Some Thoughts on the Use of Comparisons in Products Liability Cases

One problem currently plaguing the courts and torts lawyers is whether comparison can and should be made between the plaintiff's conduct and the defendant manufacturer's conduct for the purpose of reducing the plaintiff's recovery in a strict products liability case. This essay considers and rejects two approaches to making the comparison: comparing the fault of the plaintiff and the defendant and comparing the relative causal contributions of each to the plaintiff's injury. The essay then explores a more promising comparative approach, one that compares the risks created by the plaintiff's and the defendant's conduct.