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Product liability: assumption of risk

When a product injures a consumer, the consumer may think that they automatically deserve compensation from company or business that manufactured or sold the product. Fortunately for manufacturers, as well as their defense attorneys, that is not always the case.

Assumption of risk is a commonly used affirmative defense in product liability lawsuits. When you can prove that How does a plaintiff assume risk?

How does a consumer assume the risk of a product?

When the consumer/plaintiff assumes the risk of a product, he or she has accepted that the product could put them in danger and used it anyway. One could also assume risk if they use a product in a manner which the manufacturer did not intend for it to be used.

For example, if an individual used a cleaning product, knowing that it contained harmful chemicals, and ended up with an injury, a defense team may be able to point out that the user assumed the risk of the product.

Using comparative negligence with assumed risk

Often, it is difficult to prove that a plaintiff is solely responsible for their own injury, which is where comparative negligence comes into play. New York utilizes comparative fault, meaning the courts can find both parties negligent. Whatever amount the plaintiff is responsible for is what they will not receive in compensation.

If the defense can prove that the consumer was mostly responsible for the injury from a product, the defendant may not have to compensate as much. The defendant must prove that the injured individual knew the risks of the product and subsequently accepted the risks.

Product liability cases can be difficult, but when the defense uses assumption of risk as a defense, they may be able to win the case.

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