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Common Defenses In Products Liability Cases

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This page is designed to help you anticipate the most common defenses in products liability cases. Of course, many defendants in this field of litigation are established companies with significant resources. So, there most tried and true strategy is often delay. They want to wait you out and drain your resources so you give up. However, this article focuses on their substantive counterarguments. Some of them depend on the type of liability scheme that you pick. Therefore, you might first want to read our article discussing the various types of liability you could choose in products liability cases. Click here for that that page (entitled “Liability Schemes In Products Liability Cases”). Here is a brief description of the most common defense to products liability suits in Illinois:

Contributory Negligence: If, at the time of the accident, the plaintiff was acting in a negligent manner, then the defendant might raise this fact to defeat the cause of action or at least to lower the possible recovery. Illinois has adopted the modified theory of comparative fault. This means that the plaintiff can only recover if his negligence was under 50%, and then, his recovery will still be reduced by the percentage of his own negligence. In products liability cases, this normally comes into play when the defendant claims the plaintiff was using the product in a way for which it was not designed. For instance, if the plaintiff was driving a car over an icy pond and the brakes did not immediately work right before it spun out, the defendant might claim that it was negligent in the first place to drive in that environment and that the brakes were not intended to work over such surfaces. These issues ask the jury to balance questions of fact. Even if they find the plaintiff was negligent, they might still think it did not supersede the product defect and award him some portion of his damages. Alternatively, the jury might conclude that the plaintiff’s negligence completely swallowed the issue of products liability and award him nothing. Obviously, this discussion only falls under the original rubric of the negligence liability scheme.

Assumption of Risk: Quite similar to contributory negligence, assumption of risk defenses cry foul with the plaintiff’s behavior. However, unlike in the former, where the plaintiff merely acted counter to ordinary reason, the latter alleges that the plaintiff knew of a specific risk and acted anyways. Assumption of risk can either be express or implied. It is express when evidence proves the plaintiff specifically knew about or agreed to a risk then acted. It is implied when it can be gathered from his actions. In Illinois, assumption of risk can work to delete or limit products liability actions based on negligence, strict liability, and breach of warranty.

Statute of Limitations: The defendant can, and often does, affirmatively raise a statute of limitations defense to your products liability case. This is a bar to actions that do not come within a certain time window and are statutorily prohibited. However, the defendant must move the court to dismiss on these grounds. For property damages in a products liability claim, the plaintiff has five years to file suit. See 735 Ill. Comp. Stat. 5/13-205 (2010). For personal injuries arising in a products liability case, the plaintiff has two years to bring a case. See 735 Ill. Comp. Stat. 5/13-202 (2010). For certain actions, the statute of limitations does not start running until the plaintiff knew or should have known that he or she was injured (such as exposure to harmful substances) but these are also limited by Illinois’ statute of repose.

Warranty Issues: Specific problems related to the actual warranty associated with the product can be raised by the defendant to threaten your litigation. Many states require that you give notice to a manufacturer if you intend to sue on a breach of warranty claim and that notice must contain certain items. If you do not send a notice or if that notice is defective, this can be grounds for dismissal of your case. Also, the plaintiff could have, prior to purchasing the product, disclaimed the warranty in question. Whereas the issue of notice mentioned above involves statute, rejecting warranties involves a private-contract negotiation between the buyer and seller. However, in most products liability cases, the initial transaction takes places at a general consumer store where no rescission took place.

Other Factors: The defendant can always point to some other factor as causing the plaintiff’s injuries. In this situation, they must show that there was no manufacturing error, design defect, or notice problem that triggered the incident. For instance, if you fall on your sword after being pushed from behind, the push-not the sword-is responsible. However, the onus is still on manufacturers because they will still be on the hook if the actual injury was foreseeable and could have been stopped by design or alert.

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