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IX. Defenses

1. Comparative Negligence
2. Product Liability
   1. Assumption of Risk
   2. Product Misuse
   3. Sale or Lease
   4. Substantial Change
   5. Industry Standards
   6. Scientific Unknowability
3. Sudden Emergency Doctrine

A. Comparative Negligence

Because Alaska is a several liability state, a plaintiff is entitled to recover against each defendant in proportion to his or her degree of fault. Although a plaintiff's negligence is usually not a bar to recovery, a defendant may allege that a plaintiff was comparatively negligent and decrease the plaintiff's recovery according to the plaintiff's relative fault. AS 09.17.060; AS 09.17.080.

B. Product Liability

Alaska's "several liability" statute applies to product liability actions. Alaska law requires a jury to allocate fault among all parties by considering the conduct of each party and the causal connection between that party's conduct and the damage incurred. AS 09.17.080(a), (b). In cases involving product liability, "fault" includes breach of warranty, misuse of a product, unreasonable failure to avoid an injury, or failure to mitigate damages. AS 09.17.900. The discussion on apportionment of fault in Section III applies to product liability cases.

Under Smith v. Ingersoll Rand, 14 P.3d 990 (Alaska 2000), the court recognized that AS 09.17.900 expanded the definition of comparative negligence to include ordinary negligence in addition to product misuse and unreasonable assumption of risk.

1. Assumption of Risk
Even when a defendant can be held strictly liable, a plaintiff's damage award will be reduced where the plaintiff himself assumed the risk of harm by knowingly using an unsafe product, or by misusing the product. Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 889 (Alaska 1979); AS 09.17.900. A plaintiff is negligent where he has actual awareness of the product's defect and voluntarily and unreasonably encountered a risk known to him. Assumption of risk is thus considered in the allocation of fault analysis and can reduce a defendant's liability. Where a product is used as intended, and is defective based on failure to provide a safety feature, plaintiff's failure to install such a device is not considered negligence and will not reduce a plaintiff's recovery. 953 P.2d at 890.

2. Product Misuse
Where product misuse is the proximate cause of plaintiff's injury such misuse constitutes comparative negligence. Keogh v. W.R. Grasle, Inc., 816 P.2d 1343 (Alaska 1991). See also AS 09.17.900.

3. Sale or Lease
Strict liability in tort is not confined to sales transactions, but extends equally to commercial leases and bailments. No sale exists where a product is merely serviced or repaired.

4. Substantial Change
In order for product liability to attach, the product must be defective at the time it leaves the defendant's possession. A substantial change after the product leaves the hands of the manufacturer or retailer will ordinarily relieve that individual from liability. Once a plaintiff demonstrates that a defect existed at the time the product left the manufacturer's possession, the burden is then shifted to the manufacturer to demonstrate the plaintiff's injury resulted from something other than a product defect.

5. Industry Standards
Conformity with industry standards is not a complete defense in a product liability action. The jury may consider such evidence in determining the existence of a defect, the feasibility of other designs or to determine whether the manufacturer should have been aware of the defect. Keogh v. W.R. Grasle, Inc., 816 P.2d 1343, 1349 (Alaska 1991); Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 887 (Alaska 1979).

6. Scientific Unknowability
It may be a defense that the particular danger was not scientifically knowable when the product left the defendant's possession. Heritage v. Pioneer Brokerage & Sales, Inc., 604 P.2d 1059 (Alaska 1979); Shanks v. Upjohn Co., 835 P.2d 1189 (Alaska 1992).

C. Sudden Emergency Doctrine

The Sudden Emergency Doctrine as a separate defense or jury instruction has been disapproved by the Alaska court. Lyons v. Midnight Sun Transportation Co., 928 P.2d 1202 (Alaska 1996).