Rational Use of a Product Act


 The ALEC model Rational Use of a Product Act clarifies the law as to when a manufacturer or other seller is subject to liability for injuries stemming from misuse of its products: the alleged injury must result from the reasonable, foreseeable misuse of the product.  The model act accomplishes this goal in two ways.  First, the model act assures that the reasonableness of the consumer’s conduct in misusing the product is taken into account.  The mere fact that a misuse might, in some way, be “foreseeable” is insufficient for imposing liability when the misuse was unreasonable.

Second, the model act clarifies how courts should apply the misuse doctrine.  It states that misuse is an affirmative defense to a product liability claim when a consumer puts a product to an objectively unreasonable use.  But, when an individual uses a product in an unintended but reasonable way, the misuse becomes a factor for the trier of fact to consider in assessing comparative fault.  In such an instance, the court shall reduce damages to the extent the alleged injury resulted from the misuse.

Model Policy

 {Title, enacting clause, etc.}

 Section 1. {Title.}

This Act shall be known and may be cited as the Rational Use of a Product Act.

 Section 2. {Misuse of a Product}

(A) Affirmative defense.

A seller is not liable in a civil action for harm caused by unreasonable misuse of its product.

(B) Comparative Fault.

If a defendant does not qualify for an affirmative defense under subsection (A), the claimant’s damages shall be reduced to the extent any reasonable misuse contributed to the injury.  The trier of fact may determine that the harm was caused solely as a result of such misuse.

(C) Definitions.

(1)               “Misuse” means use of a product for a purpose or manner different from the purpose or manner for which the product was manufactured.  Misuse includes, but is not limited to, uses: (a) unintended by the seller; (b) inconsistent with a specification or standard applicable to the product; (c) contrary to an instruction or warning provided by the seller or other person possessing knowledge or training regarding the use or maintenance of the product; or (d) determined to be improper by a federal or state agency.

(2)               “Seller” means the manufacturer, wholesaler, distributor, or retailer of the relevant product.

(3)               “Unreasonable misuse” means (a) a reasonably prudent person would not have used the product in the same or similar manner or circumstances; or (b) the product was used for a purpose or in a manner that was not reasonably foreseeable by the seller against whom liability is asserted.  For purposes of subsection (3)(a), the reasonableness of the conduct of a person who is a member of an occupation or profession with special training or experience in the use of a product shall be determined based on a reasonably prudent member of that occupation or profession in the same or similar manner or circumstances.

Section 3. {Misuse in Product Liability Action.}

(A) Design defect.  A misused product may be considered defective in design when the reasonably foreseeable risks of harm related to a reasonable misuse of the product could have been significantly reduced or avoided by the adoption of an alternative design that (a) would not have resulted in an unreasonable increase in the cost of designing and manufacturing the product for its intended use; (b) would not have reduced the efficiency, utility, or safety of the product for its intended use; and (c) was available at the time of manufacture.

(B) Warning defect.  A misused product may be considered defective because of inadequate instructions or warnings when the reasonably foreseeable risks of harm posed by a reasonable misuse of the product could have been significantly reduced or avoided by providing additional instructions or warnings regarding the dangers of the misuse at issue.  A product is not defective if additional instructions or warnings related to such misuses would have detracted from instructions or warnings intended to prevent more serious or likely hazards.

Section 4. {Severability clause.}

 Section 5. {Repealer clause.}

 Section 6. {Effective date.}

Approved by ALEC Board of Directors on January 28, 2013.

Keyword Tags: Civil Justice Task Force, Liability, Product Misuse

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