Contributory negligence of a plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.
Appellant's husband died when he was crushed between the chassis of a truck and the truck's dump bed. Appellant (administratrix of her husband's estate) proceeded against appellee (manufacturer of the truck bed and hoist systems) in negligence and strict liability, and against seller of the truck in strict liability. At trial, the jury returned a verdict in favor of appellant and assigned fault among appellee, decedent and truck seller. On appeal, the court affirmed the verdict, but remanded to reduce the judgment against appellee based on the contributory negligence of decedent and rejecting joint and several liability. On appeal, the court also reinstated the judgment of the trial court finding contributory negligence was not applicable to a strict products liability action and holding Ohio's Contribution Among Joint Tortfeasors Act, Ohio Rev. Code §§ 2307.31 and 2307.32, did not abolish the doctrine of joint and several liability. Appellant sought review.
Do the principles of comparative negligence or comparative fault apply to a products liability case based upon strict liability in tort?
The court found comparative negligence and comparative fault not applicable to a strict products liability action and upheld the doctrine of joint and several liability. Contributory negligence of a plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand, the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery. The court REVERSED the judgment of the court of appeals and reinstated the judgment of the trial court, which had assessed the entire money judgment against appellee.