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28. If the roommate asserts a claim against the college student for his dermatitis injuries, the college student's best defense will be that
After three weeks of such use, the roommate finally consulted a doctor who diagnosed his problem as a serious and irreversible case of dermatitis caused by excessive exposure to the active ingredients by No-Flake. These ingredients are uniquely effective at controlling dandruff, but there is no way to remove a remote risk to a small percentage of persons who may contract dermatitis as the result of applying, for prolonged periods of time, amounts of No-Flake substantially in excess of the directions. This jurisdiction adheres to the traditional common-law rules pertaining to contributory negligence and assumption of risk.
A college student purchased a large bottle of No-Flake dandruff shampoo, manufactured by a shampoo company. The box containing the bottle stated in part: «CAUTION — Use only one capful at most once a day. Greater use may cause severe damage to the scalp.» The college student read the writing on the box, removed the bottle, and threw the box away. The college student's roommate asked to use the No-Flake, and the college student said, «Be careful not to use too much.» The roommate thereafter used No-Flake twice a day, applying two or three capfuls each time, notwithstanding the label statement that read: «Use no more than one capful per day. See box instructions.» The more he used No-Flake, the more inflamed his scalp became, the more it itched, and the more he used.
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Under contributory negligence, the plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant's acts. This assumption may be expressed or implied. It is irrelevant that the plaintiff's choice is unreasonable. For implied assumption of risk, the plaintiff must have known of the risk. This knowledge may be implied where the risk is one that an average person would clearly appreciate. Further, the assumption of this risk must be voluntary. A plaintiff cannot be said to have «assumed the risk» where there was no available alternative to proceeding in the face of the risk.
A is correct. The facts in this question state that the jurisdiction adheres to traditional, common law rules of contributory negligence. As explained above, that means in this jurisdiction, any amount of negligence by the roommate would completely bar the roommate's ability to recover from the college student. The roommate was negligent in not heeding the college student's warning to be careful and not use too much of the shampoo, so, under contributory negligence, the roommate will not be able to recover anything from the college student.
B is incorrect. As explained above, assumption of risk can bar a plaintiff's recovery. However, assumption of risk is not relevant to this question, so this would not be a good defense for the college student. The roommate did not assume the risk expressly or impliedly, because he did not have knowledge of the risk. The college student only told the roommate not to use too much of the shampoo and did not say anything about possible severe scalp damage.
C is incorrect. The college student has the duty of a reasonably prudent person to warn his roommate that the shampoo has risks associated with it; this duty is unaffected by the fact that his roommate did not pay for the use of the shampoo and would not be a good defense for the college student.
D is incorrect. While the roommate does have a claim for products liability against the shampoo company, the college student still owed a duty of care to the roommate. The term «nondelegable duty» does not apply to manufacturers in strict liability claims. The shampoo company's duty does not cut short the college student's duty to warn his roommate when loaning him the shampoo, so this would not be a good defense for the college student.