Personal Injury · Products Liability
Defenses: "It Was Your Fault," "You Misused It," and "Someone Changed It"
When a company is sued over a defective product, it rarely says "you are right." It looks for someone else to blame. Often that someone is the injured person.
Knowing the common defenses helps you avoid mistakes early.
Comparative fault
The defense says the injured person was careless too. Florida's products instructions put it this way:
"whether (claimant or person for whose injury or death claim is made) was [himself] [herself] negligent in (describe alleged negligence) and, if so, whether that negligence was a contributing legal cause of the injury or damage to (claimant)." Fla. Std. Jury Instr. (Civ.) 403.18(a).
The committee notes add a limit on this defense in strict liability cases:
"Comparative negligence is a defense to strict liability claims if based on grounds other than the failure of the user to discover the defect or to guard against the possibility of its existence." Fla. Std. Jury Instr. (Civ.) 403.18, Note on Use 1.
In plain English, a user is not at fault just because he or she did not spot a hidden defect.
The 50 percent rule
For cases the 2023 law covers, a person found more than 50 percent at fault generally recovers nothing. Section 768.81(6), Florida Statutes: "any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages." Florida's definition of a negligence action includes claims based on "strict liability, products liability, ... or breach of warranty." Section 768.81(1)(c), Florida Statutes. If you are 50 percent or less at fault, your award is reduced by your share.
See our page on comparative fault.
Misuse
The defense says you used the product in a way it was not made for. The instructions place the line carefully. Design defect asks whether the product performed as an ordinary consumer would expect "when used as intended or when used in a manner reasonably foreseeable by the manufacturer." Fla. Std. Jury Instr. (Civ.) 403.7(b).
So a company cannot always call a use "misuse." If the use was reasonably foreseeable, it can still be a defective product. Examples: a child chewing on a toy, a person standing on a chair, a tire run at highway speed.
Alteration or modification
The defense says someone changed the product after it left the factory. This ties to a part of the definition we have already seen. A defective product must reach the user "without substantial change affecting that condition." Fla. Std. Jury Instr. (Civ.) 403.7.
If the product was repaired, rebuilt, or modified, the company will say the change caused the problem. This is another reason not to fix or clean the product after an injury. See preserving the product and evidence.
Blaming someone who is not in the case
The defense can point at a person or business that is not a party. Instruction 403.18(b) asks:
"whether (identify additional person(s) or entit(y)(ies)) [was] [were] also [negligent] [at fault] [responsible] in (describe alleged negligence, fault, or responsibility); and, if so, whether that [negligence] [fault] [responsibility] was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made)." Fla. Std. Jury Instr. (Civ.) 403.18(b).
The committee notes say apportionment is tied to section 768.81, Florida Statutes (Note on Use 3). The defense generally has to plead and prove this.
Obvious danger
The defense says the danger was plain to see. The notes say the so-called "patent danger doctrine" is "not an independent defense" and, to the extent it applies, "it is subsumed in the defense of comparative negligence." Fla. Std. Jury Instr. (Civ.) 403.18, Note on Use 2.
State of the art and government rules
The defense may say the product was as safe as the knowledge of the time allowed, or that it met government standards. See design defects. Meeting a government rule can be evidence in the case, but it does not end the case by itself. Section 768.1256, Florida Statutes, sets out a presumption.
Learned intermediary
For products that come through a doctor or other professional, the defense may say it warned that professional. See failure to warn.
What you need to show
- The product was defective or the company was negligent.
- The claimed misuse was not the real cause, or was reasonably foreseeable.
- The product was not changed in a way that caused the harm.
- Any share of fault put on you or on someone else is small or unsupported.
What to do now
- Keep the product in the condition it was in when you were hurt.
- Save the manual and warnings.
- Do not discuss how it happened with the company or its insurer.
- Write down how you used the product, step by step.
- Get witness names.
Talk to us
Free consultation. Call (305) 209-0384. Answered 24/7. Se habla español.
This page is general information, not legal advice. Every case is different.