Comparative Fault as a Defense in Products Liability Subrogation

The American Law Institute publishes restatements of law in many areas, including torts, in order to “clarify, modernize, and otherwise improve the law.”⁵ While courts are not bound by the ALI's restatements, they frequently give great weight to them. Even though the most recent restatement text on products liability was published in 1998⁶ (Restatement Third), many courts still cite to the Restatement Second, which was published in 1965.

Restatement Second has been relied on by courts for many seminal points of law. Yet, according to the Restatement Third's introduction, it is “an almost total overhaul of Restatement Second as it concerns the liability of commercial sellers of products …,” responding to many questions that were not even considered in the earlier edition. One example of a substantial difference between the editions was described in a recent federal court opinion: Restatement Third requires the trier of fact to consider traditional negligence concepts such as foreseeable risk and reasonable care, making the inquiry focus on the conduct of the manufacturer; in contrast, Restatement Second applied a strict liability standard.⁷

Even if the latest opinions from courts important to your case relied on the Restatement Second, it would be wise to review the Restatement Third in case those courts update previous holdings.

How Do Product Misuse, Alteration and/or Modification by the Plaintiff (the Subrogator's Insured) Relate to Comparative Fault under the Restatement Third?

Product misuse, alteration, and modification are not discrete doctrines.⁸ Each of these items can relate to one, two, or all of the following issues: whether the product is defective, legal cause, and/or contributory fault by the plaintiff.⁹

How Is A Product Determined to be Defective Under Restatement Third?

The Restatement Third has three categories of product defects and legal standards for each one:

1. Manufacturing defects: the product is not made according to its intended design. 
2. Design defects: (a) a reasonable alternative design could have reduced or avoided foreseeable risks of harm, and (b) the product is not safe because of the failure to use the alternative design. 
3. Inadequate instructions or warnings: (a) the foreseeable risks of harm could have been reduced or avoided by reasonable instructions or warnings, and (b) their omission makes the product not safe.

Is a Reasonable Alternative Design Necessary under Restatement Third to Claim a Design Defect?

Restatement Third's introduction explains a key defense that may be used by targets of subrogation claims: failure by the plaintiff to establish a reasonable alternative design. While Section 2, which generated considerable controversy, does require the products liability plaintiff who is proceeding on defective design to proffer a reasonable alternative design, the introduction cautions the reader against focusing on alternative designs alone. There are three alternative and independent grounds discussed: 1) inference of defect warranted by specific facts (Section 3), 2) extremely high danger with negligible social utility (Comment e to 2b), and 3) violation of an applicable government safety standard (Section 4).

Does Comparative Fault Even Apply to Products Cases?

There is a tension between strict products liability and the principle of comparative fault.¹⁰ Look to the applicable state's controlling statutes. According to a recent federal court opinion out of Iowa, ¹¹ many comparative fault statutes apply comparative fault concepts only in cases involving negligence.

In Georgia and Montana, evidence of a plaintiff's contributory negligence has no place in a strict product liability case.¹² Montana has the following exception: when (a) (i) the consumer knew of the defect or the defect was open and obvious and  (ii) the user or consumer unreasonably used the product; or (b) the product was unreasonably misused.¹³ 

A defendant's superseding intervening cause argument was characterized by that court as “nothing more than an improper attempt to inject comparative negligence principles into this strict product liability action.” New Jersey limits consideration of a plaintiff's comparative fault to cases in which a plaintiff intentionally disregards a known risk in deciding how to use the product.¹⁴

In contrast, Louisiana law has long held that comparative fault may apply in strict products liability cases. Since Louisiana adopted its present comparative fault regime, such application is mandatory. The same is true in Kentucky.¹⁵

To What Extent Does It Matter Which State's Law of Comparative Fault Applies to the Claim? 

It can matter a lot. When a product malfunctions in a state different from the one where it was sold or delivered, it may not be clear which state's law controls the comparative fault issues (and other legal arguments) in your claim. The recent case of Rupp v. Phusion¹⁶ illustrates how great the differences between states can be.

The allegedly defective product was Four Loko, a caffeinated alcoholic beverage. It was purchased in Virginia.  The Phusion defendants were based in Illinois. Virginia did not recognize strict liability for products liability claims. Illinois did. Also, Illinois had adopted comparative fault while Virginia still followed contributory negligence. Under contributory negligence, any fault by the plaintiff would bar the plaintiff's entire claim.  Under Illinois' comparative fault, any fault attributed to plaintiff would reduce his award, not bar it completely.  Either of these differences in the law of the states could have changed whether the plaintiff or defendants prevailed.

Which state's law applied also made a huge difference in the Sulak v. American Eurocopter Corp.¹⁷ case. A helicopter crashed in Hawaii. Under Hawaii law, any defendant who committed a tort “relating to [an] aircraft accident” or “product liability tort” is subject to joint and several liability, even if their degree of responsibility was very low compared to the other defendants. The defendant seller of the helicopter had its principal place of business in Texas. Under Texas law, a defendant is jointly and severally responsible for damages recoverable by the plaintiff only if its responsibility is greater than fifty percent. Hawaii has adopted “pure” comparative negligence, meaning that a plaintiff can recover even if his fault is 50 percent or greater, even if it is 90 percent or more. In contrast, a plaintiff suing under Texas law is limited to “modified” comparative fault, meaning that he cannot recover unless his fault is less than 50 percent.

As with the Virginia vs. Illinois difference of law above, the differences between Hawaii and Texas law on comparative fault easily could have flipped the outcome of the case.

Are There Any Arguably Negligent Actions By Plaintiffs (Subrogators' Insureds) That Cannot Be Held Against Plaintiffs As Part of a Comparative Fault Defense?

Some courts hold that consumers can expect products to be free from defects and, therefore, do not have a duty to inspect for them.¹⁸ Even if a court allows a defendant to argue comparative fault by the plaintiff for failure to discover a defect, the defendant will likely be required to proffer evidence of a standard of care that the plaintiff failed to meet.¹⁹

Other courts hold that a missing safety feature prevents a defendant from arguing that a plaintiff was negligent if that missing feature would have prevented the injury. Even if the court allows a defendant to argue comparative fault by such a plaintiff, the defendant must prove that the plaintiff's “momentary inattention or inadvertence in a workplace setting constitutes failure to exercise reasonable care.”²⁰

Who Has The Burden of Proving Plaintiff's Assumption of the Risk and/or Highly Reckless Behavior?

A recent Pennsylvania Supreme Court decision, Reott v. Asia Trend,²¹ noted that defendants generally have the burden of proving affirmative defenses. Quoting the Restatement Second,²² that court wrote, “The Restatement continues that assumption of the risk is only relevant 'where there would otherwise be a breach of some duty owed by the defendant to the plaintiff. It is then a defense, which relieves the defendant of the liability to which he would otherwise be subject. The burden of proof is therefore upon the defendant.' ”²³ Under this reasoning, because assumption of the risk is an affirmative defense, the defendant has the burden of proof.

The Reott court also held a claim by a defendant that a plaintiff was highly reckless is also an affirmative defense for which the defendant has the burden of proof. Because highly reckless conduct is necessarily unforeseeable and outrageous and, therefore, the cause of the accident, the defendant must “show that the highly reckless conduct was the sole or superseding cause of the injuries sustained.” The Pennsylvania court cited many other state supreme court opinions that refer to product misuse as an affirmative defense similar to highly reckless conduct.

In a dissent, Justice Todd wrote that he would hold that whether “a plaintiff's highly reckless conduct was the sole cause of his harm is not an affirmative defense, but the assertion that such conduct was a superseding cause is an affirmative defense.”

Justice Todd and the majority disagreed on the impact Justice Todd's ruling would have had on future litigation. The majority predicted that defendants would not plead superseding cause because doing so would impose upon the defense a burden of proof.  Judge Todd was confident that a defense attorney would pursue a highly reckless conduct defense if it were supported by the facts even if the law imposed the burden of proof on that position.

Justice Todd's dissent is not helpful for cases controlled by Pennsylvania law because he was in the minority.  It is generally not helpful for cases controlled by other states' laws because his discussion focused heavily on Pennsylvania precedent. The one exception is his claim that the majority was “simply incorrect” in its assertion that “leading scholars in the area fail to recognize any substantive difference between sole and superseding causes in plaintiff misconduct cases.” According to Justice Todd, there is “no support for the proposition that cause-in-fact, which is what the term 'sole cause' means in this context, and superseding cause are one in the same.”

Will a Court Grant a Defendant's Motion for Summary Judgment Based on Product Misuse?

A recent Seventh Circuit opinion determined that the defendant was not entitled to summary judgment on the defense of misuse.²⁴ The instructions and warnings stressed that pins must always be used with support stands. The plaintiffs did not use the pins.  Consequently a semi-truck trailer fell onto the two mechanics who were working on the trailer. 

The court held that dismissal was not appropriate based on a misuse defense, one aspect of comparative fault under Indiana law, because use of the support stands without the pin was reasonably foreseeable and because the fact finder usually allocates fault. The court discussed another of its opinions involving a decedent who had used a tire jack to prop up his car for an oil change on an uneven surface. The Indiana Supreme Court upheld the ruling that no reasonable jury could find the decedent to have been less than 50 percent at fault, possibly indicating that characterizing a plaintiff's fault as misuse may make it harder for a defendant to win an MSJ.

A recent federal court decision out of Texas²⁵ declined to grant an MSJ based on product misuse because misuse is an issue of comparative fault which is “best left to a jury to resolve.” The defendant had argued that the product was not designed for the use to which it had been put, apparently attempting to avoid a misuse analysis. The court agreed with the plaintiff's argument that intended design and reasonably expected use boil down to misuse. Even if a product has a good design, material, and workmanship, the seller must discharge its duty “to warn or instruct with respect to potential and unknown dangers in the use of the product.”

Comparative fault statutes and case law applicable to products liability cases vary widely. Be sure to check your jurisdiction's particular approach and consider it in light of both of the restatements discussed above.

Footnotes