Illegality Defense Still Alive and Well in the 10th Circuit

The Tenth (10^th) Circuit, in Messerli v. Aw Distributing, Inc., recently confirmed that the illegality defense offered by a defendant in a product liability case – that is, where the defendant asserts that a plaintiff’s claims are barred due to the plaintiff’s illegal conduct while utilizing a product – is alive and well under Kansas law and that it applies to product liability claims. We previously reported on this issue here, here, and here.

As previously reported, a Kansas federal district court applied Kansas’s illegality defense to bar product liability claims where the plaintiff (father of the decedent) admitted the decedent inhaled toxic vapors from computer duster canisters, resulting in his death. Such use of these canisters violates Kansas law. Plaintiff nonetheless sued four defendants who design and manufacture computer dusters—which the decedent purportedly inhaled—alleging seven claims under Kansas law: (1) strict products liability—design defect; (2) strict products liability – failure to warn; (3) negligent design defect; (4) negligent failure to warn; (5) wrongful death; (6) breach of the implied warranty of merchantability; and (7) breach of express warranty. One defendant moved to dismiss all claims arguing the decedent’s conduct that caused his death was illegal, and that the illegality defense should apply to bar these claims caused by the decedent’s illegal conduct. The federal district judge, finding that the complaint alleged facts confirming decedent’s illegal conduct (prohibited by Kan. Stat. Ann. § 21-5712) that caused the death, dismissed the product liability claims against the moving defendant-manufacturer. A few weeks after the ruling, the remaining defendants filed identical Motions to Dismiss based on the same argument.

Kansas courts have applied the illegality defense to bar other tort claims, but Messerli marked the first instance a Kansas federal court applied the illegality defense to bar product liability claims. After the District Court’s original 2023 ruling, the plaintiff filed a Motion to Certify the question to the Kansas Supreme Court, and soon thereafter, the Kansas federal district court denied Plaintiff’s Motion to Certify (for various reasons we discussed here), and granted the remaining defendants’ similar Motions to Dismiss, effectively ending the case, pending an appeal.

On appeal to the 10th Circuit, the Plaintiff claimed that the Court erred in dismissing his claims because 1) no Kansas court had ever applied the illegality defense to products liability claims, and it would be inappropriate to do so here and 2) due to Kansas adopting comparative fault framework, the question of the decedent’s culpability in his death should be left to the jury, not foreclosed by the court. 

But the Court of Appeals affirmed the decision of the district court, confirming that absent abrogation by the Kansas Legislature or Kansas Supreme Court, the illegality defense is available under Kansas law and may be applied to product liability cases like the one at hand.

In so finding, the Court recognized that under Kansas law, tort claims are barred when the plaintiff’s illegal act has a causal connection to his injuries. Applying this logic to this case, the Court briefly discussed the background as to why Kansas outlawed “possessing, buying, using, smelling or inhaling toxic vapors with the intent of causing a condition of euphoria, excitement, exhilaration, stupefaction or dulled senses of the nervous system” (Kan. Stat. Ann. § 21-5712) and why Kansas outlawed DFE abuse, including due to the serious health complications  that can result from such abuse.

The 10th Circuit went on to briefly discuss the Kansas Product Liability Act (KPLA) adopted by the Kansas legislature, which merges all legal theories of products liability into a single product liability claim. However, when the KPLA is silent, the Court explained how such gaps are filled by Kansas common law, which, in this case means that the manufacturer’s duty extends to any “reasonably foreseeable” use (which include misuse). Yet, as the Court notes, defendants still have affirmative defenses available to them to be asserted in response to a pleading, including illegality.

The 10th Circuit also explicitly recognized that not only was the defense not explicitly abrogated or affirmed by the KPLA, but also that Kansas courts have and continue to apply the illegality defense to tort actions, and that “[p]roduct liability is, of course, a species of tort action.” The Court also identified other jurisdictions that have applied illegality or wrongful-conduct defense to product liability claims (not Missouri – yet), ultimately finding no reason why Kansas law would differ.

The 10th Circuit further addressed why Kansas’ adoption of comparative negligence does not prevent the application of the illegality defense to completely bar a cause of action. Specifically, the policy behind the illegality defense is not one based on allocating fault (as comparative fault is), but rather is meant to prevent a plaintiff from benefiting from his own illegal act. Indeed, as articulated by the 10th Circuit, under comparative negligence, the jury assigns fault and the injured party’s recovery is reduced by their percentage of liability (if under 50% liability – if at or above 50%, the injured party takes nothing). The statute, Kan. Stat. Ann. § 60-258a, explicitly abrogates contributory negligence and the Kansas Supreme Court expanded its scope, recognizing a preference for comparative liability and sweeping aside all or nothing concepts. Here, however, the 10th Circuit found nothing in Kansas statutes or caselaw explicitly abrogating the illegality defense, and did not find the defense inconsistent with comparative negligence where it would be found to be implicitly abrogated. Dismissal was therefore appropriate.

Ultimately, the 10th Circuit has made clear that the illegality defense is alive and well in Kansas, including for product liability claims, as well as has made clear that general misuse and illegal use of a product are separate considerations. However, this case also serves as a red flag for both those filing and responding to complaints. On one hand, the language used in complaints matter and can, in fact, support early dismissal where the language used, on its face, clearly shows the application of a defense that bars a plaintiff’s claim (e.g., making allegations that the plaintiff or the decedent was utilizing the product in an illegal manner). On the other hand, defendants should be sure to consider the language used in complaints and whether same support immediate dismissal or if initial more aggressive discovery is needed to support an early dispositive motion based on an anticipated successful defense supporting the full dismissal of plaintiff’s claims (e.g., the complaint contains allegations that allude to illegal use of the product, but does not clearly allege same).