Reconsidering Plaintiff's Fault in Product Liability Litigation: The Proposed Conscious Design Choice Exception
The Uniform Comparative Fault Act, drafted by the National Conference of Commissioners on Uniform State Laws, was approved by the Commissioners in 1977. Dean John W. Wade was Chairman of the special committee that drafted the Act. The Act is a comparative-fault, rather than a comparative-negligence, act; it applies to all nonintentional torts, including products liability actions, whether they are based on negligence, breach of warranty,or strict tort liability. The Act seeks to address the problem of the relationship between the doctrines of comparative negligence and strict liability for products by permitting plaintiff's fault to effect a proportional reduction in any recovery. There are questions, however, of whether comparative negligence or the several common-law defenses that have developed for strict liability claims should apply at all to a strict liability action. The Act, by adopting the pure form of comparative fault, would permit the manufacturer of a defective product to reduce his financial liability for injuries caused by a defective product by that percentage of the total fault attributable to the claimant's unreasonable conduct. Prior to the Act several states had adopted comparative fault statutes that expressly apply to a cause of action not based solely on a defendant's negligence. Courts, however, did not begin to vigorously apply the principles of comparative responsibility until the Florida Supreme Court judicially adopted comparative negligence in 1973 and subsequently applied comparative responsibility principles to the strict liability action.' More recently, the Model Uniform Products Liability Act, using as its model the Uniform Comparative Fault Act, adopts the principles of comparative responsibility to govern a products liability claim. The trend toward utilization of comparative responsibility principles is intended to mitigate the harshness of the doctrine that a claimant's unreasonable assumption of the risk or unforeseeable misuse of a product constitutes an absolute defense to all types of product defect actions.
Vincent S. Walkowiak,
Reconsidering Plaintiff's Fault in Product Liability Litigation: The Proposed Conscious Design Choice Exception,
33 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol33/iss3/4