Masonry Magazine June 2005 Page. 53
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June 2005
Masonry
47
In order to prevail under a negligence theory, a plaintiff must establish that the product was unreasonably dangerous for its ordinary or reasonably foreseeable uses, and that the unreasonably dangerous condition existed when the product left the hands of the defendant. As is the case in strict liability jurisdictions, expert testimony is usually necessary to demonstrate the defectiveness or dangerousness of a product.
Unforeseeable misuse and assumption of the risk are valid defenses in negligence jurisdictions; however, an additional defense contributory negligence is also available. An important distinction in the application of the latter is noteworthy. In comparative fault jurisdictions (i.e., the majority of states), contributory negligence on the part of the plaintiff will serve to reduce the plaintiff's recovery, but not bar it entirely. In a minority of jurisdictions, for example Virginia, contributory negligence will bar a plaintiff's recovery in a products liability lawsuit. Contributory negligence will not, however, bar a plaintiff's recovery under a breach of warranty theory.
What law applies to masonry products in a damage claim will differ as jurisdictional boundaries are crossed. Knowledge of the various theories of liability that may be asserted in damage claims is the first step in preparing for any legal battle.
Donald J. DeSisto, Esq., is an Associate with the Washington, D.C. law firm of Jackson & Campbell, P.C. He is a member of the Insurance Coverage Group and specializes in products liability, construction defect and insurance coverage matters. He may be reached at ddesisto@jackcamp.com.
This article is not intended to provide legal advice, but to raise issues on legal matters. You should consult with an attorney regarding your legal issues, as the advice you may receive will depend upon your facts and the laws of your jurisdiction.
The Voice of the Mason Contractor