Not So Fast..... (Continued from page 17)
and if the product was “unreasonably dangerous” and “defective” at the time it left the seller, then the basic elements of strict liability have been established.23 Furthermore, the defense of “contribu- tory negligence” does not apply to strict liability claims.24
The Maryland Pattern
Jury Instruction for Strict Liability pro- vides as follows: The manufacturer or seller of any
product in a defective condition that is unreasonably dangerous to the user or the user’s property is responsible for physical harm re- sulting from the defect, provided:
23
In Phipps v. General Motor Corp., 278 Md. 337. 363 A.2d 955 (Md. 1976) the Maryland Court of Appeals adopted the concept of strict liability as set forth in the Restatement (Second) of Torts § 402 A.
24
(1) The product was in a defective condition at the time it left the possession or control of the seller; (2) The product was unreasonably dangerous; (3) The defect was the cause of the injuries or property damage; and (4) The product was expected to and did reach the user without substantial change in its condition. In an action for strict liability in tort based upon product defect, the plaintiff need not prove
In Ellsworth v. Sherne Lingerie, Inc., the Maryland Court of Appeals explained that “contributory negligence is not a de- fense in an action of strict liability in tort. Conduct which operates to defeat recovery may in fact be negligent, but confusion will be avoided if it is remembered that a plaintiff is barred only because such conduct constitutes misuse or assump- tion of risk, and not because it constitutes contributory negligence.” 303 Md. 581, 598, 495 A.2d 348, 356 (Md. 1985).
any specific act of negligence as the focus is not on the conduct of the manufacturer or seller, but upon the product itself.
MPJI 26:11 Strict Liability For Defective And Unreasonably Dangerous Products- Elements of Liability (2002).
Crashworthiness Doctrine In crash-worthiness cases (sometimes
called second collision cases), plaintiffs are not alleging that a defect in the design of the automobile caused the ac- cident; rather, the claim is that after the accident occurred, a design defect caused increased injuries to the occupant when he or she collided with the interior of the vehicle. Manufacturers of automobiles are required to use reasonable care in the design of a vehicle in order to avoid
(Continued on page 21)
Summer 2008
Trial Reporter
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