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What are the allowable defenses under strict liability?
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Business and Its Environment
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The defenses allowed under strict liability vary among the states. In all of these defenses, the burden of proof is on the defendant. The only absolute defense is that the product was not associated with the injury or was not the proximate cause of the injury. Other defenses are not absolute.
Assumption of Risk: If a consumer voluntarily and knowingly assumes a risk, a producer may be protected. Such assumptions are routine for surgery and certain medications, but they may provide little protection if the patient did not understand the risk. The burden of proof is on the defendant to prove that the assumption was both voluntary and understood.
Correction of a defect: A producer may have a defense if a product had been altered by someone other than the producer in a manner that caused injury to the plaintiff. The correction of a defect may also provide a degree of protection in some instances.
Contributory negligence: In some jurisdictions a defense of contributory negligence on the part of the plaintiff is allowed. The burden of proof is on the defendant to show that the plaintiff was negligent in the use of the product; if proven, the defendant may avoid damages or have the damages reduced by the plaintiff's share of responsibility.
Disclaimers: A producer may be able to use disclaimers to limit liability, but the courts have held some disclaimers to be invalid. One type of disclaimer that is upheld by courts is that associated with an assumption of risk in which a consumer voluntarily and knowledgeably agrees to bear the risk. Courts, however, typically examine closely whether the consumer actually understood the disclaimer. Disclaimers that limit the remedies available to parties, such as the right to sue, may not be upheld.
Statutes of limitation and repose: In most jurisdictions, products liability cases are covered by a statute of limitations, which is often 4 years. For capital equipment, a statute of repose serves the same function as a statute of limitations, but the time allowed is much longer. Compliance with government safety standards can in some cases be used as a defense, although such standards may be viewed by the courts as providing only the minimum level of safety.
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