Avoiding the `misuse' defense in products cases: manufacturers often cite product `misuse' to blame consumers for their injuries. Plaintiff attorneys can thwart this effort to avoid liability by using careful discovery and creative pleading.

One of the more common defenses in a products liability case is that the plaintiff's injury was caused by his or her own "misuse" of the product. Confusion about this defense can allow it to have far more impact than it should. Plaintiff attorneys must understand this defense and its relationship to the plaintiff's claims. Doing so should ensure that evidence of alleged misuse is limited and avoid an erroneous jury instruction.

For example, the way the defense is framed can determine whether the jury is instructed that the plaintiff's "misuse" of a product can reduce his or her recovery under the principles of comparative negligence, or whether the jury is told that a finding of misuse means that the defendant is not liable at all.

The second and third restatements of torts differ on the product misuse issue. The Restatement (Second) of Torts: Products Liability, issued in 1964, provides that one who sells a product in a defective condition that makes it unreasonably dangerous to the user or consumer is strictly liable for physical harm that is caused by the product. (1) This rule focuses on manufacturers and sellers, holding them liable even when they have exercised all possible care in preparing and selling the product.

The second restatement never directly discusses how the plaintiff's use of a product relates to the theory of recovery in strict liability. One comment advises that a warning regarding a product's use may be required to prevent it from being unreasonably dangerous. (2) Others provide that a manufacturer will not be liable if a consumer's mishandling or abnormal handling of a product make it harmful after it leaves the manufacturer's hands. (3) But these comments do not address whether a plaintiff's use of a product affects the determination of whether or not it is defective.

In contrast, the controversial Restatement (Third) of Torts: Products Liability, published in 1997, specifically addresses the ways in which a plaintiff's use of a product affects his or her theory of recovery.

Section 2 provides that a product may be found to be defective when it contains a manufacturing or design defect or when it has …