ability. 4 My hope is that the reader will be
able to use this article in evaluating current and future products liability cases in
which comparative fault by the claimant,
including a subrogator’s insured, is argued by the defendant.
Which Restatement Edition
Will the Court Consider?
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,
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
An affirmative defense is generally an argument by a defendant that goes like this: “Everything you claim
may be true, but we still win because of
[fill in the blank].”1 Comparative fault2 by
the plaintiff (the subrogator’s insured) is
a great example of such a defense: even if
the defendant was negligent (or strictly
liable) and caused an accident, fault by
the plaintiff can reduce your claim or
even bar it.
Comparative fault is a common defense in products liability claims. In this
article, we’ll discuss several recent products opinions in which courts addressed
the defense of comparative fault. In addition, we will address the Restatement of
the Law Second, Torts3 and the Restatement of Law Third, Torts—Products Li-
As A Defense in
By Andy Rowlett
Editor’s Note: For brevity, “comparative fault” is used interchangeably with “comparative
negligence” in this article.