Lippard v. Houdaille Industries, Inc.

LIPPARD, Appellant, v. L. Thomas INDUSTRIES,

HOUDAILLE

INC., Respondent.

No. 67802. Missouri,

En Banc.

Aug. 1986.

Rehearing Sept. Denied Louis, Francis Meyerkord, F. St.

Stephen Luehrman, Clayton, appellant. M. Jr., Kaskowitz, St. Ely, Ben Rochelle Louis, respondent. Manners, Independence, ami-

Michael W. curiae for MATA. cus Osborn, Foland, R. Kan- James Ted. W. curiae, Organ, of City, for Mo. sas amicus Lawyers. Defense BLACKMAR,Judge. impression with us

In this case of first upon whether the are called to decide we principles of comparative fault 1983) Benda, Af- liability cases. apply to strict briefs, considering thorough excellent ter jurisdic- other argument, cases from oral writings, conclude tions, scholarly we ap- should not be comparative fault of this kind. plied cases simple. plaintiff 1984) The facts are The had in which we held that a manufacturer duty operating planing a in machine product, could be a liable for defective even employment. the course of his The blades though the state of the art at the time of protected by machine were a metal manufacture or sale was such that guard designed which was to close after defective character could not have been being planed the board had cleared the purpose products known. The liability cutterhead. A slipped board out of the law, essentially, socialize the is to losses plaintiffs hand and he reached down to products. caused defective guard plate catch it as it fell. The had not negligence Inasmuch as is not an ele- covered the blades as it should have and his case, products ment of Blevins v. blades, engaged hand resulting in the Motors, Cushman (Mo. fingers loss of two and severe laceration 1977), consistently banc we have held that others. contributory negligence the claimant’s does plaintiff brought The suit on two strict Keener, operate recovery. as a bar theories, alleging both that supra 365; see also Uder v. Missouri planing machine was defective and unrea- Association, Incorporated, Farmers sonably dangerous inadequate and that (Mo.App.1983). S.W.2d 82 warning danger given. had been Benda, supra, The sought defendant and obtained an in- introduced Gustafson directing jury struction concept to assess a fault into Mis- percentage against plaintiff of fault if negligence opinion souri law. This abol- negligence it found that his had contribut- contributory negligence ished as a bar to injury. ed to his jury determined that plaintiffs cases, recovery plaintiff damaged had been in the and also abolished the humanitarian doc- $75,000.00, amount of party and that each trine and the doctrine of last clear chance at fault. The trial court therefore 50% expedients through plaintiff as which a judgment plaintiff entered for the in the negligent degree may who is some some- $37,500.00. plaintiff appeal- amount of times recover. The case a rule substituted affirmed, Appeals ed. The Court of accom- jury assign percent- may under which the panying eloquent its decision with and well age of fault and to all opinions finding reasoned that recovery defendants. The applied products liability fault should be percentage then reduced such disagree cases. Because we with the trial any, jury may if as the find to be attributa- court Appeals and the Court of on this to him ble or her. issue, we reverse and remand with di- v. Benda began as a humani- Gustafson judgment rections to enter for the full only negligence tarian case. It involved plaintiffs damages amount of as deter- concepts, appropriate and could not jury. mined determining vehicle for rules of products liability Missouri law has its Court, law. This the common Dayton origin in Keener v. Electric Manu tradition, only the case before law decides facturing 445 S.W.2d 362 ap- holding it. A 1969). This case followed the lead of Re then, cases, plies products liability must (Second) Torts, A, statement go beyond Gustafson. emphatically liability may which states anno- There has been confusion because person injured by be found if a a defec- Comparative tated sections of the Uniform product unreasonably dangerous, tive even appended to the Fault Act were though supplier the manufacturer or has opinion, guide proceedings com- Id. Sec. possible precautions. taken all pur- parative fault cases. It was not 402(a)(2). Missouri courts have consistent- model act pose of to enact that ly applied principle in a line of authori- Missouri, of the state of Elmore v. Owens-Illinois ty culminating in as a virtual statute Co., Inc., principles control- Glass 673 S.W.2d 434 to establish substantive rule, ling opinion cases not then before the Court. as established the Keener any purpose giving (l.c. 365), Much less plaintiff’s contributory was there special authority to the annotations and is not at issue in a commissioners’ comments. The direction liability case. It should neither defeat nor opinion simply apply recovery. The defendant diminish procedures Comparative of the Uniform plaintiff’s sometimes make use of the al- possible.” “insofar as Fault Act The uni- leged support arguments in carelessness act, example, form for commits us to product unreasonably dan- that the is not “pure” comparative negligence in fault gerous, alleged or that the defects in a cases, system rather than to a in which the product injury, did these not cause but plaintiff nothing if recovers his or her fault traversing appropriate are claims not exceeds the defendants’. But the Act does instruction. If the defective is a give guidance solving not authentic in legal injury, negligent cause of then even case now before us.1 plaintiff should be able to recover. respondent argues eloquently, how- Contrary Judge is said in Don- what ever, comparative that the rule of fault is a dissent, opinion nelly’s this does not elimi- in products liability just fair one as in cases giving in appro- nate the of MAI 32.23 cases, negligence gives product it priate case. It is true that the defendant careful, being users a motive for more requested two instructions based on MAI good that it states a rule for decision. Au- directing jury 32.23 and to assess a thorities in other states are divided against plaintiff “percentage of fault” point.2 We therefore make the choice for voluntarily if it found that he and unrea- ourselves, prod- based on our doctrines of sonably exposed himself to a known dan- liability, expounded ucts numer- ger. judge The trial refused these instruc- ous cases. argue for tions and the defendant does not conditionally. appeal,

We conclude that there should be them on even We change perceive plaintiff no in the Missouri common law no evidence that knew opinion Judge approach, 1. We note the Arnold Kaneko v. Hilo Circuit also America, Processing, Corporation P.2d 343 Gearhart v. Uniden Coast (1982). 65 Hawaii (8th Cir.1986), per- 781 F.2d 147 in which he contrast, apply required duty "predicting” some courts have refused to forms his what liability principles might compara- fault in strict apply our Court do if asked to Inc., E.g. Company, cases. Kinard v. Coats concepts products liability tive fault to a case. (1976) (legislatively understandable, Colo.App. 553 P.2d 835 prediction by His reason of (1985 by altered Colo.Rev.Stat. 13-21-406 appendix opinion, to our but he Chrysler Corp., Supp.)); Seay Wash.2d gives appendix a substantive effect which 609 P.2d 1382 case, goes beyond the issues in that and which jurisdictions have taken two interme- Other give we do not now choose to to it. 1) princi- viewpoints: Comparative fault diate applied ples in those cases where the should be briefs, by argument, As revealed oral culpability plaintiffs would have amounted to a research, independent appear be four there E.g. prior liability law. defense under approaches problem. to this be noted It must Inc., Raybestos-Manhattan, 471 A.2d Austin v. that, state, ap- in each the decision which (Me.1984) (only assumption of risk situa- 280 tions); par- proach has to take been influenced Angelo Foundry and Mach. Suter v. San relating law ticular state’s statutes or common (1978) (in 81 N.J. 150 406 A.2d Thus, fault. contributory negligence would where situation assisting us in these cases have limited value for action). to a strict have been a defense making a decision based on Missouri law. 2) ap- Comparative principles should viewpoint Appeals espoused The Court of involving any plied level of in cases Supreme Daly Gen- Court in of the California negligence, except culpability, including where Corporation, 144 Cal. eral Motors 20 Cal.3d solely a fail- consisted (1978), Rptr. the Califor- P.2d 1162 in which against guard discover the defect ure to should nia court found that E.g. injury. Busch v. Busch which caused Const., Inc., cases, applied with no in all strict (Minn.1977); Dun- 262 N.W.2d 377 plaintiff’s (Tex. limitations based on the level of Aircraft, 665 S.W.2d 414 can v. Cessna culpability. Court has The Hawaii 1984). school, (2) sent him to architectural his guard had failed to close. The claim, rather, he not

defendant’s basic was that doctor had advised him to become an placed he had strong had “failed to look where architect because his hand wasn’t Thus, appears that instruc- right hand.” enough job. for the At the time of the pattern supported are tions in the 32.23 accident, the defendant was not an archi- record, and were by the evidence one. tect and had not trained become properly refused. concerning Any his loss of future evidence earnings as an architect would have been to situations in Reference has been made speculative and its exclusion was not error. held to share which defendants have been Company, 499 Thienes v. Harlin Fruit percentages deter liability on the basis of (Mo.App.1973). jury, mined in cases which some defendants were held liable on a verdict, spite of the errors prod theory and others reason of strict submission, provides a sufficient basis only one liability. ucts In this case there is damages calculating plaintiff’s on a the here ex defendant and the conclusions Carr, proper legal theory. Hudson v. Cf. nothing sharing of pressed have to do with 1984). (Mo. judg- 668 S.W.2d banc liability by principles defendants under and the cause is remanded ment is reversed first enunciated Missouri Rail Pacific judgment for the directions to enter with Company & Kales road v. Whitehead damage of plaintiff for the full amount (Mo. 566 S.W.2d 466 banc Company, jury. determined 1978).3 our con- If there is dissatisfaction with HIGGINS, C.J., concurs. clusion, legislatures and national the state JJ„ RENDLEN, BILLINGS and concur in legislature A may addressed.4 far separate opinions filed. determining capable are of more than we ROBERTSON, J., in result concurs in the problems there are whether opinion filed. separate area, requiring changes in the law. of adhere to the view that distributors We WELLIVER, JJ., dis- DONNELLY danger- products unreasonably “defective opinions filed. separate sent pay damages injuries ous” should ' because a ed to architectural accident objections were sustained. caused tect and how the some recoveries mony about his sufficient ing principles of our degree of carelessness. The fact that testimony Plaintiff prevented plaintiff may have been reason for tasks. The defendant products, desire to sought to introduce testi may on these injuries him from changing products liability without reduced is not a become points caused Plaintiff made performing reduction guilty of an archi and the underly- object law. dom fellow negligence, prejudice, court, I concur. write BILLINGS, of bad est intemperate denunciation colleagues, violent of Dean Pound: ^[*] court of a state opinions of the members motives to ^[*] I insinuations of Judge, of the court. # only invective, attributings concurring. judge of the are no ^[*] majority quote the obtuseness incompetence, ^[*] place for judge’s high- ^[*] wis- according to justice (1) Constitutions he proof indicating that would offers of throughout today under attack law are an that he wished to become have testified world_ of our char- Maintenance have employer his architect and that 1986) (case jury only submitted allegations Many plaintiffs of strict combine 3. liability allegations). allegations liability against defendant with one negligence against in their another defendant ACF Industries, Inc., petition. (1985 Vanskike v. initial See, e.g., Colo.Rev.Stat. 13-21-406 (8th Cir.1981). See also Nesselrode F.2d 188 Supp.). Inc., Beechcraft, 707 S.W.2d 371 v. Executive Manufacturing Dayton er v. Electric constitutional-legal American acteristic hold, (Mo.1969). the courts Consistent polity demands that Keener, past, respect they held in the have we now hold that with public. and confidence of the What supplanted contrib- the doctrine upon from amounts to attacks our courts similarly utory negligence, inapplicable within, mo- intentioned and however well Welliver, J., liability. fails ex- to strict unfortunate_ highly are tivated ... ignore the plicate why we now should obvi- implication of Keener. ous Pound, Dissentiendi: Roscoe Cacoethes Dissent, 39 Amer.B. The Heated Judicial The facts before us constitute a textbook Assn.J. example unsuitability liability. Plaintiff’s al- RENDLEN, concurring. Judge, placing leged “fault” consisted of hand opinion of I concur well-reasoned malfunctioning cutterhead too close and write to address Judge Blackmar plaintiffs complacency can be guard. Yet Welliver, Today sonorous dissent J. previously proper attributed to the directly pretends tones he to mourn “covert guard expecta- functioning of the and his Benda, overruling” prop- tion it would continue to function 1983). While there erly. many long grieve if that are who would not negligent If is involved in activi- demise, experienced early prin- case misusing using or ty either while cipal opinion sounds not the death knell ought product, be that we Gustafson, only instead bell tolls product designed demand that the and Welliver, attempt in J.’s failed Gustafson particular so the offensive marketed that questions to rule not then before us. mitigated precluded use either be will Judge principal opinion As Blackmar’s prod- by design parameter of the some Robertson, concurring opinion and the of the desideratum of the uct. If this is J., demonstrate, aptly intro- Gustafson law, very questionable it then becomes neg- comparative duced fault into Missouri have their ver- whether should ligence law, it not and could not but did aspect very reduced when the dicts determined applicability compa- of have the and dangerous which made the products liability fault to rative has re- instance the defective first Welliver, J., Gus- characterizing cases. very harm which one sulted in the dispositive, unabashedly pro- as tafson expect design. could defective from that in ruled issues claims we Gustafson Compa- to From to Cause Twerski, Defect grab gener- us. a not then before Such Product Rethinking Some rative Fault — legislative power judi- al on behalf of the 297, Marq.L.Rev. Concepts, Liability not ciary was not then and should now be J., countenanced, Welliver, yet and insists At indulged practice. Court such that the Welliver, pen epical to an J.'s endeavor holding it was the time a weak afford his readers tragedy would that current as all too obvious comedy it for the measure of were others remained to be well as innumerable Unfortunately he of the law. seriousness decided, recognized in the and this was judicial platform as opinion mistakes re- “[ljittle imagination is statement harangue and to to deliver a from which litigation quired to volume of envision the catalog of decisions with compile a those required to return a appeals endless and by pee- accompanied disagrees, which he Id. stability to our tort law.” semblance of By misap- his brethren. upon vish assault J., (Rendlen, dissenting). at 29 use as a litigants’ cause for propriating rostrum, sadly demeans private dissent adoption Prior This unfortu- judiciary. office of the Gustafson, contributory negligence self-aggrandizement Keen- liability. nate exercise was not a defense to important tasteless satire an mocks issue this multitude related issues would litigation litigants. belittles the place be to the bar on a violent and stormy uncertainty sea of and frustra- I not among those in 1983 who saw tion make post-Whitehead that would adopt fit to Gustafson, but it remains via- and Kales era seem a placid serene and today ble tragedy the dark invented is, comparison. mountain thinly dissent becomes what lake Any sin- pretense veiled gle opinion for misdirected attempt invective. that would to deal Welliver, J., The work of this Court which only with all these issues could result seeks disparage to will be measured not giant legislative in a by judi- enactment personal his against unusual but standard cial fiat. suggested by the test the honorable Justice Steinman, (Welliver, supra at 294 J. con Holmes: best test of truth is the “[T]he curring). power thought get accepted of the to itself 1983, however, By temptation proved market_” competition in the of the resist, powerful too given apparent to States, 616, Abrams v. United 250 U.S. agreement among five members this (1919) 40 S.Ct. L.Ed. authority Court impose as this Court’s (Holmes, J., dissenting). some form of comparative fault face ROBERTSON, Judge, concurring in re- legislature’s refusal affirmative sult. so, do form of fault to adopt exercising and the wisdom so, doing We have come full circle. In authority. opinion Court in prove judicial we truth the fruit Benda, trespass into properly areas reserved to the legislative government1 1983), branch of is not a Judge attempted Welliver blessing, but a curse. posed the dilemma in his resolve concur- ring opinion by embracing in Steinman From 1975 to this Court resisted legislation Compara- model Uniform the temptation replace contributory neg- —the tive Fault Act. ligence with the doctrine of judicial exercise of will. An- words, possi- But for three “insofar Cahill, derson v. 528 S.W.2d 742 ble”, might Gustafson 1975); Epple Co., v. Supply Western Auto systematic, have attained the all-inclusive (Mo. 1977); 253 banc S.W.2d Steinman Judge solution which considered Welliver Strobel, (Mo. 1979). 589 S.W.2d 293 banc adoption comparative to the of essential adopt have concluded not to [W]e It fault in his concurrence. is Steinman comparative negligence form of at this obvious, however, by “insofar as now that subject complex time. The is and takes a possible” phrase is in the critical Gustaf- variety of the forms several states hardly son. foresee One could it is where use. fact conver- in. phrase possible” “insofar as Gustafson system many sion to such a new involves meanings could hold such for the diverse policy why decisions be the reason of members Court who em- Gustafson most states which have the doc- great braced it. The ad hominem verbal form, trine some have done so joined battle is in this case— which now legislative action.... The issue seems produces which more than far sound legislative suited for action. light genesis its words. those —finds Epple, supra at 254. age trespass, In of what is judicial an adopt comparative negligence To with- scarcely undertaking systematic “possible” pre- for can out treatment a court I into 1. Had I been a of Court when believe we have intruded an member tion.... Benda, legislature_ belongs 661 S.W.2d 11 I area be- which to Gustafson 1983) decided, joined I would have imposition comparative negligence of lieve the dissenting opinions Judges fiat_”) of Gunn Rend- judicial is or fault not a matter ("I imposition comparative len. believe the of (Gunn, dissenting). Id. at 29 J. legislative purely is a matter for ac- had, does not majority after Because dieted. The Gustafson. Gustafson Gustafson all, comparative presumed power applicability define its to do of both to address the re- legislature not and to actions what without fault potential single all solve in a case no than ambiguity, I am able to do more adoption compa- questions raised principal result reached in the concur in the Nevertheless, language rative fault.2 opinion. possible” betrays ambiguity an “insofar as majority’s con- even as to Gustafson DONNELLY, dissenting. Judge, holding. That cept scope of their rejects concept Today, the Court ambiguity is not limited to the issues be- permits “plaintiff’s comparative fault and fore us in this case. * * * unexamined, escape own conduct principle A fundamental remains. damages plaintiff’s and as to that share of * all-inclusive, systematic * * treatment of the from his fault which flows own Judge issue which * * * * * * fault it should borne [holds that] if Steinman Welliver called in essential Motors Cor- Daly v. General others.” are to avoid chaos the law. As this we Cal.Rptr. poration, 20 Cal.3d conclusively prove, case and 575 P.2d all-inclusive, systematic judi- however, surprise. early In This comes as no cial solution pos- nor appropriate neither targeted for apparent it was appropriate It is not it is the sible. because component in tort as a elimination to confine its inherent function of court my In equation.1 This is unfortunate. actually judgment questions before view, judicial process distorts the the Court possible it. It is not of the “inabil- because belongs to to one what anoth- gives when agreement among ity my to find ... broth- er. form ers this court as to the exact [and scope] negligence’ ‘comparative best Dayton Mfg. Electric Keener In suited social and economic (Mo.1969), “rec- this Court

needs_” Steinman, (Wel supra injured need allow consum- ognized the concurring). liver J. parties ability sue ers remote legislature’s policy

Broad issues are the absent suppliers, sellers or manufacturers business. The in a requirements privity the technical is, been, always one for the and has the need to action or without contract Assembly. General Sharp in a tort prove negligence action.” Contracting Company v. Ameri- Brothers decisis, stare Principles of at least as Company, Derrick can Hoist & law, they dic- apply matters common (Welliver, 1986) tate that not be overruled. Keener, J., concurring). the Court my with view that Consistent tort in however, adopted the rule of I legislative question, fault is .a Torts, Restatement, of 2 Law stated in scope would not extend the of Second, 402A. unambiguous teachings the of beyond §(cid:127) 1983); (Mo. scarcely ignored application banc Johnson It the S.W.2d 881 can Pacific Co., (Mo. Express nor 662 S.W.2d 237 fault was neither briefed Intermountain court, Owens-Illinois, Inc., Appeals 1983); argued the 673 to the trial Court banc Elmore v. (Mo. by 1984); parties The this Court the in Park Fowler v. S.W.2d 434 banc Gustafson. would no longer majority simply 1984); (Mo. decided that it Corporation, banc legislature. past the Inc., are now wait for the "We Beechcraft, v. Executive Nesselrode uncer- we have resolved the time when should (Mo. 1986); and Jackson banc S.W.2d 371 tainty surrounding comparative Id. fault....” Inc., 708 Ray Company, Construction Kruse at 15. 1986). (Mo. banc S.W.2d 664 sounding trumpets. day the This not a should, will, course, people make the and 1. Of its could have fulfilled Court Plan The Missouri accuracy judgments as to their own the It equal law. promise treatment under in the books. The evidence is now statement. better fate. deserved a Virginia Corp., 648 D. v. Investment See Madesco Motors, Second, In Blevins v. plaintiff Cushman voluntarily and unrea- (Mo. 1977), banc S.W.2d Court ex- sonably exposed himself to such dan- panded the holding Keener to include de- ger, and

sign defects. Third, such conduct directly caused or directly

In Elmore contributed cause dam- v. Owens-Illinois Glass Inc., age plaintiff 1984), have S.W.2d sustained. effectually Court excised the words “un- holding The in required Elmore reasonably dangerous” from the Keener MAI 25.04 be modified to read as follows: model. Your plaintiff verdict must be for if Beechcraft, Nesselrode Executive you believe: Inc., 1986), First, (describe defendant sold the effectually excised the words “use product) course of defendant’s reasonably anticipated” from the Keener business, and model. Second, (describe product) was changes wrought The can be illustrated * * * then a defective condition practical their effect Missouri put reasonably anticipated when to a Approved Jury Instructions. use, and holding The required giv- in Keener Third, (describe product) was used 25.04, ing MAI which reads follows: anticipated, reasonably a manner plaintiff Your must verdict be for if you believe: Fourth, plaintiff damaged was as a First, (describe defendant sold the direct result of such defective condi- product) in the course of defendant’s (describe tion as existed when the business, and product) was sold. Second, (describe product) was you plaintiff is not enti- believe (cid:127)[unless then a defective condition unreason- tled to recover reason of Instruction ably dangerous put when to a reason- — (here Number imert number of af- ably use, anticipated imtruction) ]. firmative defeme Third, (describe product) was used holding required that Nesselrode in a reasonably anticipated, manner MAI 25.04 be further to read as modified follows: Fourth, plaintiff damaged was as a Your if verdict must be for direct result such defective condi- you believe: (describe tion as when existed (describe First, defendant sold the product) was sold. product) in the course of defendant’s you plaintiff is not enti- believe (cid:127)[unless business, and tled recover reason of Instruction — Second, (describe product) was (here Number insert number of af- * * *, imtruction) then in a condition defective ]. firmative defeme (describe Third, used product) holding required Keener also * * *, and 32.23, giving MAI which reads as fol- Fourth, plaintiff damaged lows: as a defective condi- direct result of such Your must be defendant if verdict for (describe as when the tion existed you believe: product) was sold. First, (describe product) the when plaintiff used, you is not enti- danger believe plaintiff was knew of the (cid:127)[unless of Instruction tled to recover reason as submitted in Number Instructions] — _ (here _] appreciated number Number imert [and of af- imtruction) use, danger its the of ]. firmative defeme liability; the person tort majority giving a to Today, eliminates in requires question MAI 25.04 which bore on MAI essential of 32.23 and fault 25.- to read as follows: under MAI modified further such cases was submitted product in Did sell a a defec- 04: defendant if for must be Your verdict unreasonably dangerous tive condition you believe: reasonably anticipated use? put a when to (describe First, defendant sold the contributory of was The in course of defendant’s product) fault of under MAI 32.23. Mention submitted business, and products liability negligence in a case Second, (describe product) was * * obfuscation. *, and in condition then a defective Third, (describe used product) was (and its Keener inclu- I would return to ** *, and in in tort the strict sion fault Fourth, damaged as a plaintiff was adopt system a equation) and would Kruse Construction ably follows: ified S.W.2d 664 you believe: And, product) was sold. tion Your direct result of such defective First, defendant anticipate that further ^[*] given as existed verdict (Mo. ^[*] banc holding must be for MAI ^[*] near 1986),we can reason- Company, when the sold the 25.04 will be in future ^[*] Jackson plaintiff if to read as # Inc., (idescribe (describe condi- mod- Ray ^[*] pure comparative utory person fore constituted a defense the claimant’s minishes any injury attributable awarded contributory covery. cover (a) I. In an action based on fault to Effect of fault damages or harm to This rule as proportionately chargeable to a claimant compensatory contributory Contributory Fault. fault, applies property, but does injury as follows: whether that claimant’s damages for the amount fault hereto- or death any or was dis- not contrib- bar or re- re- di- to defendant’s product) the course of legal regarded applicable under doc- business, and trines, last chance and such clear Second, (describe product) humanitarian doctrines. * * *, and then in a defective condition (b) omissions “Fault” includes acts or (describe Third, product) was used negligent or measure that are * * *, and property person or reckless toward the * * Fourth, plaintiff damaged *. subject or that of the actor others term liability. strict tort person since After all twists and turns warranty, unrea- also includes breach Cahill, 528 Keener and Anderson v. assumption of risk not constitut- sonable 1975) (Donnelly, consent, express mis- ing an enforceable J., concurring), I continue to believe for which the defendant use negligence and apply should this Court liable, unreason- otherwise system pure cases the or miti- injury able failure avoid suggested in comparative fault Steinman damages. Legal requirements gate 293, 296, Strobel, apply both to fault as causal relation J., dissenting). 1979) (Donnelly, contributory liability and to basis fundamentally opinion principal fault. refuses to ac- majority flawed because Damages. Apportionment II. articulated knowledge the difference involving (a) Af- In all actions negligence and Keener between fault. court, unless person, more one than Keener, negligence was not consider- ter in- parties, shall agreed by all otherwise cases. After products liability ation findings, indicat- jury to make Keener, liability cases struct the subject ing: of acts or omissions consisted (1) damages (1971). the amount of claim- Otherwise, each Justice it degen- can ant be if entitled recover government, erate “into interest govern- a * * * contributory disregarded; fault and jobbers ment of enriching their * * * (2) percentage friends ruining total fault and itself.” A. Bick- that is allocable to each tort-feasor-party, el, The Morality Consent of including For purpose claimants. this I dissent. the court determine that two or persons more are to be treated as a sin- WELLIVER, Judge, dissenting. gle party. percentages total shall 100%. I respectfully dissent. (b) percentage A tort-feasor’s of fault The issue in this case is whether the shall taken into consideration in deter- applicable fault doctrine is mining the total though judg- fault even products liability majori- cases.1 The against ment cannot entered him. alleges ty this that is an issue of “first it, Where the evidence warrants impression” in respect- Missouri. I would person court shall party add that as a fully suggest a descrip- that more accurate solely for the purpose determining of of tion issue case2 is whether allocating upon fault a basis. 100% Benda, (Mo. v. (c) In determining percentages 1983) banc shall be overruled now fault, trier of fact shall both consider applies extent that to strict person the nature of the conduct of the liability cases.3 and the extent of the causal relation be- damages tween conduct and the Benda, In v. 661 S.W.2d 11 claimed. (Mo. 1983), this stated (d) The court shall determine the “[ijnsofar possible as future this and cases claimant, of damages award each apply pure compara- shall the doctrine of judgment shall state the amount fault in tive accordance with the Uniform represents party’s which each share Comparative [(U.C.F.A.)] Fault Act obligation to each claimant in accord- 1-6, (1983), 12 U.L.A.Supp. copy §§ respective percentages ance with the which, comments, with commissioners’ found, holding party respon- fault each appended opinion Appendix to this as A.” by judgment only appor- sible for his 1(a) 661 S.W.2d at 15-16. The U.C.F.A. § tioned amount. set-off There shall be no forth sets fault standard between claimants. by providing an action based “[i]n (e) judgment The court shall not enter any contributory chargeable ... against tort-feasor-party, in accordance proportionately the claimant diminishes found, percentage of if with the his fault compensatory damages as amount awarded against the claim him is re- barred injury for an attributable to the claimant’s lease or law. contributory but does not bar recov- view, 1(b) clearly ery.” indicates my a court should strive for U.C.F.A. § 1(a) assigning rights applies prod- “in in strict fairness arid duties that U.C.F.A. § defining providing appropriate division of ucts cases “ Rawls, advantages.” Theory social A ‘Fault’ acts or J. includes omissions ... Industries, Inc., 3. Lippard products liability 1. The strict standard Houdaille (Second) 1985), (Mo.App. Restatement Torts 402A was S.W.2d 506 No. 49226 Dec. adopted by Dayton Elec- Court in Keener copy appended of which is hereto attached Manufacturing tric 445 S.W.2d 362 appendix part this dissent and made a 1969). Machinery & Barnes v. Took hereof. See also Builders, Inc., 1985); (Mo.App.Dec. No. 49180 The identical issue is also raised in Barnes America, Corporation Gearhart v. Uniden Builders, Inc., Machinery Took & (8th Cir.1986). F.2d 1986), concurrently decided herewith.

501 judicial gence, by born decisions. person4 liability.” a to tort were subject strict “ By bury judicial decision we them. logical clearly ‘fault’ This result is since encompasses negli- more mere much than J., Gustafson, (Billings, at 28. Bruce, gence.” Anderson & Recent Devel- concurring). Strict Day- Tort Gustafson Keener

opments Missouri Laws: in our law. also born case Company, Manufacturing ton Benda, (1984). Electric 52 U.M.K.C.L.R. 546 (Mo.1969). S.W.2d Clearly, majority stat- Gustafson ing apply that cases shall doc- “future Corporation v. Uniden In Gearhart pure comparative accord- America, Cir.1986), trine of fault (8th F.2d 147 conclusion, Fault Comparative Eighth ance with the Uniform came to a similar Circuit 1-6, (1983), sweeping language Act, stating “given a U.L.A.Supp. §§ specific a Gustafson, as well as its call for which, with commissioner’s com- copy comprehensive system, that the we believe ments, appended opinion is as Ex- apply intended to Missouri Court A”, (footnote 661 S.W.2d at 15-16 hibit principles Comparative of the [Uniform omitted) added), (emphasis intended that possible broadly Act as as to Missou Fault] guidance in the comments be as much fu- law, regard ri without to the intricacies paragraphs cases the six of the ture as pre-Gustafson case law.” Gearhart specifically Those “Act” itself. comments v. Atlas at 150. See also Faries F.2d state: Body Mfg. Truck (8th 797 F.2d 619 Although liability is sometimes Cir.1986). called absolute or with- by majority meant What the Gustafson fault, Putting out it is still included.... possible” language the “insofar as dangerous that is out when, it crystal made clear footnote public engaging user or the or in an excepted opinion from the effect of the activity dangerous to those in the that statute, 537.060, recently then amended § vicinity involves a measure of fault that Cum.Supp.1984, as it to set- RSMo related even weighed compared, and can be comparative fault and releases in tlements though it negli- is not characterized as cases, recognition in follow- and its gence. sup- ing opinion did not sentence A) Gustafson, 661 S.W.2d at 19 (Appendix plant joint statute it related to as added). (emphasis Gustafson, liability. several majority alleges The current and as- 16. “[ijnsofar possible” lan- sumes as meaning only the clear of both Not guage of indicates that U.C. body the Commission- of the U.C.F.A. and applied only

F.A. should where does therewith, also ers’ but Comments prior prin- Missouri law not violate common com- concept principles the basic so, ciples. Were this application to the parative fault dictate its adoption nullity and its either have been liability cases. Gustaf- futility gigantic fraud exercise in son, recognized the “fairness this Court bench, No public. and the one on the bar op- justice” clearly recognized more could have of tort posed “fairly inflexible rules doctrines supplant common law purpose includ- law.” S.W.2d at 13. prior judicially promulgated doctrines stating: Prosser passage ed a Dean J., Billings, stating in his concur- did than charge It no more reasonable is still ring opinion: plaintiff’s share with the defendant consequences than negligence, Historically, contributory last defendant’s; plaintiff with the chance, negli- charge the humanitarian clear Monckton, corporations. Mo. 274 S.W. 404 "person” 4. The term includes 351.015, Cum.Supp.1986; Bassen v. RSMo and it is no better policy to relieve the “[the doctrine] negligent plaintiff of all responsibility workable and will fulfill the needs of our injury than it is to relieve the complex society.” modern 661 S.W.2d at negligent defendant. 15. Gustafson, 13, 661 S.W.2d at quoting H. If the new and current majority wishes Woods, Negligence “The Compara- Case: deny the applicability of comparative (1978), tive Fault quoting Prosser, 14-15 products strict cases, Comparative Negligence, 51 Mich.L.Rev. should admit that overruling it is Gustaf- 465, importance 474 The of fair- son to that extent. justice ness and prompted this Court Even if were one of first adopt comparative fault in impression as the majority alleges, and we no less compelling in the products strict were not bound stare decisis to follow liability setting since Gustafson, principles of fairness would de- primary reason plaintiffs that the [t]he application mand the of comparative fault conduct should be in products considered products strict liability since “[i]n liability litigation is the unfairness of re- of apportionment, absence some manufac- quiring defendant, or society through the turers expense bear the total of accidents risk-spreading mechanism, pay for in- partly blame, which others are while juries caused wrongdo- other totally escape manufacturers ing. Because the is often an though they even have sold prod- defective participant active in the injury-producing ucts. Either result is unacceptable.” incident, there is no reason not to exam- Duncan v. Cessna Co. 665 S.W.2d Aircraft ine the played role his actions 414, (Tex.1984). 425 incident. overwhelming The majority of authority, Gershonowitz, Comparative Causation as judicial academic, both recognizes the to, of, an Alternative Not a Compara- Part wisdom of application tive Fault in Strict Liability, Products 30 products fault in strict liability cases. 483, (1986)(citation St. Louis U.L.J. omitted). and footnotes twenty-eight While of the more influ- jurisdictions, ential including Court in specifically the United stat- States, California, Illinois, ed that justice “fairness and can best York New through Texas, achieved application applied a broader have fault or doctrine.” 661 liability, [the strict only fault] S.W.2d at 15. The specifically Court jurisdictions found six contrary.5 have held the following jurisdictions applied struction, Inc., (Minn.1977); have com- 262 N.W.2d 377 parative fault or to strict Sturm, Co., Ruger Zahrte v. & 661 P.2d 17 liability: (Mont.1983); Sears, Co., Thibault v. Roebuck & Fisheries, 802, Part-Alaska Inc. v. (1978); Marine Construc- 118 N.H. 395 A.2d 843 Suter v. San Co., Design (9th Cir.1977) tion & 565 F.2d 1129 Angelo Co., 150, Foundry & Machine 81 N.J. 406 (federal cases); admiralty Butand v. Suburban (1979); A.2d 140 Marchese v. Warner Communi Goods, Inc., Sporting Marine & 555 P.2d 42 cations, Inc., 313, (N.M.Ct.App.1983), 100 N.M. 670 P.2d 113 (Alaska 1976); Ark.Stat.Ann. 27-1763 to 27- §§ denied, 259, t. 100 N.M. 669 cer (1979); Daly 1765 Corp., v. General Motors 20 (1983); P.2d 735 N.Y.Civ.Prac.Law 1411 725, 1162, Cal.Rptr. Cal.3d (1978); 575 P.2d 144 380 1976); (McKinney Mauch v. Manufacturers Co., Caterpillar West v. Tractor Service, Inc., (N.D. Sales & 345 N.W.2d 338 (Fla. 1976); So.2d 80 Kaneko v. Hilo Coast Pro 1984); Goodrich, 626, Wilson v. B.F. 292 Or. 447, cessing, (1982); 65 Hawaii 654 P.2d 343 (1982); Co., Hyster P.2d 644 Baccelleri v. 287 Or. Airlines, Valley Avco-Lycoming Sun Corp., Inc. v. 3, (1979); Culebra, 597 P.2d 351 McPhail v. (D.Idaho 1976) F.Supp. (applying 411 law); Idaho (1st Cir.1979) (applying F.2d 603 Puerto Rico Industries, Inc., Coney v. J.L.G. 97 Ill.2d law); Marine, Inc., Norman v. Fisher 104, 337, (1983); 73 Ill.Dec. 454 N.E.2d 197 Ken (Tenn.1984), den., 5-21-84; app. Duncan nedy City Sawyer, 228 Kan. 618 P.2d Co., (Tex.1984); Cessna 665 S.W.2d 414 Aircraft (1980); Blast, Bell v. Jet Wheel Division of Ingersoll-Rand Mulherin v. 628 P.2d 1301 Ind., (La.1985); Erwin 462 So.2d 166 Me.Rev. (Utah 1981); Morse, Murray v. Fairbanks (1964); Mich.Comp.Laws Stat.Ann. tit. § 156 (3rd Cir.1979) Virgin (applying F.2d 149 Islands (Supp.1982); § 600.2949 Busch v. Busch Con- differing merging principles the two The reason for the results is vinced that succinctly forth symmetry set be lost in is more what short, oppose Hawaii: “In those who gained in than fundamental fairness.” merger comparative negligence [of Corp., 20 Daly v. Motors Cal.3d General products liability] believe that with 1162, 1172, 144 Cal.Rptr. 575 P.2d neglience are different added). (1978) It is the (emphasis compatible. theories and therefore are not very “elevatpon] same concern for jurisdictions that Those are favor equity” prompted this justice and merger argue equity that fairness and are adopt Court to Gustafson. important than more semantic consisten- overruling Gustafson, In of their covert cy.” Processing, Hilo 65 Kaneko v. Coast long-standing majority disregards 447, 343, (1982). See, Hawaii 654 P.2d 351 justice principles of and fairness which Carestra, application: The e.g., for Interac- embodied. Gustafson and Comparative Negligence tion of Strict We?, Liability Are 47 Products in- I find no error in the circuit court —Where (1980); Fischer, 53 Products Li- Ins.ComJ. light structing jury compare Comparative Neg- of ability Applicability would, therefore, and affirm of — (1978); ligence, 43 Mo.L.Rev. 431 Gersho- judgment. nowitz, Comparative Causation as Alter- to, of, Comparative a Part Fault native Not EPILOGUE —TO GUSTAFSON Liability, in Strict Products 30 St. Louis fair, young The lies mor- just, (1986); Schwartz, Liability 483 U.L.J. Strict tally and curtain dying wounded behind the Comparative Negligence, 42 Tenn.L.R. day’s on which has now been drawn (1974). application: Twerski, Against 171 You, performance. audience of read- dear Comparative Negli- Use and Abuse ers, eloquent of each have read words gence in Liability, Products 10 Ind.L.Rev. now performers, of the words which are (1977). 797 le- legal scholarship, yours judge agree I with the Cali- legal galese perhaps just gobbledy- that fornia But, that gook.6 pray thee not conclude full extending sys- reason for “[0]ur en- speak with more our brothers below prod- tem of fault to strict lightenment than we. ucts is because it is fair to do so. de- propose I moments consistently these brief The law to elevate jus- seeks legal model form part usual equity above the exact contours tice equation. words7 to some the subtle- plain of a mathematical We are con- address Smith, law); (S.D.1982); 278 N.W.2d 155 Ann. Smith v. Wash.Rev.Code 4.22.005 4.22.- §§ (S.D.1979). (Supp.1982); v. 015 Star Furniture Co. Pulaski Co., (W.Va.1982); Dip S.E.2d Furniture 297 854 judged opinions”, a "Judges on their should Sciano, 443, pel v. Wis.2d 155 55 37 N.W.2d by many frequently made statement of our cast. members following jurisdictions have refused to apply comparative fault or in strict respect judiciary assumption for that 7. The cases: by shielding judges publish- from can be won Co., 555, Colo.App. v. 37 Kinard Coats 553 wrongly appraises character ed criticism 835; Stokes, Inc., prized Welch v. P.2d F.Supp. but see F.R. 555 public opinion. For it is a of American (D.Colo.1983) mind, (interpreting speak 1054 Colo. al- privilege to one's American though taste, (Supp.1982)); good always perfect § Melia v. on Rev.Stat. 13-21-406 with Cir.1976) Co., (8th F.2d si- Ford Motor And an enforced public institutions. all law); limited, solely (applying Young’s lence, Machine Co. in the name Nebraska however bench, 692, (1984), Long, dignity Nev. preserving 100 Nev. P.2d 1; resentment, engender suspicion, and probably Rev.Stat. 41.141 subd. Kirkland General (Okla.1974); Roy enhance Corp. contempt than would P.2d 1353 much more Motors (1st Cir.1978), Chopper respect. 584 F.2d 1124 Star 252, denied, California, 314 U.S. Bridges U.S. 99 S.Ct. v. State cert. (1941), law); Justice (1979) Mr. (applying S.Ct. 86 L.Ed. 192 Rhode Island L.Ed.2d 466 omitted). Industries, Inc., (footnote Klung Black 328 N.W.2d 847 v. Keller tribute, performance, hope, ties I used in compensation the workers law to the short and frustrated life of “any job means injury”9; related a case Gustaf- son. holding person that a damages can recover injury for being impact10; without there approach I my by tendering task holding case innkeepers that hereafter are your prophetic view consideration the to be insurors of the safety persons distinguished words of a member of the coming 11; premises on their holding a case “great prospects cast that there were that a heart attack on job is an accident the Decade ahead” in this Court. law12; under the compensation workers In early the then Chief Justice holding case damages that suits for may be suggested Rendlen personnel recent brought wrongful for the death of a viable changes “signals in our begin- cast a new fetus13; holding a case can ning great prospects heralds for the —it (of “appearances based on authority), not Decade ahead.”8 14; holding actualities” a case plain My identify “great pros search to these malpractice tiffs actions can obtain pects”, v. Hag my unlike State search privileged theretofore information from gard, (Mo. 1981), 619 S.W.2d banc hospital records15; and, peer group a case which Chief Justice Rendlen likened to holding entrusting leasing that one or per “ Quixana’s [Cervantes, ... Don 1605] property sonal to another can be held liable Quixote giants de Lamancha’s search for employee for the acts of an of the entrus- windmills”, that became a comic tilt with in tee or may injured lessee who have anothe instance, has productive. been more r.16 Among “great prospects” of the first years three of this I departure decade found a case Bench of Federal holding simple that the word “accident” as having one of those described as the “Bond portion “Report 8.Taken appear published from a of the text of opin- selves and in their Transition," Supreme they prodigious On The Court In then are workers. ions— addressing coming signals Chief Justice Rendlen Their the Tenth An- to the Court a new beginning great prospects City nual Bench-Bar heralds for the Conference of the Kansas —it Association, Resort, (Billings’s story) Bar Decade ahead. Mule Marriott’s Tan-Tar-A collegiality special meaning April term portion now has a 1983. The relevant of the ad- serving on our Court as Chief in and Justice dress is set forth in full. pleas- such circumstance has become a true development Another monumental in the life ure. personnel changes. of the Court has been the added). (Emphasis Three new men came to the Court in late 1982. This was the first time since 1935 three Service, Wolfgeher Wagner Cartage 9. joined new members have in one (Mo. 1983). S.W.2d 781 banc year. They represent only points fresh they bright view but are and effective. The (Mo. Nooney, 10. Bass v. 646 S.W.2d 765 banc appointment Judge Blackmar in December 1983). milestone, something marked of a in that the membership composed entire of the Court is Virginia 11. D. v. Madesco Investment post lawyers World War II and all of us (Mo. 1983). S.W.2d 881 banc Further, military have had service. while the three new men and I come from different Lines, Navajo Freight Wynn 654 S.W.2d 87 12. parts of the State and had somewhat different (Mo. 1983). banc backgrounds, us have a Bond in four of common. Brown, (Mo. O’Grady v. S.W.2d 904 banc aptly Charles Blackmar has been described 1983). living, walking as our Lexis-we well de- cide to discontinue the Lexis terminal at the P.I.E., (Mo. 14. Johnson v. Charley Court and substitute for the 1983). banc joined by especially capa- service. He is two Appeal-Judge ble men from the Courts of Sprinkle, 15. Chandra v. 678 S.W.2d 804 George Judge 1984). Gunn from Louis and Wil- St. Billings Springfield liam from who collective- ly represent years appellate experi- Corporation, S.W.2d 749 court 16. Fowler v. Park 1984). speak accomplishments ence. Their for them-' percent the cause of the of a common,”17 great my fear that but a fraction set me in in And, observe, early un- might “great prospects” I for the fault. search vain, and, might friend, in fact timely in of our thereafter be demise Gustafson. But tilt with windmills.” a “comic become growing length of this of the I am aware Another of not destined to be. such was and, hour, epilogue, the lateness Justice An- to become Chief our cast soon epilogue should he who would deliver con- Higgins, joined drew Jackson good spirits and not you send forth “great pros- tinuing production of the So depression. mourning, frustration authoring a case held that pects,” by which escalating premi- your insurance fear not in Missouri does not law “great pros- resulting from these ums defenses18; by of the art recognize state insur- inability purchase pects,” your or authoring opinion that affirmed $15 ance, to close you may fact be forced or the doctrine of and abolished the million verdict pursuit of your business abandon appel- directed that Missouri remittitur and that the Have confidence your profession. longer at the size should no look late courts you Assembly will deliver Missouri General verdicts19; concurring separately crisis of tort Sargasso Sea of the from the holding that the owner of opinion in an place (1) simple statute to by passing a injury for the property could be held liable liability litigation back within leaving bicycle trespasser caused contemplated by comparative fault Gustaf- through riding by flying he was on which 537.060, son; (2) RSMo by repealing § striking injuring another.20 the air and relating joint and sever- Cum.Supp.1986, have Truly, those of the “Bond common” and releases liability and settlement al pass teachings made come to providing fault cases and “great prophet by the creation of these re- parties the released lieu thereof that thought the prospects”, by M.A.T.A. to be purpose litigation for the sole main in the others, coming society, by and Great percentage of the apportioning their thought to be this Court’s contribution fault; (3) abrogating joint and sev- by and the Tort Crisis. confidence that liability.21 I have total eral honestly, apprised Had thou but been leave Legislature will never Missouri nature, directly forthrightly and as to the remedy of California’s drastic you to the extent, “great effect and social cost of 51,22 has it ever been nor Proposition recent prospects” by majority hav- bestowed such matters to to leave their bent common”, or, ing “Bond in had thou Congress. Federal decision of the prospects” dispensed “great all of the been acts, can be all of which small With these medicine, single dose of and not as the single, simple legislative in a accomplished time, digested spoonful perhaps at a easier enactment, Assembly can bes- the General for this you would have been better readied just tort and most the fairest upon you tow “great prospects” penultimate of the —to- America, and, may any state system of deep pocket re- day’s that the be decree dying life into the again breathe and served- for the benefit Gustaf- son. deep pocket lawyers, if the their even Gunn, joint and several George Judge Unless of the United 21. F.

17. Hon. Court, abrogated, affirmatively another of Legislature Eastern District of Missou- States District might abe "great prospects for the Decade” ri. reinstating joint and sever- court decision future Owens-Illinois, S.W.2d 434 18. Elmore having in the common been born al J.). (Mo. 1984) (Higgins, banc Comment, Abrogation of Joint See law. Be Next in Liability: Missouri Should Several Line?, Redevelopment 1985). v. Crown Center Firestone 19. U.K.C.L.R. Corp., 693 S.W.2d 99 Ray Jackson v. Kruse Constr. 20. Primary 1986. June Election California J.) 1986) (Blackmar, (Hig- (Mo. banc C.J., concurring separate opinion). gins, As I tightly First, withdraw behind the curtain plaintiff failed to look where he upon secrecy placing right drawn of the was his subtleties of hand at the time of accident; preparations performance; for our next I Speed bid thee God night, Second, and a restful plaintiff knew or the exercise patrons ordinary dear of our art. care could have known of the danger head, from the cutter friend, my depart play, Go now Third, plaintiff thereby negligent, common”, may have their “Bond[s] day, Fourth, such directly caused justice Fairness and have here come to directly contributed to cause dam- stay age plaintiff may have sustained. Gustafson, yet, may prevail And in this “negligent” The term or “negligence” as fray. used in this instruction means the failure degree

to use that of care that an ordi- narily prudent careful and person would APPENDIX A use under the same or similar circum- SNYDER, Judge. stances. phrase “ordinary care” as used in presents This case question the novel degree this instruction means that application care that would plain- be reasonable in Benda, doctrine, tiffs situation. 1983), II to actions based on impression This is a case of first in Missou- liability. ri adoption since the of the $75,- The jury damages found total requires doctrine and an extended fifty percent 000.00 and assessed of the discussion. We have aided in been plaintiff. fault to the judg- The trial court analysis by the excellent briefs of both plaintiff ment was favor of the parties the amicus curiae brief of $37,500.00. appeals.

sum of He the Missouri of Trial Association Attor- neys. Gustafson, contributory Before negli-

gence was not a defense in strict pure comparative Missouri cases. The Benda, su- fault doctrine in pra, saying irrelevant. The page “[ijnsofar possi- now arises: since at 15: Gustafson, comparative apply should the fault of ble this and future cases shall plaintiff pure comparative doctrine of in awarding a be considered in fault ac- dam- cordance Comparative with the Uniform ages in a liability case based on strict in Act, 1-6, U.L.A.Supp. Fault 12 §§ tort? holdWe that it should and affirm (1983).” A copy of the uniform act was judgment. the trial court appended opinion. to the Gustafson Appellant’s hand seriously injured 1(b) Fault is described in of the Uni- § when it came into contact with the cutter (U.C.F.A.) Comparative form Act Fault jointer blades of a machine manufactured in include “acts or omissions that are by respondent. Appellant alleged the ma- negligent measure or reckless toward the chine was defective. others, person property or of the actor or Appellant asserts error the submission subject person or that a to strict tort reason, among No. Instruction 8 for the liability.” (Emphasis added.) others, comparative fault is not a valid 1, Commissioners’ Comment § defense in an action based strict liabili- which is the effect of contrib- described ty. fault, utory language: contains this jury Instruction No. 8 to the read: Although liability is sometimes percentage You must assess a liability liability of fault to called absolute or with- fault, plaintiff you if believe: out it is still included. Strict liabili-

507 statutory and some enactments many cases ty abnormally dangerous for both activi- jurisdictions. other strong ties and for sim- bears a types three There are ilarity negligence as a matter law modified, slight- pure, systems: se), (negligence per and the factfinder plaintiff’s gross. pure system, In should real difficulty setting have no his dam contributory reduces percentages of out Putting fault. to his fault. ages proportion dangerous that is to the user or 15; State, v. 540 Benda, supra at Kaatz v. public engaging activity or in an (Alaska 1975); 1037, 1049 Li v. Yellow P.2d dangerous vicinity is those in in- 13 California, Cal.3d Company Cab volves a measure fault that can be 804, 858, P.2d 1226 Cal.Rptr. 532 119 weighed compared, though it is even 431, (1975); Jones, So.2d 280 Hoffman not negligence. characterized as (Fla.1973). 438 In system, plaintiff’s the modified Contributory recovery fault diminishes contributory negligence does bar recov- not, previously whether it was a bar or ery long as it specified so remains below as, example, ordinary case of proportion of the total fault. some of contributory in an action states, if plaintiff fifty percent based on strict recklessness. may he not recover. Utah Code.Ann. added). (emphasis (1983), 78-27-37 Ingersoll- Mulherin v. § 1301, Company, (Utah Rand 628 P.2d 1(b) U.C.F.A. Commissioners’ Comment § 1981); Star Furniture Co. v. Pulaski Fur (1977) (amended 1979). Co., 854, (W.Va. niture S.E.2d quoted language from 1982). In others he not recover if his Benda, supra, the U.C.F.A. and the Com- fifty percent fault is more than or if it missioners’ Comments seem to make it exceeds the fault of the defendants. N.J. plain fault doctrine (West Stat.Ann. 2A:15-5.1 — 15-5.3 §§ applied should be to strict liability actions 1984); Angelo Foundry Suter San & in Missouri. question Because the com- Machine N.J. 406 A.2d parative applies as it to strict (1979); (1983), Or.Rev.Stats. 18.470 actions is a important novel and v. Chevrolet Division Gener Sandford significant which will have and pervasive Motors, al Or. 642 P.2d effects on the of strict liability, law how- ever, other ruling reasons should Only states, analyzed two in some detail. Nebraska and South Dakota, have the slight-gross system in Before the fault doctrine which is barred from recover- Missouri, contributory neg- ing unless his negligence “slight.” In re ligence valid was not a defense in a strict Tichota, Estate Neb. of 557, Dayton action. Keener v. Electric (Nebraska N.W.2d 1973); 560 Ameri Manufacturing Company, 445 S.W.2d can State Bank v. List-Mayer, 350 N.W.2d 362, (Mo.1969). [4, 365 Supreme 5] 44, (S.D.1984). 47 said, negli- Court in “[contributory Keener gence, ordinarily apply it, not a we is opinion beyond scope It is of this liability.” defense went to strict The court not analyze systems, these but it is difficult however, say, on to been that what has hypothesize fact which situations “assumption described in the cases as give significant problems any under rise to risk,” although court those did not use of the three.

words, liability. is a to strict Id. defense system of problem pure One with the

There have no cases in Missouri comparative adopted been fault Missouri party guilty which on the of the have ruled arises who is when application comparative greater may doc- recover a proportionally of the fault fault cases, damages greater are than liability trine to strict but there amount of absolute 508 liability that strict does

The theme not liability frequently occurs in mean absolute party the other whose fault was much less subject. which deal with this the cases degree. might happen plain- This if a Durbin-Durco, Inc., 377 S.W.2d v. Stevens injuries slight tiffs were and a counter- 343, (Mo.1964); Daly 346 v. General Mo claiming injuries defendant’s much more 384, Cal.Rptr. 114 at 575 Corporation, tors If damages serious. are as- 1166; Sciano, Dippel 37 Wis.2d P.2d at v. $10,000.00 percent sessed at he is ten 55, (1967). 443, 63 155 N.W.2d $9,000.00. he will If recover counterclaiming injuries defendant’s are as- agree We with those cases. The social $300,000.00 case, sessed at in the same he purpose of the doctrine liability, of strict damages plaintiff will obtain from the 1.e., spreading injuries the risk of $80,000.00, although the defendant was caused defective among all the ninety percent plaintiff at fault and the purchasers of those by holding however, only percent. theory, ten In laudable, manufacturer liable is party pays result is not since each unfair comparative before adopted, fault was his share of the loss which he has caused. purpose would by per- have been defeated the 44 Of states which had com- mitting a manufacturer escape liability if 1985, parative systems early fault as of 23 injured plaintiff degree were applied comparative have fault doctrine contributorily negligent. br&ught liability to actions on strict based tort, by legislation by judicial either Since the advent fault Idaho, states, decision.1 three other Missouri, however, one reason for not con- Montana, Mississippi and federal courts sidering contributory negligence in strict law, comparative have said that under state liability Compa- cases has been eliminated. applies liability fault to strict actions.2 rative now be considered without opinion jurisdic The best from another completely relieving the manufacturer of apply tion which sets forth the reasons for product liability. the defective from ing principles fault to therefore, believe, We that with the liability Daly actions founded on strict v. Missouri, adoption Corporation, Motors 20 Cal.3d General 725, purpose the social of the strict 380, Cal.Rptr. 144 575 P.2d 1162 enough by allowing (1978). doctrine carried far The California plaintiff proof to avoid sim- points out that strict has never ply by proving product that the was defec- meant the manu absolute design and caused facturer of a tive or manufacture does become safety product’s injury; insurer of the user. and that a should be Rizzo, 548, (1980); N.J. 410 A.2d 674 Scott v. 96 §§ Ariz.Rev.Stat.Ann. 12-2505 — 12-2509 (1984); 682, (N.M.1981); (Supp.1983); Codling Ark.Stat.Ann. 27-1763 § N.M. 1234 634 P.2d (Supp.1982) 461, 330, § Mich.Stat.Ann. 27A-2945-2949 Paglia, N.Y.2d 345 N.Y.S.2d 600.2945-600.2949; §§ M.C.L.A. Neb.Rev.Stat. (1973); Hyster Compa N.E.2d 622 Baccelleri (1983); Wash.Rev.Code Ann. (1979); ny, Fiske v. 287 Or. P.2d 351 4.22.020, 7.72.010 — 7.72.060 §§ Brunswick, (R.I. MacGregor, 464 A.2d 719 Div of Goods, Sporting & Co., Butaud v. Suburban Marine 1983); Duncan v. Cessna Aircraft Inc., (Alaska 1976); Daly 555 P.2d 42 v. General (Tex.1984); Ingersoll- Mulherin v. S.W.2d 414 Motors, 20 Cal.3d 575 P.2d 144 Cal. Co., (Utah 1981); Star Fur Rand 628 P.2d 1301 (1978); Rptr. Caterpillar West v. Tractor S.E.2d Co. v. Furniture niture Pulaski (Fla.1976); Company, 336 So.2d 80 Kaneko v. Sciano, (W.Va.1982); Dippel Wis.2d Processing, 654 P.2d Hilo Coast 65 Hawaii (1967); Sawyer, 600 N.W.2d 55 Cline v. Industries, (1982); Coney Inc. 343 v. J.L.G. 97 (Wyo.1979). P.2d 725 104, 337, (1982); N.E.2d Ill.2d 73 Ill.Dec. 454 197 553, Inc., Forsythe Company, 230 Kan. v. Coats Airlines, Avco-Lycoming Valley 2. Sun Inc. Front, (1982); Engi- 639 P.2d 43 Jack Inc. v. 1976); (D.Idaho F.Supp. Edwards Corp. 411 598 Inc., Building Company, Components 304 neered (5th Sears, Co. F.2d 276 Roebuck and 512 Sears, (Minn.1981); Roe N.W.2d Thibault v. 346 Cir.1975); Piper Corp. Air Montana v. Trust of 802, (1978); A.2d 843 buck & 118 N.H. 395 (D.Mont.1981). Corp. F.Supp. 506 1093 craft Jersey, Capital Corp. 81 Cartel v. Fireco New of Supreme The Missouri responsible any held share of the dam- rule of strict Dayton Keener v.

ages proportional to his fault. Manufacturing Company, supra, Electric giving as one of the reasons: Court, Hampshire Supreme

The New disagreeing (1) with a commentator who advo- purpose . the of such liabilities is cated engineering approach a social that to insure that the injuries costs of result- completely require- would eliminate ing by from defective are borne product of ments causation and defect said: put the manufacturers [and sellers] principle The common-law that fault and such on the market rather than responsibility legal are elements of our by injured persons powerless who are system applicable corporations in- protect Quoting themselves.’ from dividuals alike will not be undermined or Inc., Greeman v. Uba Power Products by ‘spreading’ abolished of risk and cost Cal.Rptr. [701], Cal.2d in this State. 897, 901, P.2d 13 A.L.R.2d 1049. Keen- Sears, Thibault v. Compa- er, Roebuck and supra at 364.

ny, 395 A.2d 846[1]. The Cryts and courts, Keener course, of approach This is a reasonable when con- did not consider fault. When sidering application of the they written, were the doctrine of compara- comparative fault to the doctrine of strict tive fault had not been adopted in Missouri liability. Judicial decisions new fields of and contributory negligence would have law, law, existing or extensions of fields of been complete defense in a strict necessarily carry degree with them a case if Court had not ruled engineering social they large when affect otherwise. segments population, of the producers both consumers, as does the doctrine of adoption liability. strict Benda, supra, requires law, analysis giving new considera- Nonetheless, this tendency to use the desirability sharing any tion to the loss courts as instruments of engineering social injured party between manufacturer and extremes, has particularly been carried to proportionate based fault of each. courts, in some federal and should principles be restrained established Appellant argues that because Missouri the common law and our constitutions. concept cases have held that the of fault Otherwise the separa- basic desirable place has no in the law of liability, powers tion of legislative between the applied. fault should not be the judicial government branches of our cite, they The cases Dayton, Keener v. further, will be eroded still to the detriment supra, Inc., Elmore v. Owens-Illinois segments of all society. of our 1984), Blevins v. public We believe the law and the is best Motors, Cushman by requiring only served the manufac- 1977), in fact do state that the (and turer is who at fault whose fault concept place of fault has no law regardless negligence) exists his to bear refer, however, liability. The cases loss, by requiring share of the but also to the strict of the manufacturer fault, plaintiff, who is also at to bear and not whether fault of the consum- proportionate share. injured party er or should considered. argument made with some vehe- Moreover, policy if social is to be a fair by appellants inju- mence costs of field, in this what could basis the law ries should be the manufacturer borne require injured than to be fairer who sells the rather than a share of the person made to bear injured parties. This has been set forth burden, extent that he at Missouri Cryts least one case. v. Ford Motor (Mo.App.1978). Company, 571 S.W.2d ^[1] other instead of consumers of the placing that burden on product? all of the If action if to hold liability we were that the comparative apply. fault doctrine does not required pay per- manufacturer pass damages, cent of the he will that cost hand, under the On the other U.C.F.A. consuming public, an as- on to the unfair degree assumption is a of fault to of risk all consumers would sessment because comparative considered in fault cases. be pay damages then forced to Therefore, fault doctrine comparative if the injured party. caused cases, applied liability as- is not to strict speaks impossibility Appellant also of the complete a sumption of risk would remain comparing concept negligence a on liability on strict defense to an action based part injured party of the with the con- only partial a defense to an action but cept liability part of strict on the of the ordinary negligence. based on manufacturer, or- apples the so-called adoption of negli- anges argument. It is true that the law, fair- certainty to provides doctrine gence of a manufacturer found liable under inconsistencies ness, eliminates liability the strict doctrine is irrelevant. were doctrine if the exist would which say This is not to that the of the liability actions. applied in strict ig- injured party claimant should also be Although negligence and strict lia- nored. plaintiffs now The result is that they bility concepts, different are are action, liability even recover a strict types fact different of fault and can be risk, assumption of though there was an 1(1) compared on that basis. U.C.F.A. § depending jury’s assessment (1977) (amended 1979). fault doc- fault. Unless the jurisdictions in other Some of the cases however, assumption of applied, trine is problem, if it is a problem, address this complete defense to a risk remain a decided saying that the issue should be liability action. strict proportion of causation attrib based on the consumer, liability in a strict A and to the con utable to the manufacturer problems of still action is relieved analy unreasonable sumer. This is a not system. comparative fault proof under a sis, but Missouri under prove only required to a He continues to be Benda, supra, we are told that compara design which defect in manufacture cases. tive fault will considered caused unreasonably dangerous and which defines “fault” to include The U.C.F.A. physical harm. negligent or that acts or omissions that are liability. person strict tort subject a adoption of the reasons for One of Therefore, liability can be the fault it was liability rule the strict negligence be compared with the fault of difficult, impossible, if not cause Missouri part of manufac- negligence on the prove possible.” Id. U.C.F.A. “insofar as problem warranty turers. The breach apply the If we were not to problems of the other of course one of actions, to strict fault doctrine by the was eliminated plaintiffs which Gus Before situation results. anomalous It abol- rule. adoption of the strict Benda, supra, contributory negli privity between requirement of ished the tafson negli to a complete defense gence was plaintiff. D. and the manufacturer action, at all to a gence no defense but Fischer, Liability-Applicability Products Dayton action. Keener v. Negligence, 43 Mo.L.Rev. Comparative Company, Manufacturing Electric Wade, Liability Products (1978); (Mo.1969); Williams Compara- Fault-The Uniform Plaintiffs Company, Ford Motor Act, L.Rev. Fault 29 Mercer tive (Mo.App.1970). Negligence (1978); Comparative Do We Liability: Where Products contributory negligence Strict Gustafson, Since 29 Vill.L.Rev. Do WeGo? Stand? Where action, partial defense is a list also (1983-84); extensive See in strict at all be no defense but it would 511 “ordinary simple, and care” added. It was Daly v. Motors brief, General argument commentators in free from as impartial and Corporation, supra, 70.02(e). Cal.Rptr. at It did not re- required by Rule See also 9 A.L.R.4th 633 quire evidentiary 575 P.2d at to find detailed jury facts. application comparative of the fault they must jury It instructed doctrine to strict cases does not percentage of fault to assess a change relating proof negli- to law (Instruction 9 of the MAI Committee No. gence by privity liability plain- and strict illustrations) Comparative Fault Instruction They right tiffs. retain the to recover placing where he was if he failed to look necessity proving neg- without the either of his accident. right hand at the time his ligence part on the of the manufacturer or specific no complains because Appellant privity of contract with him. These rea- impossi- It would be time was mentioned. development theory sons for the say specific than to at the to more ble liability in tort continue to be satis- say unless one would time of his accident fied sys- even under a after, or or two seconds two seconds before tem. time, a detailed period of use some other summary, we hold that the doctrine of evidentiary fact. comparative fault as set forth in jury a matter for the to It was factual Benda, supra, applicable to strict lia- instruction, which was determine under bility actions in Missouri. There are three juror average intelligence as clear to a 1) brings symmetry reasons for this: it understanding and as an instruction could holding plaintiff responsible the law a knew that the cutter head of be. Plaintiff for his own actions in both dangerous. was He jointer machine cases; 2) cases and strict it com- it he knew that if he touched ports policy spreading with a of fairness in happened he the accident injured. When by holding plaintiff responsible the risk a which had reaching was for a board damages for the caused his own fault of his hand and he knew dropped out by forcing community and of consum- to the cutter head when it board was close only damages ers to bear the cost of fell. design man- attributable defective or ufacture; 3) agreement it is with the jury for the to determine It was whether majority jurisdictions of other in the United 1) 2) keep failed to a lookout and wheth- he States which have doctrines keep a lookout contribut- er that failure and fault. injury. ed to cause his “What constitutes

Appellant failing keep a lookout in asserts that Instruction No. being any particular in addition to erroneous direction at time or because upon the and cir- question, place depends is errone- conditions question.” vague point usually jury ous on the cumstances and is a because Slaughter Myers, arose, duty keep when the a lookout S.W.2d Ryan, also 1960); see Charles appellant did have sufficient because not “[Wjhether injury, though (Mo.App.1981). he a time to avoid even lookout, he should kept keep litigant has failed to see what careful so that failure usually is itself injury; a lookout was not a cause of his have seen Develop Coulter v. Bi-State jury.” the instruction because submitted Metro Agency ment Missouri-Illinois affirmative defense which had been District, politan 434 S.W.2d pleaded and was not established negligence is nor App.1968). The issue of accordingly waived. The evidence jury question. Rickman v. Sauer points mally a are not well taken. wein, (Mo.1971). a modified version

Instruction No. was mentioned 32.01(1) point to “at said percentage of fault A reference of MAI with a di- verdict “negligent” in the evidence” paragraph and definitions of risk defense is referred to assumption of This term and the re- contributory fault. recting vigilant watch and instruction on Keener v. to in is also referred vague statement objectional as lookout was not Dayton, supra, roving page confusing giving jury com- 365[4-5]. should mission as to when the defendant U.C.F.A., prob- the semantic Under oncoming auto- plaintiff’s have discovered lessened, if not eliminated. Con- lems are Werremeyer, 377 S.W.2d

mobile. Davis v. negligence, contributory fault tributory (Mo.1964). are all faults to be assumption of risk in his Appellant cites automobile cases determining liability. in compared Slaughter Myers, argument. negligence rate, contributory At Ryan, Charles v. (Mo.1960); S.W.2d 50 consent, the evidence issue was tried Coulter v. Bi- (Mo.App.1981); S.W.2d 220 jury and the objection, came without Development Agency the Missou- State sup- the evidence that could have found District, Metropolitan ri-Illinois no error. There was ported the defense. (Mo.App.1968). The cases are S.W.2d 793 allege error points they moving two apposite, Appellant’s not involve other because appellant’s instead of a machine which does of evidence vehicles in the exclusion which, and become al- study not move with a cutter blade architecture inability to his though moving, occupies essentially injury an architect because space same at all times. to show a evidence this He offered hand. earnings. loss of future that there was Appellant complains also presented sup- not substantial evidence graduate Plaintiff university was a with or port finding a that he could have avoided degree a in history, thirty years old at the he looked injuries lessened his had where time of trial. He had never studied archi- right the time of placing he hand at was prove tecture. He offered to that his em- question This a for the his accident. Hellmuth, ployer, Kassabaum, Obata and jury decide under all the evidence. The would have him sent to architectural jury appellant found that could could have school. looked, so, do and if he had have failed to Any alleged completely specula- loss looked, injury. he could have avoided his tive because no cer- there was reasonable contributory negligence by Evidence of tainty appellant would ever start archi- keep look- appellant’s reason of failure to school, tectural much less finish and be objection during the out came in without employed An profession. extended Although comparative fault was trial. discussion point prec- of this have no express or tried pleaded, was compliance edential value and is it denied therefore parties consent of the implied 84.16(b). with Rule if it respects as had must treated all 55.33(d). pleadings. Rule raised in the been judgment The is affirmed.

The case was filed before Gustafson

Benda, filed supra. original The answer SMITH, P.J., concurs. compa- contributory fault because

pleaded at part of our law fault was not rative concurring SATZ, J., separate concurs problem of Again is the time. there opinion. pleading contributory fault semantics. contributory same as to be the would seem SATZ, concurring. Judge, dif- although respondent’s brief negligence, negligence can Should and two, perhaps be- ferentiates between in a strict be a defense contributory fault has sometimes cause here. That is the action? assumption of risk describe been used to I “Yes.” it with Torts, majority answered Restatement, Law of In 3 defenses. slight- so for but do agree the answer with First, dealing ultrahazardous with reasons. ly different activities, as an might be described what

Policy Reasons Benda, In 661 S.W.2d 11 products liability action, the strict 1983), applied Court presumptively puts defendant is liable if he pure comparative doctrine of fault in a unreasonably dangerous a defective and “supplant[ed] action and product on e.g., the market. See Racer v. contributory negligence, doctrines of last Utterman, 629 S.W.2d chance, clear and humanitarian App.1981), denied, 459 cert. U.S. comprehensive system compara- awith S.Ct. L.Ed.2d 42 He bears fault_” tive Gustafson, though injured plain even But, majority opin- indicated in negligently tiff “fails discover the defect here, ion went fur- [negligently fails] “adopted” It pure ther. the doctrine of guard against possibility the of its exist comparative (Second) fault “for the trial of ence.” Restatement tort of Torts and, general defendant, n The cases” as a direction “for 402A comment ac- § however, is relieved from if the complishing comparative the transition to injured plaintiff fault,” knew defect and directed the courts Missouri to “voluntarily unreasonably” and encoun apply “[ijnsofar possi- the doctrine as is Thus, it. products tered Id. strict Thus, Gustafson, ble.” 661 at 15. S.W.2d action, a distinction is made be simply cannot be confined to its objective tween the defense of contributory facts, and the cannot issue here be sum- negligence subjective and the defense of marily dismissed that basis. assumption fault”). (“contributory of risk In Gustafson, our however, Assumption just of risk a vari pure the doctrine of and egregious ant more form of contrib concept because of the Court’s of utory negligence. See, e.g., Bullock v. simple Gustafson, fairness. 661 S.W.2d at Benjamin Co., 10, 392 Moore & S.W.2d 13 15. Prior to the Gustafson, Court’s con 68, (Mo.App.1965);Prosser, Torts 441 § cept simple of also fairness caused it to (4th 1971). Why ed. was the then distinc adopt products the doctrine of strict liabili question made? tion The answer this Co., ty. Dayton Keener v. Electric Mfg. answering essential to the here. 362, (Mo.1969). 445 S.W.2d 364 For each policy If the justifying reasons the doctrine doctrine, spe fairness was translated into products liability compelled of reasons, policy policies cific and are objective contributory courts to exclude by specific concepts. carried out Since defense, policy as a then the apply both doctrines an area now once justifying compara reasons the doctrine of exclusively negli controlled rules of may tive fault not sufficient be of conter- respective gence, meeting policy rea vailing weight to eliminate this exclusion. respective concepts and sons was inev itable. Whether between doctri conflicts justifying The the doctrine of reasons policy nal reasons and conflicts between products liability rest on the courts’ inevitable, concepts doctrinal are also how society and social economic model ever, depends policy solely on reasons that this model and courts’ basic belief justify selected to each doctrine and on the bear the finan- demands “[defendant] given concepts implement definitions injuries burden of the which his defec- cial ing specifically, each doctrine. More Feinberg, Ap The cause.” tive concepts

particular reasons and selected Comparative Negligence A plicability Of “conceptual feasibility determine Liability A Products Strict Defense Suit, desirability comparing the mis 39, doctrinal 40. This basic 1975 Ins.Couns.J. see,

conduct of the with the strict lia variously expressed, has been belief bility imposed Products, defendant under on the Power e.g., v. Yuba Greeman 697, 701, 402A, (Second) 57, Inc., Cal.Rptr. of Torts 59 Cal.2d 27 § [Restatement 1963); Morse, 897, (Cal. (1965)].” P.2d Escola Murray Fairbanks 377 901 Co., 453, 149, Cir.1979). 24 Cal.2d (3d Bottling F.2d 156 v. Coca Cola 610 514

him for the fault of someone else.” liable Levine, Buyer’s Conduct, Minn.L.Rev. 52 436, (1944) 150 P.2d (Traynor, J., 443 con- 627, (1968). Nonetheless, could courts curring); (Second) Restatement of Torts consciously exclude have chosen to (1965),1 most, 402A comment c if not contributory neg- objective consideration all, of these expressed reasons have been ligence subjective assumption not but adopted or acknowledged approv- with tacit they expressed risk their because believed al See, courts in Missouri. e.g., by exclud- policy simply could be achieved v. Dayton Keener Co., Electric Mfg. ing former defense not the latter. (Mo.1964); S.W.2d Slade, Katz v. contributory plaintiff's If the exclusion of (Mo.1970). S.W.2d See reason, were for the exclu- this also Motors, Blevins v. Cushman adoption of sion should continue after the S.W.2d 1977); Giberson per- doctrine fault. Co., v. Ford Motor requiring ceived economic and social model 1974); Sears, Winters Roebuck & significantly changed has not exclusion (Mo.App.1977). adoption liabili- since the of strict reasons be divided into two admittedly certainly, changed by it ty, overlapping groups: one primarily focuses Thus, if adoption fault. defendant; on the pri- the other focuses impose financial were fair to the entire marily on plaintiff. group Neither will adop- prior on the defendant burden permit comparative negligence aas defense just as comparative is still tion of it products in strict liability without raising Therefore, compa- adoption. fair after its serious policy conflicts. These conflicts defense not be a rative should must be addressed. products liability in a action. strict The first group policy imposes reasons strict liability on defendant the because of

his risk-bearing profit capacity, seeking group pre- The second of reasons also motive and creation of risk. Included comparative also cludes negligence, or at least is a desire to him putting deter from dan- comparative negligence, certain kinds of as gerous products See, on the e.g., market. products liability. defense to strict In Greenman, Cal-Rptr. at 377 P.2d at our complex, society, technological it is 901; Katz, said, at 611. These rea- ability the consumer has the neither sons, however, compel complete do not the knowledge prod- nor discover defects objective exclusion of contributory negli- ucts; therefore, rely on the must consumer gence as a defense. It is one thing to hold the made representation safety impliedly a defendant presumptively liable by because his the defendant markets when he of his risk-bearing capacity, profit seeking product. Keener, 364.2 Un- 445 S.W.2d at risk, motive quite creation of reasoning, der this plaintiff’s failure to “[it is] another to arguments use same guard to hold against discover or must be a defect example, 1. For products § comment c of 402A states: sumer of such max- is entitled to the someone, protection imum of hands of justification theory, On whatever for the proper persons those to afford it are strict been said to has be that the products. market the seller, who by marketing product his for use and consumption, has undertaken and assumed a longer consumer no means or has the special responsibility toward member of enough investigate skill for himself consuming public injured by who product soundness of and his erstwhile ... it; public right that the has the to and does vigilance steady has been efforts lulled expect, products in the case which it needs up of manufacturers to confidence build rely upon and for which it is forced to devices_ advertising marketing Con- seller, reputable sellers will stand behind longer warily approach products sumers no goods; public policy their demands that faith, accept repu- relying them but on on injuries burden of caused accidental mark. tation of the or the trade manufacturer products consumption placed intended for Bottling Cola Escola v. Coca 24 Cal.2d them, upon those who market and be treated J., (Cal 1944) (Traynor, con- P.2d production against as a cost of which curring). obtained; insurance can be and that the con- finely required

not so tuned that who, excluded as a defense. A defendant exclusion of one defense but not the other. effect, represents product as safe Moreover, adopting the doctrine of sensibly complain cannot injured that the products liability, explicitly strict no court plaintiff should not have rep- relied on the plaintiff’s implied focused on the reliance logic resentation. This remains sound. product safety as the reason for distin- inability Neither to determine guishing plaintiff between an inattentive whether a is safe nor the defend- and a knowledge with of the de- implied representation safety ant’s has reasoning fect. This expressed, if at significantly changed since the adoption of all, only at the time adopting a court was products liability. Therefore, the doctrine of adoption fault should not already adopted context of an doctrine of change logic. fact, and cannot sev- products liability. See cases cited jurisdictions eral logic per- have found this supra note 3. and, accepting

suasive comparative neg- ligence as a defense to strict lia- Admittedly, the distinction between ob- bility, explicitly have excluded as a defense jective contributory negligence and as- guard the failure to against discover sumption of risk is explicitly incorporated defect.3 extent, into 402A. To that those courts § reasoning, however, None of this per- adopting consciously adopted the dis- § suades me that and, thus, tinction also the exclu- should be excluded as a defense in strict objective sion of contributory negligence as products liability. Quite simply, I am not rule, a defense. The Restatement’s how- convinced the distinction made between ob- ever, is best described “as a rule in jective contributory negligence subjec- rationale,” Schwartz, search of a Compa- assumption tive of risk in a strict 12.6, Negligence, rative at 203 liability action a consciously thought- explanation The Restatement’s for dis- process. out regarding objective contributory negli- First, adopting the doctrine of strict gence singularly unpersuasive: is products liability most, all, if not courts liability Since the with which this Section supported adoption by focusing on the upon negli- deals is not based [402A] risk-bearing profit defendant’s capacity, seller, gence of the is liability, but strict seeking motive, risk, creation of as well as applied liability the rule to strict cases on the use of the doctrine as a deterrent to (see 524) applies. § marketing dangerous one, products. No (Second) Restatement of Torts 402A com- however, expressed § opinion that these (1965). nment Section 524 deals with as- policies could only by excluding be achieved sumption abnormally dangerous risk objective contributory negligence as a de- simply activities. That section states the important, fense. More not one even inti- negligence only contributory that bars the excluding objective contributory mated that plaintiff recovery “knowingly negligence subjective assumption and un- but not reasonably subjecting of risk as a defense was himself to the risk” essential neces- sary carry expressed dangerous out policies. from activities. Restatement (Second) (1977). 524(2) This is understandable. The economic and of Torts It is far § however, clear, policies social model of the courts was not and is from “that the be- GM, injured person’s place. 3. conduct which in [A]n [292 fact v. Chevrolet Div. Sandford 624, (Or.1982). injury was a cause of her and which consti- Or. 642 P.2d See also 590] 80, Co., including negligence, Caterpillar a tutes is to be West v. Tractor 336 So.2d "fault/ action, Industries, Inc., (Fla.1976); products liability Coney considered in a un- v. J.L.G. 104, 337, alleged negligence 343-44] less the user’s consists in Ill.2d 73 Ill.Dec. [97 unobservant, inattentive, (Ill.1983); ignorant, the kind of N.E.2d 203-04 Duncan v. Cess Co., (Tex. guard or awkward failure to discover or to na Aircraft 1984); against goes making the defect that toward Furniture Star Furniture Co. Pulaski (W.Va.1982). product dangerously defective the first 297 S.E.2d due, plain- part, a large absorb loss on rests funda- The answer fault? tiffs hind strict liability abnormally danger- Making concepts of fairness. mental ous activities are the same as those relied individual’s action responsible for group moving on courts products to strict lia- Moreover, Noel, bility.” always unfair. almost Products: Abnor- Defective Use, mal of contrib- Contributory Negligence, the rule justification for primary Assumption Risk, context, 25 Vand.L.Rev. is “the negligence, utory (1972). To contrary, respective to be held liable if one man is feeling that policy Note, reasons are different. A Re- the fault of him then because appraisal Contributory Fault in Strict liability should seeks to enforce who Law, Products Liability Wm. Mitchell James, Harper & considered.” also (1976). me, L.Rev. 235 To the transference (1974). 22.3, Torts, at 1207 Law of principles from for abnor- by compa- practice put into feeling is This mal activities products to strict negligence. rative “appears to have occurred almost ‘without saying,’ despite origin the different de- I believe rationale of these heads liability.” of strict protection more mainly to veloped provide Fleming, Court of California under is available consumer than for the 19 Comparative 74-1975— F orward: Reducing the dam- negligence principles. Negligence at By Choice, Judicial Last — protect himself can ages of who 64 Calif.L.Rev. See to his own negligently contributes but who Note, A also Reappraisal, supra, at 236- pro- seriously impair injury does not tection. unarticulated, cogent,

The most yet contributory excluding negli-

factor gence negligence was the constraint persuaded Nor am I that we should tailor principles existing when strict lia- the defense bility Contributory negli- was created. protect the theoretical reliance consumer’s gence complete was a bar to the safety. attempt to distin- To action. The courts distrusted harsh guish various kinds of Noel, all-or-nothing supra, rule. See plaintiff’s fail- attempt only the to exclude 111; Schwartz, supra, at 204. It was sim- against a defect guard ure to discover or to ply protection unfair to from withhold all conceptual simply put into a us back slightly inattentive consumer of a defective Comparative is attractive morass. perhaps, More to product. important, do principles, simple. it its because is Under beg so would common sense. The doctrine distinguishing difficulty avoid the we products created of strict to guard or to the defect “failure discover protection give plaintiff. increased its existence” against possibility the Barring being slight- even recovery for care;” between ordinary “lack of from ly destroy protection inattentive the “forseeable “contributory negligence” and hypoth- If just had been created. misuse;” between and and unforseeable then, correct, is, it esis is and I believe as “assumption “contributory negligence” and states, to majority the it is sensible ask temptation the If we succumb to of risk.” barring objective the rule whether contrib- negli- exceptions comparing making for utory as a defense deserves to “exceptions swallow the gence, will soon negligence, under survive now compara- rule, pure application the and “possible the penalize that it is as un- just principles will become tive-fault protect denying without failure himself artificial, unfair, certain, just as just as protection Fleming, him all of the law.” harsh, as was the just instances some at 270. supra, negligence.” contributory Why defendant, should old doctrine the innocent Corp., 108 product users of the Motors community Simpson or the v. General product defect, or, fault with no 854, 860, 146, 483 N.E.2d Ill.Dec. Ill.2d seemingly problem causes no one logic. J., dissenting).4 1, (Ill.1985) (Ryan, logi- Alternatively, satisfy pristine the Conceptual Feasibility that, cian, and has been assumed it can be pointed As majority, out the forceful action, we do in a strict argument has been concept made that the conduct the compare the defendant’s with strict is different court, This as well as plaintiff’s conduct. kind concept from the in us- others, the defendant’s breach has stated ing and, product, the logically, argued, it is duty placing is the act of a defective and the two cannot compared weighed be dangerous product unreasonably into against each generally, See Wade, other. stream of commerce. See Racer v. Utter Liability Products And Plaintiffs man, 387, (Mo.App.1981), 629 S.W.2d Fault —The Comparative Fault Uniform denied, 459 U.S. cert. 103 S.Ct. Act, (1978).5 29 Mercer L.Rev. 373 Similar (1982).6 See also Austin L.Ed.2d mixing comparing “apples and or- Inc., 471 A.2d Raybestos Manhattan, — anges” water,” or “oil and argued, it is (Me.1984). concept premises This mixing comparing of fault and no-fault conduct; liability on his the defendant’s Id. at 376. conceptually feasible. and, thus, permits the trier of fact conceptual This imagined conflict is more compare the defendant’s conduct with than real. plaintiff. conduct of the Arguably, products liability focus- product es on the rather than the defend- me, To acceptable the most method of This, however, ant’s pre- conduct. does not avoiding conceptual conflicts is to treat jury vent the in a products liability Comparative Uniform Fault Act for what it action from weighing plaintiff’s con- really is. It is a cause act.7 against duct product compar- or from Act, Under the injury, all causes of an ing plaintiff’s fault with the defendant’s independent concurrent, may appor lack of plaintiff fault. When the percentage tioned on a basis. The loss for charged assumption (contrib- with of risk particular injury simply appor can be fault) utory sufficient, and the evidence is product tioned “between the defect and the jury may required to determine plaintiff’s [by comparing] misconduct ... whether unreasonably assumed the causative contribution of each to the using the risk in product. If jury particular Murray v. Fair injury.” loss or concludes, so then it is directed to find Morse, banks (3d 610 F.2d Cir. (3d 1981). defendant. MAI 32.23 See 1979). short, jury would not com Co., also Dayton Keener v. Electric pare the defendant’s non-existent 362; Williams v. Ford Motor fault; rather, plaintiff’s jury with (Mo.App.1970). As- compare would be directed to how much of risk, sumption of use of the after injury was caused the defect and defect, discovery of the is both plaintiff’s conduct and much how was caused comparison fault. This of conduct with misconduct. state, Durbin-Durco, Jersey, excepts

4. New Stevens "ordinary" contributory negli- 1964). the defense of action, when, gence products liability in a strict here, plaintiffs injury is work related. 5„ vigorously disagrees Professor Wade with this e.g., Angelo Foundry See Suter v. San & Mach. argument. (1979). 81 N.J. 406 A.2d 140 This may exception sounds attractive. A worker knowing 6. The Court made this statement oth- equipment have no choice in the tools or fur- ers have said the doctrine of strict job. policy nished on him in New only concept renounces not of fault however, Jersey exception, which dictates this duty. concept but also the exception also dictates the actions. See, e.g., Sterling Corp., Green v. Extruder con- 7. I do not believe the label "fault” is as policy N.J. 471 A.2d 15 This does straining majority does. as the square policy with our in Missouri. See separate repeti- is made cases

ment defamatory same statements tions of the argue reasonable no are those who There or separate resulting acts in alienation of to jury to given instruction can Levine, Conduct, Buyer’s affections.” su- See, comparison. making this guide pra, at 655-56. Corp., Motors Daly v. e.g., General short, I find no insurmountable doctri- 380, 396, 575 P.2d Cal.Rptr. Cal.3d conceptual nal or conflicts between strict J., (Cal.1978)(Jefferson, dissent 1162, 1178 products liability fault. jury instruct the We now ing). disagree. I Therefore, I problem see no real in compar- Given complicated issues. on much more ing plaintiffs rules, misconduct with the practicing bar ground definite liability imposed on a enough to com- defendant 402A. ingenious always has been products liabili- Admittedly, in a ply. majority. I concur with the tend- have a natural case, jury ty party plaintiff as on the ency to focus in- blameworthy. Careful noticeably

most however,

struction, cure this tenden- could proper formula give jury

cy and instruc- damages. Under this

apportioning to

tion, ascribe jury would 100% found once it defendant BARNES, Appellant, Lucille unreasonably dangerous defective to cause or contributed defect caused BUILDERS, also TOOLS & fault is MACHINERY plaintiffs If injury. plaintiffs INC., Respondent. be instructed jury would present, figure proportion reduce the 100% No. 67805. his own contribution plaintiffs causal injury. Missouri, Court of En Banc.

There are also those who argue evaluation of fault is be- Aug. 1, 1986. yond prowess of the jury. again I Rehearing Sept. Denied disagree. This task is no more difficult than determinations we now jury ask the

make. For example, on conflicting expert

evidence, we ask the jury to determine

whether a plaintiffs hiatus hernia was

caused an auto accident which occurred

three prior months being hernia di-

agnosed. See Bertram v. Wunning, 385 803, (Mo.App.1965), appeal on re-

mand, 417 S.W.2d 120 (Mo.App.1967).

Moreover, apparent with no difficulty, damages according to fault

“[division

found in cases where and defend-

ant pollute both the same stream or flood property, where two or more stream,

defendants pollute a where two

defendants personal inflict injury sepa-

rable areas plaintiff, where defend-

ants’ together animals cause injury, and in

cases involving nuisance due to noise or air

pollution. By token, the same apportion-

Case Details

Case Name: Lippard v. Houdaille Industries, Inc.

Court Name: Supreme Court of Missouri

Date Published: Aug 1, 1986

Citation: 715 S.W.2d 491

Docket Number: 67802

Court Abbreviation: Mo.