Under statute, a manufacturer, wholesaler, or retailer who sells a product in a defective condition unreasonably dangerous is liable for the physical harm caused by the product. M.C.A. §27-1-719(1). A plaintiff, however, is not required to prove the product is both defective and unreasonably dangerous. McAlpine v. Rhone-Poulenc, 2000 MT 383, 304 Mont. 31, 16P3d 1054. Instead, a product that is unreasonably dangerous will be considered defective. As a result, a plaintiff establishes a products liability claim if they prove the product is capable of causing injury to the user beyond that which would be expected by the ordinary user.
A defendant has a limited number of defenses available in a products liability case. As already pointed out, contributory or comparative negligence is not a defense. A defendant also cannot avoid liability by claiming it exercised all possible care in the preparation and sale of the product M.C.A. §27-1-719(3)(a). The defendant can seek to reduce or bar a plaintiff’s recovery to the extent plaintiff’s injuries are attributable to her own unreasonable misuse of the product, or her conscious assumption of a known risk. M.C.A. §27-1-719(5)(a)&(b). However, the Montana State Court has held that reasonably foreseeable misuse is reasonable misuse; thus product misuse, which is foreseeable, does not support a defense to products liability under Montana law. Lutz v. National Crane Corp., 267 Mont. 368, 884 P.2d 455, 460 (1994).
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