B400.02.01. Strict Product Liability-Burden of Proof-Assumption of Risk

B400.02.01 Strict Product Liability--Burden of Proof--Assumption of Risk The plaintiff has the burden of proving each of the following propositions [as to any one of the conditions claimed by the plaintiff]: First, that the condition claimed by the plaintiff as stated to you in these instructions existed in the [product] Second, that the condition made the [product] unreasonably dangerous; Third, that the condition existed at the time the [product] left the control of the defendant; Fourth, that the plaintiff was injured; Fifth, that the condition of the [product] was a proximate cause of the plaintiff's injuries. If you find from your consideration of all the evidence that any one of these propositions has not been proved, then your verdict should be for the defendant. But if, on the other hand, you find from your consideration of all the evidence that each of these propositions has been proved, then you must consider the defendant's claim that the plaintiff assumed the risk of injury. As to that claim, the defendant has the burden of proving each of the following propositions: A: That the plaintiff had actual knowledge of the condition which the plaintiff claims made the [product] unreasonably dangerous; B: That the plaintiff understood and appreciated the risk of injury from that condition and [proceeded] [continued] to use the [product]; C: That the condition known to plaintiff was a proximate cause of the plaintiff's claimed [injury] [damage]. [However, the plaintiff's inattentive or ignorant failure to discover or guard against the unreasonably dangerous condition of the [product] does not constitute assumption of the risk.] If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff and that the defendant has not proved all of the propositions required of the defendant, then your verdict should be for the plaintiff and the plaintiff's damages will not be reduced. If you find from your consideration of all the evidence that the defendant has proved all of the propositions required of the defendant, and if you find that the plaintiff's fault in assuming the risk was more than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the defendant. If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff and that the defendant has proved all of the propositions required of the defendant, and if you find that the plaintiff's fault in assuming the risk was 50% or less of the total proximate cause of the [injury] [damage] for which recovery is sought, then your verdict should be for the plaintiff and the plaintiff's damages will be reduced by the percentage of the plaintiff's fault in assuming the risk. If you find that the plaintiff's [injury] [damage] was proximately caused by an unreasonably dangerous condition of the product and if you also find that the plaintiff assumed the risk of his injury, you will determine the plaintiffs proportion or percentage of the total fault by comparing the extent to which the plaintiff's assumption of the risk and the conduct of [other tortfeasors on the verdict form] and the unreasonably dangerous condition of the [product] each proximately contributed to the plaintiff's [injury] [damage]. If you determine the plaintiff's percentage of the total fault was 50% or less, you will write that percentage on the appropriate line on your verdict form. Instruction revised December 2007.