Document Type
Article
Publication Date
1993
Abstract
At a 1993 symposium entitled The Revision of Section 402a of the Restatement (Second) of Torts: Occasion for Reform of Product Liability Law?, Professor Zablotsky discussed perhaps the most significant issue raised in connection with section 402a, which is whether two of the three major products liability causes of action, those for defective design and failure to warn, should lie in strict liability or in negligence (fault). This issue of fault-based liability versus strict liability is often at the forefront of the discussion of the revision of section 402a. With the hope of ultimately relating the discussion to the preeminent issue of the appropriate theory of liability, this article addresses two discrete sub-issues raised by the revision of section 402a: (1) the burden of proof regarding plaintiff misuse; and (2) the treatment of misuse in a comparative fault-based analytical framework for products liability actions. This article concludes that misuse is most appropriately treated as an affirmative defense, and that such treatment is generally most compatible with the appropriate role of negligence in this products liability context and the ascendancy of comparative fault in tort law.
Recommended Citation
The Appropriate Role of Plaintiff Misuse in Products Liability Causes of Action, 10 Touro L. Rev. 183 (Fall 1993).
Source Publication
Touro Law Review
Comments
Introduction by Hon. George C. Pratt
(Symposium: The Revision of the Restatement of the Restatement (Second) of Torts Section 402A)