Saturday, February 4, 2012

Torts: Defenses to Products Liability

The following question was asked in a comment on the blog:

Could you clarify how the defenses to a product claim differ depending on whether the claim is based in a strict product liability, negligent product liability or a breach of warranty claim?


As an initial matter, it's important to remember (especially when writing an essay), that there are five theories of liability that a plaintiff can use when suing a supplier of a defective product if someone is injured by that product. Those theories are intent, negligence, strict liability, implied warranty of merchantability and fitness for a particular purpose, and express warranties (which includes a cause of action for misrepresentation). This answer will focus on the defenses available to one who sues using a theory of negligence, strict liability, or warranty (express or implied).


The defenses here are the same as in a general cause of action for negligence. In other words, on the MBE pure comparative negligence applies, but watch for a situation in which the question specifies to apply contributory negligence. Assumption of risk is also an option. Disclaimers are irrelevant.

Strict Products Liability:

Unlike with negligence, contributory negligence generally will not be a defense to strict products liability. A common fact pattern presents a situation is which plaintiff is said to have misused the product (to an extent that would rise to negligence on his part). In deciding whether the misuse of the product can form the basis for a defense to strict products liability, you need to determine whether the misuse was foreseeable. If the misuse was foreseeable, then it is no defense. If the misuse was not foreseeable, then comparative or contributory negligence can be applied. In addition, assumption of risk is a valid defense to strict products liability. Here, too, disclaimers are irrelevant.


Defenses to the implied warranties include assumption of risk and contributory negligence to the same extent as in strict products liability. (ie, it has a limited effect, and should only be applied if plaintiff was the cause of his own injury). In addition, failure to give notice of breach of warranty is a defense under the UCC.

The disclaimers, you'll recall from the UCC, have their own set of rules. To disclaim the implied warranty of merchantability, the word "merchantability" must be mentioned, and, if in writing, must be conspicuous. The warranty for fitness for a particular purpose may be disclaimed by a conspicuous writing. In addition, both warranties may be disclaimed by language such as "as is" or "with all fault," or by inspection as to defects that a reasonable inspection would have revealed, or by course of dealing, course of performance or usage of trade.

To disclaim an express warranty is difficult because to the extent that the disclaimer is inconsistent with the warranty as given, the disclaimer will not be given any effect.


  1. thanks so much for this really helpful clarification!

  2. thanks this was very clear and helpful.