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 super-
seding 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 plain-
tiff’s highly reckless conduct was the sole
cause of his harm is not an affirmative
defense, but the assertion that such con-
duct was a superseding cause is an affir-
Justice Todd and the majority disagreed
on the impact Justice Todd’s ruling would
have had on future litigation. The major-
ity 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 sup-
ported 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 gen-
erally not helpful for cases controlled by
other states’ laws because his discussion
focused heavily on Pennsylvania prec-
edent. 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 at-
tempting to avoid a misuse analysis. The
court agreed with the plaintiff’s argument
that intended design and reasonably ex-
pected 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 jurisdic-
tion’s particular approach and consider it
in light of both of the restatements dis-
1 See Reott v. Asia Trend, Inc., 55 A.3d 1088, 1095
2 For brevity, “comparative fault” is used interchangeably with “comparative negligence” in
3 Hereinafter “Restatement Second.”
4 Hereinafter “Restatement Third.”
5 See www.ali.org.
6Discussed in Dehring v. Keystone, 2013 WL
3879619, 6 (E.D. Mich.).
7 Spowal v. ITW, 2013 WL 1871267, 3 (W.D. Pa.).
8 Restatement Third, Sec. 17, comments a and c.
10 Allen v. C & H, 2013 WL 4506233, 4 (W.D. La.).
11 Nemmers v. Ford, 686 F.3d 486, 489 (C.A. 8 Iowa
12 Patterson v. Long, 321 Ga.App. 157, 160-161, 741
S.E.2d 242, 247 (2013).
13 Johnson v. American Honda, 2012 WL 1027588,
16-18 ( D.Mont. 2012).
14 Schwartz v. Hasbro, 2012 WL 1414094, 11-12
(N.J.Super.A.D.); see also McGarrigle v. Mercury, 838 F.Supp.2d 282, 294-295 (D.N.J. 2011)
and McGee v. Stihl, 2011 WL 6130417, 9 (D.N.J.).
15 Sadler v. Advanced, 2013 WL 1636374, 3 (W.D.
16 2013 WL 5442903, 2 (Ill. App. 1 Dist. 2013).
17 901 F.Supp.2d 834, 842 (N.D. Tex. 2012).
18Under Maine law, comparative fault “does
not apply to strict liability claims where the
plaintiff’s only alleged negligence is failure to
discover the defect in the product or to guard
against the possibility of its existence.” Hinton v.
Outboard, 2012 WL 260033, 2-4 (D. Me.).
19 Restatement Third at Section 17, Comment d.
21 55 A.3d 1088, 1095 (Pa. 2012).
22 The Restatement Third does not address allocations of the burden of proof, leaving that issue to
local laws. See Sec. 17.
23 Reott, 55 A.3d at 1096.
24 Weigle v. SPX, 2013 WL 4767365, 12-13 (7th Cir.).
25 O’Neal v. Bumbo, 2013 WL 4083281, 7-8 (S.D.
Andy Rowlett is a member at Howell &
Fisher, PLLC. His civil litigation practice
encompasses commercial litigation, insurance subrogation and recovery, insurance
defense, insurance coverage analysis and
litigation, and appellate work. Rowlett may
be reached at firstname.lastname@example.org.