6-1405. CONDUCT AFFECTING COMPARATIVE RESPONSIBILITY. (1) Failure to discover a defective condition.

(a) Claimant’s failure to inspect. A claimant is not required to have inspected the product for a defective condition. Failure to have done so does not render the claimant responsible for the harm caused or reduce the claimant’s damages.

(b) Claimant’s failure to observe an obvious defective condition. When the product seller proves by a preponderance of the evidence that the claimant, while using the product, was injured by a defective condition that would have been obvious to an ordinary reasonably prudent person, the claimant’s damages shall be subject to reduction.

(c) A nonclaimant’s failure to inspect for defects or to observe an obvious defective condition. A nonclaimant’s failure to inspect for a defective condition or to observe a defective condition that would have been obvious to an ordinary reasonably prudent person, shall not reduce claimant’s damages.

(2) Use of a product with a known defective condition.

(a) By a claimant. When the product seller proves, by a preponderance of the evidence, that the claimant knew about the product’s defective condition, and voluntarily used the product or voluntarily assumed the risk of harm from the product, the claimant’s damages shall be subject to reduction to the extent that the claimant did not act as an ordinary reasonably prudent person under the circumstances.

(b) By a nonclaimant product user. If the product seller proves by a preponderance of the evidence that a product user, other than the claimant, knew about a product’s defective condition, but voluntarily and unreasonably used or stored the product and thereby proximately caused claimant’s harm, the claimant’s damages shall be subject to apportionment.

(3) Misuse of a product.

(a) "Misuse" occurs when the product user does not act in a manner that would be expected of an ordinary reasonably prudent person who is likely to use the product in the same or similar circumstances.

(b) When the product seller proves, by a preponderance of the evidence, that product misuse by a claimant, or by a party other than the claimant or the product seller has proximately caused the claimant’s harm, the claimant’s damages shall be subject to reduction or apportionment to the extent that the misuse was a proximate cause of the harm.

(4) Alteration or modification of a product.

(a) "Alteration or modification" occurs when a person or entity other than the product seller changes the design, construction, or formula of the product, or changes or removes warnings or instructions that accompanied or were displayed on the product. "Alteration or modification" of a product includes the failure to observe routine care and maintenance, but does not include ordinary wear and tear.

(b) When the product seller proves, by a preponderance of the evidence, that an alteration or modification of the product by the claimant, or by a party other than the claimant or the product seller has proximately caused the claimant’s harm, the claimant’s damages shall be subject to reduction or apportionment to the extent that the alteration or modification was a proximate cause of the harm.

This subsection shall not be applicable if:

1. The alteration or modification was in accord with the product seller’s instructions or specifications;

2. The alteration or modification was made with the express or implied consent of the product seller; or

3. The alteration or modification was reasonably anticipated conduct, and the product was defective because of the product seller’s failure to provide adequate warnings or instructions with respect to the alteration or modification.

History:

[(6-1405) 6-1305, added 1980, ch. 225, sec. 1, p. 501; am. and redesig. 2005, ch. 25, sec. 7, p. 85.]