If a consumer has been injured by a defective product, then the defendants (manufacturer, repairer and/or seller) will probably argue that the injury was not caused by the defect. The defenses that apply depend on whether the products liability claim is based on strict products liability or on negligence.

What Defenses Can Be Used against a Defective Product Liability Claim?

Some of the common defenses against product liability claims are:

  • Assumption of the Risk: If the plaintiff was aware of the risk involved in using the product and was willing to accept the risk and as a result was injured, the plaintiff will be prevented from recovery. The evidence must clearly show that the plaintiff knew of the risk involved and the disregard of the danger and risk that the plaintiff was aware of was the cause of the plaintiff’s injury.
  • Substantial Change Defense: If there has been a substantial change or modification to the product by the consumer and if the modification of the product was what caused the injury, then the manufacturer could be relieved from liability since the cause of the injury was not the manufacturer's fault. Only unexpected and unforeseeable changes to the product by the consumer will relieve the manufacturer of liability. If the manufacturer could have predicted that consumers could alter or modify the product in such way, then the modification would not relieve the manufacturer of liability.
  • Contributory Negligence or Comparative Fault: In some states, if the plaintiff contributed to his or her injuries, the plaintiff may be barred from any recovery. In other states, if the plaintiff contributed to his injury, the plaintiff’s amount of fault would reduce his recovery.
  • Statute of Limitations Expired: The defendant can argue that the available time that the plaintiff had to bring the personal injury claim has expired. The statute of limitation period in which the plaintiff must file a claim in court and start the lawsuit starts at the time the incident occurs and expires usually within 3 years.
  • Other Cause: The defendant can also argue that there was some other factor that caused the plaintiff's injury. The defendant must prove that the product or design of the defendant’s product was not the actual cause of the plaintiff's injury.

Since there are three different kinds of product liability claims that could be brought in defective product cases (negligence, breach of warranty, and strict liability), not all defenses listed above may work to defeat each claim. Some defenses work for negligence claims, but do not work for strict liability claims.

Do I Need a Personal Injury Lawyer?

If you are a manufacturer, wholesaler, retailer, or distributor who is facing a defective products liability claim because you manufactured, sold, or distributed a defective product, you should speak to a personal injury attorney immediately to learn more about preserving your rights and remedies.