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2.2 Products Liability (Against Manufacturer) Comparative Negligence Defense In this case the Plaintiff claims damages for personal injuries alleged to have been caused by a defective condition in the [describe the allegedly defective product]. In order to recover on this claim the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the Defendant manufactured and sold the product being used by the Plaintiff at the time of the accident involved in this case; Second: That, at the time of such manufacture and sale, the product was in a defective condition making it unreasonably dangerous to the user; Third: That the product was expected to and did in fact reach the Plaintiff, and was thereafter operated up to the time of the accident without substantial change in its condition as of the time the Defendant sold it; and Fourth: That the defective condition in the product was a "legal cause" of the injury complained of by the Plaintiff. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] Thus, in cases involving allegedly defective, unreasonably dangerous products, the Defendant may be liable even though you may find that the Defendant was not negligent and exercised all reasonable care in the design, manufacture and sale of the product in question. On the other hand, any failure of a manufacturer of a product to adopt the most modern, or even a better safeguard, does not make the manufacturer legally liable to a person injured by that product. The manufacturer does not guarantee that no one will get hurt in using its product, and a product is not defective or unreasonably dangerous merely because it is possible to be injured while using it. There is no duty upon the manufacturer to produce a product that is "accident- roof." What the manufacturer is required to do is to make a product that is free from defective and unreasonably dangerous conditions. A product is in a defective condition, unreasonably dangerous to the user, when it has a propensity or tendency for causing physical harm beyond that which would be contemplated by the ordinary user, having ordinary knowledge of the product's characteristics commonly known to the foreseeable class of persons who would normally use the product. [Also, a product is defective if it is unreasonably dangerous when used as intended and is marketed without a warning, unless the danger is open and obvious or is otherwise known to the Plaintiff. In order to establish a manufacturer’s liability for failure to warn, Plaintiff must prove: First: That the manufacturer knew or had reason to know the product was or was likely to be unreasonably dangerous in the use for which it was made; Second: That the danger was not open and obvious; Third: That the manufacturer failed to exercise reasonable care to warn consumers of its dangerous condition or the facts that made it dangerous; and Fourth: That the failure to warn was a “legal cause” of the injury complained of by the Plaintiff. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] With regard to the issue of "legal cause," a defective condition is a legal cause of injury if it directly and in natural and continuous sequence produces or contributes substantially to producing such injury, so that it can reasonably be said that, except for the defective condition, the injury complained of would not have occurred. A defective condition may be a legal cause of damage even though it operates in combination with the act of another, some natural cause, or some other cause if such other cause occurs at the same time as the defective condition and if the defective condition contributes substantially to producing such damage. If you find that a preponderance of the evidence does support the claim of the Plaintiff, you must then consider the defense raised by the Defendant. The Defendant contends that the Plaintiff was negligent and that such negligence was a contributing legal cause of the Plaintiff's own injury. Specifically, the Defendant alleges that the Plaintiff [describe the specific act(s) or omission(s) asserted as negligence on the part of the Plaintiff]. This is a defensive claim and the burden of proving that claim, by a preponderance of the evidence, is upon the Defendant who must establish: First: That the Plaintiff was "negligent" as claimed by the Defendant; and Second: That Plaintiff’s negligence was a "legal cause" of the Plaintiff's own damages. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] "Negligence" is the failure to use reasonable care. Reasonable care is that degree of care that a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, or in failing to do something that a reasonably careful person would do under like circumstances. The definition and explanation given a moment ago concerning the term "legal cause" also applies with regard to that requirement of the Defendant's contributory negligence defense. Finding in favor of the Defendant on the defense of contributory negligence will not prevent recovery by the Plaintiff, it will only reduce the amount of the Plaintiff's recovery. In other words, if you find that the accident was due partly to the fault of the Plaintiff, that the Plaintiff's own negligence was, for example, 25% responsible for the Plaintiff's own damage, then you would fill in that percentage as your finding on the special verdict form. Such a finding would not prevent the Plaintiff from recovering; the Court will merely reduce the Plaintiff's total damages by the percentage that you insert. Of course, by using the number 25% as an example, I do not mean to suggest to you any specific figure at all. If you find that the Plaintiff was negligent, you might find 1% or 99%. If the evidence establishes a defect in the Defendant's product that was a legal cause of damage to the Plaintiff, you should award the Plaintiff an amount of money that will fairly and adequately compensate the Plaintiff for such damage. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. On the other hand, compensatory damages are not restricted to actual loss of time or money; they cover both the mental and physical aspects of injury - - tangible and intangible. Thus, no evidence of the value of such intangible things as pain and suffering has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for those claims of damage. There is no exact standard to be applied; any such award should be fair and just in the light of the evidence.] You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: (a) Medical and hospital expenses, past and future (b) Mental or physical pain and anguish, past and future (c) Net lost wages and benefits to the date of trial (d) Net lost wages and benefits in the future [reduced to present value] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] 22.2 Products Liability (Against Manufacturer Comparative Negligence Defense SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Defendant manufactured and sold the product being used by the Plaintiff at the time of the accident involved in this case: Answer Yes or No 2. That at the time of such manufacture and sale, the product was in a defective condition making it unreasonably dangerous to the user? Answer Yes or No 3. That the product was expected to and did reach the Plaintiff, and was thereafter operated up to the time of the accident, without substantial change in its condition as of the time the Defendant sold it? Answer Yes or No 4. That the defective condition in the product was a “legal cause” of the injury complained of by the Plaintiff? Answer Yes or No 5. That the manufacturer knew or had reason to know the product was, or was likely to be, unreasonably dangerous in the use for which it was made? Answer Yes or No 6. That the danger was not open and obvious? Answer Yes or No 7. That the manufacturer failed to exercise reasonable care to warn consumers of its dangerous condition or the facts that made it dangerous? Answer Yes or No 8. That the failure to warn was a “legal cause” of the injury complained of by the Plaintiff? Answer Yes or No 9. That the Plaintiff was “negligent” as claimed by the Defendant? Answer Yes or No 10. That Plaintiff’s negligence was a “legal cause” of the Plaintiff’s own damages? Answer Yes or No 11. That the Plaintiff’s own negligence was %       responsible for the Plaintiff’s own damages? Answer by inserting a percentage. 12. That the Plaintiff should be awarded the following damages. (a) Medical and hospital expenses, past and future $       (b) Mental or physical pain and anguish, past and future $       (c) Net lost wages and benefits to the date of trial $       (d) Net lost wages and benefits in the future [reduced to present value] $       [Note: Do not reduce any award of damages to the Plaintiff by the percentage given, if any, in answer to Question No. 11. The Court will make the necessary calculations in entering judgment.] SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS With regard to reduction to present value of damages to be awarded for future losses, see Supplemental Damages Instruction No. 5.1, infra, and the Annotations and Comments that follow it, for commentary on when that instruction should be given.