Mesa AZ | Product Liability Rules and Practices

Products liability is a unique sector of the law that has its own set of rules and practices. If you are considering a personal injury case based on products liability, you should carefully study the ins-and-outs of product liability law and familiarize yourself with how these cases typically proceed. To that end, we are providing a multi-part series of blogs on the subject. This is Part 3, which covers affirmative defenses.

Product liability law provides for certain affirmative defenses. If the defendant raises an affirmative defense and successfully proves it to the jury, the defendant will not be liable and the plaintiff will lose the case. Thus, potential plaintiffs should study each of product liability law’s affirmative defenses and prepare to counter them if necessary.

The affirmative defenses are expressly set forth in Arizona Revised Statutes § 12-683. They are also summarized in Arizona’s Revised Civil Jury Instructions. If an affirmative defense has been raised at trial, the jury will receive instructions on the law and how to determine if the defense was proved. The jury will then weigh the evidence for and against the affirmative defense. If the jury finds that the defense was successfully proved, the jury will find for the defendant and the defendant will not be liable to the plaintiff.  ARS § 12-683 sets out four affirmative defenses:

The defect in the product is alleged to result from inadequate design or fabrication, and if the plans or designs for the product or the methods and techniques of manufacturing, inspecting, testing and labeling the product conformed with the state of the art at the time the product was first sold by the defendant.

The key to this defense is knowing what ‘state of the art’ means under the law. Arizona’s Revised Civil Jury Instructions states that it “means the technical, mechanical, and scientific knowledge of manufacturing, designing, testing, or labeling the same or similar products which was in existence and reasonably feasible for use at the time of manufacture.”

To prove this defense, the defendant would have to provide evidence of the ‘state of the art’ for the product in question at the time of manufacture or sale. Then, the defendant will have to provide evidence that the design and fabrication conformed to the ‘state of the art.’ If the defendant is successful, he will not be liable to the plaintiff even if the product caused the plaintiff’s injuries.

The proximate cause of the incident giving rise to the action was an alteration or modification of the product that was not reasonably foreseeable, made by a person other than the defendant and subsequent to the time the product was first sold by the defendant.

Proximate cause is something that “helps to produce the injury.” A defendant can use this affirmative defense when there is evidence that a modification to the product after it left the defendant’s control proximately led to the injury. The modification must not have been reasonably foreseeable. This defense deters plaintiffs from trying to hold manufacturers and sellers responsible for modifications and alterations that they did not carry out or sanction.

The proximate cause of the incident giving rise to the action was a use or consumption of the product that was for a purpose, in a manner or in an activity other than that which was reasonably foreseeable or was contrary to any express and adequate instructions or warnings appearing on or attached to the product or on its original container or wrapping, if the intended consumer knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings.

A defendant can succeed with this defense by proving one of two things: First, the defendant can win by proving that the plaintiff used the product in a manner that was not “reasonably foreseeable,” and the product injured the plaintiff because of the way the plaintiff was using it.

Second, the defendant can win by proving that the plaintiff used the product in a manner that was contrary to the warnings and/or instructions included with the product. The defendant must prove that the plaintiff knew or should have known about the instructions or warnings. This is why products come with warnings and instructions in big, bold, and sometimes colorful letters. It makes it difficult for plaintiffs to counter allegations that they knew or should have known about them.

This defense is all about misuse – it shields defendants from taking the blame for injuries caused by the misuse of their otherwise safe products.

The proximate cause of the incident or incidents giving rise to the action was the repeated consumption of a food product that is not defective and unreasonably dangerous if consumed in reasonable quantities.

This defense is very straightforward, and it obviously only applies to food products. A plaintiff should not be able to recover damages from a defendant because the plaintiff consumed so much of a food product that it became dangerous.

If you are considering a product liability claim, you should be aware of these four affirmative defenses. If you think that one or more might apply to your case, you should start preparing evidence to counter the defense, or reconsider the validity of your claim. Keep in mind that this is only meant to be a broad overview – there is much more to learn about affirmative defenses and product liability lawsuits in general. If you have further questions or you want to know more, please feel free to give us a call.


This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you or someone you know wishes to seek the help of an experienced personal injury attorney regarding Product Liability: Affirmative Defenses, or other personal injury matters, call 480.461.5300. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.