3.10-6 Product Liability - Alteration or Modification
New March 23, 2012
The defendant claims that the product was altered
or modified after the product left the defendant and that the alteration or
modification caused the defect.
Specifically, <select one of the following as appropriate:>
- the defendant claims that <describe the alteration or modification>.
- the parties agree that <describe the alteration or modification>.
In some circumstances, a product seller is not
liable if a third party alters or modifies the product in a way that creates a
defect. [<insert if the parties do not
stipulate to the alteration or modification:> You must determine whether the
product was altered or modified.] The
defendant is not liable unless the plaintiff proves: <charge the following as
- the injury or loss would have occurred notwithstanding the alteration or modification.
- the alteration or modification was in accordance with the defendantís instructions.
- the alteration or modification was made with the defendantís consent.
- the alteration or modification was the result of conduct that the defendant reasonably should have anticipated.
This charge may be omitted if there is no issue of alteration or
modification, and the jury should be told that it is not
disputed that the product reached the user in the same condition
in which it had left the seller.
Though modification/alteration is sometimes raised as a
special defense, the burden of proof to show the continuous
character of the product remains with the plaintiff.
The defendant must produce evidence of a specific
alteration or modification.
If it does this, the plaintiff has the burden of
disproving the causative effect of the modification/alteration.