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Contributory Negligence and Comparative Negligence by Plaintiffs in E-Cigarette/Vape Product Liability Litigation


As plaintiffs continue to file product liability actions arising from the overheating or combustion of electronic cigarettes, vaporizers, vape pens, and other electronic nicotine delivery system (ENDS) products (e-cigs), it is important for defendants to understand and develop defenses based on plaintiffs having caused the incident themselves. This legal update analyzes how e-cig users can contribute to these types of incidents and generally how this affects their claims under theories of contributory negligence and comparative negligence.

How E-Cig Users Can Contribute to Combustion Incidents

Plaintiffs who file actions arising from the combustion of e-cigs and their component parts may themselves be at fault for the incident. One of the most common types of e-cig combustion cases involves a battery combusting while in the plaintiff’s pocket, which can lead to severe burns. When this occurs, the e-cig user often files suit against the seller, distributor, and manufacturer of the battery, claiming that the battery was defective or that defendants otherwise were at fault for the battery combusting.

In these cases, the e-cig user frequently is to blame for the incident (if not entirely, then at least in part). One way an e-cig user can be at fault is through unsafe battery storage. It is common knowledge in the industry that batteries should be stored in plastic protective cases when not in use to prevent the battery from becoming damaged. If the batteries are not stored in cases, the wrapper can tear, exposing a portion of the battery. The wrapper can also tear if the e-cig user is not careful when removing the battery from the e-cig device or charger. If the wrapper tears, the battery can become dangerous because the metal on the battery can come into contact with other metal, such as loose change or keys, in the e-cig user’s pocket. If this occurs, the battery can catch fire.1

In addition, storing the battery at extremely high or low temperatures can damage the battery. As a result, if an e-cig user leaves the battery in the cup holder of his or her car, the battery can become unsafe.2 Improper battery charging habits can also lead to combustion incidents. If a device uses more than one battery, it is important for the user to charge and discharge the married batteries simultaneously.3 It is also important to use a proper charger for the batteries, as opposed to a phone charger.4

Misuse can also occur while the e-cig device is in use. For example, using two different types of batteries within the same device can be unsafe.5 Other component parts, such as the tank or coils, can also contribute to combustion incidents. This is more common in cases involving unregulated devices, which do not have built-in safety measures. Many e-cig users build their own unregulated devices using separately purchased parts based on their individual preferences. When this occurs, inexperienced users may unknowingly fail to use the appropriate coil resistance for the battery, which typically is done by using an ohms meter and ohms law calculator.6 This can cause the battery to “vent,” releasing hot pressurized chemicals from the battery and creating an explosion.

Contributory Negligence v. Comparative Negligence

The plaintiffs’ own fault is relevant to whether, or how much, they can recover on their product liability claims. This typically comes into play in the context of the doctrines of contributory negligence or comparative negligence, both of which operate to preclude or reduce plaintiff’s recovery. While the law varies by state, the majority of states recognize either contributory or comparative negligence.

In states where contributory negligence is recognized, plaintiffs are typically precluded from recovery if they are 1% or more at fault. In other words, if the plaintiff’s own negligence proximately caused the injury to any degree, the plaintiff cannot recover anything from defendants. If a jury determined that the plaintiff’s use of two different types of e-cig batteries marginally contributed to one of the batteries failing, the plaintiff would be unable to recover, even if the jury concluded that the battery also had a manufacturing defect. While most states have shifted to comparative negligence, several states still apply contributory negligence, including Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.7

In comparative negligence states, each party’s fault is measured, and the plaintiff’s recovery is apportioned accordingly. There are two types of comparative negligence: pure comparative and modified comparative. Under pure comparative negligence, the plaintiff may recover even if they are 99% at fault. Under modified comparative negligence, the plaintiff is barred from recovery if the plaintiff’s negligence reaches a certain percentage. For example, Georgia applies modified comparative negligence with a 50% bar rule. Thus, the defendant’s liability will be reduced by the plaintiff’s percentage of fault, but the plaintiff is barred from recovery if at least 50% at fault.8 So if a jury determined that the plaintiff’s improper storage of his or battery amounted to 20% of the cause for the battery combusting, while a manufacturing defect caused the other 80%, the plaintiff would recover 80% of the total damages, since the plaintiff’s negligence was less than 50%. However, if the plaintiff’s improper storage was deemed to be 50% of the cause, the plaintiff would recover nothing. The majority of comparative negligence states follow modified comparative fault.

When facing an e-cig product liability claim, defendants should consider at the outset of the litigation how the plaintiff’s contributory or comparative negligence could impact the case, as it could materially impact the overall strategy. In a contributory negligence state, the plaintiff’s fault to any degree could preclude recovery, so it might make sense to focus more heavily on product misuse and earlier in the case. Some important factors the defendant should investigate in this regard include the plaintiff’s prior experience with and expertise related to e-cig products, what warnings the plaintiff was provided (in person, online, with the product packaging), as well as any evidence of misuse of or modifications to the products by the plaintiff.

It is important to seek experienced counsel early in the process to evaluate and develop these legal defenses. In addition, defendants should consider engaging an experienced expert, such as an electrical engineer, to assist with evaluating whether the plaintiff contributed to a device malfunction, through physical inspections and analysis of the products at issue, including CT scans. This can also help identify other important parties to the litigation, which will limit exposure and reduce defense costs by spreading them among multiple defendants.

As e-cig product liability cases continue to be filed across the country, defendants need to understand how e-cig users can be at fault for the incidents themselves, analyze how that fault impacts the case in the relevant jurisdiction, and develop their defense strategy accordingly.

For more information about how these cases might affect your business and/or current or pending litigation, please contact one of the attorneys on the E-Cigarette/Vape Team.

[1] The Battery Behind Dangerous and Deadly E-Cigarette Explosions (Jul. 24, 2019)
[2] Vaping 101: The Do’s and Don’ts for Vaping Battery Safety (Nov. 4, 2016)
[3] Ultimate Vapers Guide to Battery Safety (Mar. 25, 2019)
[4] Tips to Help Avoid “Vape” Battery Explosions, FDA (Dec. 12, 2017)
Eve Wang, Vaping 101: The Do’s and Don’ts for Vaping Battery Safety (Nov. 4, 2016)
[5] Tim Mechling, Battery Safety: Will You Marry Me?, Mt. Baker Vapor (Oct. 23, 2015)
[6] Imogen Groome, What is Ohms Law And How Can It Keep Your Vape From Exploding, Metro (Jan. 23, 2017, 3:52 PM)
[7] John Cowley & Bros., Inc. v. Brown, 569 So. 2d 375 (Ala. 1990); Wingfield v. People’s Drug Store, 379 A.2d 685 (D.C. 1994); Board of County Comm’r of Garrett County v. Bell Atlantic, 695 A.2d 171 (Md. 1997); Smith v. Fiber Controls Corp., 268 S.E.2d 504 (N.C. 1980); N.C.G.S.A. § 99B-4(3) (Product Liability); Baskett v. Banks, 45 S.E.2d 173 (Va. 1947).
[8] O.C.G.A. §§ 51-11-7 and 51-12-33.