5.40J COMPARATIVE FAULT
Defendant contends that plaintiff was at fault for the happening of the accident. To prevail on this claim, defendant must prove that plaintiff deliberately and knowingly acted in such a way as to create or materially increase a risk of injury and that such action was a proximate cause of the accident. Mere failure to discover a defect in the product or to guard against the possibility of its existence is not a defense. In other words, defendant must prove plaintiff had actual knowledge of the particular danger and knowingly and voluntarily encountered that risk before it can be found that plaintiff was at fault.
