Alfred Lewis, Cross-Appellee v. Timco, Inc. v. Joy Manufacturing, Cross-Appellant

$300,000.00 sonal in net out-of-pocket loss

expenses profits may prove lost inaccu- LEWIS, Plaintiff-Appellant Alfred rate; his losses are offset certainly Cross-Appellee, $162,000.00 share of the he conceded was from the recouped rights sale all in the TIMCO, INC., al., et housing to another project developer. But Defendants-Appellees, the fact that plaintiff ask too much does not prove indicate he cannot certainty reasonable actual loss attributable MANUFACTURING, JOY to defendants’ conduct. Inasmuch as we Defendant-Appellee hold that Scott limited to Cross-Appellant. injuries those fairly traceable to the with- holding 14, 1978, until permit April No. 81-3022. claim Scott’s damages be sufficient- Court Appeals, United States ly circumscribed to pitfalls avoid the Fifth Circuit. complain. Therefore, defendants judgment summary should not have been Sept. granted ground either.

III.

We disposition summarize our ap- of this

peal. standing has to bring Scott this suit.

The dismissal the private de- landowner Ashmore,

fendants Peddycord and Farmer parties affirmed, to this action is as is

the dismissal of Scott’s claim of taking

without just compensation. The judgment

in favor of remaining defendants on equal protection

Scott’s process and due 1983 claims is reversed. Also reversed

are the grants immunity to Greenville

County and to County Council members

in their capacities, official although in their capacities

individual the Council members

will be entitled to quali- raise defense of

fied immunity. PART;

AFFIRMED IN IN REVERSED

PART, AND REMANDED.

projections occupancy certainty rent collection. Jeansonne, Jr., Lafayette, La.,

John A. Joy Mfg. for Newton, Jr., Elkins, T. Charles Vinson & Houston, Tex., Pe- Watson, for Harold K. Assoc., cu- amicus Equip. Suppliers troleum riae. BROWN, CLARK, Judge, Chief

Before GARZA, REAVLEY, GEE, RUBIN, POL- RANDALL, TATE, JOHNSON, ITZ, WIL- LIAMS, GARWOOD, and HIGGIN- JOLLY BOTHAM, Judges. Circuit HIGGINBOTHAM, Circuit E. PATRICK Judge: whether the doc-

We face applies prod- trine under suit maintained ucts of the federal courts. jurisdiction maritime are does. persuaded We injured working when Lewis was Alfred by his a crew furnished as a member of Oceanies, Timco, Inc., to Atwood employer, drilling for work aboard Oceanies’ Inc. the time Vicksburg. At barge, the in Louisiana's accident, Vicksburg was waters. territorial used tongs hydraulic operated Lewis placed in a joints to be up” tubing “make supplied were owned and tongs These well. Rentals, were manufac- Inc. and by Rebel On the Manufacturing, Inc. by Joy tured II, accident, was ac- Guillory, Dupre, equipment K. Cornelius Robert day before La., drilling Ed- Eunice, in the hole. dropped for Lewis. cidentally Tools, fur- Inc. Fishing wards Rental La., Timco, Broussard, Lafayette, Hal equip- to retrieve the employee nished an Inc. special fishing the hole with ment from Juneau, La., Jr., A. Lafayette, Patrick tongs using hydraulic tool. Lewis Petroleum. Home fishing up” in the “make assist Contois, Jr., Edith Brown Robert M. defect, these design aof tool. Because Orleans, La., Clement, for Atwood New re- off when Lewis to shut tongs failed Oceanic, Inc. cable snubbing and a their throttle leased Lew- around tongs wrapped to the Diaz, La., E. for Rebel attached Lafayette, James is, injuring him. seriously Rentals.

A trial to the court resulted in its application an award in products cases where lia- permanently for Lewis’s serious and disa- bility principle rests liabili- injuries. The trial court bling found multi- ty.1 Finally, poli- we will explain basic ple injury. causes for the It found that cy choice make. We turn first to negligent Lewis was attempting make parative fault jurisprudence, in maritime tool up fishing joint without adjusting to explain jurisdiction our pausing length snubbing of the line. It found relevance of state law. that the tongs by Joy manufactured Manu- facturing design had a defect that allowed II them to operating continue when the throt- The citizenship parties was tle was released. It also found that Rebel’s not by diverse and Lewis’s suit the time of representatives were negligent failing in to trial footed solely upon juris was maritime as proper instruct Lewis to the method of diction. There jurisdiction is such because synchronizing tong Finally, controls. the injury was sustained on a drilling board that employee found the Edwards had been “vessel,” barge, navigable territori negligent advising not Lewis to shorten al waters Louisiana. In maritime tort the snub The trial court apportioned line. cases courts traditionally apply principles of 20 of the fault each percent Manu- Joy law, by maritime as informed common facturing Rentals, and Rebel 10 percent developments, tort Services, Sea-Land Inc. Rental, percent Edwards and 50 to Lewis. Gaudet, 806, 573, v. 414 94 S.Ct. U.S. appeal panel On of this court affirmed (1974), L.Ed.2d 9 unless a policy determina all but the district court’s reduction Lew- tion by Congress. has been made Mobil is’s award against Joy Manufacturing by Oil v. Corp. Higginbotham, 436 U.S. (5th amount of his fault. 697 F.2d 1252 S.Ct. 56 L.Ed.2d 581 Admiral Cir.1983). granted petition We to rehear ty but, courts make their own decisions true en banc the manufacturer’s entitlement to legal analogical processes, do so with an Joy reduction. Lewis that argues Man- awareness other courts’ solutions to simi ufacturing’s liability for the defect lar problems, sensitive to a “signif whether not should be reduced that by icant state ter policy” within whose injury by caused his own negligence. He injury ritorial waters the occurred “would argues alternatively that if comparative be frustrated application.” such fault be applied the trial court’s assessment Watz Zapata Off-Shore percent of 50 was clearly erroneous. The (5th Cir.1970). panel having concluded that comparative be applied did not reach of whether there was suffi- III cient evidence to sustain level of fault. Admiralty long engaged courts have We find that issue appropriate for decision in the exercise comparing plaintiffs’ neg panel and return case to it for ligence to both fault and non-fault based that review. decide We trial com example, of defendants. For court was correct in its decision that parative fault is in the strict liabili applied maritime principle comparative unseaworthiness, ty Pope action for & Tal applicable urge in maritime eases that bot, 406, 408-09, Hawn, Inc. U.S. liability for in products. defects 202, 204, (1953), per 98 L.Ed. 143 Act, comparative injury

We review sonal ap- actions under the Jones plied under brought the maritime then turn to U.S.C. actions under § princi- 1. Products can cases rest traditional war- fault in cases see and we no ranty negligence grounds pled doing as well as on with war- distinction otherwise We use strict here to ranty practical cases. The result refer those cases that rest on strict parative apply prod- fault will to all maritime (Second) theories such as Restatement Torts ucts cases. already apply comparative 402A We § recognize Act, declining High preserved by U.S.C. best Death on Seas longshoremen’s against suits assuring distinct doctrine without new and § and Har- Longshoremen’s under the vessels per- of its fit. We are completeness Act, Compensation bor 33 U.S.C. Workers’ general within maritime suaded that fit & seq. Gay Transport et v. Ocean of strict of doctrine principles Ltd., F.2d Cir. Trading, defective without admiralty personal rule in in- 1977). “The at best. fault would uneven is, effect, one of jury cases Act, High The Death on Seas Black, negligence.” G. Gilmore C. personal injuries claims for encompasses 1975). Admiralty (2d Law of ed. .n. products, illustrates defects prod- desire to maritime except Lewis's compara- problems recognizing of not application ucts cases from this consistent products liability tive fault in maritime fault also overlooks the fact DOHSA, the court is directed cases. Under traditionally that maritime law resists doc- degree of to consideration the “take into change might trinal balkanize its uni- to the decedent and attributable negligence formity generality. notably, and Most accordingly.” recovery reduce law re- applying courts maritime have argument were If Lewis’s U.S.C. § rejected choice peatedly of law notions that accepted, a worker’s death on the when state tort would reference doctrines. State high by prod- was caused a defective seas compensation workers’ schemes were held uct, recovery would be reduced on to claims inapplicable personal injury be to negligence, of the worker’s but not account arising from maritime related work on ves- Moreover, injured. he be- when was navigable waters. sels in Southern Pacific to accidents occur- Jensen, applies cause DOHSA 205, 37 Co. v. U.S. S.Ct. a from shore ring beyond league marine negligence L.Ed. 1086 State law per- in a applicable differently was held maritime would be treated de- plaintiffs suit, injury sonal Carlisle Co. Packing where a fatal accident oc- pending upon Sandanger, 259 U.S. S.Ct. curred. (1922), including L.Ed. 927 state defens- fit come examples poor Other of its contributory Pope es & Tal- negligence, of multi-party litigation to mind in so quickly bot, Hawn, 409-11, Inc. v. U.S. When a admiralty practice. common to the Congress S.Ct. at 204-06. In 1948 extended defendants, negligent negligent plaintiff, jurisdiction admiralty shoreward with the prod- of a defective and manufacturer Act, of Admiralty Extension U.S.C. inju- responsible held jointly uct are all juris- that maritime provides ries, negligence would diminish by diction shall include loss caused a vessel from the potential recovery negligent injury water even if the navigable but not from the manufacturer. defendants finally suffered on land. Even resort several, joint plain- and If the wrongful states’ death statutes ended amount of his tiff could recover the entire recognition general right of a maritime law the manufacturer. From damages from wrongful Moragne death. plaintiff’s perspective, assuming the sol- Lines, States Marine U.S. manufacturer, it is as if there of the vency L.Ed.2d 339 see Mat- comparative fault with no doctrine of Helena, ter were of S/S Cir. as well. 1976). negligent defendants respect con- perspective, From the manufacturer’s sum, long fault has been available, might somebody be but tribution principle accepted risk-allocating under dam- than his share of the would bear more conceptual the maritime a whose body words, erosion of the com- ages. In other uniformity. cardinal mark is These values in the once parative principle, started of uniformity, quality with their companion field, legs at the will cut products the ex- predictability, prized value in risks, well. marine are underwriting tensive doctrine of seaworthiness crude and arbitrary allocation, traditional essentially given comparing also If a the task of likely incomparable will affected. vessel is unseaworthy product because was defec- ideas.

tive, we forced decide whether to argument against The second related product the manufacturer of the to a hold requires fault is that it a trier stricter standard of than the vessel hypothesize the fault of the de- fact owner, traditionally a near insurer in cases in an way fendant unstructured in frustra- unseaworthy taxing vessels. Even more allocating objective tion of the of enterprise categorization process will be the as seamen That objective place upon is to attempt escape fault of the burden of manufacturer accidental the traditional of unseaworthiness theory injuries objective an products, label their case Ulti- cases. rejection accomplished mately, be the inquiry there would contributory negligence. defense of whether a vessel is product. not itself 402A, (Second) Restatement of Torts § see, imagination pre- takes little indeed c n Comments rationale is dict, reject comparative should we posi- manufacturer better fault, many circuit maritime torts our tion than user to absorb the economic compan- will become cases with the by spreading throughout loss the chain of problem ion that the courts this circuit Eventually, distribution. cost is passed would be favored over more convenient society on to in the form of increased courts seamen with a choice forum. product. cost of reducing The effect of a plaintiff's recovery by the amount of his in open While the issue seems to most fault, argument goes, will be to reduce circuits, comparative our decision to apply or remove the manufacturer’s to incentive to liability by fault a strict case controlled produce products. safe general law supported by maritime other circuit expressly level, court practical argument At a Lewis’s consider the issue. In Fisher- Pan-Alaska compared that cannot be ies, Design Inc. v. Marine & Construction liability strict fault overlooks the fact that Co., (9th Cir.1977), 565 F.2d 1129 the Ninth comparisons already such were and inevita- Circuit, impressed the recent by endorse- Here, in bly required apart this case. from comparative by ment of state courts questions of Lewis’s own contribution to his by prevalence and of comparative fault injuries, judge Joy the trial Man- compared law, in damages maritime held that ufacturing’s liability strict fault with the by a plaintiff suffered in a maritime strict Reb- negligent fault of Edwards Rental and products liability by case could be short, reduced el proffered Rentals. In Lewis’s his fault’s injury. contribution his “conceptual problem has never bothered ad-

miralty in the rule.” applying courts Owen Moore, in “Comparative Negligence Mari- IV Cases,” Injury time Personal 43 La.L.Rev. primary why Lewis offers two reasons liability comparative strict and fault are partners. unsuitable argues arguments persuaded Lewis first Nor have comparing despite that defendant’s strict these con- jurisdictions mon attacks, see, with a plaintiff's negligence is an Kinard v. Coats “apples ceptual oranges” argument Co., and effort. The is that the ma- (Colo.App.1976), 553 P.2d 835 while negligence focuses on a courts and federal courts jority state conduct, personal sitting diversity the focus of the strict that faced this have products fault, comparative action on the condition issue have held courts, and adopted legislature not on the conduct of argument the defendant. The applied continues should be to actions founded reasoning apportionment products liability. difference hinders strict Their requires necessarily supports application in that Wade, Tort (quoting Liability,” “Strict prod- cases based on strict fault maritime (1973)). Similarly, Miss.L.J. ucts Co., Inc., 547 Tractor Caterpillar West v. of the first states Alaska was one held, response (5th Cir.1977), F.2d its doc- apply judge-made answer to Supreme the Florida Court’s In trine in a strict case. products ... that “strict question, certified Sporting Marine & Butaud v. Suburban actions, and that want of lies in bystander 1976), Goods, Inc., (Alaska 555 P.2d negli- due care—in its ordinary analyzed the pur- Court Supreme Alaska We thus gence form—is defense....”2 emphasized and poses of the doctrines two plain- a 35 reduction in percent affirmed that would exist the anomalous situation judgment tiff’s to reflect fault. have “in a case to dam- Butaud, Edwards, reasoning plaintiff negli- ages mitigated if the sues by the California Su- amplified West was full gence, allow him to recover dam- but v. General Motors preme Daly Court in liability, particularly if sues ages he in strict Cal.Rptr. Corp., 20 Cal.3d contains alternate complaint where the (1978). Extending judge- P.2d 1162 lia- negligence, counts for system to comparative fault “pure” made bility, warranty.” breach of Id. and/or cases, rejected the court omitted). concluded (footnote The court now made Lewis arguments same public policy reasons “the that the two con- suggestion answered product liability incompa- do seem be merged: cannot be cepts comparative negligence. tible with “apples in the difficulty The inherent for all the manufacturer still accountable is its insistence on oranges” argument except that product, harm from a defective treatment precise fixed and definitional consumer’s own con- areas legal concepts. evolving duct.” Id. products liability and tort defens- of both court, Mississippi applying This es, however, developed has such there reached a similar result in Edwards v. interweaving overlapping and conceptual Sears, Roebuck & justice.... in order to attain substantial Cir.1976). The trial there had in court think, accordingly, the conclusion We the conduct of jury compare structed the to that the terms “com- may fairly be drawn the to plaintiffs, the defendants and decide “contributory negli- parative negligence,” to of the acci if both contributed the cause not, “assumption and of risk” do gence” dent, to plaintiff’s and then reduce alone, to the standing lend themselves the extent to negligence to his contributed a exact measurements of micrometer-cali- Holding “the trial court the accident. that as to precise to definition per, or such the the thicket of path through took correct strong and con- us otherwise divert .from contributory negligence,” and countervailing policy considera- sistent “a we remarked that noted commentator consistency at tions. Fixed semantic that interaction suggested proper has the the important than attain- point is less contributory between strict and result. just equitable ment of a and apparent ‘should be on reflec at 1167-68. 575 P.2d system comparative to a apply tion. is arguments the rejected The court also pure type apply fault of the it to strict ” comparative fault would applying Id. 290 that negligence.’ as well as at comparison Nevertheless, is that such be made we noted that the Florida Su- excepted plaintiffs’ negligent preme inquiry into whether Court had the initial subsumed guard against concept or the failure to discover defects is in actuali- defect existed and that possibility of their existence. 547 F.2d at 887 ty comparative hand On the other causation. Inc., Co., Caterpillar 2.n. See West v. Tractor opposite conclu- reached the the Ninth Circuit (Fla. 1976). 336 So.2d 80 This case does Pan-Alaska, v. Marine Const. sion. ETC. plaintiffs present of whether Co., Design We F.2d failing can “fault” in to discover the defect day. question to another leave the recovery. argument serve to reduce his An protection erode the afforded the strict the manner of instructing jury a liability doctrine and reduce the incentive to might sequence district court Rule inter- In produce products. response safer to the rogatories (1) product as follows: was defective; concern that fault would di- (2) it a injury was cause of to consumers, protection of fault; minish the court plaintiff; (3) plaintiff (4) was the at that emphasized plaintiffs will continue to plaintiff’s plaintiff’s cause of proving be relieved that manufacturer (5) percentage plaintiff’s injury; negligent distributor was and that their fault. injury The re- recovery will be only reduced to the extent sult then that when the jury “compares their lack of reasonable care contributed to fault” the focus causation. upon It is the injury. Id. at 1168. The court also inevitable comparison that conduct manufacturers, reasoned that who cannot plaintiffs ultimately and defendants be assume the users a defective to in terms of causation. “Fault” that did not blameworthy, will not face in- reduced cause is not relevant. injury continuing centives because their An increasing number courts have for a defective product “will lessened been persuaded by policy considerations extent trier finds that articulated in such cases as Mur Daly and inju- victim’s conduct contributed See, ray. Corp. Trust of Montana v. Moreover, Id. ry.” at 1169. the court not- Piper Corp., F.Supp. Aircraft ed that the extension of princi- (D.Mont.1981) law); (applying Montana ples to strict liability actually pro- Co., Star Furniture Co. v. Pulaski Furniture relieving duce “felicitous result” of (W.Va.1982); Kaneko Hilo S.E.2d v. inequities associated with absolute defenses Coast Processing, (Hawaii 654 P.2d 343 provide windfalls to manufacturers. 1982); Kennedy City Sawyer, 4 Kan. Id. App.2d (Ct.App.), 608 P.2d Following reasoning Daly, aff’d, Kan. 618 P.2d 788 Morse, Murray Third Circuit in v. Fairbanks Hyster Baccalleri v. 287 Or. 597 P.2d (3d Cir.1979) 610 F.2d 149 (applying Virgin recently, Most the Texas Su- law) Islands responded sugges- also preme Court Duncan Cessna Aircraft tion a trier fact will be unable to Co., (Tex. July 16, 1983) Tex.S.CU. apportion fault a negligent plain- between applied comparative prod- tiff a strictly Though liable defendant. despite ucts cases a compara- conceding no proven faulty that “there is tive contribution statute held otherwise compare conduct of defendant inapplicable cases. faulty plaintiff,” conduct of the short, same time that much court noted that: judicial compar- learning moving towards In apportioning damages we are really cases, ative fault in strict Lewis asking how the injury much of was would have us those principles abandon by caused defect in the ver- product the maritime law. how sus much was caused by plain- Finally, any strong we whether inquire fault, tiff’s own Although actions.... Louisiana, policy in whose territorial in the sense of the defendant’s defective occurred, waters this accident product or the plaintiff’s failure to meet comparative fault in by adopting frustrated care, a standard of must exist before a maritime cases. While products Louisiana comparison takes place, comparison do to have com- appear applied courts itself must focus on the role each played parative products to strict principles bringing particular injury. about the cases, “significant has no state (footnote

Id. omitted). at 159-60 doing legislature policy” against so. Its accuracy adopted of the court’s observation in fault statute Murray is seen 1980. See possible August when one looks became effective on questions. jury (amending Within its discretion Acts LSA-C.C. broad No. 431 an if product alter its to avoid accident comparative fault will some 2323). Unlike Art. expected share to actions apply only the manufacturer’s expressly statutes that see Kirkland cost times the (coverage upon negligence, based cost of the accident (Okl. 521 P.2d Corp., occur) Motors exceeds the cost General it will probability applies 1974), Louisiana’s statute A of strict product. system altering “[w]hen to a applicable is contributory negligence comparative fault includes liability with It re- damages.” proportionately claim for the accident share of manufacturer’s inju- person “a suffers duces when product by costs caused costs those his result partly or loss as the ry, death case the manufacturer will defects. In that as result of partly own incentive ad- have the correct economic persons....” or person fault of another to minimize design product just We have cer- recently Art. LSA-C.C. design. A accident costs Supreme Court the tified the Louisiana compara- with no of strict system recognizes whether Louisiana add to manufacturer’s tive fault would as defense contributory negligence by negli- those accident costs caused share action, see Bell v. Jet products defect. by any product gent use and not (5th Cir.1983). Blast, Wheel share manufacturer’s This increase U.S.A., Inc., 697 F.2d also v. Chevron Hyde increased, and therefore in an would result Cir.1983); Plant, “Comparative preven- inefficient, expenditures level Negligence Liability,” and Strict Tort tive measures. La.L.Rev. 403 While respect the user’s The situation reading uncertain in this of Louisiana complementary. precisely expenditures is recognition we are confident alter his use of intentionally The user will will not products cases parative cost of perceived if his product only policy of Louisiana. “frustrate” a dedicated is less altering his use to avoid an accident an accident expected cost from than V behav- failure to alter his resulting from his analysis3 to an of how a relevant will ior. The inclusion rule for accident losses allocates re- a manner that affect user behavior in product from use of a to consider: resulting of re- efficient utilization sults in a more cost; (2) (1) long-term short-term and liability, as simple sources. Under of use of the econo- amount has no the user plaintiff, proposed (3) cost of my “activity”; adminis- accident that avoid an economic incentive tering the rules of It is relevant cheaply than the manu- he could avoid more because fault has both an ethical and facturer. ex- efficiency dimension. The latter prevent by asking can pressed party research for affecting long-term Besides injury at the least costs. decisions and the immediate products safe meas- preventive invest in on how much to The short-term are the immediate costs ures, affect the level rules of expenditures to accidents well as avoid liability for blame- product use. When them- the immediate costs of accidents manufactur- placed on the less accidents primary actors selves. Of course the two er, whose use results price the manu- influenced the rule choice are up relative go costs high manufacturer accident facturer and the user. The ultimately problem “analysis” presents nothing at hand. While 3. The V of jurists among potential turn on It intui- tort rules novel. describes what maritime choices tively long ago. through than sensed We do no more as viewed of “fairness” notions way judgments analytical regimen, intu- talk in an about judge’s those eyes ethical of each itively stated rationale is a made. Because judges guesses are be if choices will work, of effort hallmark worthwhile, our we believe the impact. See inadequately of their informed rudimentary despite its character. Camden, 759, (5th n. 1 Dobson v. suggest We only no decisional calculus. Instead Cir.1983). light acknowledge inquiry that such adds fault, use those whose results in small accident panel RETURN case use of Lewis’s comparative costs. The of the fault for review assertion that the of supported by risks level found fault was not non-negligent standard reduces the the evidence. indirectly for paying negligent users users. comparative The fault standard allows the POLITZ, Judge, Circuit with whom product of the to reflect the cost of its

price WILLIAMS, and JERRE JOHNSON S. Cir- non-negligent comparative use. Hence a join, Judges, dissenting: cuit the economically fault standard allows effi- Believing majority opinion to be If, of the be product cient amount used. principles underlying odds with the strict example, particular piece the use of a respectfully Though I liability, dissent. has equipment costly resulted in several mindful of Justice Holmes’ observation user, accidents to the due experience, logic, the law not grounded will product up the cost of the not driven Holmes, Law, (1881), am p. The Common I expected because of the cost of accidents obliges not convinced that this case us to producer for which the will be or has been logic the tort ignore underpinning prin- producer liable. The will not have to pertinent ciples to the issue before us. charge non-negligent premium a consumers perceive liability comparative by neg- to cover the from liability accidents incompatible concepts. fault as ligent proper users. The use of a safe by negligent be stifled use. Strict Liability The final economic consideration in liability development is not in the Strict choosing liability a rule of is the cost of law of negligence; separately. it evolved administering the system. might appear See, Prosser, The Law of Torts 98§ liability without 1971). also, Powers, The ed. See Persist- expensive less administer Liability, ence Fault Products 61 Tex. it simplifies both because the issues at liti- (1983). liability goods L.Rev. 777 Strict gation uncertainty and because it removes warranty. derives from the law of settlements, thereby facilitating which are Buick, McPherson v. 217 N.Y. 111 N.E. cheaper But than trials. see United States (1916), liability and its progeny. Strict Co., Inc., v. Reliable Transfer 421 U.S. maritime law for unseaworthiness in arose 408 n. 1714 n. S.Ct. concept implied warranty from the of an matter, however, L.Ed.2d 251 ship: the owner of the “It seaworthiness is more complex: by increasing certain- species without essentially does, if it ty victory, liability may ... is neither limited increase the willingness spend conceptions negligence nor contractual money litigation on and decrease his will- duty character form of ... absolute [i]t ingness settle. There is no indication owing range to all within the of its humani- that strict with comparative fault Co. policy.” Shipping tarian Seas v. Sier- would increase cost. acki, 85, 94-95, 872, 877, U.S. concepts

L.Ed. 1099 of mari- time strict strict lia- VI bility are both based the concern that persuaded general We are con injured party adequately protect cannot sup siderations of fairness and efficiency potential Compare himself from the harm. port comparative fault in prod defense Yuba with Greenman v. Power Sieracki suits, ucts actions. In maritime Products, Cal.Rptr. 697, Cal.2d these considerations are bolstered P.2d historical reliance on integral essentially theory to an uniform and uni is based on Strict tary requires body governs responsibility finding of law. We hold that no here, liability, applicable AFFIRM applica the district court’s fault. The law of strict tion of principles jurisdic- maritime in some form in most American liability. of products in Restatement outside the area See tions, succinctly stated is (1971). Calabresi, of Accidents Costs Torts, (1965).1 e.g., The (Second) of 402A § note that the Restatement to Comments Fault Comparative has although party] “the applies rule [the “ Restatement possible care.” exercised all le- ‘Fault’ in is blameworthiness. Fault 402A, a, Torts, p. (Second) Comment § equivalent negli- the gal literature is that this 348. The further note Comments v. Insurance Co. Sa- gence.” Continental The negligence. alternative to action is an Co., (5th Towing 117 F.2d bine (1) liability action are of a strict elements Cir.1941). concept negli- of fault The defect, (3) a causal tie be- (2) and injury, or particular gence presupposes duty v. Firestone Tire & tween the two. Burks standard to to certain obligation conform Cir.1981). (5th 633 F.2d upon Rubber the nature of of conduct and focuses inferentially act It notes itself. conduct, on A action focuses negligence bring the actor uses the instrument act causing of the specifically quality result and the result itself. about the action injury; products liability a strict product moving on the itself. The an action parties focuses fault of two That the products liability the strict compared accepted force behind be is well can to reduce the serving is the determination as the basis for both concept statutes. The products impose society. and contribution risks defective is subject liabili- the Uniform products The latest wisdom on rise of strict Act Courts have perception Comparative Fault results from ty actions determining rel- difficulty no enterprise particular can best had manufacturing multiple par- of fault between injuries degrees occasioned de- ative carry cost all is parties for an ties when the products product fective element See, v. negligence. based in Shows liability concerns itself with cost.2 Strict Inc., (5th 671 F.2d 927 Bedding, Jamison relationship manufacturer between RCI, Inc., Cir.1982); Cruthirds relationship and as a whole. The society Cir.1980). strict- The addition plaintiffs and defendants specific between responsibil- ly to the calculus party it is considered liable secondary importance; is of problem. public significantly changes as a ity to the interest subservient equitable an necessary to devise insurance is becomes whole.3 No fault automobile operation policy apportioning method for example of this products Liability put rather Special on the market of Seller of Prod- such 1. 402 A. § power- Physical injured persons or are uct for Harm to User Consumer than who any (1) product in a defective themselves.” Greenman protect One who sells less to dangerous unreasonably 57, 63, the user Yuba, Cal.Rep. condition 59 Cal. property subject consumer or to or liability his 377 P.2d thereby physical harm caused consumer, prop- user or his the ultimate matter, products policy 3. As erty, if enterprise responsibility; cases deals with (a) engaged seller is in the business of “public policy the burden of acci- demands that selling product, such a and by products injuries intended dental (b) expected and does reach consumption placed market on those who user or consumer without substantial them, production as a cost of treated change sold. in the condition which it is against be obtain- insurance can (2) (1) applies The rule in Subsection stated Torts, 402A, (Second) of ed.” Restatement although also, Elmore v. American L. Comment (a) possible care the seller has exercised all Cal.Rptr. Corp., Motors 70 Cal.2d preparation product, and sale Klenne, Enterprise 451 P.2d Facts, 153; Liability Theory of 47 U.Colo.L.Rev. bought (b) or consumer has the user Ways Traynor, Means of Defective any into from or entered con- Liability, 32 Tenn.L.Rev. Products and Strict tractual relation with seller. purpose “... of such to insure resulting injury from defec- that the costs of are the manufacturers tive borne

1435 Comparison Fault Dilemma own negligence, a reality factored into the policy. construct of the panel opinion Although present, there is case, vacated, in this now would have limit- requirement no of traditional in a the type ed and extent of negligence which strict liability theory situation. The of would be so held for naught.7 The adoption strict does not lend itself a com- it, of 402A or some § variation of implicitly parison of fault. Some courts and commen- determination, includes the as a matter of tators have the attempt characterized as policy, that the risk damages of should fall involving oranges.”4 “apples and A more upon strictly party. peril liable At the accurate analysis might characterize ef- oversimplification, of I suggest an the real de- attempt fort as to measure the amount cision we face today whether to empty glass. accept water an I find simply strict illogical liability, strict attempt quantify specifically products fault where admittedly liability, apply none exists. meritorious and it without reducing plaintiff’s simple neg- Beyond pragmatic ligence, or signal demise strict parison, the exercise erodes the theory liability as a basis legal accountability in strict If liable defendant under tort. a strict can mitigate rule damages by showing plaintiff’s fault, then the

plaintiff will be forced to show the defend- Comparative Fault and Strict Liability ant’s “fault” in by compari- order to lessen Maritime Actions son his own. This inappropriately reintro- Admiralty law allows two distinct reme- duces the element of fault into a strict injury: dies for negligence and unseaworth- liability action. iness, type liability. Pope Courts and commentators have consist Hawn, Talbot v. 74 U.S. ently emphasized the discreteness between (1953). 98 L.Ed. 143 Admiralty also remedies in strict neglig and in recognizes the concept fault. Not infrequently, different reme- ence.5 That fault is applicable to all dies result in different recoveries. That a cases of strict admiralty is not plaintiff might recover damages more in a bright set forth in Generally, letters. strict liability suit than he a negli- would in cases where ap- fault has been gence suit justify does not impressing negli- plied in admiralty, the defendant has been gence concepts on a strict liability action.6 found negligent instead of or in addition to liability, perceive it,

Strict as being allows strictly found liable for unseaworthi- plaintiff in certain situations to escape his ness. This was true cases cited by in both See, e.g., Daly Corp., General Motors be anomalous in a case to 725, 762-63, 1162, 1184, Cal.3d 575 P.2d damages mitigated plaintiff have if the sues in Cal.Rptr. 380, Mosk, J., (1978, dissenting); negligence, but allow him to recover full dam- Robinson, Square (Products Pegs Liability) In ages liability.” Butaud v. if he sues (Comparative Negligence), Holes Round 52 Cal. Goods, Inc., Sporting Suburban Marine & (1977); Note, Liability, St.B.J. 16 Products (Alaska 1976). P.2d Comparative Negligence, and the Allocation Damages Defendants, Among Multiple goI7. no further than those situations in which (1976). S.Cal.L.Rev. grounded simple “fault” is negligence. at 1255. This is alto- clearly expressed 5. This is in the comments to gether Torts, one (Second) 402A, different situation from where the Restatement § Com- also, voluntarily plaintiff ment a “assumes risk” and Greenman v. Yuba Products, Inc., Power unreasonably proceeds Cal.2d 377 P.2d encounter a known Cal.Rptr. danger. position R. Hursh H.& of the Restatement Bailey, Liability contributory American Law of Products is not a defense to (2d 1974); (CCH) Prod.Liab.Rep. § 4.41 ed. assumption risk whereas is. § 4016 Torts, (Second) 402A, Restatement Com- ment n court, point 6. This has bothered at least one apparently significantly contributed to finding comparison: of a basis of “[I]t Corp., v. Tools 339 Hagenbuch Snap-on that com- In proposition for the majority found (D.N.H.1972), the court F.Supp. is in unseaworthiness 676 applied fault parative 204; a to strict 408, Gay at v. of to be defense assumption Id. risk cases. at Ltd., Trading, injured 546 F.2d & there was Transport liability. plaintiff Ocean The Cir.1977). (5th chip and the chipped a hammer when was aware pierced eye. plaintiff The only is the circuit to Ninth Circuit The chipped previously. had that the hammer the issue fault squarely face of assumption risk, an of This case involves admiralty Pan- in cases. strict compara- animal from altogether different Design & v. Marine Construction Alaska assump- In traditional negligence. tive Co., Cir.1977). The ma- (9th 565 F.2d situation, “aware plaintiff, of tion risk opinion. I do not be- this jority endorses negligence created already a risk underlying with the comports lieve this case defendant, proceeds voluntarily of the strict reflected principles of Torts, Prosser, The Law of it.” encounter 402A, a oft cited in maritime section § (4th 1971). not the factu- ed. That is p. 440 See, v. opinions. e.g., McCune F. Alioto at presented al in the case bar. situation Co., (9th Cir.1979); Fish Lind- Corp., Aircraft say McDonnell-Douglas v. Sport- v. Marine In Butaud Suburban Cir.1972). The Pan-Alas- F.2d 631 (Alaska 1976), Goods, Inc., 555 P.2d 42 ing support ka court cites several cases Supreme applied of Alaska Court I find those cases at variance conclusion. case, parative in a negligence strict liability. 402A strict theoretically diffi- stating “[ajlthough it is Sciano, Dippel In 37 Wis.2d purist to balance sell- legal cult for the (1967), Supreme N.W.2d 55 the Wisconsin liability against negli- the user’s er’s strict was with the application Court confronted apparent more than gence, problem this is stat- comparative negligence of Wisconsin’s anticipated that the trier real.... It is not ute a liability. as defense difficulties set- fact will have serious as analyzed court “akin to the damages ting percentage at negligence per se.” Id. 155 N.W.2d compar- as a result of the would be reduced however, analysis, This stands at odds with plaintiff.” Id. at ative of the negligence the standard definition agree. This is more than 45-46. I cannot which assumes that no determination of It “legal purity.” simply problem a fault This decision has not necessary. problem which the presents practical a very following.8 commanded a broad fault Comparative not address. court does comparison. percentage a real assumes Valley Avco-Lycoming, In Airlines Sun is determined rela- of the Inc., (D.Idaho 1976), F.Supp. fault. The amount tion the defendant’s that, concept the court found funda- “[a] plaintiff is not determinable of fault of mental tort law is order for vacuum; as can be measured lie, wrongdoer there must be a I of the defendant. culpability against duty owed ... whose actions violate how the fact-finder struggle to understand or strict whether it be labeled concept apply appreciate can liability, blameworthy culpable or conduct and, at the same liability without ... duty violation constitutes [a] time, percentages compare relative or sense of culpability blameworthiness free of perhaps parties when one of the legal implied Obviously fault.” court appears that the fact-finder liability. fault. the element of fault in strict ad hoc determination forced to make an gener- find this odds with the implication strictly fault on ally accepted presumed view strict Haney Harvester v. International Supreme this case. 8. The of Wisconsin reiterated Court Foods, Co., 201 N.W.2d analysis 294 Minn. in Powers v. Hunt Wesson this Co., Narragansett Elec. Only R.I. Ritter v. 219 N.W.2d 393 Wis.2d favorably 283 A.2d two other courts have commented on party liable and then factor gence into action and a plaintiff obliged calculus relative responsibility. opt between the two. v. Magno- McAllister Co., lia Petroleum 357 U.S. 78 S.Ct. The final case cited in Pan-Alaska is our 1201, 2 (1958). Today L.Ed.2d 1272 a plain- decision Edwards v. Sears Roebuck & both, may plead tiff but separate actions. 512 F.2d 276 Edwards times, In recent the Supreme recog- Court found no error in jury instructions which nized the doctrine of seaworthiness aas permitted reduction in commen derivative remedy under DOHSA. Mo- surate with the contributory decedent’s Life, ragne 375, v. State Marine 398 negligence. U.S. by Edwards has been viewed 12, 1772, 12, 396 n. 90 some courts S.Ct. 1785 n. 26 standing and commentators as proposition (1970),affirming for the L.Ed.2d 339 that fault is earlier dictum applicable in strict cases.9 In Ed Kernan American Dredging Company, 426, wards may 4, 394, have been intuitively grop 4, 355 430 n. U.S. 78 S.Ct. 397 n. ing something the em perhaps 1920, 2 382 L.Ed.2d during the else— bryonic formulation of apportion causal period uncertainty, of confusion and DOH- ment standard. SA and the Jones Act were enacted. It gainsaid cannot be that the remedies made persuaded, I stated, am as earlier that by available the Jones Act and DOHSA Pan-Alaska is the purpose inconsistent with have been largely judicial the and rationale of strict I not liability. would articulation. An examination of these stat- make its the holding law this circuit. To utes comparison reflects that of fault do so problem further exacerbates the strict maritime actions is not statu- in distinguishing courts have had lia- strict torily That we ordained. would now for- bility from negligence. mulate a in maritime law standard consist- Comparative Negligence general Sea and ent principles, tort one that rejects comparative strict today The court is of opinion that cases, me would be neither in- Act, 688, Jones 46 U.S.C. and the Death nor untidy. nothing consistent I find im- High Act (DOHSA), Seas 46 U.S.C. plicit in maritime law compelling oppo- 766, permit, invite, perhaps applica- site result. tion of principles a strict case. agree. I cannot torts, In maritime courts have tradition- ally rules, applied common law Sea-Land

The doctrine of unseaworthiness has been Gaudet, 573, 94 Services v. U.S. S.Ct. part of our maritime law since The Osceo- 806, 39 (1974), L.Ed.2d 9 with an la, awareness 483, 189 U.S. 47 L.Ed. by solutions to similar other problems Whether this concept was based on courts, v. Zapata see Watz Off-shore Com- liability, negligence, or a hybrid pany, (5th Cir.1970). F.2d While an subject two was the a lengthy, intense opinion occasional whether debate. It not doubt ad- until 1943 that see, Supreme miralty will enforce strict liability, Court ended the confusion Inc., holding that Richards v. Blake Supply, the doctrine of Builders unseaworthi- Cir.1975), ness independent pervasive exists of F.2d 745 trend doctrine negligence. admiralty Mahnich v. in American law is to Southern S.S. acknowl- edge incorporate U.S. 64 S.Ct. 88 L.Ed. it. I am convinced Until adopt, unseaworthiness was that we should in admiralty tort remedy alternative to a negli- principles general Jones Act consistent with the law. Dippel should be noted further in this case we on the case of contention Wisconsin Sciano, assumption Mississippi (1967), made the Wis.2d 155 N.W.2d urgings would follow Professor Wade a case which does not a wide follow- command Liability” ing rejected outright his article “Strict Tort 44 Miss.L.J. and has been some (1973), courts, questionable which advocated the use of is at least somewhat analysis principles to strict whether Wade’s would be Professor However, today. Mississippi actions. since Professor Wade based followed court suggest I would that a threshold socially justifiable products. liability is If strict be made then the allocating responsibility, assessment of method of whether dam- from it for assessment of the determination flowing results damages accepted mitigated. be as concomi- be actual ages should should tantly just.10 mitigation purposes would parison plaintiff how much the contribut- based on accident, on how cause of the ed Causation as Basis of Comparative If was. blameworthy plaintiff Responsibility Apportioning of fault there would is found free plaintiff majority’s persuaded am not strictly party liable no reduction view, agree but I would some assess- costs, despite shared would bear all of the may be comparative responsibility ment of equitably This approach causation. appor- made I find that causal in this case. consistent with apportion responsibility equitable fair reso- tionment offers a policies of operative thorny lution of this issue. The nothing novel or unusual about There action, every after element See, e.g., using gauge liability. causation activity, hazardous or product, defective Furness, Withy Compa- re & In Polemis found, is is the causal con- unseaworthiness (1921). civil law has K.B. 560 The ny, injury. that fact and the nection between causation a basis for long recognized blameworthy are plaintiff’s If the actions Lawson & allocating responsibility. See result, an helped appropriate and cause the Markesinis, Liability for Uninten- Tortious would seem in order. recovery reduction in Harm in the Common Law and tional The should the caus- inquiry focus of the Moreover, Law, (1982). pp. 106-142 Civil plaintiff’s con- relationship al between the element of of causal influence as an use not injury, duct and the on the normative acknowledged is comparative responsibility of conduct. aspects plaintiff’s Act, Fault see Comparative in the Uniform against a liable de- strictly an action 2(b) of Comment to UCFA fendant, equitable must be an reason there apportion average Can the fact-finder when mitigating plaintiff’s I causation? think so. am convinced allowing place it in the first is I policy for more diffi- enterprise judges juries would have no a belief that the should bear determining they causation than do injuries through culty costs it inflicts its for the Honore, See, just generally, Hart and Causation 10. Whether strict fair and Law, 1959; Miller, allocating responsibility of sub- The Test standard of Becht and Causation, 1961; Malone, See, ject lively Epstein, Ruminations A Factual of debate. Cause-in-Fact, (1956); Theory Liability, Legal of 2 J. on Green, 9 Stan.L.Rev. Strict Stud. Negligence (1973); Epstein, Subsequent The Relation Issue Defenses Causal Legal Law, System Liability, of J. Pleas in of Strict 60 Mich.L.Rev. Questions Fletcher, Utility (1974); not on the normative anal- Fairness and causation are based Stud. Harv.L.Rev, act, Theory, ysis quality but are focused in Tort of Schwartz, Vitality Negligence the act and there is a nexus between The whether Liability, not are inter- the result. Fault and causation Ethics of Strict Ga.L.Rev. Torts, Prosser, Unless, however, changeable The Law we terms. determine liability, 1971) p. liability as a ed. 142. abolish strict basis of accept logical re- should conclusions suggested by jury possible instructions just. sults as majority confusion reflect the inherent charge jury concepts. Under the the two majority’s I do not share the view that plaintiffs a cause of be asked “was thing are the same and consider plaintiffs injury?” perceive appropriate and causation I important distinguish plaintiffs between them. “was act forbear- to be specific responsibility. blameworthy part you Fault relates the act find ance which Prosser, See, Torts, (4th generally, so, injury? percentage Law If what cause of the 1971) question posed you ed. ch. 5. The whether The focus should the cause do find.?” itself, required evaluation act itself is less than the standard on normative on the act not quality to the result. the act. law. Causation relates the act aware, I culpability.12 however, am an academic debate of substantial propor-

tions on question.13

I would not reduce the recov-

ery based on an evaluation of his negligence faulty the use of the product. But I

would not be permitting adverse to

manufacturer to reduce the amount of dam-

ages by first showing plaintiff’s fault and showing

then the extent to which Lewis’ actually

actions caused the injuries he sus-

tained. This may be viewed as a mere

difference in semantics holding from the majority; respect- do think so and

fully dissent. Petition for MATTER OF

In the John of Richard

Naturalization

LONGSTAFF, Petitioner.

No. 82-1218. Appeals, Court

United States

Fifth Circuit. 28, 1983.

Sept.

Rehearing Rehearing En Banc 27,1983. Oct.

Denied See, Psychologists Epstein, Theory 12. e.g., A have determined of Strict Liabili- that causali- ty is one of the first ty, Epstein, (1973); concerns the human mind J.Leg.Stud. Defenses grasp, developed learns to and that this is Subsequent be- System Pleas in of Strict development fore the intellectual of the under- Liability, Epstein, (1974); J.Leg.Stud. In- See, standing e.g., Piaget, culpability. ¡Sor- of moral Harms, J.Leg.Stud. (1975); tentional Physical Conception Causality The Child’s go, Law, J.Leg. Causal Paradisms in Tort (1979); Note, Comparative Causa- Stud. 419 Although sophisticated academic formula- tion, Indemnity, and the Allocation of Losses see, devised, Rizzo & Ar- tions have been Liability Between Joint Tortfeasors in Products nold, Apportionment Causal in the Law of Cases, Twerski, Marys L.J. St. Theory, Torts: Am Economic 80 Col.L.Rev. Many Inquiry Faces of Misuse: into the 1199, legal acknowledge ordinary scholars Comparative Causation, Emerging Doctrine people make such determinations nor- their 29 Mercer L.Rev. 403 Honoré, life, Hart Causation in mal course of Law, ch. II

Case Details

Case Name: Alfred Lewis, Cross-Appellee v. Timco, Inc. v. Joy Manufacturing, Cross-Appellant

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 27, 1983

Citation: 716 F.2d 1425

Docket Number: 81-3022

Court Abbreviation: 5th Cir.