthcoming 2000) [hereinafter 2 MADDEN & OWEN ON PRODUCTS LIABILITY]; VICTOR E. SCHWARTZ, COMPARATIVE NEGLIGENCE §§ 11-1 to -8 (3d ed. 1994); HENRY WOODS & BETH DEERE, COMPARATiVE FAuLT §§ 14:42-:48 (3d ed. 1996). 2000] USER MISCONDUCT DEFENSES risk, and product misuse. After an overview of these defenses in Part I, contributory negligence is fully examined in Part II, assumption of risk in Part III, and product misuse in Part IV. Misconduct defenses applicable to warranty claims are considered in Part V, and those applicable to misrepresentation claims are treated in Part VI. Because user misconduct in some form figures prominently in a large proportion of products liability cases, this Article concludes that a thorough understanding of the user misconduct defenses is essential to lawyers litigating such cases. I. TRADITIONAL USER MISCONDUCT DEFENSES: AN OVERVIEW A. Common Law The classic misconduct defenses to products liability negligence claims have always been contributory negligence6 and assumption of risk.7 With the advent of the modem doctrine of strict products liability in tort during the 1960s and 1970s,8 most jurisdictions added the new defense9 of product "misuse."' While contributory negligence has remained the basic defense to products liability claims grounded in negligence, mostjurisdictions in the latter part of the twentieth century renamed the doctrine "comparative negligence," or "comparative fault," and changed its effect from barring a plaintiff's claim altogether to reducing the plaintiff's damages proportionate to his or her fault. In addition to defining the role of contributory negligence in mostjurisdictions, comparative fault principles now to a large extent control the effect of assumption of risk in many jurisdictions, and product misuse in a few jurisdictions, as discussed below. Nevertheless, the traditional user misconduct defenses still apply to products liability claims in the handful of states that continue to reject the doctrine of comparative fault." Moreover, much of the traditional doctrine surrounding contributory negligence, assumption of risk, and product misuse has survived the conversion to comparative fault even 6. See infra Part II. 7. See infra Part III. 8. See 1 DAVID G. OWEN ET AL., MADDEN & OWEN ON PRODUCTS LIABILITY § 5.1 (3d ed. 2000) [hereinafter 1 MADDEN & OWEN ON PRODUCTS LIABILITY]. 9. In many jurisdictions, product misuse is technically not a "defense" in the sense of an affirmative defense, but its absence is instead considered part of a plaintiff's prima facie case. In such jurisdictions, the role of misuse in products liability law may be viewed more in the nature of a limitation on defectiveness than a true defense. From whatever perspective, when a user 'misuses" a defective product, his or her misconduct may operate as a bar to liability similar to the operation of the traditional defenses of contributory negligence and assumption of risk. For that reason, together with the fact that a number of state reform acts treat product misuse as an affirmative defense, this Article
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