Foreseeable Misuse Isn't A Plaintiff's Panacea

by Nossaman LLP
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Originally Published in Law360 - September 23, 2013.

Many consumers misuse products, plain and simple. All the warnings, labels and admonitions in the world won't stop this, try though the manufacturers might to limit their liability for such misuse.

When defending products liability cases, you obviously need to know the purpose for which the product was intended and how consumers regularly use the product — both the right way and the wrong way. It is frequently a consumer's "foreseeable misuse" that results in the lawsuit in the first place. But don't be fooled — foreseeable misuse isn't the panacea for liability that most plaintiffs think it is.

Fifty years ago, there was no such thing as foreseeable misuse. In Greenman v. Yuba Power Prods. Inc., 59 Cal.2d 57, 64 (1963), the California Supreme Court held that a manufacturer was liable only if the product was "unsafe for its intended use." The Greenman holding was later adopted by the Restatement (Second) of Torts § 402A (1965), leaving consumers liable for their own improper use or mishandling of the product.

This outcome created confusion over whether a consumer's actions usurped the element of causation or whether it constituted an affirmative defense. In any event, "misuse" of a product came to be regarded as a firm limit on a manufacturer's liability.

Over time, foreseeable misuse was written into the products liability laws, resulting in Sections 2(b) and 2(c) of the Restatement Third and holding manufacturers liable for such misuse. Restatement (Third) of Torts: Prod. Liab. §§ 2(b), 2(c) (1998).

This was done to protect consumers who misused a product in a way that the manufacturer either should have or did anticipate. In other words, the manufacturer couldn't escape liability for misuse of a product by simply arguing that the consumer should have known better (unless the resulting danger was obvious — like knife throwing).

Even so, the foreseeable misuse doctrine doesn't absolve the consumer from all manner of improper use. Indeed, some products require a certain amount of operator know-how, skill and judgment. The requirement of basic knowledge, skill and judgment — even if the misuse is foreseeable — can sometimes provide a viable defense against product defect claims.

Take a bicycle for example. In virtually every instance, the plaintiff in a bicycle defect case argues that some fault with the bicycle caused his or her injuries. In some cases, that allegation may be true, but in many cases, it is not. Generally speaking, no matter how well-designed the equipment, or how informative an owners manual may be, operating a bicycle requires some level of skill and judgment.

Indeed, small children are taught at an early age how to ride a bicycle; how to keep it upright, how to ride on safe terrain, how to watch for automobiles and other dangers. Children are also taught how to stop a bicycle, beginning with the tricycle (when you stop pedaling, the bicycle stops — probably the earliest form of a fixed-gear bicycle), through the use of "coaster" brakes (push the pedal backwards, and the brake stops the bike) and finally, through the use of hand brakes (one lever stops the front wheel; the other stops the rear). These skills graduate with the rider's age and experience as he or she moves through the evolution of bicycles from tricycle to full-size adult road or mountain bike.

Similar skills are necessary to operate motorcycles and cars. Accidents are not uncommon. Indeed, they happen on a daily basis. Although crashing a car has long been considered a foreseeable misuse of an automobile — consequently requiring the product to meet a crashworthiness test — the driver's operation of the vehicle is frequently raised as a defense to any automobile product defect claim.

In California, when a plaintiff's actions in operating the product are at issue, a pure comparative negligence standard applies. This standard allows a plaintiff to recover for injuries sustained while operating the product even if the plaintiff's own negligence contributed to the injuries.1

Of course, the plaintiff's damages are reduced by the percentage fault attributed to the plaintiff's actions. With that in mind, a plaintiff who lacks the necessary skills, knowledge or judgment to properly operate a bicycle, motorcycle or similar product could conceivably reduce his or her damages claim to zero.

Assuming a lack of basic skills and judgment, there is no manufacturer in the world who can prevent an accident from happening. Where bicycles are concerned, such lack of skill, judgment and proper understanding of how to ride a bicycle can present a viable defense — sometimes, a complete defense and other times (even where a defect does exist), a near-complete defense. This is because there are certain inherent dangers in the sporting activity of bicycle riding.

Although a manufacturer has a duty to provide defect-free equipment, a consumer's willingness to engage in the sporting activity — and doing so in an unskilled and dangerous manner — may defeat his or her claims against the manufacturer by having assumed the risk of riding the bicycle. This defense is sometimes referred to as "secondary assumption of risk."

In recreational equipment cases, the scope of the manufacturer's duty of care may be at issue if the manufacturer contends that the alleged defect is the "failure of the product to eliminate or provide protection against an inherent risk of the sport."2 Under those circumstances, the court must assess the risks inherent in the sport, using an analysis that requires reviewing the nature of the sport or activity and the parties' relationship to that activity.3

Defining the risks is the only way for the court to determine whether a manufacturer owes a duty of care.4 "An inherent risk is one that, if eliminated, would fundamentally alter the nature of the sport or deter vigorous participation."5 For example, preventing a bicycle from traveling speeds in excess of 5 mph would fundamentally alter the nature of bicycling as a sport both competitively and recreationally.

Under exceptional circumstances, a bicycle or similar manufacturer may benefit from such a "primary assumption of risk" defense. This "no duty" defense means that the manufacturer has no duty to protect a plaintiff from a particular risk of harm inherent in the sporting activity.

Using the above example, this defense would arguably preclude a finding of duty where a consumer crashes while riding a bicycle at an unsafe speed down a steep, paved, mountain road. No bicycle manufacturer can account for the skill level of any particular rider, and to place "governors" or automatic braking systems on bicycles to prevent excessive speed would fundamentally alter the nature of the sport.

Therefore, in cases where a plaintiff alleges foreseeable misuse, don't overlook the readily available defense that the plaintiff 's own skill and judgment must be brought to bear. Even though the plaintiff may deny that he or she "did anything wrong," your expert — or theirs — may uncover forensic evidence through examining the product that will reveal details about plaintiff's use of the product that contradict plaintiff's sworn testimony.

In other words, don't take the plaintiff's word for it. Be sure you look at the entire product at issue, and have your expert go over it with a fine-tooth comb. Therein may lie a viable defense.

1 Li v. Yellow Cab Co.,13 Cal.3d 804, 829 (1975).

2 Ford v. Polaris Indus., Inc., 139 Cal.App.4th 755, 771 (2006).

3 Knight v. Jewett, 3 Cal.4th 296, 313 (1992).

4 Ford, 139 Cal.App.4th at 771.

5 Id. at 772.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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