13-1427. Comparative negligence defense.

            [A user of a product] [a person in the vicinity during the use of a product] has a duty to use ordinary care to avoid a foreseeable risk of injury caused by the condition of the product or a manner in which it is used. Ordinary care is that care exercised by a reasonably prudent person and varies with the nature of what is being done. As the danger that should reasonably be foreseen increases, the amount of care required also increases.

                                                  DIRECTIONS FOR USE

            This instruction will be given in every products liability case where there is sufficient evidence that negligence of the plaintiff was a cause of injury. It applies regardless of the theories of liability used.

                                               COMMITTEE COMMENT

            Prior to the adoption of comparative negligence in Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), only a limited form of contributory negligence constituted a defense to an action in strict liability in tort. A plaintiff's recovery was barred by the intentional and unreasonable exposure to a known risk, the contributory negligence which lawyers have traditionally known as "assumption of risk." Other forms of contributory negligence, including the plaintiff's negligent failure to discover a product defect, were not a defense. Rudisaile v. Hawk Aviation, Inc., 92 N.M. 575, 592 P.2d 175 (1979).

            Since the adoption of comparative negligence and the principle that each person is responsible for his or her conduct contributing to an injury, New Mexico courts have seen no reason to exclude products liability cases from the operation of comparative fault. Scott v. Rizzo, supra, expressly reserved the question of whether comparative negligence would apply in cases of strict liability in tort and, if so, the scope of the contributory negligence defense; in Marchese v. Warner Communications, Inc., 100 N.M. 313, 670 P.2d 113 (Ct. App. 1983), cert. denied, 100 N.M. 259, 669 P.2d 735 (1983), the New Mexico Court of Appeals decided the issue holding that a plaintiff's conventional contributory negligence is a defense in strict liability actions and reduces the plaintiff's damages in proportion to the plaintiff's fault. See also, Jaramillo v. Fisher Controls Co., Inc., 102 N.M. 614, 698 P.2d 887 (Ct. App. 1985), cert. denied, 102 N.M. 613, 698 P.2d 886 (1985). The use of the broad term "products liability claims" in both Marchese v. Warner Communications, Inc., supra, and Jaramillo v. Fisher Controls Co., Inc., supra, supports the conclusion that comparative fault principles apply with equal force to any theory of liability for a product related injury, whether negligence, strict liability in tort or breach of warranty.