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1 Comparative Negligence Law and Practice
§ 9.30 Issues in the Application of Comparative Principles to Products Liability Cases
Written by Michael R. Thomas, an attorney who practices in Columbus, Ohio.
Revised by Richard E. Kaye, Esq.
MICHAEL R. THOMAS
Michael R. Thomas received his J.D. from the University of Michigan and an M.A. in the sociology of law from Ohio State University. He is currently working to complete a dissertation, on the theoretical and historical development of products liability law, for a Ph.D. in legal theory. He has presented and published on a variety of legal topics, including trial technique, discovery mechanisms, products liability, and constitutional law, and presently teaches related topics at the Ohio State University. His legal practice is confined to products liability claims, at the trial and appellate level, as an associate with Michael F. Colley Co., L.P.A., Columbus Ohio.
RICHARD E. KAYE
Richard E. Kaye received his B.A. from Franklin & Marshall College and his J.D. from George Washington University and is a member of the New York and District of Columbia Bars. Mr. Kaye held the positions of Executive Editor and Managing Editor during his thirteen years with Matthew Bender. He is the editor and author of the monthly newsletter, The Business Torts Reporter, has co-authored and edited a volume on OSHA, and is the author of numerous articles and annotations. Mr. Kaye is currently a freelance writer and editor.
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Significantly, in Star Furniture Co. v. Pulaski Furniture Co.,27 both the plaintiff and defendant in a strict liability action urged the West Virginia Supreme Court to judicially apply a comparative fault system.
Star Furniture Co. v. Pulaski Furniture Co., 171 W. Va. 79, 297 S.E.2d 854 (1982).
This proceeding is before this Court as a result of the certification of three questions of law from the United States District Court for the Southern District of West Virginia. W. Va. Code § 51-1A-1 (1981 Repl. Vol.), the Uniform Certification of Question of Law Act, authorizes the Court to accept such certifications. 1
The certified questions present issues which are natural outgrowths of our decisions in Morningstar v. Black and Decker Manufacturing Co., 162 W.Va. 857, 253 S.E.2d 666 (1979), and Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979). In Morningstar, this Court adopted the doctrine of strict liability in tort in products liability litigation. Soon afterwards, the Court embraced the doctrine of comparative negligence in Bradley.
The present case involves both doctrines. We have been asked to decide whether strict liability in tort applies when recovery is sought only for property damage rather than personal injury, whether strict liability is available to a commercial entity and its insurer as plaintiffs, and whether comparative negligence may be asserted as an affirmative defense in strict liability actions. We will discuss each question in turn.
The plaintiffs in this case are Star Furniture Co. [Star] and its insurance company, Fireman's Fund of America [Fireman's Fund]. 2 Pulaski Furniture Co. [Pulaski], a Virginia corporation, and another out-of-state corporation, Hemco Corp. [Hemco], 3 are defendants.
The events leading to the institution of this case are not in dispute. Plaintiff Star purchased a "Curio" clock from defendant Pulaski in December, 1974, apparently for display and retail purposes. The clock's component parts were manufactured by Hemco. A fire damaged Star's business establishment September 13, 1975. Star claims that the fire resulted from a malfunction in the clock or its wiring.
In September, 1977, Star instituted the present action to recover $160,112.57 in damages. The company based its claims on negligence, strict liability in tort and breach of express and implied warranties. In its answer, Pulaski denied that the fire resulted from a clock or wiring malfunction, and pleaded the affirmative defenses of comparative negligence and assumption of risk.
I.
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III.
The third certified question concerns the availability of comparative negligence as an affirmative defense in strict liability cases. Both Star and Pulaski argue that we should apply comparative negligence to such actions. The parties, however, seek to narrow the scope of the comparative negligence defense in this situation by excluding a plaintiff's failure to discover the defect or to guard against it. We agree with this position.
Comparative negligence replaced the doctrine of contributory negligence in West Virginia in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979). In that decision, we noted that comparative negligence moderated the common law's harsh rule of permitting only plaintiffs who are free of fault to recover damages.
HN14 Comparative negligence, as adopted in Bradley, permits plaintiffs to recover damages if their fault does not equal or exceed that of the defendants. Id. at 885. In mathematical terms, the plaintiff, in order to recover, cannot be more than 49 percent negligent. Id. at 887 n. 19.
Application of comparative negligence principles, which focus on the parties' conduct, to strict liability in tort presents conceptual hurdles. Strict liability imposes liability on a defendant on the basis of product safety, not on the conduct of the defendant. Thus, a defendant's conduct in the sense of his fault is not an element of the plaintiff's case. However, use of comparative negligence as a defense in products' liability will result in the defendant's liability being predicated upon the product's defectiveness, with the plaintiff's damage recovery being reduced or eliminated by his conduct.
This conceptual problem has led other courts to rationalize or gloss over these difficulties.
For example, some jurisdictions have labeled strict liability as negligence per se, to which comparative negligence, as in any other cause of action founded on negligence, should apply. Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967).
Other jurisdictions have simply noted the conceptual inconsistencies and pressed ahead in the name of fairness. Daly v. General Motors Corp., 20 Cal. 3d 725, 144 Cal. Rptr. 380, 575 P.2d 1162 (1978).
Whatever the rationale, a majority of jurisdictions have applied comparative negligence in strict liability actions. Annot., 9 A.L.R. 4th 633 (1981 and 1982 Supp.).
Application of comparative negligence will not remove the advantages which strict liability provides to injured consumers.
Plaintiffs will continue to be relieved of proving that the manufacturer or distributor was negligent in the production, design, or dissemination of the article in question. Defendant's liability for injuries caused by a defective product remains strict. The principle of protecting the defenseless is likewise preserved, for plaintiff's recovery will be reduced only to the extent that his own lack of reasonable care contributed to his injury. The cost of compensating the victim of a defective product, albeit proportionately reduced, remains on defendant manufacturer, and will, through him, be "spread among society. "
Daly, 20 Cal. 3d at 736-37, 144 Cal. Rptr. at 386-87, 575 P.2d at 1168-69. The use of comparative negligence in products liability litigation represents a balancing of competing interests.
If the rules of comparative liability are applied to cases involving the special duties imposed by law upon product manufacturers, distributors and sellers, there can be an equitable resolution, on the one hand, of the social policy which commands that a manufacturer be deterred from producing defective and dangerous products, and on the other hand, of the equitable policy . . . . of assessing proportionate liability based upon comparative degrees of causation.
Kennedy v. City of Sawyer, 228 Kan. 439, 450, 618 P.2d 788, 797 (1980).
These statements by the California and Kansas courts are consistent with our rationale in Bradley in adopting a modified comparative negligence rule. In rejecting the "pure" negligence comparative concept, we declared "that in the field of tort law we are not willing to abandon the concept that where a party substantially contributes to his own damages, he should not be permitted to recover for any part of them." 256 S.E.2d at 885. HN15 Since strict liability does not make manufacturers insurers of their products, Morningstar, supra,the consumer should not be able to recover for damages which result directly from his conduct.
The problem of focusing on the plaintiff's conduct does not arise only with use of comparative negligence as an affirmative defense. In Morningstar, we noted that "the issue of appropriate use of the product has as a counterpart the defense of abnormal use, which may at times carry companion defenses of contributory negligence and assumption of risk on the part of the user." 253 S.E.2d at 683. Thus, we explicitly recognized that the plaintiff's conduct may affect his chances of recovery for injuries caused by a defective product.
Comparative negligence does not differ from product misuse or assumption of risk in that all of these defenses focus on the plaintiff's conduct.
As the parties point out, although a majority of jurisdictions have applied comparative negligence to strict liability actions, only a small number have specifically excluded as a part of the defense the failure of the plaintiff to discover or guard against defects. West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla. 1976); Busch v. Busch Construction, Inc., 262 N.W.2d 377 (Minn. 1977). Cf. Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 406 A.2d 140 (1979) (labels doctrine comparative fault rather than comparative negligence).
We note, however, that the Restatement, (Second), Torts specifically states that HN16 a plaintiff's failure to discover a defect or to guard against it should not be considered contributory negligence. Restatement, (Second), Torts, § 402A, comment n (1965). This point was discussed in Morningstar, supra, by way of dictum. 253 S.E.2d at 682. We adopt this rule because to penalize a consumer for failing to discover defects or to guard against them places a burden on consumers which strict liability was intended to remove. The plaintiff's negligence must be something more than failing to discover a defect or to guard against it. Strict liability assumes that products which are placed in commerce are safe. If not, liability attaches if they result in damage or injury. Thus, there is no reason why a consumer should be expected to inspect products for defects or to guard against them. We therefore hold that HN17 comparative negligence is available as an affirmative defense in a cause of action founded on strict liability so long as the complained of conduct is not a failure to discover a defect or to guard against it.
It may be acknowledged that the application of our comparative negligence rule to strict liability in tort cases cuts down some of the traditional concepts of contributory negligence by removing a claim of negligence against the plaintiff for failing to disclose the defect or guard against its possibility. Yet, there remains the area of product abuse and alteration. 5
While assumption of risk is not an issue in this case, we spoke to this defense generally in Morningstar v. Black & Decker Mfg. Co., supra, at 683-84:
It does appear that the defense of assumption of risk is available against the plaintiff, where it is shown that with full appreciation of the defective condition he continues to use the product. The hallmark of this defense is actual knowledge on the part of the plaintiff . . . .
To this defense, some courts have added the further requirement that the plaintiff's conduct in proceeding to use the admittedly defective product must be unreasonable . . . .
The difference between these two positions may be more theoretical than real, since in many instances a plaintiff who has full knowledge of the defective condition, and yet proceeds to use the product, will be acting unreasonably. (Citations omitted).
In summary, we hold that
(I) plaintiffs may use strict liability causes of action to recover for property damage, and that
(II) this doctrine is available to commercial entities which suffer harm as a result of defective products.
(III) Comparative negligence may be asserted as an affirmative defense which may bar or reduce the plaintiff's recovery in accordance with the principles contained in Bradley v. Appalachian Power Co., supra. The certified questions are answered in the affirmative.
The assessment of which party benefits most is complicated by the number and variety of possible effects which the adoption of comparative principles can have on strict liability.
Thus, a defendant that urges the court to apply these principles will not necessarily find the result satisfactory.28
See Daly v. General Motors Corp., 20 Cal. 3d 725, 144 Cal. Rptr. 380, 575 P.2d 1162 (1978).
Daly v. General Motors Corp
20 Cal. 3d 725, 144 Cal. Rptr. 380, 575 P.2d 1162 (1978)
Opinion
The most important of several problems which we consider is whether the principles of comparative negligence expressed by us in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], apply to actions founded on strict products liability. We will conclude that they do.
We also inquire whether evidence of "compensating" safety devices installed in a motor vehicle by its manufacturer is admissible to offset alleged design deficiencies, and whether, under the particular facts herein, evidence of a driver's claimed intoxication or of his asserted failure to use his vehicle's safety equipment may be considered.
While agreeing that evidence of compensating design characteristics is admissible, we will further determine that under the circumstances herein prejudicial error requiring reversal occurred upon the admission of evidence of the decedent's alleged intoxication and failure to use safety devices in his vehicle.
1970 Opel GT (just for illustration)
The Facts And The Trial
Although there were no eyewitnesses, the parties agree, generally, on the reconstruction of the accident in question. In the early hours of October 31, 1970, decedent Kirk Daly, a 36-year-old attorney, was driving his Opel southbound on the Harbor Freeway in Los Angeles. The vehicle, while travelling at a speed of 50-70 miles per hour, collided with and damaged 50 feet of metal divider fence. After the initial impact between the left side of the vehicle and the fence the Opel spun counterclockwise, the driver's door was thrown open, and Daly was forcibly ejected from the car and sustained fatal head injuries. It was equally undisputed that had the deceased remained in the Opel his injuries, in all probability, would have been relatively minor.
driver's door was thrown open, and Daly was forcibly ejected from the car...
Alleged defective Door latch (for illustration)
Plaintiffs, who are decedent's widow and three surviving minor children, sued General Motors Corporation, Boulevard Buick, Underwriter's Auto Leasing, and Alco Leasing Company, the successive links in the Opel's manufacturing and distribution chain. The sole theory of plaintiffs' complaint was strict liability for damages allegedly caused by a defective product, namely, an improperly designed door latch claimed to have been activated by the impact. It was further asserted that, but for the faulty latch, decedent would have been restrained in the vehicle and, although perhaps injured, would not have been killed. Thus, the case involves a so-called "second collision" in which the "defect" did not contribute to the original impact, but only to the "enhancement" of injury.
At trial the jury heard conflicting expert versions as to the functioning of the latch mechanism during the accident. Plaintiffs' principal witness testified that the Opel's door was caused to open when the latch button on the exterior handle of the driver's door was forcibly depressed by some protruding portion of the divider fence. It was his opinion that the exposed push button on the door constituted a design "defect" which caused injuries greatly in excess of those which Daly would otherwise have sustained. Plaintiffs also introduced evidence that other vehicular door latch designs used in production models of the same and prior years afforded substantially greater protection.
Defendants' experts countered with their opinions that the force of the impact was sufficiently strong that it would have caused the door to open resulting in Daly's death even if the Opel had been equipped with door latches of the alternative designs suggested by plaintiffs.
Over plaintiffs' objections, defendants were permitted to introduce evidence indicating that:
(1) the Opel was equipped with a seat belt-shoulder harness system, and a door lock, either of which if used, it was contended, would have prevented Daly's ejection from the vehicle;
(2) Daly used neither the harness system nor the lock;
(3) the 1970 Opel owner's manual contained warnings that seat belts should be worn and doors locked when the car was in motion for "accident security"; and
(4) Daly was intoxicated at the time of collision, which evidence the jury was advised was admitted for the limited purpose of determining whether decedent had used the vehicle's safety equipment.
After relatively brief deliberations the jury returned a verdict favoring all defendants, and plaintiffs appeal from the ensuing adverse judgment.
Strict Products Liability And Comparative Fault
In response to plaintiffs' assertion that the "intoxication-nonuse" evidence was improperly admitted, defendants contend that the deceased's own conduct contributed to his death. Because plaintiffs' case rests upon strict products liability based on improper design of the door latch and because defendants assert a failure in decedent's conduct, namely, his alleged intoxication and nonuse of safety equipment, without which the accident and ensuing death would not have occurred, there is thereby posed the overriding issue in the case, should comparative principles apply in strict products liability actions?
It may be useful to refer briefly to certain highlights in the historical development of the two principles—strict and comparative liability.
Tort law has evolved from a legal obligation initially imposed without "fault," to recovery which, generally, was based on blameworthiness in a moral sense. For reasons of social policy and because of the unusual nature of defendants' acts, liability without fault continued to be prescribed in a certain restricted area, for example, upon keepers of wild animals, or those who handled explosives or other dangerous substances, or who engaged in ultrahazardous activities. Simultaneously, and more particularly, those who were injured in the use of personal property were permitted recovery on a contract theory if they were the purchasers of the chattel or were in privity. Subsequently, liability was imposed in negligence upon the manufacturer of personalty in favor of the general consumer. (For a comprehensive historical review, see Prosser, Law of Torts (4th ed. 1971) § 96, pp. 641-644; 2 Harper & James, The Law of Torts (1956) § 12.2 and foll., p. 747 and foll.) Evolving social policies designed to protect the ultimate consumer soon prompted the extension of legal responsibility beyond negligence to express or implied warranty. Thus, in the area of food and drink a form of strict liability predicated upon warranty found wide acceptance.Warranty actions, however, contained their own inherent limitations requiring a precedent notice to the vendor of a breach of the warranty, and absolving him from loss if he had issued an adequate disclaimer.
General dissatisfaction continued with the conceptual limitations which traditional tort and contract doctrines placed upon the consumers and users of manufactured products, this at a time when mass production of an almost infinite variety of goods and products was responding to a myriad of ever-changing societal demands stimulated by wide-spread commercial advertising. From an historic combination of economic and sociological forces was born the doctrine of strict liability in tort.
We, ourselves, were perhaps the first court to give the new principle judicial sanction. In Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049], confronted with injury to an ultimate consumer caused by a defective power tool, we fastened strict liability on a manufacturer who placed on the market a defective product even though both privity and notice of breach of warranty were lacking. We rejected both contract and warranty theories, express or implied, as the basis for liability. Strict liability, we said, did not rest on a consensual foundation but, rather, on one created by law. The liability was created judicially because of the economic and social need for the protection of consumers in an increasingly complex and mechanized society, and because of the limitations in the negligence and warranty remedies.
Our avowed purpose was "to insure that the costs of injuries resulting from defective products are borne by the manufacturer that put such products on the market rather than by the injured persons who are powerless to protect themselves." (Id., at p. 63.) Subsequently, the Greenman principle was incorporated in section 402A of the Restatement Second of Torts, and adopted by a majority of American jurisdictions. (Prosser, supra, at pp. 657-658.)
CA(1) (1) From its inception, however, HN1 strict liability has never been, and is not now, absolute liability. As has been repeatedly expressed, under strict liability the manufacturer does not thereby become the insurer of the safety of the product's user. (Cronin v. J. B. E. Olson Corp. (1972) 8 Cal.3d 121, 133 [104 Cal.Rptr. 433, 501 P.2d 1153]; Dippel v. Sciano(1967) 37 Wis.2d 443 [155 N.W.2d 55, 63]; West v. Caterpillar Tractor Company, Inc. (Fla. 1976) 336 So.2d 80, 90; Traynor, The Ways and Meanings of Defective Products and Strict Liability (1965) 32 Tenn.L.Rev. 363, 366-367.) On the contrary, the plaintiff's injury must have been caused by a "defect" in the product. Thus the manufacturer is not deemed responsible when injury results from an unforeseeable use of its product. (Cronin, supra, at p. 126; Rest.2d Torts, supra, coms. g, h.)
Furthermore, we have recognized that though most forms of contributory negligence do not constitute a defense to a strict products liability action, plaintiff's negligence is a complete defense when it comprises assumption of risk.(Luque v. McLean (1972) 8 Cal.3d 136, 145 [104 Cal.Rptr. 443, 501 P.2d 1163]; Rest.2d Torts, § 402A, com. b.) As will thus be seen, the concept of strict products liability was created and shaped judicially. In its evolution, the doctrinal encumbrances of contract and warranty, and the traditional elements of negligence, were stripped from the remedy, and a new tort emerged which extended liability for defective product design and manufacture beyond negligence but short of absolute liability.
In Li v. Yellow Cab Co., supra, 13 Cal.3d 804, we introduced the other doctrine with which we are concerned, comparative negligence. We examined the history of contributory negligence, the massive criticism directed at it because its presence in the slightest degree completely barred plaintiff's recovery, and the increasing defection from the doctrine. We then weighed the two principal arguments against its removal from California law, namely, that such a sharp change in direction required legislative action, and that there existed a cluster of asserted practical obstacles relating to multiple parties, the apportionment burdens on a jury and the uncertain effect on the defenses of last clear chance, assumption of risk, and wilful misconduct. Concluding that none of the obstacles was insurmountable, we announced in Li the adoption of a "pure" form of comparative negligence which, when present, reduced but did not prevent plaintiff's recovery. (Pp. 828-829.) We held that HN2 the defense of assumption of risk, insofar as it is no more than a variant of contributory negligence, was merged into the assessment of liability in proportion to fault. (Pp. 824-825.) Within the broad guidelines therein announced, we left to trial courts discretion in the particular implementation of the new doctrine. (Pp. 826-827.)
We stand now at the point of confluence of these two conceptual streams, having been greatly assisted by the thoughtful analysis of the parties and the valuable assistance of numerous amici curiae. We are by no means the first to consider the interaction of these two developing principles. As with the litigants before us, responsible and respected authorities have reached opposing conclusions stressing in various degrees the different considerations which we now examine.
CA(2a) (2a) Those counseling against the recognition of comparative fault principles in strict products liability cases vigorously stress, perhaps equally, not only the conceptual, but also the semantic difficulties incident to such a course. The task of merging the two concepts is said to be impossible, that "apples and oranges" cannot be compared, that "oil and water" do not mix, and that strict liability, which is not founded on negligence or fault, is inhospitable to comparative principles. The syllogism runs, contributory negligence was only a defense to negligence, comparative negligence only affects contributory negligence, therefore comparative negligence cannot be a defense to strict liability. (See Butaud v. Suburban Marine & Sport. Goods, Inc. (Alaska 1976) 555 P.2d 42, 47 (dis. opn. by Burke, J.), noted by Masin (1977) 4 Western St.U. L.Rev. 283, 284.) While fully recognizing the theoretical and semantic distinctions between the twin principles of strict products liability and traditional negligence, we think they can be blended or accommodated.
The inherent difficulty in the "apples and oranges" argument is its insistence on fixed and precise definitional treatment of legal concepts. In the evolving areas of both products liability and tort defenses, however, there has developed much conceptual overlapping and interweaving in order to attain substantial justice. The concept of strict liability itself, as we have noted, arose from dissatisfaction with the wooden formalisms of traditional tort and contract principles in order to protect the consumer of manufactured goods. Similarly, increasing social awareness of its harsh "all or nothing" consequences led us in Li to moderate the impact of traditional contributory negligence in order to accomplish a fairer and more balanced result. We acknowledged an intermixing of defenses of contributory negligence and assumption of risk and formally effected a type of merger, "As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent . . . ." (Li, supra, at p. 824.) CA(3a) (3a) In Li, we further reaffirmed our observation in Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 245 [53 Cal.Rptr. 545, 418 P.2d 153]: "'[That] in one kind of situation, to HN3 wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence . . . .' We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence." (13 Cal.3d at pp. 824-825, quoting Grey, supra, at pp. 245-246, italics in original.)
CA(2b) (2b) Furthermore, the "apples and oranges" argument may be conceptually suspect. It has been suggested that the term "contributory negligence," one of the vital building blocks upon which much of the argument is based, may indeed itself be a misnomer since it lacks the first element of the classical negligence formula, namely, a duty of care owing to another. A highly respected torts authority, Dean William Prosser, has noted this fact by observing, "It is perhaps unfortunate that contributory negligence is called negligence at all. 'Contributory fault' would be a more descriptive term. Negligence as it is commonly understood is conduct which creates an undue risk of harm to others. Contributory negligence is conduct which involves an undue risk of harm to the actor himself. Negligence requires a duty, an obligation of conduct to another person. Contributory negligence involves no duty, unless we are to be so ingenious as to say that the plaintiff is under an obligation to protect the defendant against liability for the consequences of his own negligence." (Prosser, Law of Torts, supra, § 65, p. 418.)
We think, accordingly, the conclusion may fairly be drawn that the terms "comparative negligence," "contributory negligence" and "assumption of risk" do not, standing alone, lend themselves to the exact measurements of a micrometer-caliper, or to such precise definition as to divert us from otherwise strong and consistent countervailing policy considerations. Fixed semantic consistency at this point is less important than the attainment of a just and equitable result. The interweaving of concept and terminology in this area suggests a judicial posture that is flexible rather than doctrinaire.
We pause at this point to observe that HN4 where, as here, a consumer or user sues the manufacturer or designer alone, technically, neither fault nor conduct is really compared functionally. The conduct of one party in combination with the product of another, or perhaps the placing of a defective article in the stream of projected and anticipated use, may produce the ultimate injury. In such a case, as in the situation before us, we think the term "equitable apportionment or allocation of loss" may be more descriptive than "comparative fault."
Given all of the foregoing, we are, in the wake of Li, disinclined to resolve the important issue before us by the simple expedient of matching linguistic labels which have evolved either for convenience or by custom. Rather, we consider it more useful to examine the foundational reasons underlying the creation of strict products liability in California to ascertain whether the purposes of the doctrine would be defeated or diluted by adoption of comparative principles. We imposed HN5 strict liability against the manufacturer and in favor of the user or consumer in order to relieve injured consumers "from problems of proof inherent in pursuing negligence . . . and warranty . . . remedies, . . ." (Cronin v. J. B. E. Olson Corp., supra, 8 Cal.3d at p. 133, italics added; Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63; Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 461-462 [150 P.2d 436](conc. opn. by Traynor, J.).) As we have noted, we sought to place the burden of loss on manufacturers rather than ". . . injured persons who are powerless to protect themselves . . . ." (Greenman, supra, at p. 63; italics added; see Escola, supra, at p. 462; Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 251 [85 Cal.Rptr. 178, 466 P.2d 722] ["protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them"] italics added.)
The foregoing goals, we think, will not be frustrated by the adoption of comparative principles. Plaintiffs will continue to be relieved of proving that the manufacturer or distributor was negligent in the production, design, or dissemination of the article in question. Defendant's liability for injuries caused by a defective product remains strict. The principle of protecting the defenseless is likewise preserved, for plaintiff's recovery will be reduced only to the extent that his own lack of reasonable care contributed to his injury. The cost of compensating the victim of a defective product, albeit proportionately reduced, remains on defendant manufacturer, and will, through him, be "spread among society." However, we do not permit plaintiff's own conduct relative to the product to escape unexamined, and as to that share of plaintiff's damages which flows from his own fault we discern no reason of policy why it should, following Li, be borne by others. Such a result would directly contravene the principle announced in Li, that loss should be assessed equitably in proportion to fault.
We conclude, accordingly, that the expressed purposes which persuaded us in the first instance to adopt strict liability in California would not be thwarted were we to apply comparative principles. What would be forfeit is a degree of semantic symmetry. However, in this evolving area of tort law in which new remedies are judicially created, and old defenses judicially merged, impelled by strong considerations of equity and fairness we seek a larger synthesis. If a more just result follows from the expansion of comparative principles, we have no hesitancy in seeking it, mindful always that the fundamental and underlying purpose of Li was to promote the equitable allocation of loss among all parties legally responsible in proportion to their fault.
A second objection to the application of comparative principles in strict products liability cases is that a manufacturer's incentive to produce safe products will thereby be reduced or removed. While we fully recognize this concern we think, for several reasons, that the problem is more shadow than substance.
First, of course, the manufacturer cannot avoid its continuing liability for a defective product even when the plaintiff's own conduct has contributed to his injury. The manufacturer's liability, and therefore its incentive to avoid and correct product defects, remains; its exposure will be lessened only to the extent that the trier finds that the victim's conduct contributed to his injury.
Second, as a practical matter a manufacturer, in a particular case, cannot assume that the user of a defective product upon whom an injury is visited will be blameworthy. Doubtless, many users are free of fault, and a defect is at least as likely as not to be exposed by an entirely innocent plaintiff who will obtain full recovery. In such cases the manufacturer's incentive toward safety both in design and production is wholly unaffected.
Finally, we must observe that under the present law, which recognizes assumption of risk as a complete defense to products liability, the curious and cynical message is that it profits the manufacturer to make his product so defective that in the event of injury he can argue that the user had to be aware of its patent defects.
To that extent the incentives are inverted. We conclude, accordingly, that no substantial or significant impairment of the safety incentives of defendants will occur by the adoption of comparative principles.
CA(3b) (3b) In passing, we note one important and felicitious result if we apply comparative principles to strict products liability. This arises from the fact that under present law when plaintiff sues in negligence his own contributory negligence, however denominated, may diminish but cannot wholly defeat his recovery. When he sues in strict products liability, however, his "assumption of risk" completely bars his recovery. Under Li, as we have noted, "assumption of risk" is merged into comparative principles. (13 Cal.3d at p. 825.) The consequence is that after Li in a negligence action, plaintiff's conduct which amounts to "negligent" assumption of risk no longer defeats plaintiff's recovery. Identical conduct, however, in a strict liability case acts as a complete bar under rules heretofore applicable. Thus, strict products liability, which was developed to free injured consumers from the constraints imposed by traditional negligence and warranty theories, places a consumer plaintiff in a worse position than would be the case were his claim founded on simple negligence. This, in turn, rewards adroit pleading and selection of theories. The application of comparative principles to strict liability obviates this bizarre anomaly by treating alike the defenses to both negligence and strict products liability actions. In each instance the defense, if established, will reduce but not bar plaintiff's claim.
CA(2c) (2c) A third objection to the merger of strict liability and comparative fault focuses on the claim that, as a practical matter, triers of fact, particularly jurors, cannot assess, measure, or compare plaintiff's negligence with defendant's strict liability. We are unpersuaded by the argument and are convinced that jurors are able to undertake a fair apportionment of liability.
We are strengthened in the foregoing conclusion by the federal experience under the maritime doctrine of "unseaworthiness." For decades, seamen have been permitted to recover from shipowners for injuries caused by defects rendering a vessel "unseaworthy." (E.g., The Osceola (1903) 189 U.S. 158, 175 [47 L.Ed. 760, 764, 23 S.Ct. 483].) As noted by many courts, HN6 the concept of "unseaworthiness" is not limited to or affected by notions of the shipowner's fault or due care, but applies to any deficiency of hull, equipment or crew, regardless of cause, which renders the ship less than reasonably fit for its intended purposes. (Mitchell v. Trawler Racer, Inc. (1960) 362 U.S. 539, 550 [4 L.Ed.2d 941, 948, 80 S.Ct. 926]; Seas Shipping Co. v. Sieracki (1946) 328 U.S. 85, 94 [90 L.Ed. 1099, 1105-1106, 66 S.Ct. 872], rehg. den., 328 U.S. 878 [90 L.Ed. 1646, 66 S.Ct. 1116].) Nonetheless, comparative principles have been made applicable to suits brought under the "unseaworthiness" doctrine, a form of strict liability, and the degree to which plaintiff's own negligence contributes to his injuries has been considered in determining the amount of his recovery. (Pope & Talbot, Inc. v. Hawn (1953) 346 U.S. 406, 408-409 [98 L.Ed. 143, 150-151, 74 S.Ct. 202].) No serious practical difficulties appear to have arisen even where jury trials are involved. (E.g., Price v. Mosler (5th Cir. 1973) 483 F.2d 275, 277-278.)
We find equally unpersuasive a final objection that the merger of the two principles somehow will abolish or adversely affect the liability of such intermediate entities in the chain of distribution as retailers (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 263 [37 Cal.Rptr. 896, 391 P.2d 168]), and bailors (Price v. Shell Oil Co., supra, 2 Cal.3d 245, 253.) We foresee no such consequence. Regardless of the identity of a particular defendant or of his position in the commercial chain the basis for his liability remains that he has marketed or distributed a defective product. If, as we believe, jurors are capable of assessing fully and fairly the legal responsibility of a manufacturer on a strict liability basis, no reason appears why they cannot do likewise with respect to subsequent distributors and vendors of the product.
We note that the majority of our sister states which have addressed the problem, either by statute or judicial decree, have extended comparative principles to strict products liability.
Our research discloses that of the more than 30 states which have adopted some form of comparative negligence, three (including California) have done so judicially. The two other states, Alaska (Butaud v. Suburban Marine & Sport. Goods, Inc., supra, 555 P.2d 42, 46) and Florida (West v. Caterpillar Tractor Company, Inc., supra, 336 So.2d 80, 89-90) have likewise, judicially, extended comparative principles to strict liability actions. At least five states have adopted comparative fault statutes which are not limited in their language to negligence actions: Arkansas (Ark.Stat.Ann. §§ 27-1763-1765 (1975)); Maine (Me.Rev.Stat., tit. 14, § 156 (1965)); Mississippi (3 Miss. Code Ann. § 11-7-15 (1917)); New York (CPLR, art. 14-A, § 1411 (1975)); and Rhode Island (2A R.I. Gen. Laws, § 9-20-4 (1971)). The New York statute expressly applies to strict liability actions. (See CPLR, supra, art. 14-A, § 1411, Practice Commentaries, CP 1411:1.) The Mississippi statute has been judicially construed as extending to suits founded on strict products liability. (Edwards v. Sears, Roebuck and Company (5th Cir. 1975) 512 F.2d 276, 290.) On the other hand one state, Connecticut, has statutorily prohibited the use of comparative fault as a defense in strict liability actions. (Pub.L. No. 77-335, eff. July 1, 1977.)
Of the three decisions which have declined to apply comparative negligence to strict liability, two have noted their reliance on state comparative negligence statutes which are expressly confined to "negligence" actions. (Melia v. Ford Motor Co. (8th Cir. 1976) 534 F.2d 795, 802 [Nebraska "slight-gross" comparative negligence statute]; Kirkland v. General Motors Corporation (Okla. 1974) 521 P.2d 1353, 1367-1368 [noting the limiting statutory language but holding that driving while intoxicated was product misuse barring recovery]; see also Kinard v. Coats Company, Inc. (1976) Colo.App. [553 P.2d 835, 837].) At least three jurisdictions have applied comparative negligence statutes to strict liability actions, despite language arguably limiting the statute application to negligence. (Dippel v. Sciano, supra, 155 N.W.2d 55, 64; Sun Val. Airlines, Inc. v. Avco-Lycoming Corp. (D.Idaho 1976) 411 F.Supp. 598, 602-603; Hagenbuch v. Snap-On Tools Corp. (D.N.H. 1972) 339 F.Supp. 676, 681-683.) Finally, one court has judicially extended a "pure" form of comparative fault to the traditional strict liability defense of "product misuse," despite the existence of a statutory scheme of "modified" comparative negligence. (General Motors Corp. v. Hopkins (Tex. 1977) 548 S.W.2d 344, 351-352.)
Moreover, we are further encouraged in our decision herein by noting that the apparent majority of scholarly commentators has urged adoption of the rule which we announce herein. These include, from the academic community: Wade, A Uniform Comparative Fault Act—What Should It Provide? (1977) 10 Mich. J. L. Ref. 220; Fleming, The Supreme Court of California 1974-1975—Foreword: Comparative Negligence at Last—By Judicial Choice (1976) 64 Cal.L.Rev. 239, 269-271; Schwartz, Comparative Negligence (1974) § 12.1 et seq., p. 195 et seq. (see also Special Cal. Supplement re Nga Li v. Yellow Cab Co. of California (1975) § 4(B), p. 8); Wade, On the Nature of Strict Tort Liability for Products (1973) 44 Miss.L.J. 825, 850; Noel, Defective Products; Abnormal Use, Contributory Negligence, and Assumption of Risk(1972) 25 Vand.L.Rev. 93, 117-118; contra, Levine, Strict Products Liability and Comparative Negligence: The Collision of Fault and No-Fault (1977) 14 San Diego L.Rev. 337, 346 et seq. Among other commentaries urging such a rule are: Posner et al., Comparative Negligence in California: Some Legislative Solutions—Part II (1977) Los Angeles Daily Journal Report (Aug. 26, 1977) at pages 4, 9-18 (proposed legislation); Brewster, Comparative Negligence In Strict Liability Cases (1976) 42 J. Air L. & Com. 107, 109-117; Comment, Comparative Negligence in Vermont: A Solution or a Problem (1976) 40 Albany L.Rev. 777, 810; Feinberg, The Applicability of a Comparative Negligence Defense in a Strict Products Liability Suit Based on Section 402A of the Restatement of Torts 2d (1975) 42 Ins.Couns.J. 39, 52; Comment, Tort Defenses to Strict Products Liability (1969) 20 Syracuse L.Rev. 924, 925; Epstein, Products Liability: Defenses Based on Plaintiff's Conduct (1968) 1968 Utah L.Rev. 267, 284; Levine, Buyer's Conduct as Affecting the Extent of Manufacturer's Liability in Warranty (1968) 52 Minn.L.Rev. 627, 652-663; contra, Robinson, Square Pegs (Products Liability) In Round Holes (Comparative Negligence) (1977) 52 State Bar J. 16; Schwartz, Pure Comparative Negligence in Action (1972) 34 Am. Trial Law. J. 117, 129.
We find additional significance in the provisions of the proposed Uniform Comparative Fault Act (Act), authored by Professor Wade, a recognized torts scholar, distinguished professor of law, and former dean, Vanderbilt University,current reporter of the Restatement Second of Torts, and chairman of the special committee on the Act of the National Conference of the Commissioners on Uniform States Laws (Conference). Our attention has been called to the action of the Conference in August 1977, wherein it approved adoption of the Act by a vote of 40 states to 8 (California voting favorably). The Act is the distillation of approximately five years of discussion, analysis, and contribution by a special committee and a review committee of the Conference. We quote portions of section 1 of the proposed Act: "Section 1. [Effect of Contributory Fault.] [para. ]
(a) In an action based on fault to recover damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery . . . . [para. ]
(b) 'Fault' includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability." (Italics added.)
While lacking any legislative sanction, the Act, in our view, points in the direction of a responsible national trend. As such, section 1 is revealing in two notable respects: in its clear definitional expression in subsection (b) that comparative principles are to be applied to cases of "strict tort liability," and in its substitution of the broad generic term "fault," in subsection (a), as including both negligence and strict liability.
Having examined the principal objections and finding them not insurmountable, and persuaded by logic, justice, and fundamental fairness, we conclude that HN7 a system of comparative fault should be and it is hereby extended to actions founded on strict products liability. CA(3c) (3c) In such cases the separate defense of "assumption of risk," to the extent that it is a form of contributory negligence, is abolished. CA(2d) (2d) While, as we have suggested, on the particular facts before us, the term "equitable apportionment of loss" is more accurately descriptive of the process, nonetheless, the term "comparative fault" has gained such wide acceptance by courts and in the literature that we adopt its use herein.
In Li, we announced a system of pure comparative negligence "the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties." (13 Cal.3d, at p. 829.) Those same underlying considerations of policy which moved us judicially in Li to rescue blameworthy plaintiffs from a 100-year-old sanction against all recovery persuade us now to extend similar principles to the strict products liability area. Legal responsibility is thereby shared. We think that apportioning tort liability is sound, logical and capable of wider application than to negligence cases alone. To hold otherwise, in our view, would be to perpetuate a system which, as we noted in Li, Dean Prosser describes as placing ". . . upon one party the entire burden of a loss for which two are, by hypothesis, responsible." (Prosser, supra, § 67, p. 433.) We reiterate that our reason for extending a full system of comparative fault to strict products liability is because it is fair to do so. The law consistently seeks to elevate justice and equity above the exact contours of a mathematical equation. We are convinced that in merging the two principles what may be lost in symmetry is more than gained in fundamental fairness.
In Li we scrupulously abstained from issuing a detailed guidebook to the new area of comparative negligence, preferring to adopt the view of a Florida court that ". . . the trial judges of this State are capable of applying [a] comparative negligence rule without our setting guidelines in anticipation of expected problems. The problems are more appropriately resolved at the trial level in a practical manner instead of a theoretical solution at appellate level. The trial judges are granted broad discretion in adopting such procedure as may accomplish the objectives and purposes expressed in this opinion." (Hoffman v. Jones(Fla. 1973) 280 So.2d 431, 439-440.) CA(4) (4) We reaffirm the wisdom of such a course and, likewise, in the matter before HN8 us leave broad discretion in the trial court to implement the details of comparative principles in strict products liability cases.
For the guidance of trial courts, we do note the existence, under rule 49(a), Federal Rules of Civil Procedure, of a form of special verdict tailored to cases applying the maritime doctrine of strict liability for unseaworthiness, to which we have referred. Under this form, the jury is first required to answer "yes" or "no" to a series of questions setting forth possible bases for a finding that vessel unseaworthiness was a proximate cause of the plaintiff's injuries. If the jury indicates that unseaworthiness was a contributing cause, it then moves on to a second group of similar questions seeking to determine whether, and in what particulars, the plaintiff's own negligence was also a contributing factor. If the answers to these questions establish a finding of contributory negligence, the jury is told to "state in percentage the extent to which the plaintiff's own negligence contributed to his injuries. ( %)." Finally, the jury is instructed to indicate the amount of plaintiff's damages without reference to his own negligence. The court then reduces the damage award by the percentage figure the jury has supplied.(3 Devitt & Blackmar, Federal Jury Practice and Instructions (3d ed. 1977) § 96.32; see also Menard v. Penrod Drilling Co. (5th Cir. 1976) 538 F.2d 1084, 1086-1087.) We cite this form as illustrative of one technique by which the court and jury may approach the task of apportionment.
Retroactivity
CA(5) (5) It remains for us to decide the extent to which comparative principles are to be applied to strict liability actions other than those hereafter filed. We conclude that, for reasons of public policy and the reasonable expectations of the parties to this action and litigants generally, the principles herein expressed HN9 shall apply to all cases in which trial has not begun before the date this opinion becomes final in this court. No judgment based upon a trial which was commenced prior to the finality of this opinion shall be reversible on appeal on the sole ground that principles of comparative fault were not applied. If any such judgment is reversed on appeal for other reasons, the principles herein expressed shall be applicable to any retrial commenced after this opinion becomes final in this court. (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 829; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 800 [87 Cal.Rptr. 839, 471 P.2d 487], vacated on other grounds (1971) 403 U.S. 915 [29 L.Ed.2d 692, 91 S.Ct. 2224].) As in Li, we give particular emphasis to "considerations of reliance applicable to individual cases according to the stage of litigation which they have reached . . . ." (Ibid.)
While it is arguable that retroactivity should extend to the finality of Li, and it is true that our conclusions herein owe a distinct philosophical debt to that case, nonetheless they do not constitute a direct application of Li. Furthermore, in Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 370 [131 Cal.Rptr. 78, 551 P.2d 398], decided subsequent to Li, we retained, if only briefly, the separate system of defenses applicable to strict products liability. Under the circumstances before us, we conclude that it would be manifestly unfair to make the present opinion effective as of the finality of Li.
CA(6) (6) We further conclude that, under the particular circumstances, comparative principles cannot be applied retroactively to the instant case in order to justify admission of the intoxication and "nonuse" evidence here challenged. The issue of comparative fault was raised for the first time on appeal, and was never placed in issue by any party at trial herein. No jury instructions on the issue were requested or given. The jury therefore had no basis for evaluating the evidence under correct principles of comparative fault. In the event of retrial, however, the principles herein announced will, of course, apply.
We turn to an explanation of the reasons which prompt us to reverse the judgment of the trial court, and then examine, for the benefit of court and counsel one of the remaining contentions of the parties.
The Safety Equipment And Intoxication Evidence
CA(7) (7) We must determine whether admission of evidence of decedent's failure to use available safety devices and of his intoxication constituted prejudicial error under rules heretofore applicable to strict liability cases. We conclude that it did.
While initially evidence bearing on decedent's intoxication was excluded, other evidence pertaining to the decedent's alleged failure to employ seat belts and door locks was admitted, apparently on the ground that nonuse of safety devices bore on the issues of proximate cause and mitigation of damages. Plaintiffs contended that evidence of Daly's intoxication, or of his failure to use available safety devices, was wholly inadmissible since contributory negligence was not a defense to an action founded in strict liability for a defective product. (Horn v. General Motors Corp., supra, 17 Cal.3d at pp. 369-371; Luque v. McLean, supra, 8 Cal.3d 136, 145.) The trial court ultimately admitted the intoxication evidence, ruling that such evidence related to decedent's failure to use the Opel's safety devices, which failure, the court reasoned, would bar recovery on the theory of product misuse "aside from any question of contributory negligence." (In fairness to the very able trial judge, it must be noted that the trial herein preceded rendition of our opinions in both Li and Horn.)
As we observed in Horn, HN10 to accept a "nonuse" of safety equipment as a complete defense to a products liability action would constitute but a thinly disguised subversion of the rule that contributory negligence does not prevent recovery. Horn expressly rejected arguments that such "nonuse" could defeat recovery on theories of "assumption of risk," "product misuse," "proximate cause," or "mitigation of damages." (Id ., at pp. 369-371.)
Substantial time was spent on the nonuse and intoxication issues, reasonably suggesting to the jury their central importance to the defense case. There can be little doubt that the evidence of Daly's intoxication was inflammatory. The only restrictions placed on the jury's consideration of the intoxication evidence was that it bore on the "nonuse" of safety devices in general. No limitation was placed on the conclusions which the jury could draw either from a finding of "nonuse" itself, or as to the effect on its deliberations of a finding of "nonuse." In the absence of any such restrictions, we think the jury could well have concluded that decedent's negligent failure, induced by intoxication, to use the belts and locks constituted negligent conduct which completely barred recovery for his death. We do not think it reasonable to conclude that plaintiffs waived their objection by failing to request limiting instructions.
In summary, our review of the record convinces us that, notwithstanding that plaintiffs' case was founded on strict products liability, evidence of decedent's failure to use available seat belts and door locks, and of his intoxication at the time of the fatal collision, may have been improperly regarded by the jury as authorizing a defense verdict. It appears reasonably probable that, had such evidence been either excluded or its effect confined, a result more favorable to plaintiffs would have been reached. Reversal is therefore required. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 525 [113 Cal.Rptr. 277]; see Henderson v.Harnischfeger Corp. (1974) 12 Cal.3d 663, 670-676 [117 Cal.Rptr. 1, 527 P.2d 353].)
Defect—Component Or Product As A Whole?
CA(8) (8) We examine for the benefit of court and counsel, in the event of retrial, a single remaining contention of plaintiffs.
Plaintiffs challenge a jury instruction which directed that "[in] determining whether or not the vehicle was defective you should consider all of the equipment on the vehicle including any features intended for the safety of the driver." They urge that only the precise malfunctioning component itself, and alone, may be considered in determining whether injury was caused by a defectively designed product. We disagree, concluding that the issue of defective design is to be determined with respect to the product as a whole, and that the trial court's instruction was correct.
The jury could properly determine whether the Opel's overall design, including safety features provided in the vehicle, made it "crashworthy," thus rendering the vehicle non-defective. Product designs do not evolve in a vacuum, but must reflect the realities of the market place, kitchen, highway, and shop. Similarly, a product's components are not developed in isolation, but as part of an integrated and interrelated whole. Recognizing that finished products must incorporate and balance safety, utility, competitive merit, and practicality under a multitude of intended and foreseeable uses, courts have struggled to evolve realistic tests for defective design which give weight to this necessary balancing. Thus, a number of California cases have recognized the HN11 need to "weigh" competing considerations in an overall product design, in order to determine whether the design was "defective." Recently, we ourselves in Barker v. Lull (1978) ante, pp. 413, 431 [143 Cal.Rptr. 225, 573 P.2d 443], have described some of the factors to be considered. (See, also, Buccery v. General Motors Corp. (1976) 60 Cal.App.3d 533, 547 [132 Cal.Rptr. 605]; Baker v. Chrysler Corp. (1976) 55 Cal.App.3d 710, 716 [127 Cal.Rptr. 745]; Hyman v. Gordon(1973) 35 Cal.App.3d 769, 773 [111 Cal.Rptr. 262].)
The danger of piecemeal consideration of isolated components has been expressly recognized. (Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 6-7 [116 Cal.Rptr. 575]; Dreisonstok v. Volkswagenwerk A.G. (4th Cir. 1974) 489 F.2d 1066, 1071-1072, applying Virginia law.) Specifically, it has been observed that HN12 a design rendered safe in one situation may become more dangerous in others. (Self, supra, at pp. 6-7.) However phrased, these decisions emphasize the need to consider the product as an integrated whole.
We find that plaintiffs' other contentions lack merit.
Conclusion
It is readily apparent that the foregoing broad expressions of principle do not establish the duties of the jury with that fixed precision which appeals to minds trained in law and logic. Nonetheless, rather than attempt to anticipate every variant and nuance of circumstance and party that may invoke comparative principles in a strict products liability context, we deem it wiser to await a case-by-case evolution in the application of the broad principles herein expressed.
By extending and tailoring the comparative principles announced in Li, supra, to the doctrine of strict products liability, we believe that we move closer to the goal of the equitable allocation of legal responsibility for personal injuries. We do so by relying on what Professor Schwartz aptly terms a "predicate of fairness." In making liability more commensurate with fault we undermine neither the theories nor the policies of the strict liability rule. In Li we took "a first step in what we deem to be a proper and just direction, . . ." (13 Cal.3d at p. 826.) We are convinced that the principles herein announced constitute the next appropriate and logical step in the same direction.
The judgment is reversed.
It should be clear that the traditional noncomparative “all-or-nothing” system of recovery could lead at various times to disadvantages or even “inequities” for plaintiffs and defendants in products liability litigation.29
Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 406 A.2d 140 (1979), citing the recommendations in 2 Dep’t of Commerce, Interagency Task Force on Product Liability, Final Report of the Legal Study 116 (1977).
The facts are virtually undisputed. Accurate Sheet Metal, Inc. (Accurate), located in Bloomingdale, New Jersey, was engaged in metal fabrication. Accurate had approximately 25 machines of various types, including a Lown 450, which it had purchased new in 1966. This machine, which had been built by defendant San Angelo Foundry & Machine Company, was used to flatten metal sheets and curve them into cylindrical shapes. Plaintiff had operated this piece of equipment on innumerable occasions between 1966 and the date of the accident in 1974.
The Lown (400)450
The control box and the gear lever
The Lown 450 is powered by a one and one-half horsepower electric motor. The machine has three 50" long rollers which resemble those of an old-fashioned clothes wringer. Metal sheets up to 48" in width are fed between the two front rollers. The metal is shaped into a cylindrical form when drawn upward and around by the rear roller. The right side of the machine is known as its "low end". The "low end" is equipped with a latched drop-arm which is used to open that side of the machine. Completed cylinders may then be removed. A cylinder may be reinserted for rerolling by opening up the drop-arm and sliding it back in along the bending rollers.
On the left side of the machine is a gear box cover which houses the motor. Mounted on the front of the cover is a control box which extends out from the face of the gear box cover. On the front of the control box are two buttons. One colored green and marked "start" is surrounded by a narrow collar so that it cannot be brushed accidentally. The other button, colored red, is designated "stop".
On top of the control box is a gear lever located 35" from the floor. The lever, extending out 4 1/4" from the front of the gear box, has three positions. When moved to the right, the rollers turn in a forward direction; when the lever is in the center, the rollers remain stationary; when moved to the left the rollers move counterclockwise.
A treadle, painted yellow, extends along the front base of the machine. If stepped on, it stops the machine by tripping out the relay and deactivating the motor. The machine would thereafter have to be restarted.
Pushing the green button activates the motor. However, the rollers do not turn until the lever is shifted to either the forward or reverse position. If the red stop button were pushed, the power would be cut off and the machine would stop. Touching the foot treadle would have the same effect. When using the machine, the operator leaves the power on until all the work is completed and relies principally on the lever to stop and start the rollers.
The accident occurred in the process of rerolling a metal cylinder that had been formed from a sheet 48" by 48". Four men, including plaintiff, had slipped the rolled metal through the "low end" of the machine. The latched drop-arm was then closed. The motor was on, but the lever was in a neutral position so that the rollers were not moving. Plaintiff, while standing on the left side of the machine, saw a piece of slag lying in the metal cylinder. As he reached over to pull the slag out, his body brushed against the gear lever, pushing it into the forward position and activating the rollers.
slag 1 NOUN the material that is left when rocks that contain metal are heated to get the metal out
The fingers of his right hand were caught and pulled into the rollers. He managed to yank his hand free, but only after it had been severely injured. Plaintiff was thereupon taken to a hospital, operated upon, and hospitalized. He returned to work about three weeks later.
Plaintiff's expert, an engineer, testified that the machine had been defectively designed. In his opinion a rotary guard should have been inserted around the lever or the lever mechanism should have been placed on top of the gear housing which is 45" above the floor. Either method would have served as protection against accidentally starting up the rollers. Both of these protective methods were in use when defendant made and sold this machine. As early as 1962 the National Safety Council had recommendedinstallation of bar guards to prevent inadvertent striking of such levers.
Defendant's expert agreed that the rotary guard was an available design at the time the machine was made and that as a safety engineer he would have recommended such a device. In his opinion the accident occurred because plaintiff placed himself in an unsafe position while reaching inside the cylinder without first cutting off the power to the machine.
***
III
We pass next to the question of what effect, if any, the Comparative Negligence Act has on the contributory negligence defense in strict liability.
The act, adopted in 1973, provides:
HN5 Contributory negligence shall not bar recovery in an action by any person * * to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering. [N.J.S.A. 2A:15-5.1]
The phrase "in an action * * * for negligence" may be read literally to refer only to the traditional negligence tort action. See Kirkland v. General Motors Corp., 521 P.2d 1353, 1367 (Okl.1974). But such a reading is not in keeping with the spirit of the act. We must look to other indicia to illuminate the sense of the statute. We have frequently adverted to the interpretative guideline that statutes are to be read sensibly, the purpose and reason for the legislation controlling, rather than construed literally.
See, e.g., Schierstead v. City of Brigantine, 29 N.J. 220, 230-231 (1959); Alexander v. N.J. Power & Light Co., 21 N.J. 373, 378-379 (1956).
It was the legislative belief that the Comparative Negligence Act would ameliorate to some extent the harshness which could result in application of contributory negligence in all tort actions. Thus, when Governor Cahill signed the legislation, he commented that "[n]o longer will a seriously [injured] person be prevented from obtaining compensation for his injuries merely because he was partially responsible, in a minor way, for the accident in which he was injured." Release from Office of the Governor, May 24, 1973. The Governor's explanation was keyed to the equitable desire to mitigate the unfairness associated with the total bar to recovery posed by common law contributory negligence. When the Governor made this explanation in 1973, contributory negligence had been firmly established as a defense in a strict liability action and there is no reason to believe that the Legislature intended to exclude contributory negligence in a strict liability case. The identical conduct by a plaintiff would bar recovery in a negligence action and it was the softening of the effect of that type of conduct at which the act was aimed.
Some supportive legislative history may be found in the Legislature's conscious adoption of the Wisconsin comparative negligence statute, Wis.Stat.Ann. § 895.045 (West Supp.1978). The Wisconsin courts had previously applied its comparative negligence act to strict liability, Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967); Netzel v. State Sand & Gravel Co., 51 Wis.2d 1, 186 N.W.2d 258 (1971), and our Legislature may well have believed our statute would receive a comparable interpretation. See also Hagenbuch v. Snap-On Tools Corp., 339 F.Supp. 676, 682-683 (D.N.H.1972), wherein the New Hampshire comparative negligence statute was construed to apply to strict liability on the basis of the Wisconsin statute and case law. For the proposition that interpretation of a statute of another state by its courts may serve as an interpretative aid when our Legislature has adopted the same act, see, e.g., Todd Shipyard Corp. v. Tp. of Weehawken, 45 N.J. 336, 343 (1965); Bollinger v. Wagaraw Bldg. Supply Co., 122 N.J.L. 512, 519 (E. & A.1939); Rawson v. Lohsen, 145 N.J. Super. 71, 77, (Law Div.1976).
We read the term "negligence" in our act as being subsumed within the concept of tortious fault. 2 So, too, contributory negligence has been regarded as a form of contributory fault. See Ettin v. Ava Truck Leasing, Inc., supra, wherein we commented that "though we consider it hardly necessary, the term 'contributory fault' could, if so desired, readily be substituted for the term 'contributory negligence'." 53 N.J. at 472; see also Prosser, Torts § 65, at 418 (4th ed. 1971). Dean Prosser has elucidated this idea of fault in the following manner:
There is a broader sense in which "fault" means nothing more than a departure from a standard of conduct required of a man by society for the protection of his neighbors; and if the departure is an innocent one, and the defendant cannot help it, it is none the less a departure, and a social wrong. The distinction still remains between the man who has deviated from the standard, and the man who has not. The defendant may not be to blame for being out of line with what society requires of him, but he is none the less out of line. [Prosser, supra, § 75, at 493]
So viewed, HN6 the notion of fault is readily seen to be inherent in the concept of strict liability. The manufacturer or supplier of a chattel has been charged with the duty of distributing a product which is fit, suitable and duly safe. Failure to comply with this standard constitutes fault.
Including as we do the act's use of the word "negligence" within the concept of fault, we construe the HN7 Comparative Negligence Act to require that the plaintiff's negligence must not be "greater than the negligence [or fault due to strict liability] of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering." N.J.S.A. 2A:15-5.1. 3 The trier of fact should ascertain the extent to which plaintiff's negligent conduct was a proximate cause of the accident. Since it is plaintiff's negligent conduct which may cause diminution or foreclosure of his recovery, ascertainment of the extent to which that conduct was a proximate cause of the accident should be determined by the trier of fact.
Although total-bar contributory negligence is not without its defenders, particularly among legal economists, see, e.g., R. Posner, Economic Analysis of Law 123-124 (2d ed. 1977); but see G. Schwartz, "Contributory and Comparative Negligence: A Reappraisal," 87 Yale L.J.697, 721-727 (1978) (arguing that notions of economic efficiency provide no persuasive justification for the traditional contributory negligence rule), the Legislature has at least partially rejected this point of view in favor of the simple principle that when two parties "share" (in a rough mathematical sense) the blame for an accident they should also share the costs. The liability-dividing principle of comparative negligence has received widespread support among the commentators as the preferred rule in negligence actions.See, e.g., Levine, "Buyer's Conduct as Affecting the Extent of Manufacturer's Liability in Warranty," 52 Minn.L.Rev. 627, 658-659 (1968). It has also been recommended as the sound rule for strict liability claims. See, e.g., id. at 644. Also note the recommendations in U.S. Dep't of Commerce, Interagency Task Force on Product Liability, Product Liability: 2 Final Report of the Legal Study 116 (1977), that comparative negligence should be applied in all products liability actions to relieve "some of the inequities incurred by both plaintiffs and defendants as a result of an 'all or nothing' approach to recovery." We are satisfied that the Legislature did not intend to exclude plaintiffs injured in strict liability situations from the Comparative Negligence Act and thereby subject them to a risk which might be extremely harsh.
In many situations plaintiffs have alleged both negligence and strict liability and sought recovery on either theory. To bar recovery because of contributory negligence when the plaintiff's theory was strict liability and to permit recovery in a reduced amount when the theory was negligence would be clearly inequitable and unjust. Daly v. General Motors Corp., 20 Cal.3d 725, 738, 144 Cal.Rptr. 380, 387-388, 575 P.2d 1162, 1169-1170 (1978).
We hold that HN8 the Comparative Negligence Act is applicable to strict liability actions in those circumscribed areas in which plaintiff's conduct may be found to constitute contributory negligence. There remains for our consideration the application of this holding to the facts of this case.
The extent to which a state’s merger of comparative and strict liability doctrines modifies one or both of these parties’ positions, e.g., by opening up the admissibility of evidence of a plaintiff’s ordinary contributory negligence, or by removing the absolute bar to recovery previously associated with a plaintiff’s assumption of risk, varies widely.
While it “is true the manufacturer’s exposure to liability will be lessened to the extent the victim’s conduct contributed to the injury … it is also true [that] the manufacturer’s exposure may be increased when a normally-barred plaintiff is allowed some recovery as a consequence of the defendant’s manufacture of a dangerous product.”30
Stueve v. American Honda Motors Co., 457 F. Supp. 740 (D. Kan. 1978), applying Kansas law.
Stueve v. American Honda Motors Co.
457 F. Supp. 740 (D. Kan. 1978)
(United States District Court for the District of Kansas)
MEMORANDUM AND ORDER
This is a products liability action which comes before the Court upon various motions filed by defendants. Oral argument has been heard and the parties have submitted extensive briefs. The Court is prepared to rule.
Defendants American Honda and Honda Motor Company are the distributor and manufacturer, respectively, of Honda motorcycles sold in this country. Plaintiff Doris Stueve is the wife and administratrix of the estate of Frederick Duane Stueve, and brings this action for wrongful death and survivorship on behalf of herself, her children, and the estate of Frederick Stueve. The complaint in this case, filed August 24, 1977, alleges that on August 31, 1975, Frederick Stueve was riding a 1972 Honda motorcycle which collided with an automobile at an intersection in Topeka, Kansas. As a result of the impact, the motorcycle caught fire. On September 22, 1975, Frederick Stueve died as a result of the burns suffered in the collision. Plaintiff alleges that a cause of the fire was a defectively designed gasoline tank and tank lid on the motorcycle which permitted the escape of fuel upon collision.
(for illustration) 1972 Honda motorcycle
However, it appears that the cause of the collision itself was the negligence of one Joseph Witherspoon, the driver of the car which collided with the motorcycle. On April 22, 1976, a wrongful death action was brought by plaintiff in state court against Witherspoon. An answer was filed the same day and a hearing held, a transcript of which has been made available to the Court. It reflects that a settlement had been reached with respect to both the wrongful death claim and a survivorship claim (which had not been filed at that time, apparently due to a delay in the appointment of plaintiff as administratrix of the estate). Witherspoon was to pay $ 40,000 on the wrongful death claim and $ 10,000 in satisfaction of the potential survivorship claim, or in the aggregate $ 50,000, this being the limit of his insurance coverage. Plaintiff stated she understood that Witherspoon was a minor with no known assets, and thus was in essence judgment-proof beyond the limits of policy coverage. On May 12, 1976, the Probate Court authorized the settlement of the survivorship claim for $ 10,000, and in return plaintiff as administratrix executed a covenant not to sue Witherspoon on the claim. A journal entry reflecting the $ 40,000 wrongful death settlement and its distribution was filed May 14, 1976. Copies of all these documents appear in the file of the present case.
***
B. The Motion to Join
The question of the interplay of strict liability and comparative negligence concepts is raised by defendant in its "Alternative motion for joinder . . . or for dismissal . . . or that the negligence of Witherspoon be taken into consideration." The aspect of the motion which requests dismissal is founded upon the claim Witherspoon is an "indispensible" party, Rule 19, Federal Rules of Civil Procedure, who must be joined in this action. Defendant then requests dismissal of the action for the reason Witherspoon's joinder would divest the court of diversity jurisdiction. It should be plain from the discussion of several liability above that Witherspoon's presence in the action is not necessary for maintenance of plaintiff's claim. We reject plaintiff's Rule 19 argument for the reasons stated in a similar context in Greenwood v. McDonough Power Equipment, Inc., 437 F. Supp. 707, 709-711 (D.Kan.1977). Alternatively, defendant requests that Witherspoon be joined as a "nominal party" for the sole purpose of comparing his negligence with that of defendant, without dismissal if the Court finds Witherspoon's negligence to be "ancillary." We also deny this request, which would cause more jurisdictional and procedural problems than it would solve. While K.S.A. § 60-258a(c) does provide a joinder mechanism whereby a defendant may bring in a co-defendant regardless of the possibility of liability Inter sese, federal courts of this district have viewed this provision as merely a procedural device inapplicable in federal courts. Joinder in such a situation is not authorized by the Federal Rules of Civil Procedure. Beach v. M. & N. Modern Hydraulic Press Co., 428 F. Supp. 956 (D.Kan., 1978); Boyd v. Clegg, No. 78-4100 (D.Kan., 6/16/78); Robson v. LaPlant, No. 76-174-C5 (D.Kan., 3/27/78, unpublished). This Court has consistently adhered to the "phantom party" concept suggested in PATTERN INSTRUCTIONS FOR KANSAS 2d § 20.05 (1977) and 3 VERNON'S KANSAS STATUTES ANNOTATED § 60-258, p. 88 (1977 Concannon Supp.). See Greenwood, supra ; Nagunst, supra ; and Carroll v. Chrysler Corp., No. 77-4017 (D.Kan., 7/13/78, unpublished). The joinder mechanism of K.S.A. § 60-258a(c) is unique to Kansas, and in any event, the Kansas Supreme Court has stated in Brown HN5 the apportionment of liability mandated by the statute is to be undertaken regardless of whether the prospective co-defendant is or can be formally joined. Thus we will deny all aspects of defendant's motion which seek formal joinder or dismissal.
The third alternative request in defendant's motion, however, is for application of the "phantom party" procedure to apportion negligence between Witherspoon and defendant, and allot the jury's verdict accordingly. This comports with our prior practice in the cases cited above. Plaintiff, however, strongly objects to any attempt to apply comparative negligence principles to a case founded upon the theory of strict products liability. Defendant argues that there is a "common denominator" between the concepts of negligence and strict liability in that both require a showing of fault if a defendant is to be held liable. Plaintiff, understandably, argues the difference between the concepts, points to the specific reference to "negligence" in the statute, and bases a collateral argument upon the treatment of the assumption of risk defense in recent Kansas cases.
The interrelationship of comparative negligence concepts and strict products liability now faces or has faced the courts of many states. This meeting of "fault and no-fault concepts," Levine, Strict Products Liability and Comparative Negligence, 14 SAN DIEGO L.REV. 337 (1977) is inevitable, for the majority of the states have adopted both some form of comparative liability scheme and the doctrine of tort recovery set forth in Restatement, Torts 2d, § 402A. The majority of courts whose written opinions have dealt with the issue have concluded that their comparative negligence systems, occasionally with some modification, should be applicable to actions brought in strict liability. Plaintiff in the instant action argues that many of these opinions have issued from federal courts whose opinions of state law are not the most persuasive precedent. In the absence of a "certified question" procedure, however, see West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976), it is often the case that the federal courts are the first to issue written opinions upon novel questions of law. Both strict liability and comparative negligence are relatively new to Kansas jurisprudence, and "we stand now at the point of confluence of these two conceptual streams." Daly v. General Motors Corp., 20 Cal. 3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978). For the reasons to be stated below, we believe the Kansas courts in the appropriate case would apply comparative negligence principles to a products liability action such as that before us, and therefore will grant that portion of defendant's motion which requests such application.
It is in a sense ironic that courts and counsel have had such difficulties resolving the perceived clash between comparative negligence and strict liability. Both concepts have grown out of a general dissatisfaction with traditional rules of negligence and tort recovery. Feinberg, The Applicability of a Comparative Negligence Defense in a Strict Products Liability Suit, 42 INS. COUNSEL J. 39 (1975). Traditional tort (and warranty) theories proved conceptually unable to protect the injured consumer of manufactured goods, so strict liability principles were fashioned to make manufacturers more responsible for injuries caused by defective products. Concurrently, dissatisfaction with traditional rules of contributory negligence and their harsh barring effect upon a plaintiff not greatly at fault led many states to adopt comparative negligence systems. Both innovations have had the effect of "evening the odds" for an injured individual faced with the prospect of grappling with complex judicial machinery and powerful commercial defendants. He need not negate his own wrongdoing as an element of his action. Brooks v. Dietz, 218 Kan. 698, 705, 545 P.2d 1104 (1976). Nor need he, in a strict liability action, prove a particular act of negligence attributable to the defendant, in keeping with the public policy of enterprise liability which underlies the § 402A concept. Wade, On the Nature of Strict Tort Liability for Products, 44 MISS.L.J. 825, 826 (1973). However, the question now presented is whether the plaintiff is entitled to an award undiminished by the percentage of causal fault attributable to himself or others he has chosen not to sue.In Brown v. Keill, supra, the Kansas court found "no social policy that should compel defendants to pay more than their fair share of the loss." Id., 224 Kan. at 203, 580 P.2d at 874. Whether the "enterprise liability" of manufacturers embodied in § 402A is an exception to this statement is the question that now confronts us.
At the outset, we wish to note the procedural problems attendant upon the application of one rule of recovery for actions brought in strict liability, and another for actions in negligence or warranty. These three theories of recovery overlap and are frequently pleaded in the alternative in products liability actions. There is particularly little difference in a design-defect case such as this one between a negligence action and an action for strict liability. See Wade, Strict Tort Liability, supra, 44 MISS.L.J. at 841; Wade, A Conspectus of Manufacturer's Liability for Products, 10 IND.L.REV. 755, 767 (1977). The "anomaly" that would result from the nonapplication of comparative negligence principles to strict liability, Butaud v. Suburban Marine & Sporting Goods, Inc., Alaska, 555 P.2d 42 (1976) thus becomes particularly evident when a products liability complaint is alternatively pleaded.
Plaintiff argues that the Kansas comparative negligence statute by its terms applies only to negligence. While this is true, it is not particularly persuasive. The Kansas Supreme Court in Brown, supra, recognized that the statute is not a model of careful draftsmanship. 224 Kan. at 199-200, 580 P.2d at 867. And, to some extent, plaintiff must rely upon a negative argument, contending that the enactment of a comparative scheme applicable to negligence was designed to preclude judicial adoption of such a scheme in strict liability actions. While at least one court has followed this reasoning, see Kirkland v. General Motors Corp., 521 P.2d 1353 (Okl.1974), it is just as reasonable to assume the passage of a comparative negligence statute was not designed to preclude a comparison of fault in strict liability actions, Wade, Products Liability and Plaintiff's Fault, 29 MERCER L.REV. 373, 380 (1978); and to extrapolate that if the principle is helpful and fair, "it should be applied by (a) court as a principle of common law." Schwartz, Strict Liability and Comparative Negligence, supra, 42 TENN.L.REV. 171, 179 (1974).
It is true some legislatures have made their will more clear by passing comparative-fault statutes which by their terms include more than mere negligence. Daly, supra, 144 Cal.Rptr. 380, 575 P.2d at 1170. Yet typically a state's adoption of strict liability (and consequent ruling that mere contributory negligence is no defense thereto) predates the adoption of comparative negligence. Schwartz, Contributory and Comparative Negligence: A Reappraisal, 87 YALE L.J. 697 (1978). This has not been the case in Kansas, for the Kansas Legislature passed K.S.A. § 60-258a two years before the Kansas Supreme Court's endorsement of § 402A in Brooks v. Dietz, supra. This rather unusual chronology was paralleled in Hagenbuch v. Snap-On Tools Corp., 339 F. Supp. 676 (D.N.H.1972), in which the court concluded the literal rules of § 402A must be altered in light of the comparative scheme employed in negligence actions in the state.
Nor do we allot great significance to the failure of the legislature to amend the statute in response to repeated suggestions and intense lobbying efforts by interested parties. Many of the proposed bills contained provisions which altered much more than the applicability of the particular comparative system employed in Kansas. It may have been felt that the courts are the more proper vehicle for "fine-tuning" comparative procedures, now that the legislative decision to abrogate common-law tort principles is evident:
The legislative will is clear. The implementation mechanism for the reduction of plaintiff's verdict is well established. If ever a court had a right to extend by analogy without waiting for further legislation on the subject, this would appear the appropriate occasion.
Twerski, From Defect to Cause to Comparative Fault Rethinking Some Product Liability Concepts, 60 MARQUETTE L.REV. 297, 331 (1977).
Nor are we particularly convinced the differences between strict liability and comparative negligence so outweigh their similarities that no synthesis is possible. While there may be theoretical points of dissonance between the concepts, they may be meshed without undue practical difficulties. Plaintiff makes much of the distinctions which have arisen between assumption of risk and contributory negligence, the latter of which is traditionally not a defense to a strict liability claim. However, it must be admitted that assumption of risk Is a "negligence" concept, and the same must be said of the "product misuse" defense applicable in strict liability actions. Hagenbuch, supra, 339 F. Supp. at 681; Feinberg, Supra, 42 INS. COUNSEL J. at 52. The distinction between contributory negligence and assumption of risk in a given case may be quite slight, turning upon fine questions of knowledge and voluntariness. If a comparative-fault system is routinely applied to strict liability actions where the plaintiff is accused of some misconduct, "there may be no need to draw such shadowy lines" which can mean the difference between a complete recovery and none at all. Schwartz, Strict Liability, supra, 42 TENN.L.REV. at 175. See also Netzel v. State Sand & Gravel Co., 51 Wis.2d 1, 186 N.W.2d 258 (1971).
Similarly, HN6 a defendant's liability in a products case turns upon questions of culpability closely akin to traditional negligence concepts. A plaintiff is not required to prove a manufacturer negligent in the classic sense, but must prove the existence of a defect and unreasonable danger resulting therefrom. Duty is presumed, and plaintiff need not demonstrate a specific act of negligence in the manufacturing process, but a product which is not unsafe or defective gives rise to no liability. Comment (h) to § 402A, which speaks of "defectiveness" in terms of safety for Normal handling and consumption, interjects negligence concepts of foreseeability and proximate cause into strict liability. Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5th Cir. 1975); See also Horn v. General Motors Corp., 17 Cal.3d 359, 131 Cal.Rptr. 78, 551 P.2d 398, 406 (1976). These similarities attenuate the practical difficulties of reaching an accord between § 402A and comparative concepts.
On the other hand, the practical difficulties which would arise from the preservation of separate applicability of the concepts are formidable. If we accept the proposition that some measure of fairness should be accorded among co-defendants, what policy commands that "the specifically negligent (and therefore more plainly culpable) tortfeasor may yet assert the victim's fault while his strictly-liable . . . companions may not."? West v. Caterpillar Tractor, Co., Inc., 547 F.2d 885 (5th Cir. 1977). If the reply to this question is that the policy in favor of imposing enterprise liability necessarily leads to this result when one defendant is the manufacturer of a product, in the interest of deterring manufacture of unsafe products, one further observation must be made. If assumption of risk is to remain a complete bar to strict liability, the "deterrent effect" argument leads to the curious situation that "it profits the manufacturer to make his product so defective that in the event of injury he can argue that the user had to be aware of its patent defects." Daly, supra, 144 Cal.Rptr. at 387, 575 P.2d at 1169. A system which makes it potentially more advantageous to be brazenly reckless than not negligent at all is certainly an anomaly.
The barring effect of traditional strict liability defenses deserves more extended comment. Strict liability was developed to free injured consumers from the constraints imposed by traditional negligence and warranty theories. Daly, supra, 144 Cal.Rptr. 380, 575 P.2d at 1169. However, after the introduction of comparative negligence systems, the strict liability action may be less advantageous to the injured consumer who contributed to his injury than an action in negligence. The Kirkland case Supra, cited by plaintiff in support of her contention that comparative liability should not be considered in this action, illustrates the harsh effects upon plaintiffs of such a view, for in that case plaintiff was held absolutely barred by her misuse of the product. See also Oltz v. Toyota Motor Sales, U.S.A., Inc., 166 Mont. 217, 531 P.2d 1341 (1975). The sole jurisdiction whose comparative liability statute is specifically made inapplicable to strict liability actions has also demonstrated the harshness of the "all-or-nothing" rule when plaintiff is himself negligent. Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 365 A.2d 1064 (1976). The appropriate remedy for such harsh results would be to reduce, and not negate, plaintiff's award, which necessitates complementary treatment of the extent of a defendant's liability.
Plaintiff has argued that a manufacturer who has observed the standard of his industry (and thus presumably is not "negligent") may be held liable in strict liability. Yet this is a difference of degree and not of kind. Negligence itself is not tied to a subjective standard. If the "ordinary, reasonable, and prudent" test imposes a higher standard upon the defendant than he is capable of, he may yet be liable:
That kind of fault known as negligence (does) not require moral blameworthiness or ethical culpability; it might include them, but it (goes) beyond to comprehend legal fault.
Wade, Products Liability and Plaintiff's Fault, supra, 29 MERCER L.REV. at 376. Imposition of strict liability for placing a bad product on the market is similarly "legal" fault. Id. at 377. HN7 While a strictly-liable manufacturer may be subject to a different standard of liability than a negligent individual, it is not by the imposition of a "higher duty" but by an easier method of recovery. In this sense, § 402A is a procedural innovation in response to a felt need to encourage safe product design and manufacture. It must be emphasized that the liability of a manufacturer is not absolute; he is not an insurer or guarantor of the consumer's safety, and strict liability is not a "no-fault" doctrine. Daly, supra, 144 Cal.Rptr. 308, 575 P.2d at 1166; Butaud, supra, 555 P.2d at 43; Note, Applying Comparative Negligence to Strict Products Liability, 4 WESTERN STATE L.REV. 283 (1977). For there to be liability, the standards of § 402A must be violated, and under the traditional tort analysis, the plaintiff's conduct must not amount to a break in the chain of causation. As long as the consumer's own conduct which caused or contributed to the injury is considered in determining the manufacturer's liability, it cannot be said that strict liability reflects a social policy that society should bear the entire cost of each products-related injury.
The rules of liability encompassed in § 402A were developed to aid the consumer "powerless" to protect himself when faced with the prospect of proving a manufacturer's negligence. Greenman v. Yuba Power Prods. Co., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 901 (1963). The burden of proof shouldered by a plaintiff will not be significantly altered by the imposition of a comparative liability system in all products cases. Thus the battle must be fought upon the field of "enterprise liability" so often used to support § 402A. We must remember that the "business" or "society" which bears the cost of a plaintiff's strict liability recovery refers in reality to other users of the manufacturer's product since the cost is inevitably passed on. Why is it desirable to transfer to these third parties the cost of that part of a plaintiff's injury which is attributable to his own culpable conduct? If comparative liability is adopted in strict liability actions, the manufacturer will not be absolved of liability; the motivation to make a safe product will not disappear. It is true the manufacturer's exposure to liability will be lessened to the extent the victim's conduct contributed to the injury, Daly, supra, 144 Cal.Rptr. 380, 575 P.2d at 1169, but it is also true the manufacturer's exposure may be increased when a normally-barred plaintiff is allowed some recovery as a consequence of the defendant's manufacture of a dangerous product.
The traditional wisdom that contributory negligence is no defense to a strict liability action accords with the modern dislike of the defense as a complete bar to an injured plaintiff's claim. The parallel development of comparative negligence reflects the same concern. We do not believe it can be questioned the comparative liability approach is a more sensible solution to the concern with barring an otherwise legitimate claim. Adoption of such a solution, however, cannot be a one-way street. The same equitable considerations which underlie comparative liability and militate against barring a culpable plaintiff must also work in favor of a defendant who does not bear all the blame for the injury:
"Such "all-or-nothing" defenses are inequitable in their operation because they fail to distribute responsibility in proportion to fault and place upon one party the entire burden of a loss for which two are, by hypothesis, responsible. If, for example, the user's conduct in failing to discover or guard against the product's defect is highly irresponsible and the product's defect slight, it offends our sense of justice and fair play to impose the whole loss on the manufacturer in the name of imposing the burden of defective products on manufacturers as one of the costs of doing business. There is no reason why other consumers and society in general should bear that portion of the burden attributable to the plaintiff's own blameworthy conduct.
When Comment (n) to § 402A, dealing with assumption of risk and non-operation of contributory negligence as a bar in § 402A actions, was formulated it does not affirmatively appear the Restatement reporter envisioned "the possibility of limiting rather than precluding liability" when the plaintiff himself was culpable. Note, 17 DE PAUL L.REV. 614 (1968). Contributory negligence and assumption of risk are common-law approaches which operate on the premise everything is "black and white." The advent of comparative liability systems has demonstrated happily that this need not be the case.
Plaintiff argues that the Kansas case of George v. Beggs, 1 Kan.App.2d 356, 564 P.2d 593 (1977) demonstrates the unwillingness of the Kansas appellate courts to treat contributory negligence and assumption of risk as allied concepts, and inferentially indicates that strict liability and negligence actions are regarded as different in kind in Kansas. We do not so view the case. In George plaintiff was an employee injured in the course of his employment, and the Court of Appeals refused to abrogate the historical defense of assumption of risk in employment cases. The Court cited the case of Borth v. Borth, 221 Kan. 494, 561 P.2d 408 (1977) for the proposition that "the doctrine of assumption of risk is still viable in Kansas though its application is limited to cases such as this where a master-servant relationship is involved. . . ." George, supra, 1 Kan.App.2d at 351, 564 P.2d at 595. Both George and Borth treat "assumption of risk" in its traditional, limited sense, see Smith v. Blakey, Adm'r, 213 Kan. 91, 515 P.2d 1062 (1973), and both apparently ignore the fact that "assumption of risk" had been mentioned as a defense to the new theory of recovery sanctioned the previous year in Brooks v. Dietz, supra.
We believe stronger indications of the course Kansas courts will follow point to the application of some comparative liability system in all products actions. Three commentators who have written articles concerning comparative negligence in Kansas have forecast the application of comparative principles to strict liability. Woods, The New Kansas Comparative Negligence Act An Idea Whose Time Has Come, 14 WASHBURN L.J. 1, 25 (1975); Schwartz, Comparative Negligence In Kansas Legal Issues and Probable Answers, 13 WASHBURN L.J. 397, 412 (1974); Kelly, Comparative Negligence Kansas, 43 J.B.A.K. 151, 199 (Fall 1974). Each of these articles is cited with approval in Brown v. Keill, supra, 224 Kan. at 202, 580 P.2d at 873. Further, when § 402A was adopted as a rule of liability in Brooks, supra, the Court cited Comment (n) to § 402A for the proposition that contributory negligence is no defense. Yet in determining whether plaintiff's conduct barred his recovery as a matter of law, the Court relied upon cases dealing with contributory negligence. Brooks, supra, 218 Kan. at 708, 545 P.2d 1104. In the (court-written) Syllabus, P 6, assumption of risk is characterized as "a form of contributory negligence." The three dissenters, led by Justice Miller, who felt plaintiff's conduct should have barred his recovery discussed the effect of the conduct "however (it) be categorized contributory negligence, assumption of risk, or contributory fault." Also, to the extent the Court's use of "negligence" and "fault" as interchangeable concepts may be significant, see Note, Products Liability, Comparative Negligence, and the Allocation of Damages among Multiple Defendants, 50 SO.CAL.L.REV. 73, 78 (1976), we note a close reading of Brown v. Keill, supra, reveals the Court speaking of the "negligence Or fault " of parties (580 P.2d at 870, 874, 876); "relative fault," "percentage of fault," and "proportionate fault," (Id. at 872, 874, 875, 876); and generally of parties "at fault" (Id. at 870, 874-76). The court speaks in terms of "negligence" alone only when discussing the language of the comparative negligence statute itself or when reviewing prior Kansas law; at every turn in interpreting the statute and prescribing the method of its operation reference is made to "fault." The consistency of the language persuades us it was not unintentional.
Finally, two recent opinions by the Kansas Supreme Court indicate that HN8 comparative negligence may be applied to an action in which the fault of one defendant is not based upon a traditional negligence theory of liability.
In Wilson v. Probst, Kan., 224 Kan. 459, 581 P.2d 380 (1978), plaintiff brought suit against several defendants for injuries resulting from a highway accident. One of the defendants joined the Kansas Secretary of Transportation as a party defendant pursuant to K.S.A. § 60-258a(c), asserting that a defect in the highway contributed to the accident. The trial court dismissed the Secretary on the ground highway defect liability is not based on negligence and cannot be compared with the liability of negligent defendants pursuant to the Kansas comparative negligence statute. On interlocutory appeal, the ruling was reversed and the Secretary reinstated as a party.
The trial court had based its ruling on the proposition the statute imposing liability on the state for highway defects, K.S.A. § 68-419, is strictly a rule of statutory liability and is not predicated upon the negligence of the state. This proposition is supported by a long line of prior cases interpreting the statute. The Supreme Court held the comparative negligence statute must be held to have altered this interpretation, and ordered the liabilities compared on the basis of proportionate fault.
In Thomas v. Board of Township Trustees, Kan., 224 Kan. 539, 582 P.2d 271 (1978), plaintiff brought suit against, Inter alia, a township for injuries arising from an automobile accident. K.S.A. § 68-301, a counterpart to K.S.A. § 68-419, by its terms imposes liability on townships for road defects, but only when a plaintiff is not contributorily negligent. Plaintiff recovered a verdict, and on appeal, the township questioned whether plaintiff's admitted contributory negligence should not bar his action and whether K.S.A. § 60-258a should apply to road defect cases.
The Court first noted that both K.S.A. § 68-301 and K.S.A. § 68-419 "have long been interpreted as based upon the theory of strict statutory liability rather than upon a theory of common-law negligence." Id. at 276. The Court cited Arnold v. Coffey County Comm'rs., 131 Kan. 343, 291 P. 762 (1930) to demonstrate that traditionally the focus has been upon the existence of a defect rather than proof of negligence:
. . . In an action of this character, the simple question is: Was the bridge, culvert or highway defective? The question of how much or how little care had been exercised by the responsible county officials in the construction or maintenance of the bridge, culvert or highway in question is of but little or no consequence. If the result of their efforts is a defective bridge, culvert or highway, such defect makes the county liable if the other elements of liability are present . . ."
Id., 131 Kan. at 346, 291 P. at 764.
The Court in Thomas proceeded to explain that governmental liability for highway defects is "a concept based upon negligence Per se " which focuses upon the results accomplished rather than the diligence exercised, citing with approval two Wisconsin cases dealing with highway defects and one case dealing with statutory "dog-bite" liability. In all the Wisconsin Supreme Court had applied comparative negligence principles; we note also that Wisconsin treats strict products liability as a form of negligence Per se for comparative liability purposes. Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). The Court concluded that the culpability of the township in Thomas was comparable to the negligence of the other parties in the case, and upheld the verdict.
This evidence of the thinking of the Kansas Court, taken in conjunction with the reasoning set forth above, convinces us some form of comparative liability will be applied to strict liability actions when the question reaches appellate review in the state court system. To reach such a result a court need not "inject negligence concepts" into strict liability, Kinard v. Coats Co., Inc., 37 Colo. App. 555, 553 P.2d 835 (Colo.App.1976), for those concepts are already there. The problems of reconciliation of comparative and strict liability are "more apparent than real." Butaud, supra, 555 P.2d at 45.
Having reached the conclusion that the respective fault or causal contribution of the parties should be compared in strict liability actions, we hasten to note one difficulty in the mechanical application of the Kansas comparative negligence statute to strict liability actions with a simple substitution of the concept "fault" or "cause" in place of the word "negligence" each time it appears in the statute.
The Kansas Legislature in K.S.A. § 60-258a adopted a "modified" rather than "pure" scheme of comparative negligence. HN9 K.S.A. § 60-258a(a) provides "The contributory negligence of any party in a civil action shall not bar such party . . . from recovering damages . . . If such party's negligence was less than the causal negligence of the party or parties against whom claim for recovery is made . . ." This "forty-nine percent" rule has the practical effect of retaining contributory negligence as a complete defense when the plaintiff is equally at fault. Schwartz, Strict Liability, supra, 42 TENN.L.REV. at 179. We question whether the imposition of this aspect of the statutory comparative negligence scheme is compatible with the reasons underlying the application of comparative liability to products actions.
At least two courts which have held strict liability actions susceptible to comparative-fault analysis have apparently adopted the "modified comparative" statutory scheme of their jurisdictions for this purpose. Hagenbuch, supra ; Murray v. Beloit Power Systems, Inc., 450 F. Supp. 1145 (D.V.I.1978). In Murray there was express comment that a plaintiff more than 50% At fault would be barred. Id., 450 F. Supp. at 1147 n. 3. However, it does not appear that in either case the court was faced with a plaintiff who would be so barred.
It may persuasively be argued that it is inconsistent with the purposes of strict liability to bar from recovery a plaintiff who is found more "at fault" than a strictly-liable defendant. In the terms of Comment (n) to § 402A, it is hardly possible to state as a matter of law that a plaintiff whose causative fault is assessed at 60% Has voluntarily assumed the risk of a known danger. His conduct may be "merely" gross negligence of the most oblivious sort. If in a strict liability action a plaintiff need not negate his own wrongdoing as an element of his action, and contributory negligence is to be no defense, Brooks, supra, 218 Kan. at 705, 545 P.2d 1104, there may be an anomaly in preserving Any vestige of the "barring effect" of plaintiff's conduct in an action founded upon § 402A. It is certainly conceivable that, in order to preserve a plaintiff's "right" not to be barred by simple contributory negligence, a "pure" comparative liability scheme should be employed in actions under § 402A. 1.
On the other hand, if the purpose of rejecting simple contributory negligence as a defense to strict liability is simply to eliminate the harsh effects of "barring" a plaintiff who is only minimally at fault, this purpose would be served by application of the entire statute, including the "49% Rule." Considerations of procedural convenience certainly militate in favor of such a course, and concern with court intrusion upon the legislative sphere makes this the easier option.
On balance, we believe the application of comparative liability in its "pure" form to § 402A actions most effectively harmonizes the policies underlying both manufacturer's liability and equitable loss allocation. We are not alone in this opinion; See General Motors Corp. v. Hopkins, 548 S.W.2d 344, 352 (Tex.1977) and Schwartz, Strict Liability, supra, 42 TENN.L.REV. at 181 (when statute is not expressly applicable to strict liability, court may apply "more appropriate" comparison system to judge-made theory of strict liability). At the same time, we recognize that persuasive arguments may be made for the preservation of the "49% Rule" in all products actions, particularly since they are often alternatively pleaded. We will decline to predict which of these options will be chosen in Kansas (assuming, of course, that we are correct in our more basic prognostication that the Kansas courts will apply comparative liability to § 402A actions). At the hearing held in the present case, there was general agreement between counsel that the fault of plaintiff's decedent was minimal at best. It appears quite likely, therefore, that we will not be faced with the problem of the 51% Culpable plaintiff in this action. Comparative negligence cases are now reaching the Kansas Supreme Court with increasing regularity; perhaps the matter will be first resolved by that more authoritative forum. Accordingly, we do not today decide whether a "pure" or "modified" comparative system should be employed in strict liability actions in this state when a plaintiff is found 51% Or more at fault.
Although we have undertaken much discussion of the applicability of comparative principles to strict liability in terms of the defenses a manufacturer may interpose against a culpable plaintiff, it should be clear the same arguments counsel in favor of allowing the apportionment of damages between negligent and strictly liable co-defendants. Safeway Stores, Inc., v. Nest-Kart, 21 Cal.3d 322, 146 Cal.Rptr. 550, 579 P.2d 441 (1978); Note, Products Liability, supra, 50 SO.CAL.L.REV. at 79-80. The present case involves chiefly questions of what may be called "comparative contribution." Davis, Comparative Negligence, Comparative Causation, and Equal Protection in the Trial and Settlement of Multiple Defendant Product Cases, 10 IND.L.J. 831 (1977). After Brown v. Keill, supra, a plaintiff suing in Kansas can no longer select between arguably negligent defendants and control the allocation of loss among or between them. Although often a plaintiff would prefer to sue a manufacturer alone since the manufacturer may be more likely able to satisfy a judgment than an individual tortfeasor who may share liability, we cannot envision why manufacturers alone should be compelled to pay "more than their fair share of the loss," Brown, supra, 224 Kan. at 203, 580 P.2d at 874. Thus in the trial of this action we will request that the jury attribute causal fault to Witherspoon as well as the existing parties, and apportion liability accordingly. Defendants' motion is granted to that extent and consistent with the discussion of comparative principles above.
C. Other Matters
At the hearing on the above motions, we requested counsel for plaintiff to brief the question whether Kansas would, in the proper case, adopt the theory of "crashworthiness" or "second-collision recovery." Our concern stemmed from the fact some courts have found no right to recovery when a plaintiff is injured in part by a vehicular design defect as a result of a collision "proximately" caused by other forces. These courts have reasoned that the intended purpose of a vehicle "does not include its participation in collisions with other objects," Evans v. General Motors Corp., 359 F.2d 822, 825 (7th Cir. 1966). See also, Simpson v. Hurst Performance, Inc., 437 F. Supp. 445 (M.D.N.C.1977); Shumard v. General Motors Corp., 270 F. Supp. 311 (S.D.Ohio 1967). Clearly the trend of the majority of jurisdictions, however, is to hold a vehicle manufacturer has a duty to design a vehicle to avoid unnecessarily aggravating injuries where the risk of an accident and the potential for enhanced injuries is sufficiently foreseeable. The Court has found thirty-six jurisdictions which have adopted this "crashworthiness" standard in one form or another; we will not cite all such cases here. Discussions of the doctrine, and citations to many such cases, may be found in Foland, Enhanced Injury : Problems of Proof in "Second Collision" and "Crashworthy" Cases, 16 WASHBURN L.J. 600 (1977); Hoenig & Goetz, A Rational Approach to "Crashworthy" Automobiles : The Need for Judicial Responsibility, 6 SW.U.L.REV. 1 (1974); Sklaw, "Second Collision" Liability : The Need for Uniformity, 4 SETON HALL L.REV. 499 (1973); and Anno., 42 A.L.R.3d 560 (1972).
Garst v. General Motors Corp., 207 Kan. 2, 484 P.2d 47 (1971) has been cited as recognizing the "crashworthiness" doctrine in Kansas. However, in Garst the plaintiff was not a passenger in the offending vehicle at the time of the injury. Most "second collision" cases involve riders or operators of the vehicle claimed to be defective, who suffer "enhanced injuries" in a crash as the result of the allegedly defective design. HN10 However, we are persuaded that, in view of the overwhelming weight of authority from other jurisdictions and the adoption of the "foreseeability" standard of § 402A in Kansas, the courts of this state would allow "second collision" recovery in a case such as that before us.
One of the difficulties some courts have had in adopting the "second collision" theory is that of causation. Typically, the occurrence or accident which brings about the injuries is "proximately caused" by an independent force in this case, the negligence of plaintiff or of Witherspoon. Of course, adherence to a "but for" or "Sine qua non " test of causation would absolve the defendant vehicle manufacturer:
Usually the absence of a causal connection between defect and injury is urged by the manufacturer as a complete bar to the plaintiff's cause of action. The legal argument is that between the design defect and the final injury comes an entirely independent and unrelated cause the collision which is the proximate cause of the injury and, the design defect being at most a remote cause, is not actionable. Those courts adopting the second collision-crashworthy theory proceed from an entirely different thesis. "Proximate cause" is defined in terms of foreseeability, thereby doing away with the "but for" rule. The questions of causation-in-fact from the defect and apportionment of the injury are then submitted to the jury. A policy argument is advanced in support of this approach: to avoid the "unjust" result of absolving the manufacturer of liability, it is necessary to ask whether the product caused the injury as opposed to asking whether it caused the accident.
Foland, Supra, 16 WASHBURN L.J. at 612.
Such a focus upon the damage wrought, rather than the event from which it arose, comports with modern legal thinking on causation, see Prosser, LAW OF TORTS (4th ed. 1971), § 42 at 248, and meshes well with a comparative fault approach. In a comparative negligence jurisdiction, the jury is asked first to determine the entirety of plaintiff's injuries, and then to apportion responsibility among those whose acts or omissions were a substantial factor in producing the damage complained of.
Indeed, the claimed difficulty in comparing negligence with strict liability is rendered all the more a "red herring" when one realizes the comparison made is of Causal fault. K.S.A. § 60-258a, and most other such statutes, speak in terms of comparing the Causal negligence of the parties, with the realization that many actors can contribute in varying degrees to the total injury suffered by plaintiff. In any products liability case cause in fact must be established; in strict liability, the claimed defect must be a causative agent of the injury. A comparative fault scheme is particularly adaptable to the comparison of negligence and strict liability, for it is implicit in such a system that "proximate cause need not be an all-or-nothing issue:"
It is . . . no longer necessary to torture ourselves with an all or nothing rule on causation. We need no longer declare that if it is more probable than not that a party caused harm then causation is established at 100%. Juries should be allowed to consider the Likelihood at a percentage basis that a party's activities caused harm.
Twerski, The Many Faces of Misuse : An Inquiry into the Emerging Doctrine of Comparative Causation, 29 MERCER L.REV. 403, 413 (1978).
In many of the cases adopting a "comparative fault" approach to strict liability, there has been a frank realization what is being compared is not fault, but cause. Pan-Alaska Fisheries, supra, 565 F.2d at 1139; Daly, supra, 144 Cal.Rptr. 380, 575 P.2d at 1168; Butaud, supra, 555 P.2d at 47 (Rabinowitz, J., concurring); Sun Valley Airlines v. Avco-Lycoming Corp., 411 F. Supp. 598, 602 (D.Idaho 1976). P.I.K.2d § 20.06 is also a formulation of this distinction:
In making the apportionment of percentage of fault you should keep in mind that the percentage of fault attributable to a party is not to be measured solely by the number of particulars in which a party is found to have been at fault . . .
You should weigh the respective contributions of the parties to the occurrence in question . . .
We are satisfied that a "comparative fault" or "comparative causation" approach will approximate the results reached in a "second collision" jurisdiction which does not compare the causal fault of the parties. In any event the vehicle manufacturer will be charged with only that percentage of causal fault attributable to the design defect complained of. Indeed, the procedural aspects of the crashworthiness doctrine appear to be at most a specialized form of comparative fault. Thus while we believe Kansas would, in the proper instance, adopt a crashworthiness standard, today's application of comparative liability to the facts of this case obviates any need to consider whether procedural adjustments are necessary to accommodate the "second collision" aspects of the case.
Defendants' motion for summary judgment is overruled and denied. The motion to join, dismiss, or compare fault is sustained so far as is consistent with the above opinion.
IT IS SO ORDERED.
Finally, the determination of which party in a products liability action benefits most from the use of comparative principles is further complicated by the reluctance of appellate courts to specify the precise procedural and substantive rules which govern cases under comparative systems.31
Daly v. General Motors Corp., 20 Cal. 3d 725, 144 Cal. Rptr. 380, 575 P.2d 1162 (1978). This determination that specific questions of procedure or application of the doctrine “are more approximately resolved at the trial level in a practical manner instead of a theoretical solution at the appellate level” was expressed earlier in the judicial adoption of comparative principles in negligence cases in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).
[b] The Impact on Plaintiffs and Defendants
Where there is ambiguity in a jurisdiction’s general position on the application of comparative approaches, or where a jurisdiction’s general adoption of those approaches does not clearly require their use in a particular case, a plaintiff is most likely to advocate their use when the plaintiff’s own conduct can be characterized as “assumption of the risk,”32 and to resist them when the plaintiff has not assumed the risk but has failed to meet a standard of reasonable care in some sense.33
The same strategy will apply when an equivalent minimum standard is used by a state as the proper measure of a plaintiff’s conduct as a defense. Comment n of § 402A addresses this standard.
See, e.g., § 9.40[5], [6] below.
As would be expected, a plaintiff whose own conduct is of such a form as to constitute an absolute bar to recovery under the original formulation of strict liability in his jurisdiction—such as in choosing voluntarily and unreasonably to assume a known risk of danger in states which follow the formulation of comment n of § 402A—is likely to receive the greatest benefit from adoption of a comparative system which lifts the absolute bar.
The potential value of recovery in such a case can be significantly boosted by the application of comparative principles if total damages in the case are substantial.
If the plaintiff’s counsel believes that the assumption of risk defense can be defeated at trial, even though some negligent acts were committed by the plaintiff, or that total damages are too low to make proportional recovery desirable, the application of comparative principles can drastically reduce the value of a case.
This is especially important if the comparative system is “modified” rather than “pure,”34 and ordinary contributory negligence is a defense; under such circumstances, the comparative approach can create an absolute bar to recovery that did not originally exist under strict liability in tort.
The extent to which adoption of a comparative system will benefit or harm the respective parties in a products liability case can also be affected by the foreseeability of the contributing conduct of the plaintiff or some third party and the treatment of causation in that state.
For example, a foreseeable type of “misuse” by a plaintiff may have no effect on recovery under a noncomparative system, but may reduce damages under comparative principles. Conversely, an unforeseeable intervening cause could completely relieve a defendant of liability under the traditional approach, yet result in a substantial recovery under a comparative approach.35
See § 9.40[1], [6] below. Note that the combination of issues of causation/foreseeability and plaintiff misconduct in “second-collision” cases makes the application of comparative principles particularly important for the outcome in those cases.
If the application of comparative principles to products liability actions meant only that conduct of a plaintiff which would previously have barred recovery—whether deemed assumption of the risk, contributory negligence, misuse, or unforeseeable superseding cause—would instead only proportionately reduce recovery, the advantages of application would clearly lie with plaintiffs.
However, the complexity and variety of the states’ attempts to merge comparative and products doctrines have made the question much more complicated.
In some cases, a defendant may seek to avoid characterizing the plaintiff’s conduct as negligent, because that characterization would facilitate a jury verdict apportioning some responsibility to the plaintiff and some to the defendant. The defendant may choose to gamble that a jury will be more likely to conclude that the plaintiff’s conduct was the sole cause of the product-related injury, if the jury has no option of dividing responsibility between the plaintiff and the defendant.36
See, e.g., Goulah v. Ford Motor Co., 118 F.3d 1478, 1486 (11th Cir. 1997), applying Florida law. The plaintiffs were not entitled to a comparative negligence instruction in a products liability case in which the defendant introduced evidence suggesting that the plaintiffs’ conduct was the sole cause of their injuries. Because the defendant did not raise a comparative negligence defense, its references to the plaintiffs’ conduct on causation grounds did not trigger the state’s comparative fault doctrines.
Cf. Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 475 (Ky. 2001). The trial court properly allowed the jury to determine plaintiffs’ comparative fault when the evidence showed that plaintiffs’ inhalation of asbestos fibers and their smoking combined to produce a single indivisible harm—lung impairment and shortness of breath. Fault has been defined in Kentucky as an act or omission that is negligent or reckless toward the plaintiff if there is a causal connection between the act or omission and the plaintiff’s injury or damages.
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