2. The bartender has brought an action against Winery, Inc., alleging that the bottle that caused his injury was defective and unreasonably dangerous because its label did not warn that the stopper might suddenly shoot out during opening. The state has merged contributory negligence and unreasonable assumption of risk into a pure comparative fault system that is applied in strict products liability actions.

A jury made the following findings of fact: that the bottle was defective and unreasonably dangerous because it lacked a warning, that a legally sufficient warning would not have prevented the bartender's injury, and that a reasonable bartender would have realized that a stopper could eject from the bottle and hit his eye. Will the bartender recover a judgment in his favor?

A products liability claim may be brought by a plaintiff under multiple different theories: (i) intent; (ii) negligence; (iii) strict liability; (iv) implied warranties; and (v) express warranties. The prima facie case for a products liability claim based in strict liability includes (i) a commercial supplier of a product; (ii) producing or selling a defective product; (iii) actual and proximate cause; and (iv) damages. The plaintiff must prove that the defect existed when the product left the defendant's control. For liability to attach, the product must also reach the plaintiff without substantial alteration. Generally, privity between the parties is irrelevant except for certain warranty theories of liability.

Under the Restatement (Second) of Torts, ordinary contributory negligence is not a defense in a strict products liability action where the plaintiff merely failed to discover the defect or guard against its existence, or where the plaintiff's misuse was reasonably foreseeable. However, assumption of risk may be a defense, where the plaintiff engaged in voluntary and unreasonable conduct and used the product despite discovering the defect and being aware of the danger.

A is correct. The bartender will not recover because a legally sufficient warning would not have prevented his injury. Commercial suppliers can be held strictly liable for injuries caused by the defective design of a product. Inadequate warnings which caused an injury are a type of design defect claim. In order to establish a prima facie case, the plaintiff would need to prove as follows: (i) the defendant is a commercial supplier; (ii) the defendant produced or sold a defective product; (iii) the defective product was the actual and proximate cause of the plaintiff's injury; and (iv) the plaintiff suffered damages to person or property. The defective condition was the lack of an adequate warning, which is treated as a design defect.

Here, the jury made findings of fact that the bottle was defective and unreasonably dangerous due to a lack of warning, it also concluded that a legally sufficient warning would not have prevented the bartender's injury and that a reasonable bartender would have realized that a stopper could eject and hit his eye. Despite the bottle being defective and unreasonably dangerous due to lack of an appropriate warning, this defect was not the actual and proximate cause of the bartender's injury, as the jury found that he would have been injured even with a legally sufficient warning. Therefore, the bartender will not recover damages.

B is incorrect. Ordinary contributory negligence is not a defense to strict products liability unless it rises to the level of assumption of risk. A plaintiff assumes risk if they discovered the product defect and were aware of the danger, but nevertheless unreasonably proceeded to use the product. As presented, the facts indicate that the bartender may have been contributorily negligent in failing to guard against the possibility that the cork would shoot out. However, the facts do not indicate that it was unreasonable for the bartender to open the bottle in light of the risk known to him at the time.

Consequently, since the facts do not indicate that the bartender here acted unreasonably and assumed the risk of injury, he would not be barred from recovery on the basis that a reasonable bartender would have understood the risk of injury.

C is incorrect. Although the bartender merely failed to guard against the possibility of injury, the bartender will not be able to recover, because the inadequate warning was not the actual and proximate cause of his injury.

D is incorrect. The bartender will not be able to recover against the bottler. The jury found that the bottle was defective due to an inadequate warning but concluded that the bartender's injury would have occurred even with a legally sufficient warning. Therefore, because the defect did not actually cause the bartender's injury, he will not be able to recover any damages.