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Following up his analysis of case evaluation and trial strategy in Part One of his three-part series, Johnson & Bell Shareholder, Charles P. Rantis, explores the potential benefits and challenges of using plaintiff’s contributory fault defenses in product liability cases. (Part Three)

Trial Strategy: Defense Based on Plaintiff’s Contributory Fault

The extent to which plaintiff’s conduct and interaction with the product at issue may have contributed to or caused the accident is a significant liability issue in most product liability cases. The facts and circumstances in which a plaintiff’s conduct may have caused or contributed to a given accident usually includes a list of the following:

1. Failure to follow warnings and instructions for safe use in operation recommended by the manufacturer.

2. Failure to utilize or removal of safety devices recommended by the manufacturer.

3. Failure to follow safety procedures recommended by the manufacturer or the plaintiff’s employer.

4. Use of the product for a purpose not intended by nor reasonably foreseen by the manufacturer.

5. Use of the product to perform a function different from the function intended by the manufacturer.

6. Inadvertence, carelessness, or inattention in the plaintiff’s use of the product.

7. Substantial alteration in the condition of the product by the plaintiff or some other third-party.

The evidence used to establish a particular defense based on the plaintiff’s conduct and the nomenclature used to describe that conduct is of critical importance. Some defenses based on plaintiff’s culpable conduct do not apply to all theories of liability. In the Illinois Supreme Court case of Simpson v. Gen. Motors Corp., 108 Ill. 2d 146, 483 N.E. 2d 1 (1985), the Court held that plaintiff’s contributory negligence is not a defense when such negligence consists merely in a failure to discover the defect in the product or to guard against the possibility of its existence. Id. at 152. Further, the court stated that a consumer’s unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect should not be considered as a damage reducing factor. Id. After Simpson v. General Motors, only assumption of the risk of injury and unforeseeable misuse are valid damage reducing factors in a product liability action based on strict liability in tort. Id.

In 1986, the Illinois Legislature enacted modified comparative fault in tort actions. See 735 Ill. Comp. Stat. 5/2-1116 (1986). The modified comparative fault statute provides that plaintiff’s recovery is reduced by the plaintiff’s contributory fault unless the plaintiff is more than 50% at fault for causing his own damages. If the plaintiff’s fault is more than 50%, then judgment is entered in favor of the defendant. Id.

A. Assumption of the risk

To establish the defense of assumption of the risk of injury in a product liability action based on strict liability in tort, defense counsel must establish the following:

1. That the plaintiff knew of the danger and appreciated the risk of injury presented by the product.

2. That the plaintiff voluntarily and unreasonably proceeded to encounter the known danger presented by the product.

3. That the plaintiff’s decision to use the product was unreasonable.

(See Cleveringa v. J.I. Case Co., 230 Ill.App.3d 831, 595 N.E. 2d 1193, 1208 (1st Dist. 1992). Given that the test for assumption of the risk of injury is subjective, some plaintiffs will attempt to overcome the defense by asserting that they had no knowledge of the defect or had not discovered the exact defect presented by the product. However, determination of whether plaintiff assumed the risk of injury is not made solely based on the plaintiff’s own self-serving statements, but rather an assessment of all of the facts including the plaintiff’s age, experience, knowledge, and understanding in addition to the obviousness of the defect and the danger it posed. If there is some evidence from which a jury might infer the plaintiff’s assumption of the risk, then it is within the province of the jury to determine that issue. 595 N.E. 2d at 1208-1209. See also, Boland v. Kawaski Motors Mfg. Corp., 309 Ill.App.3d 645, 722 N.E. 2d 1234, 1241-1242 (4th Dist. 2000).

B. Unforeseeable misuse

The second recognized affirmative defense which serves as a damage reducing factor against any adverse verdict is unforeseeable misuse. It must be emphasized that foreseeable misuse is not a defense or damage reducing factor in a product liability action based on strict liability in tort. Misuse of a product occurs when it is used for a purpose neither intended nor reasonably foreseeable by the defendant based on an objective standard. Further, the manner in which the particular purpose was being accomplished is not an issue under a theory of misuse. Arellano v. SGL Abrasives, 246 Ill.App.3d 1002, 617 N.E.2d 130, 136 (1st Dist. 1993).

There is little doubt that the affirmative defense of unforeseeable misuse is seldom discussed in Illinois appellate decisions because if the plaintiff is misusing the product, he is likely using the product in an unintended manner, not for an unintended purpose. Likewise, given the fact that assumption of the risk requires proof that the plaintiff had actual knowledge of the danger in the product, it may be difficult to establish because a plaintiff will seldom admit to having actual knowledge of a particular danger.

In the vast majority of cases with which Johnson & Bell has defended manufacturers and others in the chain of distribution, plaintiffs have moved in limine to exclude any evidence of plaintiff’s assumption of the risk of injury and contributory negligence. Further, a plaintiff may be able to rebut the assumption of the risk argument by asserting that his employer left him no alternative but to accept the risk posed by his employment in order to exercise and protect the plaintiff’s right and privilege to perform his job. See Varilek v. Mitchell Eng’g Co., 200 Ill.App.3d 649, 558 N.E.2d 365, 374-75 (1st Dist. 1990). Therefore, it may be difficult to persuade a jury that a plaintiff unreasonably assumed the risk of injury which may have been a requirement of his job. If there are blue-collar jurors, then these working class jurors may be disinclined to accept the notion that a plaintiff who was injured in the course of employment assumed the risk of injury.

Another strategic problem presented by Illinois law is a jury instruction which the court must give when the plaintiff’s contributory fault is at issue. Section 2-1107.1 of the Illinois Code of Civil Procedure requires that the court notify the jury of the effect of its determination of apportionment of contributory fault. Specifically, the jury is told that if it finds that the contributory fault of the plaintiff is more than 50% of the proximate cause of the damages for which recovery is sought, then the defendant shall be found not liable. See 735 Ill. Comp. Stat. 5/2-1107.1 (“Jury Instruction in Tort Actions”).

The benefit of focusing the theory of defense based on plaintiff’s conduct is to highlight for the jury that the plaintiff’s use of and interaction with the product was unsafe, but the product was reasonably safe. Proof of the plaintiff’s conduct characterized as assumption of the risk of injury or unforeseeable misuse in strict liability in tort cases or contributory negligence in negligence based product liability actions forces the jury to evaluate the condition of the product within the context of the plaintiff’s interaction with the product. Obtaining admissions from the plaintiff at the plaintiff’s discovery deposition is of critical importance in establishing sufficient evidence to satisfy the subjective test of assumption of the risk of injury.

On the other hand, the difficulty with the trial strategy focused on the affirmative defenses of assumption of the risk or even unforeseeable misuse is that jurors are provided with the opportunity to reach a compromise verdict. If the plaintiff has some jury appeal or is otherwise sympathetic, jurors may find in favor of the plaintiff and award a significant amount of damages, but reduce those damages by some percentage at or below 50%.