Misuse is puzzling. Sometimes it cuts off liability and sometimes it does not, but courts have failed to clarify exactly what sort of conduct qualifies as the type of misuse that bars recovery. Generally speaking misuse takes two forms, abnormal use and mishandling. Abnormal use comes about when a product is used for an improper purpose; mishandling comes about when a product is used for a proper purpose but in an improper manner. Under this definition defendants can claim that virtually any unusual handling or use of a product constitutes misuse. Yet courts will not always accept this characterization. They frequently explain their results by stating that liability is cut off only if the misuse is unforeseeable. However, they use foreseeability in an artificial sense in such cases, more as a way of stating a conclusion than as an analytical device for determining what conclusion to reach reach. This has created an air of uncertainty with regard to the type of conduct that truly qualifies as misuse.
This article will describe how to identify the situations where misuse will bar liability and the situations where it will not. To do this it is necessary to examine the nature of the products liability system and evaluate the role that misuse plays in that system.
David A. Fischer,
Role of Misuse in Products Liability Litigation, 35 Journal of the Missouri Bar 304
Available at: https://scholarship.law.missouri.edu/facpubs/922