Features
The Effect of Plaintiff's Conduct
In Strict Products Liability in Texas:
A Time for Reevaluation
Henderson relied upon an earlier decision
in which strict liability was imposed upon
the owner of a vicious animal2 for its hold
ing that contributory negligence was not to
of
a
extent
the
determining
such in Texas in
strict products tor tfeasor s liability. Subse- be considered as a defense to strict prod'
Since 1974 in Henderson -. Lord Motor
Company 'the con tributory negligence of
the plaintiff has not been considered as
quent developments of this rapidly expanding, and sometimes seemingly unman-
ageable, body of law requ ires that this jud
cial decision be reexamined and modified.
Specifically, Henderson held that the
aspect of plaintiff's conduct known as vol..
untary assumption of risk would be a com
plete bar to recovery and the facet known
as contributory negligence would be no defense at all in strict product liability cases.
It is unnecessary to betome bogged down
in the quagmire between these two del en
sive theories, though later reference to a
comparison of the two will be necessary.
With respec to contributory negligence.
ucts liability. In turn, the basis for impos
ing strict liability upon the owner of the
animal was found in the Restatement of the
Law of Torts § 55,3 Significantly, in the
wild or icious animal case, plaintiff is required to prove that the possessor knew or
shouldd have known of the animal's dangerous propensity before strict liability is ap
plied. This proof is consistent with the
view taken by § 5074 and § 509 of Restate
ment of the Law of TortsW both of which
were relied upon by the Supreme Court
and obviously recognized by the trial court
in which the jury refused to find that the
defendant had actual knowledge but did
By J. Hadley Edgar, Jr.
December 1980
Texas Bar Journal
1103
find that he should have known of the boar's
dangerous propensity for harm. This crucial finding was the basis for imposing full responsibility for
preventing the harm on the possessor of the beast.
Strict products liability under the Restatement of
the Law of Torts § 402A 6 , on the other hand, is
based upon totally different policy considerations.
We must keep this theory of strict products liability
in its historical perspective. By its express wording,
it was written only to eliminate those two monumental and often historical stumbling blocks to
plaintiff's recovery - lack of privity of contract
with the defendant and proof of defendant's negligence. Conversely, § 402A was not written to
eliminate a consideration of all of the plaintiff's
substandard conduct, particularly in light of
changes which were forthcoming.
Strict products liability is imposed upon the
seller without regard to whether he knew or should
have known of the product defect; it is imposed
even though the seller has exercised all possible
care. If the plaintiff in a products case were required to prove that the defendant had actual
knowledge of or should have known of the product
defect, then there would be a fairer basis for comparing the strict products liability of the manufacturer with the strict liability of a wild or dangerous
animal. However, since the plaintiff in strict products liability is under no such burden, the defendant
should not be penalized thereby. It is one thing to
impose absolute liability on the owner of a dangerous animal when its viciousness was or should have
been known by its owner. On the other hand, a
manufacturer or product supplier, unlike the
possessor of a wild animal, neither is nor should be
considered an insuror. 7 Strict products liability was
not intended to be and is not absolute liability.
In defense of the HendersonCourt, recall that the
damaging event occurred in 1969, at which time the
"all or nothing" approach was the order of the day.
However, at the time of the decision in 1974, the effect of the plaintiff's conduct upon a tort recovery
was in a state of flux. Some months earlier, the Legislature had adopted the Comparative Negligence
Statute," which does not apply to strict products
liability. 9 It would have been extremely difficult for
the Supreme Court to have explained satisfactorily
or justified a rule of law in Henderson by which a
slightly negligent plaintiff could recover nothing
from a strict liability tortfeasor while a plaintiff
negligent to the same slight degree could recover a
substantial amount of money from a negligent tortfeasor by virtue of comparative negligence. Thus, a
balance was struck - contributory negligence was
no defense at all and voluntary assumption was a
complete bar to recovery.
During the ensuing period, Texas and other
states which had adopted strict products liability
and had also recognized comparative negligence by
either legislative action or judicial decision were
confronted with the problem of allocating the loss
between the seller or supplier of a defective product
1104
Texas Bar Journal
December 1980
and the plaintiff whose own misconduct contributed
to the injury. The other jurisdictions quickly realized
that the imposition of primary liability upon the
defendant without regard to fault was no reason to
ignore fault on the part of the plaintiff.10 While the
policy of the law might correctly impose strict
products liability to stimulate manufacturers to increase product safety, it should also seek to
stimulate safety by the product user. 1
Though it may be unfortunate, the basic purpose
for this area of the law is not to enrich the legal profession. Rather, it is to benefit those who entrusted
us with our licenses to practice law - the public society in general. The basic, bedrock cornerstone
of the law of unintentional torts is, and should be,
to reduce accidents, thereby decreasing both physical and economic waste. Whatever is necessary to
accomplish this result should be encouraged. Consequently, if an unreasonably dangerous product is
placed in the stream of commerce and causes injury
to a person to which his or her negligent conduct
contributes, both the seller and the injured party
should share the responsibility for that loss. As a
matter of fundamental fairness, we must admit that
a negligent plaintiff in a strict products case whose
negligence is ignored becomes the recipient of a fortuitous unfair advantage when we penalize a plaintiff in a negligence action for the identical substandard conduct.
In the final analysis, the consumer is the party
who pays the judgment rendered against the product
seller. Unless we are going to commit this jurisdiction to a tort reparations system in which the total
burden of loss is to be allocated to the consumer,
the negligent plaintiff should also be required to
bear a proportionate part of that loss. It is exceedingly difficult to justify a system in which the
consumer is required to pay an increased cost for
nearly every product on the market which is represented by the result of law which allows the contributory negligence of the plaintiff to be ignored.
A rule which compels the prudent consumer to pay
a negligent consumer for the latter's negligence is
patently inequitable.
Since 1974, the Supreme Court has twice considered the effect of the plaintiff's conduct caused
by a product-related injury and recognized that in
each instance the plaintiff's subpar conduct should
be considered. On the first occasion, the Court decided that the jury should compare, on a pure comparative basis, the percentage of cause produced by
the defective product with that percentage proximately caused by the plaintiff's unforeseeable misuse of the product. 12 Next, relying on the language
of the Business and Commerce Code, it determined
that in a case in which the plaintiff was permitted to
seek an alternate recovery on a breach of warranty
theory, the jury should compare, again on a percentage basis, the percentages of proximate causes
between the unsuitability of the product and the
contributory negligence of the plaintiff.13 This
method is frequently called pure comparative cau-
Features
sation. Other juridictions have adopted similar
concepts under the names of "comparative fault" or
"comparative risk." A detailed and analytical discussion of the nice distinctions and relative merits
of these allocation methods with their attendant
historical developments serve no useful purpose at
this juncture. 14 The Supreme Court has unfortunately declined a recent opportunity to apply pure
comparative causation to a strict products liability
suit mixed with contributory negligence.15
Before leaving the subject of misuse, recall that
the supplier is strictly liable only for foreseeable
uses of the product. Consequently, no liability results if the product is being used by the plaintiff in a
manner unforeseen to the supplier. The Court, in
General Motors Corp. v. Hopkins,1" reasoned that
misuse would be a proper affirmative defense if defendant proved unforeseeable use by the plaintiff
which produced the damaging event and which
should have been reasonably foreseen by the plaintiff-in other words, that the unforeseeable misuse
proximately caused the event. Not only is it virtually impossible for the supplier to prove these elements, but it forces the defendant to attempt to
place "square pegs in round holes.' 1 7 This dilemma
is well illustrated in Boatland of Houston, Inc. v.
Bailey,1" in which the defense sought to portray excessive speed and improper lookout as misuse issues when we know that they are time honored negligence (either primary or contributory) issues
known and comfortably utilized as such by the
bench, bar, and juries for over one hundred years.
In another recent example, the jury found that the
owner's failure to perform required maintenance
on the tires, overloading the trailer, and excessive
speed constituted misuse. 19
Admittedly, there are examples of conduct
which might properly be considered misuse but not
negligence and vice versa, or situations of alteration but short of negligence or misuse. To constitute an affirmative defense in strict products liability, however, these distinctions are totally irrelevant. While consideration of alteration, abuse, and
misuse (whether foreseeable or unforeseeable) have
relevance on the supplier's liability vel non because
of its duty to provide a product which is not unreasonably dangerous, the critical inquiry as it concerns the conduct of the plaintiff should focus upon
whether it constitutes a lack of ordinary care and
thus reduce recovery. Therefore, if the product was
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Texas Bar Journal
1105
i
Features
in fact defectively manufactured or designed, determination of product alteration, abuse, or misuse, is in the nature of an inferential rebuttal - the
affirmative defense is whether the conduct of the
plaintiff, whatever it might be, was in fact negligence which proximately caused the loss.
To complete this analysis, it becomes necessary
to examine and refine various types of plaintiff's
conduct. The basic fact pattern, which had its ori2
gin from the one used by the Court in Henderson, 1
and the five examples which follow it will serve to
illustrate certain types of conduct and their proposed effect upon the plaintiff's recovery in strict products liability.
The plaintiff takes his spanking-new car to the
country for a test drive. Its brakes have been defectively manufactured and designed. Several possibilities then arise:
No. 1. Plaintiff approaches a winding road and
ignoring the warning signs, accelerates to 85 mph,
suddenly realizes his position of peril, applies the
brakes which do not hold, the car leaves the roadway, overturns and he is injured. For the reasons
stated earlier and re-emphasized later, this is classic
contributory negligence and should be submitted
to the jury to evaluate, on a percentage basis, with
the defective brakes, by pure comparative causation.
No. 2. Plaintiff has no occasion to apply the
brakes after leaving the place of purchase until he
approaches the curve in the road. Though traveling
at a prudent speed and in a prudent manner, the
brakes fail and he is injured. However, had he applied the brakes earlier or inspected them in any
way, the defect would have become apparent. This
is not contributory negligence because one of the
inherent policies in strict products liability is the
right of the consumer to rely upon the integrity of
the product. The consumer neither is nor should be
under a duty to guard against the possibility of defect in the product.21 Plaintiff should recover 100 %
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1106
Texas Bar Journal
December 1980
I
of the loss.
No. 3. Plaintiff has some minor mechanical aptitude and realizes that the brakes don't work as they
should but he's anxious to take the car for a spin
and dismisses it from his mind until the accident.
The jury should be allowed to determine whether
he failed to exercise the care of a reasonably prudent person when he had the facts at hand to suspect a faulty brake system and had reason to know
there might be a problem. Courts should be as interested in encouraging consumers to exercise ordinary care when they either know or should know
of unreasonably dangerous product defects as they
are in eliminating defective products from the
stream of commerce. Both policies must work simultaneously to further the ultimate goal of reducing injury-causing events.
No. 4. While traveling the country road plaintiff
discovers that he has no brakes at all. The car rolls
harmlessly to a halt. There is no danger of leaving
the car and walking to a garage, but plaintiff does
not want to be late for the tee-off time with his golf
foursome so he proceeds to a point where the bend
in the road is too sharp for him to navigate without
brakes. The jury might find that he not only failed
to exercise the care of a reasonably prudent person,
but that he voluntarily proceeded in the face of a
known danger. This is negligent voluntary assumption of risk and should be treated in the same fashion for the same reasons as his contributory negligence in Nos. I and 3 above - it should be submitted to the jury in terms of pure comparative causation. It should not be the complete defense as announced in Henderson unless the Court, in an extremely rare case, determines that it is so reprehensible and culpable that this negligent conduct proximately caused 100% of the loss as a matter of law.
The conduct may be negligent to a high degree, but
if recovery is to be denied, it should be because of
the quantum of plaintiff's negligent conduct, not
because of voluntary assumption of risk.
Such a method of analysis and treatment would
also eliminate the problem in which the plaintiff
has ignored the obvious by repeatedly walking
through the hall of danger hundreds of times. In a
recent decision,22 the jury had found that the step
attached to the side of the tractor and covered with
mud was both defectively and negligently designed.
The majority rejected defendant's voluntary assumption of risk argument because of no evidence
in the record of plaintiff's subjective knowledge
and appreciation of the specific danger involved.
The dissent, in reviewing plaintiff's admission in
getting off the step some 3,000 times, many of
which were in the mud, would have charged him
with voluntary assumption of risk as a matter of
law.23 The result reached by the majority is complete recovery; the dissent would have allowed no-
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Texas Bar Journal
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thing. Under the present state of the law, the court
had no other choice since Hendersonadopts the "all
or nothing" approach. Because of the developments since 1974, this position is no longer viable.
There is no more reason to recognize voluntary assumption of risk and its attendant open and obvious concept as a complete defense in strict products liability as there is in negligence cases; they
should be abolished as defensive doctrines in strict
products liability for the same reason they were
abolished in negligence cases. 24 The jury should be
permitted to consider whether the step was defectively designed and whether plaintiff was contributorily negligent on the basis of pure comparative
causation.
No. 5. Let us assume the same facts as in the preceding example - while traveling the country road
plaintiff discovers that he has no brakes at all. The
car rolls harmlessly to a halt. There is no danger of
leaving the car and walking to a garage, but the
plaintiff elects to continue the journey because he is
transporting his seriously injured child to the hospital. Since a reasonably prudent person might do
the same thing after knowing of the risk and choosing to accept it, a jury could properly find that it
was non-negligent voluntary assumption of the
risk. If he is not negligent, his recovery should not
be diminished to any degree.
Reverting again to its historical beginning, §
402A was drafted when comparative fault was in
its infancy. At that time, contributory negligence
was a complete defense. Even so, the pertinent
comment 25 clearly suggested that only contributorily negligent voluntary assumption of risk
would be a complete defense. It did not purport to
consider comparative fault and that form contributory negligence which did not include the elements
of voluntary assumption of risk. At the risk of repetition, doctrines based upon the parties' conduct
which inexorably lead to total victory or absolute
defeat do not achieve the end of justice in the law of
unintended torts and should be replaced as soon as
possible with a system of comparative fault.16 Two
unrelated national efforts propose similar reform.27
To round out this suggestion, its procedural implementation should be considered. The method of
submitting plaintiff's conduct to the jury in strict
products liability may take several forms. In General Motors Corp. v. Hopkins,' 8 the Court sug-
gested that a comparison, in terms of percentages,
of cause produced by the product defect with cause
proximately resulting from the plaintiff's unforeseeable misuse, be made. This method, called
"comparative causation," has been criticized principally on the ground that the defendant is more capable of illustrating the effect of plaintiff's misconduct to the jury than the plaintiff in showing the
contribution of the product defect.,2 To overcome
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QUESTION 3
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QUESTION 4
Was the plaintiff's
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32
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1108
Texas Bar Journal
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Conclusion
Modification of the existing law in this area is
urgently needed and will come as a result of either
judicial or legislative action. The former seems far
more preferable. Since strict products liability is a
Features
creature of judicial decision," the Court is equally
able to fashion a system of complete allocation of
loss between the parties. Such matters are more
preferably resolved by the judicial system upon
what it perceives to be appropriate social policies
rather than the result of inevitable legislative compromise between vested consumer and manufacturer groups.
This article is based upon a paper delivered by
the author at the Tort and Compensation Section
Meeting, State Bar of Texas, Dallas, on June 13,
1980.
1.
2.
3.
4.
5.
6.
519 S.W.2nd 87 (Tex. 1974) [hereinafter cited
as Henderson].
Marshall v. Ranne, 511 S.W.2nd 255 (Tex.
1974) (defendant's wild hog attacked and seriously injured plaintiff). It is frequently called,
not inappropriately, as the "boar war."
7.
Id. at 259. The specific portion is RESTATEMENT (SECOND) OF TORTS § 515, com8.
ment b, (1977) which states in part:
"Since the strict liability of the possessor
9.
of the animal is not founded on negligence,
the ordinary contributory negligence of 10.
the plaintiff is not a defense to such an action. The reason is the policy of the law
which places full responsibilityfor preventing the harm upon the defendant.
(Emphasis added.)
RESTATEMENT (SECOND) OF TORTS §
507 (1977) provides:
11.
(1) A possessor of a wild animal is subject to liability to another for harm done
by the animal to the other, his person, land
or chattels, although the possessor has exercised the utmost care to confine the
animal, or otherwise prevent it from doing
harm.
(2) This liability is limited to harm that
results from a dangerous propensity that is
characteristic of wild animals of the particular class, or of which the possessor
knows or has reason to know.
RESTATEMENT (SECOND) OF TORTS §
509 (1977) provides:
12.
"... [A] possessor of a domestic animal
that knows or has reason to know has dan- 13.
gerous propensities abnormal to its class is
subject to liability for harm done by the 14.
animal to others,., although he had exercised the utmost care to prevent it from doing the harm."
RESTATEMENT (SECOND) OF TORTS §
402A (1965) [hereinafter cited as § 402A],
provides:
(1) One who sells any product in a
defective condition unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical
harm thereby caused to the ultimate user
or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach
the user or consumer without substantial change in the condition in which it is
sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his
product, and
(b) the user or consumer has not
bought the product from or entered into
any contractual relation with the seller.
General Motors Corp. v. Hopkins, 548
S.W.2nd 344, 351 (Tex. 1977).
TEX. REV. CIV. STAT. ANN. art. 2212a
(Vernon Supp. 1978-1979).
General Motors Corp. v. Hopkins, 548
S.W.2nd 344, 352 (Tex. 1977).
See, e.g., Daly v. General Motors Corp., 20
Cal. 3d 725, 575 P.2nd 1162, 144 Cal. Rptr.
380 (1978); Caterpillar Tractor Co. v. Beck,
593 P.2d 871 (Alaska 1979); Busch v. Busch
Constr., Inc. 262 N.W.2d 377 (Minn. 1977);
West v. Caterpillar Tractor Co., 336 So.2d 80
(Fla. 1976).
A stated reason for initially imposing strict
liability upon the manufacturer was to place
the loss upon the party best able to prevent it.
Greenman v. Yuba Power Products, Inc., 59
Cal. 2d 57, 27 Cal. Rptr. 697, 701, 377 P.2d
897 (1963); Henningsen v. Bloomfield
Motors, Inc., 32 N.J. 358, 161 A.2d 69, 81
(1960); Prosser, The Assault Upon the
Citadel, 69 Yale L.J. 1099, 1122-23 (1960).
With this principle now firmly established,
the same rationale would require that the loss
be shared by the plaintiff to the extent that his
or her culpable conduct could have prevented
or reduced the injury.
General Motors Corp. v. Hopkins, 548
S.W.2d 344 (Tex, 1977).
Signal Oil & Gas Co. v. Universal Oil Prod.,
572 S.W.2d 320 (Tex. 1975).
For one of the latest and exhaustive articles,
see Sales, Assumption of the Risk and Misuse
in Strict Tort Liability - Prelude to Comparative Fault, 11 TEX. TECH L. REV. 729
(1980). See also Fisher, Products Liability Applicability of Comparative Negligence, 43
December1980
Texas BarJournal
1109
15.
16.
17.
18.
19.
20.
21.
22.
MO. L. REV. 431 (1978); Wade, Products
Liability and Plaintiff'sFault - The Uniform
ComparativeFault Act, 29 MERCER L. REV.
373 (1978); Twerski, The Use and Abuse of
Comparative Negligence in Products Liabil- 23.
ity, 10 IND. L. REV. 797 (1977).
Boatland of Houston, Inc. v. Bailey, 23 Tex. 24.
S. Ct. Jour. 566 (opinion dated July 30, 1980).
The points of error upon which writ of error
was granted are foreign to our discussion. 25.
However, the court of civil appeals had determined that issues relating to plaintiff's unsafe
speed and improper lookout were improper
misuse issues because they were foreseeable
by the defendant. Several of defendant's
points of error were directed to this holding of
the intermediate appellate court. Two members of the Supreme Court, in a concurring
opinion, urged that the Court recognize pure
comparative causation in allocating the loss
between the negligent plaintiff and strict
liability tortfeasor. The majority, however,
affirmed the trial court judgment in favor of
the defendant on other grounds without commenting upon this phase of the case.
548 S.W.2d 344 (Tex. 1977).
The term in this area is not original with the
writer. See Robinson, Square Pegs in Round
Holes, 52 JOUR. OF THE STATE BAR OF
CALIF. (JAN./FEB. 1977).
23 Tex, S. Ct. Jour. 566 (opinion dated July
30, 1980).
Wenzel v. Rollins Motor Co., 598 S.W.2d 895
(Tex. Civ. App. - El Paso 1980, writ
ref.n.r.e.). In its opinion, the court urges that
the distinction between foreseeable and unforeseeable misuse be discarded and replaced
by a system of comparative fault.
519 S.W.2d at 90-91.
Shamrock Fuel & Oil Sales Co., Inc. v.
Tunks, 416 S.W.2d 779, 783-84 (Tex. 1967).
See also Busch v. Busch Construction Co.,
262 N.W.2d 377, 394 (Minn. 1977).
Caterpillar Tractor Company v. Gonzales,
599 S.W.2d 633 (Tex. Civ. App. - El Paso
1980, writ ref.n.r.e.), which had been re-
26.
27.
28.
29.
1110
Texas BarJournal
December1980
manded by the Supreme Court to the court of
civil appeals to consider points not previously decided. Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867 (Tex. 1978).
599 S.W.2d at 641-42. See also Wesson v.
Gillespie, 382 S.W.2d 921 (Tex. 1964).
See Parker v. Highland Park, Inc., 565
S.W.2d 512 (Tex. 1978); Farley v. MM Cattle
Co., 529 S.W.2d 751 (Tex. 1975).
RESTATEMENT (SECOND) OF TORTS §
402A, Comment n (1965) provides in part:
... On the other hand the form of
contributory negligence which consists involuntarily and unreasonably proceeding
to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section
as in other cases of strict liability. If the
user or consumer discovers the defect and
is aware of the danger, and nevertheless
proceeds unreasonably to make use of the
product and is injured by it, he is barred
from recovery."
This comment was undoubtedly influenced
by Dean Prosser, the reporter for the Restatement of Torts (Second). See Prosser, The
Assault Upon the Citadel, 69 YALE L.J. 1099,
1147-48 (1960):
"... Those [cases] which refuse to allow
the [contributory negligence] defense have
been cases in which the plaintiff negligently failed to discover the defect in the
product, or to guard against the possibility
of its existence. They are entirely consistent with the general rule that such negligence is not a defense in an action founded,
on strict liability. Those which have permitted the defense all have been cases in
which the plaintiff has discovered the
defect and the danger, and has proceeded
nevertheless to make use of the product.
They represent the form of contributory
negligence which consists of deliberately
and unreasonably proceeding to encounter
a known danger, and is quite often treated
as assumption of the risk. It is quite well
settled that this is a defense against other
actions based upon strict liability. Again it
appears probable that ordinary rules
applicableto the tort action will be carried
over." (Emphasis added.)
See Boatland of Houston, Inc. v. Bailey, 23
Tex. S. Ct. Jour. 566, 571 (opinion dated July
30, 1980) (concurring opinion).
UNIFORM COMPARATIVE FAULT ACT §
1 (1977); MODEL UNIFORM PRODUCT LIABILITY ACT § 111, 44 Fed. Reg. 62714-50
(Oct. 31, 1979).
548 S.W.2d 344 (Tex. 1977).
Several writers have perceived an inability of
the jury to compare the conduct of a plaintiff
who is at fault with a defendant whose liabil-
F
Features
ity is imposed without regard to fault. See
Fischer, ProductsLiability - Applicabilityof
Comparative Negligence, 43 MO. L. REV.
431, 434 (1978). Concerning "comparative
causation," whether a jury can realistically
compare causes from evidence of plaintiff's
negligent conduct which can be tendered at
trial and the unknown conduct of the defendant which cannot is questionable. See
Keeton, Annual Survey of Texas Law: Torts,
32 SW. L. J. 1, 10 (1978). The method suggested in the above issues has been approved
in other jurisdictions. Daly v. General
Motors Corp., 20 Cal. 3d 725, 575 P.2d 1162,
1172-73, 144 Cal Rptr. 380 (1978); Butand v.
Suburban Marine & Sport. Goods, Inc., 555
P.2d 42, 45 (Alaska 1976), Cf. Urban
Renewal Agency v. Trammel, 407 S.W.2d
773 (Tex. 1966). See also, Fischer, Products
Liability - Applicability of Comparative
Negligence, 43 MO. L. REV. 431, 449-50
(1978).
30. These issues assume that a "wide variance"
between the pleadings and proof is absent,
thus permitting the trial court to submit
broad issues without limiting instructions.
See Brown v. American Transfer & Storage
Co.,
31.
32.
-
S.W.2d
-_
found to be negligence, did not cause the accident, but it may have caused his injuries to
some degree. Focusing upon the relationship,
if any, between the negligence proximately
causing the injury in such cases and all other
cases tends to standardize the court's charge
and eliminate possible confusion between
these two types of contributorily negligent
conduct.
McKisson v. Sales Affiliates, Inc., 416
S.W.2d 787 (Tex. 1967).
33.
Texas Courts See Active 1979 Year
Almost 3,000 opinions were delivered by the Supreme Court of Texas and the Texas Court of Criminal
Appeals in 1979. A total of 2,767 were written by the
Court of Criminal Appeals, with 135 written by the
Supreme Court.
In other court activities, 380,652 cases were disposed
of by the 310 district courts, and 388,850 by the county
courts. The reporting justice of the peace courts handled
1,100,000 traffic cases, which comprised 64 percent of
their total cases for the year.
MANAGEMENTAND CIRCULATION
0O-OWNERSHIP.
STATEMENT
(Tex. 1980).
There are some instances in which producing
cause should not relate to the "occurrence in
question." For example, in a "second collision" or "crashworthiness" case, the controlling liability issue is whether the design defect
either caused or enhanced the injury. The
design defect does not cause or contribute to
the accident-causing event. Thus, since the
issue should inquire into the nexus between
the design defect in such cases and the injury,
it is suggested that producing cause relate to
the injury in all strict products cases in a further effort to standardize and simplify the
charge.
With the adoption of comparative negligence
in the negligence area and comparative fault
in strict products liability, the jury should
determine whether plaintiff's negligence
proximately caused the "injury," rather than
the "occurrence in question." The abolition of
contributory negligence as a complete
defense renders it unnecessary for courts to
continue distinguishing between "eventcausing negligence" and "injury-causing
negligence" in strict products cases. By way
of example, assume that an adult plaintiff is
operating a motorcycle without a helmet,
loses control due to a product defect, is
thrown to the ground, and suffers severe head
injuries. His failure to wear the helmet, if
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December1980
Texas Bar Journal
1111