5.40D-4 – Design Defect — Defenses

5.40D-4 DESIGN DEFECT — DEFENSES

1. Statutory Defenses
   1. State-of-the-Art Defense, N.J.S.A. 2A:58C-3a(1)
      CHARGE TO JURY (No practical or feasible alternative design – state of the art defense): The defendant manufacturer/seller cannot be held liable to the plaintiff if at the time the product left the defendant’s control, there was no practical and technically feasible alternative design that would have prevented the plaintiff’s injury (illness, death) without substantially impairing the reasonably anticipated or intended functions of the product.
   2. Consumer Expectations/Obvious Danger Defense: N.J.S.A. 2A:58C 3(a)(2)
      The defendant manufacturer/seller cannot be held liable to the plaintiff if (1) the characteristics dangers of the product are known to the ordinary consumer or user and (2) the injury (illness, death) was caused by an unsafe aspect of the product that is an inherent, essential characteristic of the product. 

      The elimination of an essential characteristic might not render the product totally useless, but it would measurably reduce the product’s appropriateness for its central function. The defense is established if eliminating the danger would require eliminating an inherent characteristic of the product that would be recognized by the ordinary person using the product with the ordinary knowledge common to that class of consumer.

   3. Unavoidably Unsafe Product and Danger Was Warned About, N.J.S.A. 2A:58C 3a.(3)
      The defendant manufacturer/seller cannot be held liable to the plaintiff if the injury (illness, death) was caused by an unavoidably unsafe aspect of the product and the product carried an adequate warning. An adequate warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates adequate information on the dangers and safe use of the product, taking into account the characteristics of the product, and the ordinary knowledge common to its intended users.
2. Existence of F.D.A. Approved Warning or Instruction
   Defendant has offered evidence that the warnings and instructions were approved or prescribed by the Federal Food and Drug Administration. Plaintiff contends that even if so approved, the warnings were still inadequate. Compliance with F.D.A. warnings and instructions does not mean necessarily that the warnings were adequate, but such compliance, along with the other evidence in this case, may satisfy you that they were. Defendant has the burden of proving that the warnings and instructions were approved by the F.D.A. If there has been compliance with the F.D.A. action, than plaintiff has the burden of proving that the approved warnings or instructions were, nevertheless, inadequate. You may find that the warnings or instructions were inadequate despite the F.D.A. approval.
3. Comparative or Contributory Negligence, N.J.S.A. 2A:15 5.1
   Did the plaintiff voluntarily and unreasonably proceed in the face of a known danger (limited comparative negligence)? 
   1. Was the plaintiff negligent?
      Defendant contends that plaintiff was at fault for the happening of the accident. 

      To win on this defense, defendant must prove that plaintiff voluntarily and unreasonably proceeded to encounter a known danger and that plaintiff’s action was a proximate cause of the accident. The failure of plaintiff to discover a defect in the product or to guard against the possibility of a defective product is not a defense. Rather, to win on this defense defendant must prove that plaintiff had actual knowledge of the particular danger presented by the product and that plaintiff knowingly and voluntarily encountered the risk.

   2. Was plaintiff’s negligence a proximate cause of the injury?
   3. Comparative Fault; Apportionment of Fault; Ultimate Outcome
4. State of the Art/Common Standards
   There has been evidence presented of the common practice and standards in the industry. That evidence bears upon the risk/utility or reasonable alternative design or reasonable alternative design analysis that you are being asked to make here in order to measure the reason¬ableness of the defendant’s(s’) conduct, assuming knowledge of the harms the product could cause. Compliance with common practice or industry standards does not mean the product is safe. It may still be found to be defective in design; however, that compliance along with all the other evidence in this case may satisfy you that the product was properly made.