Chapter 14
A. Three theories: “Product liability” refers to the liability of a seller of a tangible item which, because of a defect, causes injury to its purchaser, user, or sometimes bystanders. Usually the injury is a personal injury. The liability can be based upon any of three theories:
1. Negligence;
2. Warranty;
3. “Strict tort liability.”
A. Negligence and privity: Ordinary negligence principles apply to a case in which personal injury has been caused by a carelessly manufactured product. (Example: D, a car manufacturer, carelessly fails to inspect brakes on a car that it makes. P buys the car directly from D, and crashes when the brakes don’t work. P can recover from D under ordinary negligence principles.)
1. Privity: Historically, the use of negligence in product liability actions was limited by the requirement of privity, i.e., the requirement that P must show that he contracted directly with D. But every state has now rejected the privity requirement where a negligently manufactured product has caused personal injuries. It is now the case that one who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence.
Example: D manufactures a car, and negligently fails to make the brakes work properly. D sells the car to a dealer, X, who resells to P. While P is driving, the car crashes due to the defective brakes. P may sue D on a negligence theory, even though P never contracted directly with D.
a. Bystander: Even where P is a bystander (as opposed to a purchaser or other user of the product), P can recover in negligence if he can show that he was a “foreseeable plaintiff.” (Example: A negligently manufactured car driven by Owner fails to stop due to defective brakes, and smashes into P, a pedestrian. P can sue the manufacturer on a negligence theory.)
B. Classes of defendants: Several different classes of people are frequently defendants in negligence-based product liability actions:
1. Manufacturers: The manufacturer is the person in the distribution chain most likely to have been negligent. He may be negligent because he: (1) carelessly designed the product; (2) carelessly manufactured it; (3) carelessly performed (or failed to perform) reasonable inspections and tests of finished products; (4) failed to package and ship the product in a reasonably safe way; or (5) did not take reasonable care to obtain quality components from a reliable source.
2. Retailers: A retailer who sells a defective product may be, but usually is not, liable in negligence. The mere fact that D has sold a negligently manufactured or designed product is not by itself enough to show that she failed to use due care. The retailer ordinarily has no duty to inspect the goods. Thus suit against the retailer is now normally brought on a warranty or strict liability theory, not negligence.
3. Other suppliers: Bailors of tangible property (e.g., rental car companies), sellers and lessors of real estate, and suppliers of product-related services (e.g., hospitals performing blood transfusions) may all be sued on a negligence theory.
A. General: A buyer of goods which are not as they are contracted to be may bring an action for breach of warranty. The law of warranty is mainly embodied in the Uniform Commercial Code (UCC), in effect in every state except Louisiana. There are two sorts of warranties, “express” ones and “implied” ones.
B. Express warranties: A seller may expressly represent that her goods have certain qualities. If the goods turn out not to have these qualities, the purchaser may sue for this breach of warranty.
Example: D, a car dealer, promises that a particular car has “shatterproof glass.” While P is driving the car, a pebble hits the windshield, shatters the glass, and damages P’s eyes. P can sue D for breach of the express warranty that the glass would be shatterproof. [Baxter v. Ford Motor Co.]
1. UCC: UCC §2-313 gives a number of ways that an express warranty may arise: (1) a statement of fact or promise about the goods; (2) a description of the goods (e.g., “shatterproof glass”); and (3) the use of a sample or model.
a. Privity: There is usually no requirement of privity for breach of express warranty. (Example: D manufactures a car, and prepares a brochure stating that the glass is “shatterproof.” D sells the car to Dealer, who resells it to P. P never reads the brochure, and is injured when the glass is not shatterproof. P can recover against D for breach of express warranty, because there is no privity requirement, and D’s statement was addressed to the public at large.)
2. Strict liability: D’s liability for breach of an express warranty is a kind of strict liability — as long as P can show that the representation was not in fact true, it does not matter that D reasonably believed it to be true, or even that D could not possibly have known that it was untrue.
C. Implied warranty: The existence of a warranty as to the quality of goods can also be implied from the fact that the seller has offered the goods for sale.
1. Warranty of merchantability: The UCC imposes several implied warranties as a matter of law. Most important is the warranty of merchantability. Section 2-314(1) provides that “a warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.”
a. Meaning of “merchantable”: To be merchantable, the goods must be “fit for the ordinary purposes for which such goods are used.” (Example: A car which, because of manufacturing defects, has a steering wheel that does not work, is not “merchantable,” since it is not fit for the ordinary purpose — driving — for which cars are used.)
b. Seller must be a merchant: The UCC implied warranty of merchantability arises only if the seller is a “merchant with respect to goods of that kind.” Thus the seller must be in business and must regularly sell the kind of goods in question. (Examples: A consumer who is reselling her car does not make any implied warranty of merchantability; nor does a business person who is selling a piece of equipment used in that person’s business rather than held in inventory.)
2. Fitness for particular purposes: A second UCC implied warranty is that the goods are “fit for a particular purpose.” Under §2-315, this warranty arises where: (1) the seller knows that the buyer wants the goods for a particular (and not customary) purpose; and (2) the buyer relies on the seller’s judgment to recommend a suitable product. (Example: Consumer tells Shoe Dealer that he wants a pair of shoes for mountain climbing. Dealer recommends Brand X as having good traction. If the shoes don’t have good traction, and Consumer falls, he can sue Shoe Dealer for breach of the implied warranty of fitness for a particular purpose.)
3. Privity: States have nearly all rejected any privity requirement for the implied warranties.
a. Vertical privity: Thus “vertical” privity is not required. In other words, a manufacturer’s warranty extends to remote purchasers further down the line. (Example: Manufacturer sells a widget to Distributor, who sells to Dealer, who sells to Owner. Owner resells to Buyer. Buyer is injured when the widget does not behave merchantably. In all states, Buyer can sue Manufacturer, despite the lack of any contractual relationship between Buyer and Manufacturer.)
b. Horizontal privity: Similarly, “horizontal” privity is usually not required. In all states, any member of the household of the purchaser can recover if the member uses the product. In most states, any user, and even any foreseeable bystander, may recover.
D. Warranty defenses: Here are three defenses unique to warranty claims:
1. Disclaimers: A seller may, under the UCC, disclaim both implied and express warranties.
a. Merchantability: A seller may make a written disclaimer of the warranty of merchantability, but only if it is “conspicuous” (e.g., in capital letters or bold print). Also, the word “merchantability” must be specifically mentioned. (Also, the circumstances may give rise to an implied disclaimer, as where used goods are sold “as is”.)
2. Limitation of consequential damages: Sellers may try to limit the remedies available for breach (e.g., “Our sole remedy is to repair or replace the defective product”). But in the case of goods designed for personal use (“consumer goods”), limitation-of-damages clauses for personal injury are automatically unconscionable and thus unenforceable. UCC §2-719(3).
E. Where warranty useful: Generally, any plaintiff who could bring a warranty suit will fare better with a strict liability suit. But there are a couple of exceptions:
1. Pure economic harm: If P has suffered only pure economic harm, he will usually do better suing on a breach of warranty theory than in strict liability. For instance, loss of profits is more readily recoverable on a warranty theory.
2. Statute of limitations: The statute of limitations usually runs sooner on a strict liability claim than on a warranty claim.
A. General rule: Nearly all states apply the doctrine of “strict product liability.” Most have based their approach on Restatement Second §402A. The basic rule is that a seller of a product is liable without fault for personal injuries (or other physical harm) caused by the product if the product is sold: (1) in a defective condition that is (2) unreasonably dangerous to the user or consumer. Once these requirements are satisfied, the seller is liable even though he used all possible care, and even though the plaintiff did not buy the product from or have any contractual relationship with the seller.
Example: Manufacturer makes a car with defective brakes. Manufacturer sells that car to Dealer, who resells it to Owner, who resells it to Consumer. Consumer is injured when the car crashes because the brakes don’t work. Consumer can recover from Manufacturer in “strict tort liability,” by showing that the brakes were in a defective condition unreasonably dangerous to users at the time the car left the plant. This is true even though Manufacturer used all possible care in designing and building the car, and even though Consumer never contracted with Manufacturer.
1. Non-manufacturer: Strict product liability applies not only to the product’s manufacturer, but also to its retailer, and any other person in the distributive train (e.g., a wholesaler) who is in the business of selling such products. (Example: On the above example, Consumer can recover against Dealer, even though Dealer merely resold the product and behaved completely carefully.)
B. What product meets test: A product gives rise to strict liability only if it is “defective” and also “unreasonably dangerous.”
1. Meaning of “defective and unreasonably dangerous”: A product meets these twin requirements of “defective” and “unreasonably dangerous” if it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Therefore, if a product obviously presents a particular danger to all reasonable consumers, it is not defective or unreasonably dangerous because of that condition.)
C. Unavoidably unsafe products: A product will not give rise to strict liability if is unavoidably unsafe, and its benefits outweigh its dangers.
1. Prescription drugs: For instance, a prescription drug is not “defective and unreasonably dangerous” merely because it causes some side effects and may in an individual case cause more damage than it cures. This is also true of vaccines.
2. Measured by time of sale: Generally, “unreasonable danger” and “defectiveness” are measured by reference to the state of human knowledge at the time the product was sold, not the time the products liability case comes to trial. In other words, if the manufacturer did not and could not reasonably have known of the danger at the time of manufacture, it will not be strictly liable. This is often called the “state of the art” defense.
Example: P’s mother, while pregnant, takes the drug DES to prevent miscarriage. After P is born and reaches adulthood, she sues D, the manufacturer of the DES, arguing that it caused her to get cancer. If D can show that it neither knew nor reasonably should have known of the cancer danger at the time it manufactured the product, it will not be strictly liable.
3. No way to discover individual defect: A similar rule applies where the manufacturer knows that certain items may be defective, but there is no way for it to discover which particular ones fall in this category — such a product is usually held to be “unavoidably unsafe,” and strict liability will not apply. (Example: D operates a blood bank. D knows that some units of blood may be infected with the HIV virus but no blood test for such infection yet exists. If a particular unit of blood causes P to contract AIDS, P will probably not be able to recover from D, because the product was “unavoidably unsafe.”)
4. Low social utility: Plaintiffs have argued that certain products — such as cigarettes, liquor and convertible cars — are of so little social utility that their dangers outweigh their benefits, and that they should give rise to strict liability because they are “unreasonably dangerous” even though they do not contain any “defect.” But courts have almost always rejected this concept of “generically risky” products.
a. “Saturday Night Special” guns: But one case has accepted this argument in the case of a “Saturday Night Special” gun. [Kelley v. R.G. Industries]
5. “Foreign-natural” distinction for food: Some courts make a special distinction in the case of food. These courts distinguish between “foreign” and “natural” objects. Under this approach, there is strict liability for “foreign” matter found in food (e.g., a piece of metal inside a can of tuna fish), but there is no strict liability for the vendor’s failure to remove a naturally-occurring substance from the food (e.g., bone fragments in canned tuna, or pits in cherries). In essence, these courts are saying that the naturally-occurring substance is “inherent” in the product, even though technology exists for removing it.
D. Obvious dangers: If the danger posed by a product is very obvious or commonly known to consumers in general, the product will generally be found not to be defective or unreasonably dangerous.
1. Cigarettes: For instance, a court would almost certainly hold that although cigarettes are dangerous, the dangers they pose are so obvious and well known that a cigarette manufacturer cannot be held strictly liable for making an unreasonably dangerous or defective product.
E. Proving the case: P in a strict liability case must prove a number of different elements:
1. Manufacture or sale by defendant: She must show that the item was in fact manufactured, or sold, by the defendant.
2. Existence of defect: She must show that the product was defective.
a. Subsequent remedial measures: Most courts do not allow defectiveness to be proved by evidence that D subsequently redesigned the product to make it safer.
b. Toxic torts: In the case of a “mass toxic tort,” plaintiffs often use epidemiological evidence of defectiveness. (Example: To prove that DES causes cancer, P offers expert testimony that daughters of women who took DES in pregnancy have a much higher incidence of cancer than those whose mothers did not.)
3. Causation: P must show that the product, and its defective aspects, were the cause in fact, and the proximate cause, of her injuries.
a. Epidemiology: In mass toxic tort cases, this element, like existence of a “defect,” will often be proved by epidemiological evidence. (Example: Expert testimony showing that daughters of women who took DES in pregnancy get 10 times as much of a particular rare cancer as those whose mothers did not would probably suffice to establish that P’s own cancer of this rare sort was in fact caused by DES, assuming that P showed her mother took the drug.)
4. Defect existed in hands of defendant: Finally, P must show that the defect existed at the time the product left D’s hands.
a. Res ipsa: But an inference similar to res ipsa loquitur is permitted — once P shows that the product did not behave in the usual way, and the manufacturer fails to come forward with evidence that anyone else tampered with it, the requirement of defect in the hands of defendant is satisfied.
A. Definition of “design defect”: A “design defect” must be distinguished from a “manufacturing defect.” In a design defect case, all the similar products manufactured by D are the same, and they all bear a feature whose design is itself defective, and unreasonably dangerous.
B. Negligence predominates: Most design defect claims have a heavy negligence aspect, even though the complaint claims strict liability. A design defect claim requires P to show that D chose a design that posed an unreasonable danger to P.
1. Practical other design: The defectiveness of a design is judged by comparing it to other possible designs. A product’s design will be deemed defective if two conditions are met: (1) there was a feasible alternative design which, consistent with the consumer’s expected use of the product, would have avoided the particular injuries; and (2) the costs of the alternative design are less than the costs of the injuries thereby avoidable.
C. Types of claims: Two types of common design-defect claims are as follows:
1. Structural defects: P shows that because of D’s choice of materials, the product had a structural weakness, which caused it to break or otherwise become dangerous.
2. Lack of safety features: P shows that a safety feature could have been installed on the product with so little expense (compared with both the cost of the product and the magnitude of the danger without the feature) that it is a defective design not to install that feature.
a. State of the art: D will be permitted to rebut this by showing that competitive products similarly lack the safety feature. But such a showing will not be dispositive — the trier of fact is always free to conclude that all products in the marketplace are defective due to lack of an easily-added feature.
D. Suitability for unintended uses: D may be liable not only for injuries occurring when the product is used as intended, but also for some types of injury stemming from unintended uses of the product.
1. Unforeseeable misuse: If the misuse of the product is not reasonably foreseeable, D has no duty to design the product so as to protect against this misuse.
2. Foreseeable misuse: But if the misuse is reasonably foreseeable by D, D must take at least reasonable design precautions to guard against the danger from that use. (Alternatively, a warning to the purchaser against the misuse may sometimes suffice.) (Example: A car is not “intended” to be used in a collision, and most collisions are in a sense “misuse” of the product. Nonetheless, a car manufacturer must design a reasonably crashworthy vehicle if it is feasible to do so, because collisions are reasonably foreseeable.)
E. Military products sold to and approved by government: If a product is sold to the U.S. government for military use, and the government approves the product’s specifications, the manufacturer will generally be immune from product liability even if the design is grossly negligent. [Boyle v. United Technologies Corp.]
F. Regulatory compliance defense: Suppose the manufacturer has complied with federal or state regulations governing the design of the product. At common law, this compliance does not absolve D of product liability — regulatory compliance is an item of evidence that the jury may consider, but it is not dispositive.
1. Labeling: Thus if Congress or a state requires that a substance be labeled in a particular way, and the manufacturer follows that requirement, P can still bring a product liability suit on the theory that the labeling was inadequate and constituted a design defect. (But if the requirement was imposed by Congress, and the court finds that Congress intended to preempt the states from requiring stricter or different warnings, then D has a defense.)
2. Design or manufacture: Similarly, if the government regulation imposes a particular design or manufacturing technique, regulatory compliance is in most states not a defense, merely an item of evidence. (Example: An airplane manufacturer whose design meets FAA safety standards is probably not immune from a claim that a safer design was required.)
A. Significance of the duty to warn: The “duty to warn” is essentially an extra obligation placed on a manufacturer.
1. Manufacturing defect: Thus if a product is defectively manufactured, no warning can save D from strict liability.
2. Design defect: Similarly, if a product is defectively designed, a warning will generally not shield D from strict product liability.
3. Properly manufactured and designed product: If a product is properly designed and properly manufactured, D must nonetheless give a warning if there is a non-obvious risk of personal injury from using the product. Similarly, in this situation, D may be liable for not giving instructions concerning correct use, if a reasonable consumer might misuse the product in a foreseeable way. (Examples: Prescription drugs, even when properly designed and properly manufactured, must contain warnings about side effects. Similarly, a household utility like a lawn mower, if it poses a non-obvious risk of personal injury such as cutting a foot, must contain instructions concerning correct use.)
a. “Learned intermediary” doctrine for drugs: In the case of prescription drugs, the warning generally needs to be given only to the physician — who is a “learned intermediary” between manufacturer and user — not to the user.
b. Cigarettes: In the case of cigarettes sold before 1966 (the year federally-mandated labeling requirements came into effect), a court might find that the manufacturer had a duty to warn of lung cancer and other dangers. [Cipollone v. Liggett Group]
B. Unknown and unknowable dangers: If D can show that it neither knew nor, in the exercise of reasonable care should have known of a danger at the time of sale, most courts hold that there was no duty to warn of the unknown danger. (Example: If D sells a prescription drug without having any ability to know of a particular side effect, failure to warn of that side effect will not give rise to strict product liability.)
C. Government labeling standards: The scope of D’s duty to warn may be affected by the fact that the government imposes certain labeling requirements.
1. Evidence: If D can show that it has complied with a federal or state labeling requirement, most courts permit this to be shown as evidence that the warning was adequate. But in most courts, this evidence is not dispositive — the jury is always free to conclude that a reasonable manufacturer would have given a more specific, or different, warning.
2. Preemption: But where the labeling requirement is imposed by the federal government, and the court finds that Congress intended to preempt more-demanding state labeling rules, then compliance with the federal standard is a complete defense to P’s “failure to warn” claim. (Example: Congress has passed a statute controlling what warnings must be printed on cigarette packs. Held, by the Supreme Court, a cigarette smoker’s state common-law damage claim for failure to warn is pre-empted by this federal statute. [Cipollone v. Liggett Group])
D. Obvious danger: If the danger is obvious to most people, this will be a factor reducing D’s obligation to warn. But where a warning could easily be given, and a substantial minority of people might not otherwise know of the danger, the court may nonetheless find a duty to warn.
A. Purchasers and users: Virtually any reasonably foreseeable user or purchaser of a defective product will have standing to sue its manufacturer or seller, under negligence and strict liability (and perhaps warranty) theories.
1. Negligence: To recover in negligence, the user simply has to be “reasonably foreseeable,” which he will almost always be.
2. Strict liability: Any user or consumer injured by the product can recover in strict liability.
3. Warranty: Almost any purchaser can recover on the implied warranty of merchantability.
a. User: If P was not a purchaser, but merely a user, his state’s version of UCC §2-318 may or may not allow him to recover. Even if it does not, case law may permit him to recover on a warranty theory.
B. Bystanders: It is somewhat more difficult for a bystander to recover. A bystander is someone who is neither a purchaser nor user of the product, but who is injured merely because he happens to be nearby.
1. Negligence: If the claim is based on negligence, P apparently has to show that he was a “reasonably foreseeable” plaintiff.
2. Strict liability: As a matter of case law, courts have generally given strict liability protection to any bystander whose presence was reasonably foreseeable. (Example: P is a pedestrian who is hit when the brakes on a car manufactured by D, and driven by X, fail due to defective design. Nearly all courts would allow P to recover in strict liability against D.)
3. Warranty: Courts are split as to whether the bystander can recover on an implied or express warranty against the remote manufacturer. This will depend in part on which version of UCC §2-318 is in force in the state.
A. Chattels: In any case involving a “good” or “chattel,” both strict and warranty liability will apply to any seller in the business of selling goods of that kind.
1. Retailer: This means that a retail dealer who sells the good, but has not manufactured it, will have strict liability as well as warranty liability, even if she could have done nothing to discover the defect. But this is true only if the seller is in the business of selling goods of that type (so that a private individual selling a good, or a business person selling outside of the usual course of his business, will not have liability).
2. Used goods: Courts are split as to whether there is strict or warranty liability for the seller of used goods. Probably most courts would hold that there is no such liability. (Example: Dealer, a used car dealer, sells a used car to X. The brakes are defective, and X is unable to avoid hitting P, a pedestrian. Most courts would not allow P to recover in strict liability against Dealer.)
B. Lessor of goods: Courts frequently impose strict liability upon a lessor of defective goods. (Example: A car rental company may be strictly liable if it rents a defective car and that car injures a pedestrian due to the defect.)
1. Negligence or warranty liability: The lessor may also be liable for negligence in failing to discover the defect, or on an implied warranty theory by analogy to the UCC.
C. Sellers of real estate: Sellers of real estate have also sometimes been subjected to strict and warranty liability when the property turns out to be dangerously defective. But probably only a professional builder, not a consumer who resold the house, would be subject to such liability (unless the consumer actively concealed the facts of which he was aware).
D. Services: One who sells services, rather than goods, does not fall within standard strict liability nor within the UCC implied warranties.
1. Services by professionals: Where the services are rendered by a “professional,” he will almost never be liable in strict tort or warranty for using a defective product. (Example: D, a dentist, uses a defective needle that breaks in P’s jaw, injuring him. P cannot recover for breach of the implied warranty of merchantability or for strict product liability, because D did not “sell” the needle. [Magrine v. Krasnica])
A. Property damage: All the above analysis assumes that P’s injury consists of personal injury. If P’s damages consist only of property damage, special rules may apply:
1. Strict liability and negligence: P may generally recover in strict liability and negligence even though his damage consists only of property damage rather than personal injury.
a. Warranties: But he might not win on a warranty theory. If P is suing a remote defendant (one with whom he did not contract), two of the three alternative versions of UCC §2-318 do not allow P to recover for property damage unaccompanied by personal injury.
2. “Property damage” defined: Since the rules for recovering for property damage are easier for the plaintiff to satisfy than those for recovering “pure economic” damages, the two must be distinguished. If P’s property apart from the defective product is destroyed (e.g., the product causes a fire), this obviously counts as property damage. Also, if the defect causes the product itself to be destroyed or visibly harmed (e.g., an automobile catches on fire due to a defective radiator), this is probably property damage, and thus recoverable in strict liability or negligence.
a. Loss of bargain: But if P’s damages stem from the fact that the product simply doesn’t work because of the defect, or is worth less with the defect than without it, courts are split — most would probably treat this as intangible economic harm (discussed below).
B. Intangible economic harm: Where P’s damages are found to be solely intangible economic ones (as opposed to personal injury or property damage), P will find it much harder to recover.
1. Direct purchaser: If P is suing the person who sold the goods to him:
a. Warranty: P can readily recover for breach of implied or express warranty. P can recover the difference between what the product would have been worth had it been as warranted, and what it is in fact worth with its defect. He can also generally recover consequential damages, including lost profits.
b. Strict liability and negligence: P may not be able to recover for the intangible economic harm in strict liability or negligence — the court might well hold that the UCC warranty claims were intended as the sole remedy for intangible economic harm by a purchaser against his immediate seller.
2. Remote purchaser: Where P is suing not his own seller, but a remote person (e.g., the manufacturer), he will probably not recover anything if his only harm is an intangible economic one.
a. Warranty: Most courts would deny an implied warranty claim, on the grounds that P must sue his own immediate seller for such breaches.
b. Strict liability: Almost all courts would deny recovery to the remote buyer for economic harm on a strict liability theory.
c. Negligence: Most courts deny P recovery in negligence for pure intangible economic harm.
d. Combined: But remember that if P can show that he has received either physical injury or “property damage,” he may then be able to “tack on” his intangible economic harm as an additional element of damages. This would certainly be the case in a negligence action, and might possibly be true in a strict liability or warranty action.
A. Contributory negligence: A defendant is not quite as free to use contributory negligence to defend against a strict liability or warranty claim as against a negligence claim.
1. Strict liability: Only certain types of contributory negligence are defenses to a strict liability claim:
a. Failure to discover danger: If P’s contributory negligence lies in failing to inspect the product, or otherwise failing to become aware of the danger from it, virtually all courts agree that this is not a defense.
b. Abnormal use: If P’s contributory negligence consists of her abnormal use or misuse of the product, this is a defense to strict liability, but only if the misuse was not relatively foreseeable.
c. Comparative negligence: In states following comparative negligence, courts are split about whether P’s contributory negligence should result in a proportionate reduction in her strict liability recovery.
2. Warranty claims: More or less the same rules described above apply concerning the effect of contributory negligence on warranty claims. (Example: If the buyer discovers the defect and uses the goods anyway, this will probably be a defense to a warranty claim.)
B. Assumption of risk: The defense of assumption of risk applies in general the same way in strict liability cases and warranty cases as it does in negligence cases.
1. Must be voluntary and unreasonable: But, again as in negligence cases, P’s use must be both voluntary and unreasonable. (Example: P buys a car from D. P learns that the seat belt is defective, orders a new one, but meanwhile drives without fastening the old one. If the trier determines that P was “unreasonable” in driving without the belt, assumption of risk will be a defense; but if P was reasonable, this will not be a defense to P’s strict liability action. [Devaney v. Sarno])