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Product liability claims can be based on strict liability, breach of warranty, or negligence. The defense strategy will mainly depend on the type of claim being made. For instance, if the plaintiff is claiming breach of warranty or negligence, the defense might try to prove that the victim assumed the risk of using the product, even after knowing the risks involved in using the product.
Assumed Risk
When the plaintiff knows that the manner in which he is using the product could cause malfunction or injury, then the defense of “assumed risk” can be applied effectively. Hence, depending on the type of product liability claim being made, the defense will vary.
The defense might argue that the defect in the product or specific design of the product could not have caused the injury, but some other factors might have done the damage. For instance, the victim suffered burns while encountering an iron because he was pushed. The jury will find that the push was the original cause of the injury and not the iron. Hence, it is not realistically possible to prevent such type of injury, nor is it possible to warn against such injuries.
Improper Use
Another popular defense is comparative or contributory negligence. Here the defense lawyer will try to prove that the plaintiff was negligent in using the product, which contributed to the injury. This defense is used when there is a possibility of the plaintiff having misused the product in way that was not predictable or intended.
Depending on the laws of the state where the case is tried, if the plaintiff is found to be partially responsible for the accident, the compensation could be eliminated or reduced proportionately to the negligence. Contributory negligence is, however, different from assumption of risk, since the victim does not know the results of his or her negligence.
