Anne Kearse, Taylor Lacy article on countering defense’s argument of consumer misuse featured in AAJ’s Trial Magazine
Consumer misuse is a common defense used by corporations when accused of producing dangerous and defective products. In a new article, Motley Rice attorneys Anne McGinness Kearse and Taylor Lacy discuss keeping attention on the defective product and the harm it caused by anticipating such arguments. The American Association for Justice featured the article, titled “A Dangerous Blame Shifting Game,” in the October 2020 edition of its quarterly publication, Trial Magazine.
“Products liability defendants often attempt to reduce or eliminate their liability for consumers’ injuries by arguing that the consumer misused the product or assumed the risk of its use,” Anne and Taylor wrote. “For example, while making hamburger patties, a chef uses his hand rather than a supplied metal rod to feed the meat into a meat grinder. His hand becomes stuck in the grinder, and he loses a finger. If the chef was aware of the risks in using his hand to feed the grinder, or if doing so was contrary to the device’s unambiguous instructions, his product defect claims could be thwarted by misuse or assumption of risk.”
If they successfully in blame consumers for their own injuries, corporations can dodge accountability and/or paying sizeable settlements and awards that consumers often rely on to pay medical bills and other expenses after unexpectedly getting hurt. A judge or jury typically decides whether a consumer did indeed misuse a product, but there are steps product liability attorneys can take up front to choose and develop viable cases and strengthen their chances of achieving a favorable result for their clients.
“At the outset, determine whether your jurisdiction has form jury instructions on misuse, and if so, identify the specific elements and the party with the burden of proof,” Anne and Taylor said. “When misuse is raised as an affirmative defense, establish that your client used the product in a reasonable and foreseeable manner. “A product is not ‘misused’ merely because the manufacturer intended that it be used in a different manner; [rather] the manufacturer must show that the use which caused the injury was not reasonably foreseeable.’”