Lead Opinion
We face the question of whether the doctrine of comparative fault applies in a products liability suit maintained under the maritime jurisdiction of the federal courts. We are persuaded that it does.
I
Alfred Lewis was injured when working as a member of a crew furnished by his employer, Timco, Inc., to Atwood Oceanies, Inc. for work aboard Oceanies’ drilling barge, the Vicksburg. At the time of the accident, the Vicksburg was in Louisiana's territorial waters.
Lewis operated hydraulic tongs used to “make up” tubing joints to be placed in a well. These tongs were owned and supplied by Rebel Rentals, Inc. and were manufactured by Joy Manufacturing, Inc. On the day before the accident, equipment was accidentally dropped in the drilling hole. Edwards Rental and Fishing Tools, Inc. furnished an employee to retrieve the equipment from the hole with a special fishing tool. Lewis was using the hydraulic tongs to assist in the “make up” of the fishing tool. Because of a design defect, these tongs failed to shut off when Lewis released their throttle and a snubbing cable attached to the tongs wrapped around Lewis, seriously injuring him.
On appeal a panel of this court affirmed all but the district court’s reduction of Lewis’s award against Joy Manufacturing by the amount of his fault.
We will review comparative fault as applied under the maritime law, then turn to its application in products cases where liability rests on the principle of strict liability.
II
The citizenship of the parties was not diverse and Lewis’s suit by the time of trial was footed solely upon maritime jurisdiction. There is such jurisdiction because the injury was sustained on board a drilling barge, a “vessel,” in the navigable territorial waters of Louisiana. In maritime tort cases courts traditionally apply principles of maritime law, as informed by common law tort developments, Sea-Land Services, Inc. v. Gaudet,
III
Admiralty courts have long engaged in the exercise of comparing plaintiffs’ negligence to both fault and non-fault based liability of defendants. For example, comparative fault is applied in the strict liability action for unseaworthiness, Pope & Talbot, Inc. v. Hawn,
Lewis's desire to except maritime products cases from this consistent application of comparative fault also overlooks the fact that maritime law traditionally resists doctrinal change that might balkanize its uniformity and generality. Most notably, courts applying maritime law have repeatedly rejected choice of law notions that would reference state tort doctrines. State workers’ compensation schemes were held to be inapplicable to personal injury claims arising from maritime related work on vessels in navigable waters. Southern Pacific Co. v. Jensen,
In sum, comparative fault has long been the accepted risk-allocating principle under the maritime law, a conceptual body whose cardinal mark is uniformity. These values of uniformity, with their companion quality of predictability, a prized value in the extensive underwriting of marine risks, are best preserved by declining to recognize a new and distinct doctrine without assuring the completeness of its fit. We are persuaded that the fit within general maritime principles of a doctrine of strict liability for defective products without comparative fault would be uneven at best.
The Death on the High Seas Act, which encompasses claims for personal injuries caused by defects in products, illustrates the problems of not recognizing comparative fault in maritime products liability cases. Under DOHSA, the court is directed to “take into consideration the degree of negligence attributable to the decedent and reduce the recovery accordingly.” 46 U.S.C. § 766. If Lewis’s argument were accepted, when a worker’s death on the high seas was caused by a defective product, the recovery would be reduced on account of the worker’s negligence, but not when he was only injured. Moreover, because DOHSA applies to accidents occurring beyond a marine league from shore plaintiffs would be treated differently depending upon where a fatal accident occurred.
Other examples of its poor fit come quickly to mind in multi-party litigation so common to the admiralty practice. When a negligent plaintiff, negligent defendants, and the manufacturer of a defective product are all held jointly responsible for injuries, plaintiff’s negligence would diminish his potential recovery from the negligent defendants but not from the manufacturer. If the liability was joint and several, plaintiff could recover the entire amount of his damages from the manufacturer. From the plaintiff’s perspective, assuming the solvency of the manufacturer, it is as if there were no doctrine of comparative fault with respect to the negligent defendants as well. From the manufacturer’s perspective, contribution might be available, but somebody would bear more than his share of the damages. In other words, erosion of the comparative fault principle, once started in the products liability field, will cut at the legs of negligence as well.
While the issue seems to be open in most circuits, our decision to apply comparative fault to a strict liability case controlled by the general maritime law is supported by the only other circuit court to expressly consider the issue. In Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co.,
IV
Lewis offers two primary reasons why strict liability and comparative fault are unsuitable partners. Lewis first argues that comparing a defendant’s strict liability with a plaintiff's negligence is an “apples and oranges” effort. The argument is that while negligence focuses on a plaintiff’s personal conduct, the focus of the strict products liability action is on the condition of the product and not on the conduct of the defendant. The argument continues that this difference hinders apportionment of fault in that it requires a necessarily crude and essentially arbitrary allocation, given the task of comparing incomparable ideas.
The second and related argument against comparative fault is that it requires a trier of fact to hypothesize the fault of the defendant in an unstructured way in frustration of the allocating objective of enterprise liability. That objective is to place upon the manufacturer the burden of accidental injuries caused by its products, an objective accomplished in part by a rejection of the defense of contributory negligence. See Restatement (Second) of Torts § 402A, Comments c and n (1965). The rationale is that the manufacturer is in a better position than the user to absorb the economic loss by spreading it throughout the chain of distribution. Eventually, the cost is passed on to society in the form of an increased cost of the product. The effect of reducing a plaintiff's recovery by the amount of his fault, the argument goes, will be to reduce or remove the manufacturer’s incentive to produce safe products.
At a practical level, Lewis’s argument that negligence cannot be compared to strict liability fault overlooks the fact that such comparisons were already and inevitably required in this case. Here, apart from questions of Lewis’s own contribution to his injuries, the trial judge compared Joy Manufacturing’s strict liability fault with the negligent fault of Edwards Rental and Rebel Rentals. In short, Lewis’s proffered “conceptual problem has never bothered admiralty courts in applying the rule.” Owen & Moore, “Comparative Negligence in Maritime Personal Injury Cases,” 43 La.L.Rev. 942, 948 (1983).
Nor have the arguments persuaded common law jurisdictions for despite these conceptual attacks, see, e.g., Kinard v. Coats Co.,
Alaska was one of the first states to apply its judge-made comparative fault doctrine in a strict products liability case. In Butaud v. Suburban Marine & Sporting Goods, Inc.,
This court, applying Mississippi law, reached a similar result in Edwards v. Sears, Roebuck & Co.,
The reasoning in Butaud, Edwards, and West was amplified by the California Supreme Court in Daly v. General Motors Corp.,
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 such conceptual overlapping and interweaving in order to attain substantial justice.... 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 court also rejected the arguments that applying comparative fault would
Following the reasoning of Daly, the Third Circuit in Murray v. Fairbanks Morse,
In apportioning damages we are really asking how much of the injury was caused by the defect in the product versus how much was caused by the plaintiff’s own actions.... Although fault, in the sense of the defendant’s defective product or the plaintiff’s failure to meet a standard of care, must exist before a comparison takes place, the comparison itself must focus on the role each played in bringing about the particular injury.
Id. at 159-60 (footnote omitted).
The accuracy of the court’s observation in Murray is seen when one looks at possible jury questions. Within its broad discretion in the manner of instructing the jury a district court might sequence Rule 49 interrogatories as follows: (1) was the product defective; (2) was it a cause of injury to plaintiff; (3) was the plaintiff at fault; (4) was plaintiff’s fault a cause of plaintiff’s injury; and (5) the percentage of plaintiff’s injury caused by plaintiff’s fault. The result then is that when the jury “compares fault” the focus is upon causation. It is inevitable that a comparison of the conduct of plaintiffs and defendants ultimately be in terms of causation. “Fault” that did not cause injury is not relevant.
An increasing number of courts have been persuaded by the policy considerations articulated in such cases as Daly and Murray. See, e.g., Trust Corp. of Montana v. Piper Aircraft Corp.,
Finally, we inquire whether any strong policy of Louisiana, in whose territorial waters this accident occurred, would be frustrated by adopting comparative fault in maritime products cases. While Louisiana courts do not appear to have applied comparative fault principles to strict products liability cases, the state has no “significant policy” against doing so. Its legislature adopted a comparative fault statute that became effective on August 1, 1980. See Acts 1979, No. 431 (amending LSA-C.C.
V
It is relevant to an analysis
The short-term costs are the immediate expenditures to avoid accidents as well as the immediate costs of accidents themselves. Of course the two primary actors influenced by the rule choice are the manufacturer and the user. The manufacturer will alter its product to avoid an accident if the manufacturer’s share of the expected cost of the accident (coverage cost times the probability it will occur) exceeds the cost of altering the product. A system of strict liability with comparative fault includes in the manufacturer’s share of the accident costs only those costs caused by product defects. In that case the manufacturer will have the correct economic incentive to adjust the design of the product to minimize accident costs caused by the design. A system of strict liability with no comparative fault would add to the manufacturer’s share those accident costs caused by negligent use and not by any product defect. This increase in the manufacturer’s share would result in an increased, and therefore inefficient, level of expenditures on preventive measures.
The situation with respect to the user’s expenditures is precisely complementary. The user will intentionally alter his use of the product only if his perceived cost of altering his use to avoid an accident is less than his expected cost from an accident resulting from his failure to alter his behavior. The inclusion of comparative fault will affect user behavior in a manner that results in a more efficient utilization of resources. Under simple strict liability, as proposed by the plaintiff, the user has no economic incentive to avoid an accident that he could avoid more cheaply than the manufacturer.
Besides affecting long-term research for safe products and the immediate decisions on how much to invest in preventive measures, rules of liability affect the level of product use. When the liability for blameless accidents is placed on the manufacturer, the price of products whose use results in high accident costs will go up relative to
The final economic consideration in choosing a rule of liability is the cost of administering the system. It might appear that strict liability without comparative fault would be less expensive to administer both because it simplifies the issues at litigation and because it removes uncertainty thereby facilitating settlements, which are cheaper than trials. But see United States v. Reliable Transfer Co., Inc.,
VI
We are persuaded that general considerations of fairness and efficiency support a comparative fault defense in products liability actions. In maritime suits, these considerations are bolstered by the historical reliance on comparative fault as integral to an essentially uniform and unitary body of law. We hold that it governs here, AFFIRM the district court’s application of maritime principles of comparative fault, and RETURN the case to the panel for its review of Lewis’s assertion that the level of found fault was not supported by the evidence.
Notes
. Products cases can rest on traditional warranty and negligence grounds as well as on strict liability. We use strict liability here to refer to those cases that rest on strict liability theories such as Restatement (Second) of Torts § 402A (1965). We already apply comparative fault in negligence cases and we see no principled distinction for doing otherwise with warranty cases. The practical result is that comparative fault will apply to all maritime products cases.
. Nevertheless, we noted that the Florida Supreme Court had excepted plaintiffs’ negligent failure to discover defects or guard against the possibility of their existence.
. The “analysis” of part V presents nothing novel. It describes what maritime jurists intuitively sensed long ago. We do no more than talk in an analytical way about judgments intuitively made. Because stated rationale is a hallmark of our work, we believe the effort worthwhile, despite its rudimentary character. We suggest no decisional calculus. Instead we only acknowledge that such inquiry adds light to the problem at hand. While ultimately choices among potential tort rules may turn on notions of “fairness” as viewed through the eyes of each judge’s ethical regimen, those choices will only be guesses if the judges are inadequately informed of their impact. See Dobson v. Camden,
Dissenting Opinion
with whom
Believing the majority opinion to be at odds with the principles underlying strict liability, I respectfully dissent. Though mindful of Justice Holmes’ observation that the law is grounded in experience, not logic, Holmes, The Common Law, p. 1 (1881), I am not convinced that this case obliges us to ignore the logic underpinning the tort principles pertinent to the issue before us. I perceive strict liability and comparative fault as incompatible concepts.
Strict Liability
Strict liability is not a development in the law of negligence; it evolved separately. See, Prosser, The Law of Torts § 98 (4th ed. 1971). See also, Powers, The Persistence of Fault in Products Liability, 61 Tex. L.Rev. 777 (1983). Strict liability for goods derives from the law of warranty. See McPherson v. Buick,
Strict liability is based on a theory of responsibility which requires no finding of fault. The law of strict liability, applicable in some form in most American jurisdic
A negligence action focuses on conduct, specifically the quality of the act causing the injury; a strict products liability action focuses on the product itself. The moving force behind the strict products liability concept is the determination to reduce the risks defective products impose on society. The rise of strict liability in products liability actions results from the perception that the manufacturing enterprise can best carry the cost of injuries occasioned by defective products as an element of product cost.
Comparative Fault
Fault is blameworthiness. “ ‘Fault’ in legal literature is the equivalent of negligence.” Continental Insurance Co. v. Sabine Towing Co.,
That the fault of two parties in an action can be compared is well accepted in the law, serving as the basis for both comparative negligence and contribution statutes. The latest wisdom on the subject is the Uniform Comparative Fault Act (1977). Courts have had no particular difficulty determining relative degrees of fault between multiple parties when the liability for all parties is based in negligence. See, e.g., Shows v. Jamison Bedding, Inc.,
Although fault may be present, there is no requirement of traditional fault in a strict liability situation. The theory of strict liability does not lend itself to a comparison of fault. Some courts and commentators have characterized the attempt as involving “apples and oranges.”
Beyond this pragmatic question of comparison, the exercise erodes the theory of strict liability. If a defendant liable under a strict liability rule can mitigate damages by showing the plaintiff’s fault, then the plaintiff will be forced to show the defendant’s “fault” in order to lessen by comparison his own. This inappropriately reintroduces the element of fault into a strict liability action.
Courts and commentators have consistently emphasized the discreteness between remedies in strict liability and in negligence.
Strict liability, as I perceive it, allows a plaintiff in certain situations to escape his own negligence, a reality factored into the construct of the policy. The panel opinion in this case, now vacated, would have limited the type and extent of negligence which would be so held for naught.
Comparative Fault and Strict Liability Maritime Actions
Admiralty law allows two distinct remedies for injury: negligence and unseaworthiness, a type of strict liability. Pope & Talbot v. Hawn,
The Ninth Circuit is the only circuit to face squarely the issue of comparative fault in strict liability admiralty cases. Pan-Alaska v. Marine Construction & Design Co.,
In Dippel v. Sciano,
In Sun Valley Airlines v. Avco-Lycoming, Inc.,
In Hagenbuch v. Snap-on Tools Corp.,
In Butaud v. Suburban Marine & Sporting Goods, Inc.,
The final case cited in Pan-Alaska is our decision in Edwards v. Sears Roebuck & Co.,
I am persuaded, as earlier stated, that Pan-Alaska is inconsistent with the purpose and rationale of strict liability. I would not make its holding the law in this circuit. To do so further exacerbates the problem courts have had in distinguishing strict liability from negligence.
The Sea and Comparative Negligence
The court today is of the opinion that the Jones Act, 46 U.S.C. 688, and the Death on the High Seas Act (DOHSA), 46 U.S.C. § 766, permit, perhaps invite, the application of comparative negligence principles in a strict liability case. I cannot agree.
The doctrine of unseaworthiness has been a part of our maritime law since The Osceola,
In maritime torts, courts have traditionally applied common law rules, Sea-Land Services v. Gaudet,
Comparative Causation as a Basis of Apportioning Responsibility
I am not persuaded to the majority’s view, but I would agree that some assessment of comparative responsibility may be made in this case. I find that causal apportionment
In an action against a strictly liable defendant, there must be an equitable reason for mitigating a plaintiff’s recovery when the policy for allowing it in the first place is a belief that the enterprise should bear the costs for the injuries it inflicts through its products. I would suggest that a threshold assessment of the plaintiff’s fault be made as part of the determination whether damages should be mitigated. The actual comparison for mitigation purposes would be based on how much the plaintiff contributed to the cause of the accident, not on how blameworthy the plaintiff was. If the plaintiff is found free of fault there would be no reduction and the strictly liable party would bear all of the costs, despite a shared causation. This approach would equitably apportion responsibility consistent with the policies of strict liability.
There is nothing novel or unusual about using causation to gauge liability. See, e.g., In re Polemis & Furness, Withy & Company, 3 K.B. 560 (1921). The civil law has long recognized causation as a basis for allocating responsibility. See Lawson & Markesinis, Tortious Liability for Unintentional Harm in the Common Law and the Civil Law, pp. 106-142 (1982). Moreover, the use of causal influence as an element of comparative responsibility is acknowledged in the Uniform Comparative Fault Act, see Comment to § 2(b) of UCFA (1977).
Can the average fact-finder apportion causation? I think so. I am convinced that judges and juries would have no more difficulty determining causation than they do
I would not reduce the plaintiff’s recovery based on an evaluation of his negligence in the use of the faulty product. But I would not be adverse to permitting the manufacturer to reduce the amount of damages by first showing plaintiff’s fault and then showing the extent to which Lewis’ actions actually caused the injuries he sustained. This may be viewed as a mere difference in semantics from the holding of the majority; I do not think so and respectfully dissent.
. § 402 A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
. “... the purpose of such liability is to insure that the costs of injury resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” Greenman v. Yuba,
. As a policy matter, strict liability in products cases deals with enterprise responsibility; “public policy demands that the burden of accidental injuries caused by products intended for consumption be placed on those who market them, and be treated as a cost of production against which liability insurance can be obtained.” Restatement (Second) of Torts, § 402A, Comment L. See also, Elmore v. American Motors Corp.,
. See, e.g., Daly v. General Motors Corp., 20 Cal.3d 725, 762-63,
. This is clearly expressed in the comments to Restatement (Second) of Torts, § 402A, Comment a (1965). See also, Greenman v. Yuba Power Products, Inc.,
. This point has bothered at least one court, and apparently significantly contributed to its finding of a basis of comparison: “[I]t would be anomalous in a products liability case to have damages mitigated if the plaintiff sues in negligence, but allow him to recover full damages if he sues in strict liability.” Butaud v. Suburban Marine & Sporting Goods, Inc.,
. I go no further than those situations in which the plaintiff’s “fault” is grounded in simple negligence.
. The Supreme Court of Wisconsin reiterated this analysis in Powers v. Hunt Wesson Foods,
. It should be noted further that in this case we made the assumption that Mississippi law would follow the urgings of Professor Wade in his article “Strict Tort Liability” 44 Miss.L.J. 825, 850 (1973), which advocated the use of comparative fault principles to strict liability actions. However, since Professor Wade based his contention on the Wisconsin case of Dippel v. Sciano,
. Whether strict liability is a fair and just standard of allocating responsibility is the subject of a lively debate. See, e.g., Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973); Epstein, Defenses and Subsequent Pleas in a System of Strict Liability, 3 J. Legal Stud. 165 (1974); Fletcher, Fairness and Utility in Tort Theory, 85 Harv.L.Rev, 537 (1972); Schwartz, The Vitality of Negligence and the Ethics of Strict Liability, 15 Ga.L.Rev. 963 (1981). Unless, however, we determine to abolish strict liability as a basis of liability, we should accept the logical conclusions of its results as just.
. I do not share the majority’s view that fault and causation are the same thing and consider it important to distinguish between them. Fault relates the specific act to responsibility. See, generally, Prosser, The Law of Torts, (4th ed. 1971) ch. 5. The question posed is whether the act itself is less than the standard required by law. Causation relates the act to the result. See, generally, Hart and Honore, Causation in the Law, 1959; Becht and Miller, The Test of Factual Causation, 1961; Malone, Ruminations on Cause-in-Fact, 9 Stan.L.Rev. 60 (1956); Green, The Causal Relation Issue in Negligence Law, 60 Mich.L.Rev. 543 (1962). Questions of causation are not based on the normative analysis of the quality of the act, but are focused on whether there is a nexus between the act and the result. Fault and causation are not interchangeable terms. Prosser, The Law of Torts, (4th ed. 1971) p. 142.
The possible jury instructions suggested by the majority reflect the inherent confusion in the two concepts. Under the charge the jury would be asked “was plaintiffs fault a cause of plaintiffs injury?” I perceive the appropriate question to be “was plaintiffs act or forbearance which you find blameworthy part of the cause of the injury? If so, what percentage of the cause do you find.?” The focus should be on the act itself, not on a normative evaluation of the quality of the act.
. Psychologists have determined that causality is one of the first concerns the human mind learns to grasp, and that this is developed before the intellectual development of the understanding of moral culpability. See, e.g., Piaget, The Child’s Conception of Physical Causality (1960).
Although sophisticated academic formulations have been devised, see, e.g., Rizzo & Arnold, Causal Apportionment in the Law of Torts: Am Economic Theory, 80 Col.L.Rev. 1199, legal scholars acknowledge that ordinary people make such determinations in their normal course of life, Hart & Honoré, Causation in the Law, ch. II (1959).
. See, e.g., Epstein, A Theory of Strict Liability, 2 J.Leg.Stud. 151 (1973); Epstein, Defenses and Subsequent Pleas in a System of Strict Liability, 3 J.Leg.Stud. 165 (1974); Epstein, Intentional Harms, 4 J.Leg.Stud. 391 (1975); ¡Sorgo, Causal Paradisms in Tort Law, 8 J.Leg. Stud. 419 (1979); Note, Comparative Causation, Indemnity, and the Allocation of Losses Between Joint Tortfeasors in Products Liability Cases, 10 St. Marys L.J. 587 (1979); Twerski, The Many Faces of Misuse: Inquiry into the Emerging Doctrine of Comparative Causation, 29 Mercer L.Rev. 403 (1978).