Bar Exam — MBE (Multistate Bar Exam)TortsMedium
A construction worker was injured when a defective scaffolding plank broke beneath him. The plank had been manufactured by Company A, sold to a distributor, then to a construction supply company, and finally used by the worker's employer. The worker sued Company A under strict products liability. Company A argued that the worker assumed the risk because he knew the plank was old. The worker testified he knew the plank was old but did not know it was defective. Will Company A's assumption of risk defense likely succeed?
- AYes, because knowing the plank was old implies knowledge of potential defects.
- BNo, because assumption of risk requires knowledge of the specific defect and its danger.
- CYes, because the worker's employer was responsible for providing safe equipment.
- DNo, because strict products liability does not allow for an assumption of risk defense.
Show answer & explanationAnswer & explanation
Correct answer: B. No, because assumption of risk requires knowledge of the specific defect and its danger.
For assumption of risk to be a valid defense, the plaintiff must have both knowledge of the particular risk (the specific defect) and voluntarily encountered it. Merely knowing an item is 'old' does not equate to knowing it is 'defective' or dangerous.
Why the other options are wrong
- A. General knowledge of age does not necessarily mean knowledge of a specific defect or its danger, which is required for assumption of risk.
- C. The employer's responsibility is a separate issue and does not negate the manufacturer's liability or establish the worker's assumption of risk.
- D. Assumption of risk is generally a valid defense in strict products liability, provided its elements are met.
Assumption of Risk (Products Liability)
A defense in strict products liability where the plaintiff voluntarily and knowingly encounters a known specific product defect and its danger.
- Requires subjective knowledge of the specific defect.
- Requires knowledge of the danger posed by that defect.
- Plaintiff must voluntarily encounter the risk.
- Commonly a complete bar to recovery in strict liability.
Memory trick: Assume Risk, Misuse Messes Up.