Effective Use of the Misuse/Modification
Defense in Product Liability Litigation
Nicholas C. Pappas
Liam E. Felsen
Frost Brown Todd LLC
201 North Illinois Street, Suite 1900
P.O. Box 44961
Indianapolis, IN 46244-0961
(317) 237-3888
[email protected]
Chip Adams
Sheehy, Ware & Pappas P.C
909 Fannin Street
Houston, TX 77010
(713) 951-1008
[email protected]
Nicholas C. Pappas practices out of the Indianapolis office of Frost Brown Todd
LLC, where he chairs the firm’s Product Liability Practice Group. He is a trial
lawyer who concentrates on product liability and commercial litigation. Mr. Pappas
serves as national lead trial counsel for a major construction and agricultural
equipment manufacturer. He represents clients in lawsuits in state and federal courts
throughout the United States, and has tried cases to successful defense verdicts in
Alabama, Indiana, Iowa, Kentucky, South Dakota and Wisconsin. Mr. Pappas also
advises clients regarding Medicare reporting issues.
Liam E. Felson is an associate in Frost Brown Todd’s Louisville office, focusing his
practice on Product Liability Litigation.
Chip Adams is an attorney with the Houston office of Sheehy, Ware & Pappas, P.C.,
and a member of the DRI Products Liability Steering Committee. Mr. Adams is
licensed to practice in the State and Federal Courts in Texas and Mississippi. His
practice focuses on the areas of products liability, premise liability, general liability,
construction law, and transportation.
Effective Use of the Misuse/Modification
Defense in Product Liability Litigation
Table of Contents
I.Introduction................................................................................................................................................437
II. Existence and Scope of the Misuse-Modification-Alteration Defense....................................................438
III. Plaintiff vs. Third-Party Misuse, Alteration, or Modification..................................................................439
IV. Burden of Proof...........................................................................................................................................440
V. Standard for the Misuse Defense: ‘Reasonably Foreseeable’ and Its Variations.....................................440
VI.Conclusion...................................................................................................................................................442
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Effective Use of the Misuse/Modification
Defense in Product Liability Litigation
I.Introduction
Although manufacturers and sellers can be held liable in tort for injuries and property damage
caused by defective products, certain conduct—either by the user of the product or by a third party—may bar
or reduce a plaintiff ’s recovery. This can include (1) misuse of the product (a use neither intended nor reasonably foreseeable by the manufacturer); or (2) alteration/modification of the product (an actual change to the
product’s physical or chemical characteristics that was not intended nor reasonably foreseeable by the manufacturer). These defenses may preclude or reduce liability in any products liability action, whether strict liability (a product is not in a defective condition when it is safe for normal use, but injury results from abnormal
use), negligence (the defense may establish that the victim’s injury was not caused by anything the manufacturer or supplier said or did); or breach of warranty (a breach can only be shown when the product has failed
when being put to its normal, intended use).
The concepts of misuse, alteration, and modification overlap constantly. Some forms of misuse,
such as improper maintenance or severe physical abuse, may result in a physical or chemical alteration of the
product. Or, an alteration or modification of a product may eventually lead to a particular misuse and cause
injury or death. See, e.g. Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 587 (Tex. App. 2004) (“Substantial
alteration of a product is a type of product misuse and an affirmative defense for which the defendant bears
the burden of proof.”) State statutes setting forth the misuse, alteration, or modification defense consistently
blur the lines between all three. For example, North Carolina’s statute on the “Alteration or modification of
product” states:
For the purposes of this section, alteration or modification includes changes in the design, formula, function, or use of the product from that originally designed, tested, or intended by the
manufacturer. It includes failure to observe routine care and maintenance, but does not include
ordinary wear and tear.
N.C. Gen. Stat. Ann. §99B-3 (West) (emphasis added). North Dakota’s statute covers alterations or modifications “which changed the purpose, use, function, design, or intended use or manner of use of the product
from that for which the product was originally designed, tested, or intended.” N.D. Cent. Code Ann. §28-01.303 (West).
According to the Restatement (3d), Torts: Products Liability, misuse, alteration, and modification are
not discrete doctrines. Rather, they are generally aspects of arguments related to defect, proximate cause, or
comparative negligence:
“Certain forms of consumer behavior—product misuse and product alteration or modification—have been the subject of much confusion and misunderstanding. Early decisions treated
product misuse, alteration, and modification, whether by the plaintiff or by a third party, as a
total bar to recovery against a product seller. Today misuse, alteration, and modification relate to
one of three issues in a products liability action. In some cases, misuse, alteration and modification are important in determining whether the product is defective. In others, they are relevant
to the issue of legal cause. Finally, when the plaintiff misuses, alters, or modifies the product,
such conduct may constitute contributory fault and reduce the plaintiff ’s recover under the rules
of comparative responsibility.” Restatement (3d), Torts: Product Liability, §17, comment a.
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Because of this general overlap, for purposes of clarity the term “Misuse Defense” will be used
throughout the remainder of this paper to refer generally to the misuse, alteration, or modification defenses.
When faced with a product liability action—whether in strict liability, negligence, or breach of warranty—involving a product misuse, alteration, or modification, a defense attorney is faced with a host of
threshold questions: (1) whether the Misuse Defense is even recognized in the jurisdiction; (2) whether the
scope of the Misuse Defense would preclude or reduce the plaintiff ’s recovery; (3) whether the Misuse Defense
applies to actions of the plaintiff only, or also applies to the actions of third parties; (4) which party bears the
burden of proving the misuse, alteration, or modification; and (5) what is the legal standard—such as ‘reasonably foreseeable’—that applies to the Misuse Defense.
The purpose of this paper is to generally discuss each of these questions and strategies for successfully asserting the Misuse Defense.
II. Existence and Scope of the Misuse-Modification-Alteration
Defense
The first step in any analysis is to verify the existence and scope of the Misuse Defense in a particular
jurisdiction. A few states have expressly ruled that the misuse defense is not available at all, holding instead
that the defense has generally been subsumed by notions of comparative fault and contributory negligence.
See e.g. Kennedy v. City of Sawyer, 618 P.2d 788, 798 (Kan. 1980) (“The nature of misconduct . . . is to be
expressed on the basis of degrees of comparative fault or causation, and the all or nothing concepts are swept
aside.”); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 428 (Tex. 1984) (“Assumption of risk and misuse will
no longer be separate defenses, but will be subsumed under the more familiar notion of contributory negligence.”).
In addition, not every court agrees on the scope of the Misuse Defense. For example, in some states
the Misuse Defense may act as a complete bar to plaintiff ’s recovery. See Herrick v. Monsanto Co., 874 F.2d 594,
598 (8th Cir. 1989) (applying South Dakota law) (holding that “[m]isuse by a user of a product will bar recovery” in both strict liability and breach of warranty products liability actions).
In most jurisdictions, however, courts generally hold that the Misuse Defense exists but does not
completely bar a plaintiff ’s action. Instead, the courts apply comparative negligence principles, diminishing
the plaintiff ’s recovery only to the extent that the misuse—as opposed to a defect in the product—was responsible for the injury. See e.g. Malen v. MTD Products, Inc., 628 F.3d 296, 313 (7th Cir. 2010) (applying Illinois
law) (“Comparative fault applies so that former defenses such as contributory negligence, assumption of risk,
and misuse of the product are merely damage-reducing factors.”); Chapman v. Maytag Corp., 297 F.3d 682, 689
(7th Cir. 2002) (applying Indiana law) (“[T]he defense of misuse is not a complete defense, but instead is an
element of comparative fault.”); Barnard v. Saturn Corp., a Div. of Gen. Motors Corp., 790 N.E.2d 1023, 1029
(Ind. Ct. App. 2003) (“[T]he defense of misuse should be compared with all other fault in a case and does not
act as a complete bar to recovery in a products liability action.”); Calmes v. Goodyear Tire & Rubber Co., 575
N.E.2d 416, 421 (Ohio 1991) (“Since the plaintiff ’s negligence is considered in the allocation of fault under
former or current [Ohio statute], there is no reason to completely bar a negligence claim due to a finding that
the plaintiff unreasonably misused the product.”); Tuttle v. Sudenga Indus., Inc., 125 Idaho 145, 148, 868 P.2d
473, 476 (Id. 1994) (holding that the alteration/modification defense is not a complete bar, and that the legislature intended to apply comparative negligence principles).
In Kentucky, for example, KRS 411.320 sets out the Misuse Defense, but the Kentucky Supreme
Court has held on at least one occasion that Kentucky’s adoption of comparative fault principles has impliedly
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repealed the statute. See Smith v. Louis Berkman Co., 894 F.Supp 1084 (W.D.Ky. 1995) (impliedly repealing KRS §411.320(1)); Caterpillar, Inc. v. Brock, 915 S.W.2d 751, 753 (KY 1996) (impliedly repealing KRS
§411.320(1)); but see Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997) (holding that the modification
defense of KRS §411.320(1) is still valid law). The most recent Kentucky cases follow Caterpillar in holding
that the Misuse Defense is not a complete bar to recovery. See Low v. Power Tool Specialists, Inc., 803 F.Supp.2d
655 (E.D.Ky. 2011) (“Like ships passing in the night, two Kentucky Supreme Court decisions have, without
acknowledgment, taken competing positions on the viability of KRS §411.320, which insulates manufacturers from liability where their products are altered. When confronted squarely with the question whether Kentucky’s comparative fault statute supersedes §411.320, the Kentucky state courts have said “yes.” Facing the
question again, they would likely do the same.”).
Practice tip: Early legal research, thorough investigation, and nonparty discovery are critical, especially
before depositions are taken, to determine the nuances of the Misuse defense in the forum and the application of
the defense to the facts of the case. Local, state and federal workplace safety investigators are often good sources
of facts to support the Misuse defense. These investigators often rely on compliance with the instructions in the
manufacturer’s Operator’s Manual to determine whether a workplace safety violation occurred.
III. Plaintiff vs. Third-Party Misuse, Alteration, or Modification
Depending on the facts of the case, the misuse, alteration, or modification at issue may have been
due to some action of the plaintiff, while in others it was due to the action of a third party. State statutes vary
on this issue, with some expressly stating that the Misuse Defense applies to the actions of third parties. See
e.g. Conn. Gen. Stat. Ann. §52-572p (West) (“A product seller shall not be liable for harm that would not have
occurred but for the fact that his product was altered or modified by a third party . . .”); Ariz. Rev. Stat. Ann.
§12-683 (“In any product liability action, a defendant shall not be liable if the defendant proves . . . alteration
or modification of the product that was not reasonably foreseeable, made by a person other than the defendant . . .”); Ky. Rev. Stat. Ann. §411.320 (West) (“This section shall apply to alterations or modifications made
by any person or entity . . .”); Ind. Code Ann. §34-20-6-4 (West) (“It is a defense to an action under this article
. . . that a cause of the physical harm is a misuse of the product by the claimant or any other person . . .”); Ind.
Code Ann. §34-20-6-5 (West) (“It is a defense to an action under this article . . . that a cause of the physical
harm is a modification or alteration of the product made by any person . . .”).
While other statutes are less specific, most courts interpreting those statutes have adopted the view
that misuse, alteration, or modification by someone other than the person injured or killed does provide a
basis for the Misuse Defense. See e.g. Carlson v. Freightliner LLC, 226 F.R.D. 343, 358 (D. Neb.) determination
sustained sub nom. Carlson v. Freightliner L.C.C., 226 F.R.D. 385 (D. Neb. 2004) (“’[B]oth misuse by a plaintiff, the more usual case, and misuse by a third party can defeat a strict liability action.’” (quoting McCormick
v. Bucyrus–Erie Co., 400 N.E.2d 1009, 1014–15 (Ill. Ct. App. 1980)); Stark ex rel. Jacobsen v. Ford Motor Co.,
723 S.E.2d 753, 761 (N.C. 2012) (holding that the Misuse Defense applies “not only when the one who modifies or alters the product is a party to the action concerning the product, but also whenever anyone other than
the manufacturer or seller modifies or alters the product.”); Kelly v. M. Trigg Enterprises, Inc., 605 So. 2d 1185,
1192 (Ala. 1992) (“Although, under the present circumstances, the alleged misuse of [the product] was by one
other than the plaintiffs, the above principles are equally applicable.”).
A minority of jurisdictions such as Oklahoma have rejected this view, holding that the Misuse
Defense can only be used when the misuse, alteration, or modification was done or made by the plaintiff. See
Hawkins v. Larrance Tank Corp., 555 P.2d 91, 95 (Ok. Ct. App. 1976) (holding that misuse by a third party cannot be “imputed to the plaintiff so as to bar his recovery.”)
Effective Use of the Misuse/Modification Defense in Product Liability... ■ Pappas et al. ■ 439
Practice tip: Third party modifications are often made by the employer. The employer in most states
enjoys worker’s compensation immunity, but if the laws of the forum permit allocation of fault the employer, the
employer can be an attractive empty chair target. It is important to understand the reputation of the employer in
the jurisdiction when deciding whether the employer’s fault will form the basis of the defense theme.
IV. Burden of Proof
Generally, jurisdictions “differ on the question of who bears the burden of raising and introducing proof regarding conduct that constitutes misuse, modification, and alteration.” Restatement (3d), Torts:
Product Liability, §2, comment p (“The allocation of burdens in this regard is not addressed in this Restatement and is left to local law.”). Some state courts expressly lay out the framework for this burden. See Potter
v. Chicago Pneumatic Tool Co., 694 A.2d 1319, 1340-41 (Conn. 1997) (“We begin by recognizing that, as part
of its prima facie case, the plaintiff must establish that the product in question was intended to and did reach
the ultimate consumer without substantial change in condition. It is then incumbent upon the defendant to
assert the alteration or modification defense. . . . If this defense is invoked, then the plaintiff must disprove the
alleged substantial change.”).
In some jurisdictions, the Misuse Defense is an affirmative defense that places the burden of proof
squarely on the defendant, typically the manufacturer or seller of the product. See Cummings v. Gen. Motors
Corp., 365 F.3d 944, 952 (10th Cir. 2004), as modified on denial of reh’g (June 2, 2004) abrogated by Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006) (“Misuse of a product is a ‘defense subject to
being pleaded and proved by defendant.’” (quoting Stewart v. Scott–Kitz Miller Co., 626 P.2d 329, 331 (Okla.
App.1981)); Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018, 1028 (Ala. 1993), as modified on denial of reh’g
(Jan. 7, 1994) (“[P]roof that a product was used as intended is not an element of a prima facie case . . . a user’s
misuse of an allegedly defective product is an affirmative defense to liability . . . which the defendant must
plead and prove.”); Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 587 (Tex. App. 2004) (“Substantial alteration
of a product is a type of product misuse and an affirmative defense for which the defendant bears the burden
of proof.”).
In other jurisdictions, the Misuse Defense is not an affirmative defense, but rather arises only in connection with the plaintiff ’s burden of proving defect or proximate cause. See Herrick v. Monsanto Co., 874 F.2d
594, 598 (8th Cir. 1989) (applying South Dakota law) (holding that because misuse is a question of proximate
cause, the plaintiff bears the burden of disproving misuse); Barnard v. Saturn Corp., a Div. of Gen. Motors
Corp., 790 N.E.2d 1023, 1029 (Ind. Ct. App. 2003) (“The defendants bear the burden of proving that plaintiff
misused the product in an unforeseeable manner.”); Jurado v. W. Gear Works, 131 N.J. 375, 386, 619 A.2d 1312,
1317 (1993) (“The absence of misuse is part of the plaintiff ’s case. Misuse is not an affirmative defense. Thus,
the plaintiff has the burden of showing that there was no misuse or that the misuse was objectively foreseeable.”) (internal citations omitted).
V. Standard for the Misuse Defense: ‘Reasonably Foreseeable’ and
Its Variations
Most courts frame the standard for the Misuse Defense in terms of ‘reasonably foreseeable,’ holding that the misuse, alteration, or modification will preclude or reduce the plaintiff ’s claim only if it was not
reasonably foreseeable by the manufacturer. See e.g. Ariz. Rev. Stat. Ann. §12-683 (“In any product liability
action, a defendant shall not be liable if the defendant proves . . . alteration or modification of the product that
was not reasonably foreseeable . . .”); Romero v. ITW Food Equip. Grp., LLC, 987 F. Supp. 2d 93, 109 (D.D.C.
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2013) (holding that under District of Columbia law, product misuse is defined as “use of a product in a manner that could not reasonably be foreseen by the defendant.”). Hart-Albin Co. v. McLees Inc., 870 P.2d 51,
53-54 (Mont. 1994) (“Generally, the defense of misuse refers to a use not foreseen by the manufacturer of the
product. Most cases have indicated that the key issue involved in a determination whether a product has been
misused is foreseeability. The definition of misuse, then, incorporates the concept of abnormal or unintended
use, but emphasizes unforeseeability. The defense of misuse is not available if the misuse of the product was
reasonably foreseeable.”) (internal citations omitted); Chronister v. Bryco Arms, 125 F.3d 624 (8th Cir. 1997)
(applying Missouri law) (holding that under Missouri products liability law, a manufacturer cannot escape
strict liability for a defective product that has been misused by plaintiff, if that misuse is reasonably foreseeable); Jameson v. Liquid Controls Corp., 618 N.W.2d 637, 646 (Neb. 2000) (“In the law of products liability, misuse of a product is the use of a product in a way not reasonably foreseeable by the supplier or manufacturer.”);
Kelly v. M. Trigg Enterprises, Inc., 605 So. 2d 1185, 1192 (Ala. 1992) (“[T]he plaintiff ’s misuse of the product
must not have been reasonably foreseeable by the seller or manufacturer.”).
Other statutes and courts frequently add different terms such as “unintended,” “unanticipated,”
“unexpected,” or some other similar term. See e.g. Ind. Code Ann. §34-20-6-5 (West) (“It is a defense to an
action under this article . . . that a cause of the physical harm is a modification or alteration of the product . .
. not reasonably expectable to the seller”); Conn. Gen. Stat. Ann. §52-572p (West) (“A product seller shall not
be liable for harm that would not have occurred but for the fact that his product was altered or modified . . .
unless . . . (3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller.”); Tyree v. Harbor Freight Tools Co., 153 F. Supp. 2d 1285, 1287 (M.D. Ala. 2001)
(“A defendant may avoid liability if it proves the plaintiff misused the product. The defendant must establish
that the plaintiff used the product in some unintended and unforeseeable manner.”).
Only one state—New York—does not require a showing that an alteration or modification is reasonably foreseeable by the manufacturer (or some other iteration of that concept). See Robinson v. Reed-Prentice
Div. of Package Machinery Co., 49 N.Y.2d 471, 481, 403 N.E.2d 440 (1980). Generally, under New York law “a
manufacturer, who had designed and produced a safe product, will not be liable for injuries resulting from
substantial alterations or modification of the product by a third party which render the product defective
or otherwise unsafe.” Amatulli by Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525, 532, 571 N.E.2d 645 (1991)
(citing Robinson, 49 N.Y.2d at 481). New York courts have clarified that, as a matter of equity, the foreseeability of a substantial modification is irrelevant to this defense. As the Robinson court explained: “Principles
of foreseeability . . . are inapposite where a third party affirmatively abuses a product by consciously bypassing built-in safety features. While it may be foreseeable that an employer will abuse a product to meet its
own self-imposed production needs, responsibility for that willful choice may not fall on the manufacturer.”
Robinson, 49 N.Y.2d at 480; see also Cacciola v. Selco Balers, Inc., 127 F. Supp. 2d 175, 185 (E.D.N.Y. 2001) (“A
manufacturer’s duty does not extend to designing a product that is impossible to abuse or one whose safety
features may not be circumvented.”) (quoting Robinson, 49 N.Y.2d at 480). In other words, “a manufacturer
need not incorporate safety features into its product so as to guarantee that no harm will come to every user
no matter how careless or even reckless.” Id. “Simply put, a manufacturer satisfies its duty under Robinson
when the product is marketed in a condition safe for the purposes for which it is intended or could reasonable
be intended. To require anything more of a manufacturer would expand the scope of a manufacturer’s duty
beyond all reasonable bounds and would be tantamount to imposing absolute liability on manufacturers for
all product-related injuries.” Id.
Practice tip: Plaintiffs sometimes argue that a product modification was foreseeable because the modification was necessary for the effective, efficient use of the product. In order to refute this argument, it is important
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to demonstrate the operation of the product without the modification. The use of the product can sometimes be
demonstrated in photographs in promotional brochures or advertising material depicting the use of the un-modified product. Potential witnesses include not only in-house engineers, who frequently have firsthand experience
observing the use of the product, but even inventors listed on patents. Finally, videotaped demonstrations of the
product in operation can be invaluable to demonstrate the use of the product without the modification.
VI.Conclusion
The Misuse Defense, when and where available, is a powerful defense that can often completely
bar—or at the least, greatly reduce—a plaintiff ’s potential recovery. When faced with a product liability
action—whether in strict liability, negligence, or breach of warranty—involving a product misuse, alteration,
or modification, a defense attorney must examine these threshold questions: the existence and scope of the
Misuse Defense; whether it applies to the actions of third parties; who has the burden of proof; and what is the
applicable legal standard that applies. The legal framework and practice tips included in this paper are the tip
of the iceberg, but are designed to provide a brief overview of strategies to maximize the Misuse Defense and
best protect the product manufacturer.
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