WHAT EFFECT SHOULD THE PLAINTIFF'S SUBSTANDARD
CONDUCT HAVE ON HIS RIGHT TO RECOVER FROM THE NEGLIGENT
AND STRICT LIABILITY TORTFEASOR?
by:
Bruce Hodge
Products Liability Seminar
S p r i n g , 1983
Prof. J . Hadley E d g a r , Instructor
00246
TABLE OF CONTENTS
I.
II.
ITT.
IV.
V.
INTRODUCTION
1 - 7
A PRELIMINARY PRACTICAL MATTER CAN NEGLIGENT CONDUCT AND STRICT
TORT LIABILITY INDUCING PRODUCTS
BE COMPARED?
7
9
TYPES OF SUBSTANDARD CONDUCT
9
24
A.
Assumption of Risk
10
14
B.
What is Misuse?
14
19
C.
Contributory
Negligence
19
23
D.
Summary of the Types of
Substandard Conduct
24
SHOULD DAMAGE APPORTIONMENT
BE ACCOMPLISHED ON THE BASIS OF THE
COMPARATIVE CULPABILITY OF THE PARTIES?
25
POLICY - SAFE CREATION AND S A L E , AND
SAFE USE OF PRODUCTS
26 - 40
A.
Product Safety - Society's Cry
for Protection
26
29
Economic Aspects from Three Sides
29
40
DRAWING THE LINE - THE DEFENSES FROM
A POLICY PERSPECTIVE
40
45
VII.
WHAT ROLE
45
46
VIII.
WHAT ROLE THE RULE?
46
47
IX.
SHOULD THE DAMACE APPORTIONMENT RULE
FINALLY ADOPTED TREAT STRICT PRODUCTS
DEFENDANTS DIFFERENTLY THAN NEGLIGENT
PRODUCTS DEFENDANTS?
48 - 49
SHOULD NON-PRODUCTS TORTFEASORS AND
PRODUCTS TORTFEASORS BE TREATED
EQUALLY?
49 - 51
XI.
PROPOSED GUIDELINES
51 - 54
XII.
PRE-CONCLUSTON
SUMMARY
54 - 58
XIII.
EXISTING DAMAGE APPROTIONMENT SCHEMES
58 - 60
CONCLUSION
60
B.
VI.
X.
FORESEEABILITY?
-
61
WHAT EFFECT SHOULD THE
PLAINTIFF'S SUBSTANDARD CONDUCT
HAVE ON HIS RIGHT TO RECOVER
FROM THE NEGLIGENT AND
STRICT LIABILITY TORTFEASOR?
I. INTRODUCTION
There
the
is wholesale disagreement among the courts and writers
answer to the issue found in the title to this p a p e r .
agreement
conduct
that
at least some of the various forms of
should
rcduce
liability actions.
forms
concerning
There is
plaintiff
general
substandard
or bar the plaintiff's right to recover
in
products
The disagreement surfaces when the issue of which of
the
of plaintiff substandard conduct should be set up against his right
recover
in whole or in p3rt is a d d r e s s e d .
to
The Uniform Comparative Fault Act
would simply lump all of the various forms together and reduce the plaintiff's
1
recovery in proportion to the quantum of his fault.
Fundamental fairness is
2
said
to be the virtue of this approach.
that
particular
blameworthy
types
of
plaintiff
Other views proceed from the notion
substandard
conduct
are
either
so
or so minimally culpable that they should be in the first case
a
complete
bar to the plaintiff's right to recover
or should be no
impediment
3
whatsoever to his recovery in the second c a s e .
In T e x a s , assumption of risk
is
a
complete
4
whatsoever.
bar,
and
simple
contributory
negligence
has
Not everyone would agree with the Texas approach;
no
effect
nevertheless,
there is general agreement that products manufacturers are not i n s u r o r s ,
thus
some of the plaintiff's substandard conduct will be chargeable to h i m .
5There is also general disagreement as to what role a damage-apportionment
rule
is
liability
to
law.
play in light of the perceived policy
At
reduced to two v i e w s .
objectives
of
the risk of oversimplification the disagreement
products
can
be
The perhaps more defense oriented view is that in terms
of
furthering perceived safety g o a l s ,
the imposition of strict liability
in
and of itself provides the necessary incentive for manufacturers to make safer
products.
The more plaintiff oriented approach is that strict liability
in
and of itself is just a start toward increased product safety and that damageapportionment rules should be used and are needed to coerce m a n u f a c t u r e r s
making
safer
products
by denying the consideration of
7
plaintiff substandard c o n d u c t .
cry
Predictably,
for pure comparative fault.
culminates
in
The s e c o n d ,
against
main
injury-causing
the first view culminates in
more plaintiff oriented
a cry for selective comparison of the 8plaintiff's
conduct when deciding the damage-apportionment
The
some
a
view,
substandard
issue.
purpose of this paper is to inquire into the
treating
into
joint and severally liable negligent and
reasons
strict
for
or
liability
tortfeasors the same way w h e n it comes
to apportioning damages b e t w e e n each of
9
them and the substandard plaintiff.
apportioning
damages
between
the
substandard
and strict liability tortfeasors and the
substandard
plaintiff
in one c a s e ,
plaintiff
in another c a s e ,
is involved.
This issue is the same issue involved in
negligent
tortfeasors
and
but where the same or similar substandard
conduct
It is just that the issue is more sharply defined in the
joint
and several liability c a s e .
As will be s e e n , some rather incongruous results
appear in such situations.
The following hypotheticals bring the issues into
focus.
HYPO I:
Assume the p l a i n t i f f , having just purchased a spanking new 1984
Corvette,
fabulous
decides to take it for a spin on a country r o a d .
10
sound
system in the $28,000
c a r , he reaches for his
cassette but drops it onto the passenger side floorboard.
reaches
moment
down and over for it,
To test the
favorite
The plaintiff
taking his eyes off the road for
just
a
- just long enough for a farmer on a John Deere tractor to emerge
2
from
behind
plaintiff
because
Though
hits
injury.
onto
road.
Although
the plaintiff applies the emergency brake and
managing to reduce his speed
avoid
with terrible force and
suffers
they
frantically
considerably,
the
tractor
The
farmer simply wasn't paying attention when h e
the road,
the
when he sees the farmer and applies the brakes
downshifts the t r a n s m i s s i o n ,
he
the
is traveling at a prudent rate of speed he is unable to
collision,
fail.
some scrub trees and drive onto
grave
personal
pulled
out
or he would have seen the plaintiff's car and could have
avoided the a c c i d e n t .
The
plaintiff hires a recent Tech Law School graduate and sues
farmer on a negligence t h e o r y .
the
He sues General M o t o r s , the m a n u f a c t u r e r ,
in strict tort liability and n e g l i g e n c e , alleging a defect in the braking
11
system.
plaintiff
been
Special
issues
are submitted and the jury
finds
that
was 20Z negligent in failing to keep a proper lookout (had
looking he could have avoided the accident even though
his
driving
this
was
his tractor,
$10,000,000.
was
plus
Plaintiff's personal injury
His car is totally d e m o l i s h e d ,
worth $20,000.
As
who failed to use ordinary care in
the jury finds the. farmer 80% negligent
a proximate c a u s e .
he
brakes
failed) and that this contributory negligence was a proximate c a u s e .
between the plaintiff and the farmer,
the
and
damages
that
are
and the jury finds that it
Thus the plaintiff recovers from the farmer $8,000,000
$16,000 for the c a r .
As between the plaintiff and General Motors in the strict
liability
action the plaintiff proves that the brakes were defectively designed and
unreasonably d a n g e r o u s , that they were in the same condition as when they
12
13
left GMj
and that they were a producing c a u s e .
Applying Texas
law,
the
plaintiff
recovers
the full $10,000,000 +
$20,000
for
the
car,
179
contributory
The
negligence not being a defense in strict tort
plaintiff
against
CM,
hoped
but
to get punitive damages in the
the
jury denies the
claim
for
liability.
negligence
action
15
damages.
punitive
N e v e r t h e l e s s , he proves that the manufacturer failed to exercise ordinary
care
in
the design of the brake system and that this negligence
proximate c a u s e .
in
Texas,
more
was
a
Since contributory negligence is only a partial defense
at least up to the point where the plaintiff's negligence
that
the negligence of the defendant where it becomes
a
is
complete
16
bar,
the
plaintiff
only
recovers $8,000,000 +
16,000
from
GM
in
negligence - just like he does from the farmer.
HYPO
II:
Same facts,
dealer's
of
except that when the plaintiff pulled out of the
lot he discovered that the brakes were "real spongy."
his pure lust for his new 'Vette,
Here,
the
danger;
plaintiff
he
has
But
he decides to take a spin
voluntarily proceeded to
out
anyway.
encounter
17
a
has assumed the risk that the brakes might fail.
known
Against
General Motors in strict tort liability the plaintiff recovers absolutely
nothing,
assumption
of 18risk being a complete bar to recovery in
tort liability in T e x a s .
he
recovers
But against GM and the farmer in
actions
the
comparative
because
negligence
negligence,
$5,000,000 for his personal injury and $10,000 for the
because nssumption of risk of treated the same as contributory
19
under
strict
the
nogligence statute.
jury
finds
that
his
He takes
assumed
negligence
less
in
these
risk-contributory
(instead of his failure to keep a proper lookout) was
20
car
50%
the negligence involved in each c a s e .
Of course the plaintiff's lawyer
moves for judgment on the plaintiff's
strict liability claim against General Motors in the first hypothetical
4
of
179
and against CM in negligence in the second
hypothetical.
In the first fact situation several problems appear:
(1)
How
can
we be justified in rewarding the negligent farmer
reduction
forced
to
in
the
pay,
20%
GM
can
be
even though the same plaintiff substandard conduct
"As a matter of fundamental fairness,
a
a
damage he owes and not reduce the amount
involved and even though in strict liability GM is at least
22
non-negligent?
(2)
with
was
conceptually
[isn't thej negligent plaintiff in
strict products case whose negligence is i g n o r e d . . . the recipient of
a
fortuitous
unfair advantage when we penalize a plaintiff in a negligence
23
action for the identical substandard conduct[?l"
(3)
Isn't it rather silly to allow a plaintiff to take more from GM in strict
liability when in negligence he would have taken less from GM on the same
24
facts?
In the second hypothetical a few different problems a p p e a r .
(1)
As a matter of fundamental fairness, isn't the plaintiff the recipient of
an
unfair advantage when we treat his assumed r i s k as a damage
factor
in
assumption
reducing
a judgment against a negligent tortfeasor and when
of
risk
totally bars his recovery from
a
his
strict
same
products
tortfeasor?
(?)
As
opposed
tortfeasors
to
the
the
negligent
tortfeasors,
aren't
strict
recipients of a fortuitous unfair advantage
liability
where
the
plaintiff is proven to have assumed the risk?
CO
Isn't
it
odd that a plaintiff who assumes the risk can proceed
against
the negligent manufacturer and recover at least part of his damages
the
same plaintiff who proceeds against the same manufacturer in
when
strict
liability on the same facts will be totally barred from recovery?
This
paper is not limited to | | | ^ ^ | ^ a t i o n of Texas l a w .
5
Texas law
is
used
here
because at this point in time it permits the holdings of
hypothetical
two
above
hypothecicals.
rapid
growth
the
two
and sheds little light on the problems presented by
the
These
the
problems would seem to hnvi* choir origin
experienced in the field of strict
products
in
liability.
courts had barely become acclimated to strict liability when they were
to
"The
forced
encounter
the comparative negligence revolution and assess its impact on
25
the
newly-emerging
theory."
Only
a
few
months
before
26
Henderson v . Ford Motor Company
was d e c i d e d , the Texas legislature had
adopted
Article
2212a,
the Comparative Negligence S t a t u t e ,
27
applicable to strict products l i a b i l i t y .
which
was
not
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 n e g l i g e n c e .
Thus, a
balance was struck - contributory negligence was no defense at all
and voluntary assumption of risk was a complete bar to recovery.28
V
While the history of this quandry m a y help t o e x p l a i n it,
it.
We
are
formulation
historical
here
of
a
concerned
with building a
damage-apportionment
rule,
rationale
it does not justify
for
independent
the
of
judicial
fortuitous
events.
A writer faced with a "should issue" has the difficult task of separating
"what the law is" from "what the law should be."
careful
The reader is urged to
notice of footnoted material so as to avoid confusing these
issues.
00253
6
take
separate
The
road
tedious o n e .
to
the final resolution of the issue is a long
and
somewhat
To attempt to answer the issue without inquiring into the issue
of whether substandard conduct can be compared to the manufacturer's
product,
the
liability
types
and
of substandard c o n d u c t ,
products
and the
liability law in g e n e r a l ,
without leaving the h a r b o r .
policy
defective
behind
would be to
strict
put
to
sea
I believe that by investigating these issues, any
answer to be found to the main issue will be more easily d i s c o v e r e d .
1
believe
it
will
be
helpful
if
the
reader
will
consider
the
distinguishing traits of the m a n u f a c t u r i n g , d e s i g n , and marketing defect cases
in products liability
II.
It
is
actions.
A PRELIMINARY PRACTICAL MATTER - CAN NEGLIGENT
CONDUCT AND STRICT TORT LIABILITY INDUCING
PRODUCTS BE COMPARED?
that in strict tort liability the focus is on the
30
- is it unreasonably dangerous?
Can the non-personal unreasonably
29
product
often
said
dangerous product be compared with the personally blameworthy plaintiff who is
31
31a
guilty of substandard conduct?
Though many would d i s a g r e e ,
the answer is
yes;
when
into
the
flows
with
stream of commerce in its dangerous c o n d i t i o n .
from
the
without
argue
the question is framed so as to consider how the product
32
a perceived impropriety of comparing the
manufacturer's
negligence.
liability which is
"can"
plaintiff's
at
least
issue
negligence
conceptually
Those writers who take this technical problem to
strict
liability
comparing
put
heart
culpable conduct
or fault with
the
33
defendant's strict liability - a non-fault d o c t r i n e .
To compare
negligence
to
against
strict
The
was
liability
is
plaintiff's
to compare two
it
fundamentally
different
is t h o u g h .
And there is no doubt that in so far as
34
tort analysis"
is effective or even d e s i r e d , the argument passes
00254
bases
of
"pristine
doctrinal
muster.
But
The
when
this argument is subjected to substantive analysis
improper
hypertech,
fruit,
becomes
the
proper substantive comparison between two
35
rotten f r u i t .
manufacturers
can
To
illustrate,
produce all the unreasonably dangerous defective
wan without incurring the wrath of strict tort liability.
when
the
manufacturer
from
product
or
introducing into commerce an unreasonably
refrain
from
selling
37 an
product without adequate w a r n i n g .
use reasonable care in the d e s i g n ,
negligence
subject
duty,
him
It
to
but
tort
unreasonably
on
key
duty
dangerous
dangerous
defective
non-defective
strict tort
the breach
liability.
that the unreasonably dangerous product was placed in
imposing
compare
liability t o r t f e a s o r ,
damage l i a b i l i t y .
strict
of
In
which
liability
can
strict
tort
it
commerce.
is
The
"non-negligent"
sufficient blameworthiness is found to
justify
"The short answer to the dilemma of how one
liability and 38
negligence is that one must simply close
eyes and accomplish the task."
Strict
to
m a n u f a c t u r e , and sale of his p r o d u c t s , the
notion is that in both the substandard plaintiff and the
strict
the
Phrased in duty
liability actions we d o not care whether he exercises reasonable care;
enough
only
This is a different duty from the duty to
it is a duty n e v e r t h e l e s s ,
liability,
that
is
manufacturer is held strictly liable for failing in its
refrain
of
products
unleashes the unreasonably dangerous
36 product
public that it runs the risk of incurring strict liability.
of
product
consider
they
the
kinds
The unreasonably dangerous defective
is not really all that can be b l a m e d .
terms,
fails.
comparison of rotten apples and rotten oranges in the realm
albeit
alone
it
can
one's
in warranty is essentially a non-fault concept as is
39
strict
liability in t o r t .
The basic elements of the warranty action and
40
strict tort action are the same in the products liability c o n t e x t .
Whatever
objection
can
be raised to a comparative blameworthiness (fault)
system
in
apportioning damages between substandard plaintiffs and a manufacturer sued in
warranty is largely the product of a focus on the contract element in warrantv
41
action.
To the extent that warranty can be said to do the job of the
negligence
more
and strict tort actions in products l i a b i l i t y ,
problem in comparing warranty to negligence than there is
strict
liability
proceed
from
negligence
the
there should be no
that b a s i s .
comparing
and the following discussion
Notice that the conclusion that we
can
of
them.
the larger and more complex issue
of
whether
will
compare
to strict liability and warranty liability brings use just
threshold
compare
in tort to n e g l i g e n c e ,
42
in
we
beyond
should
Because one can buy a house is no reason that one should
buy
It is relatively easy to compare the negligent defendant to the negligent
plaintiff in negligence c a s e s .
perceived
theoretical
Both are personally c u l p a b l e ,
therefore this
impropriety of comparing non-fault and fault does
exist in the simple negligence c a s e .
While we have the means to compare both
strictly liable defendant and negligent defendants with substandard
under
comparative fault principles despite the technical
these
technical
what
effect
problems
problems are not to be entirely discounted when
plaintiff's conduct should have on
his
plaintiffs
right
involved,
considering
to
recover
against the strict liability tortfeasor and the negligent tortfeasor.
It may
very
the
not
well be that these theoretical problems can be backed up b y
reasons for treating the two types of tortfeasors
III.
[
strict
substantive
differently.
TYPES OF SUBSTANDARD CONDUCT
am inclined to agree with the position that the various defenses to a
43
products liability action tend to overlap each o t h e r .
This
overlap
O
a iO^SP
9
tends
to bolster an argument that the various defenses should be stripped
their
technical distinctions and lumped into one batch of substandard
44
to
be
simply
differences
called
"plaintiff fault."
But
there
are
some
of
conduct
important
between the various types of substandard conduct that need to
be
a d d r e s s e d , as these differences may become useful later on in this discussion.
A.
ASSUMPTION OF RISK
45
There are two basic ways of assuming a products r i s k .
products
For
risk
One can assume a
46
by express agreement in advance of the use of the
product.
example,
one may purchase a product "as is" or with a warranty which
is
47
to the exclusion of all other w a r r a n t i e s , express or i m p l i e d .
This
given
way of assuming the risk is largely a matter of contract law and to the extent
that the exclusive warranties or disclaimers are enforceable at law they
will
be
binding on the plaintiff when he sues to recover a loss which results from
48
an "assumed risk."
Unfortunately this particular way of assuming
risks,
49
i . e . , by express a g r e e m e n t , is rare in products liability c a s e s .
The other way is implied assumption of risk and this is the assumption of
49a
risk most often encountered in products c a s e s .
The essence of this defense
is
voluntary
exposure
distinguished
act
to
known
and
appreciated
This
can
be
from plaintiff substandard conduct which consists of failing to
as a reasonably prudent person under the same or
i.e.,
risks.
contributory
negligence.
A
similar
circumstances,
plaintiff can objectively be
viewed
as
having acted unreasonably without inquiring as to whether he subjectively knew
50
and appreciated the risks involved in the given s i t u a t i o n .
of
T h u s , assumption
risk can be distinguished from contributory negligence on the basis of the
plaintiff's
product
subjective
knowledge and appreciation of the risks
a
dangerous
poses.
There
is general agreement as to three of the elements of
10
ut/ewtjf §
the
defense:
"(1)
a
subjective
(2)
subjective
the dangers likely to result from that defective
51
and (3) a free and voluntary choice in encountering the danger."
condition;
appreciation
knowledge
of the
dangerous
condition;
of
This quote
sets
out the volenti non fit injuria "(one who consents may not be
injured)"
52
defense.
This formulation of the assumption of risk d e f e n s e , hereinafter
53
called v o l e n t i ,
is the formulation used in T e x a s .
It derives from a purely
subjective examination of the plaintiff's decisional s i t u a t i o n .
purport
to
compare his conduct to the conduct of a
prudent p e r s o n ,
the
test.
objective
the
Texas
Under
hypothetical
view,
contributory negligence
the Restatement view adds
"Assumption
failure
to
act
reasonableness
to
the
the Restatement formulation we are faced with
test rather than a purely subjective t e s t .
risk,
or
not
reasonably
the objective test for contributory n e g l i g e n c e .
of the risk is 54
the defense;
reasonably is not."
To
55
It does
a
subjective-
"Melding assumption of
which is predicated entirely on a subjection
standard,
with
the
objective standard of contributory negligence creates a hybrid defense that is
neither56 tradit anal contributory negligence nor traditional assumption of the
risk."
beyond
In
It is not traditional assumption of risk or volenti because we
look
the consent issue to decide whether the consent was reasonable or n o t .
speaking of the reasonableness r e q u i r e m e n t ,
Johnson v . Clark Equipment C o .
apparent
reasonableness
encountered
57
the d a n g e r ,
so."
the
If
of
stated,
the
"[w]e
the Oregon Supreme
are
physical conduct
view
negligence
either.
concerned
through
which
with
when
we
talk
of assumption of risk we are not talking about
The reasonably prudent person standard
in
the
plaintiff
but rather the reasonableness of his decision to
Oregon Supreme Court is c o r r e c t ,
Restatment
not
Court
about
do
the
contributory
of
contributory
negligence is traditionally compared to the plaintiff's c o n d u c t .
Only to the
extent that the plaintiff's decision to proceed to encounter the danger can be
said to be c o n d u c t , can we apply the traditional standard of
This
hybrid d e f e n s e of which Professor Sales speaks will be called
59
v o l u n t a r y a s s u m p t i o n of
To
illustrate
found
negligent
risk.
the
s u b s t a n t i v e d i f f e r e n c e s b e t w e e n the three
a s s u m p t i o n of risk c o n s i d e r the following h y p o s .
2
58
reasonableness.
in the i n t r o d u c t i o n of this p a p e r ,
Going back to
types
Hypothetical
first assume that the
plaintiff
drove his C o r v e t t e off the d e a l e r ' s lot knowing that something w a s very
with
his
brakes.
condition
T h e plaintiff k n e w the facts c o n s t i t u t i n g
of his c a r ,
anyway
the
wrong
dangerous
and he knew that d r i v i n g the car with d a n g e r o u s brakes
posed a danger or risk of h a r m to h i m .
lot
of
And yet he d r o v e the car away from the
as a m a t t e r of his v o l u n t a r y choice fully a p p r e c i a t i n g
the
fact
that he may be faced with a situation w h e r e he would be unable to stop his car
fast
enough to avoid a c o l l i s i o n .
defense
w i t h o u t g o i n g further to q u e s t i o n the r e a s o n a b l e n e s s of h i s
to drive the c a r .
Secondly,
if
volenti
decision
Tt is enough that he v o l u n t a r i l y chose to do s o .
we
add the element of r e a s o n a b l e n e s s to the
w h e t h e r he assumed the r i s k ,
with
This is enough to c o n s t i t u t e the
we could
question
find that h i s leaving the d e a l e r ' s
full k n o w l e d g e and a p p r e c i a t i o n of the risk was u n r e a s o n a b l e .
of
lot
Deciding
to
drive off the lot w h e n there was ready access to the d e a l e r ' s r e p a i r
shop
and
when stopping the car and telling the dealer about the b r a k e s would
have
posed no threat to the p l a i n t i f f w a s u n r e a s o n a b l e .
"take
a
The p l a i n t i f f ' s desire to
spin" in h i s n e w car was simply not a good enough r e a s o n
h i m s e l f to such a d a n g e r .
to
expose
His action was u n r e a s o n a b l e , and he n e g l i g e n t l y and
v o l u n t a r i l y assumed the risk by d r i v i n g the c a r .
But
let us assume that after d i s c o v e r i n g the spongy b r a k e s and while the
car was at a full stop and still in the d e a l e r ' s l o t ,
realized
that his three year old s o n ,
suddenly
w h o came with him to pick u p the
h < J ewti<J
12
the p l a i n t i f f
car,
had just swallowed a quart of antifreeze that was lying in the f l o o r b o a r d .
He
still
an
knew
that there was a risk of his being unable to stop his car
emergency.
But because the hospital was a mile down the r o a d , and because he
feared for his child's h e a l t h ,
to accept it.
a
in
he drove the car knowing the risk and choosing
"Since a reasonably prudent person might do the same
thing...,
jury could properly find that it was non-negligent voluntary assumption
60
of
the risk."
Notice
two
that
situations
by adding reasonableness to the volenti test in the
described
immediately
plaintiff another chance to r e c o v e r .
drinks the a n t i f r e e z e ,
above we
have
seemingly
second
given
the
In the third situation, w h e r e his child
we are in effect saying that even though h e meets
the
requirements
not
of the v o l e n t i test we will allow him to recover b e c a u s e he was
61
negligent
in assuming the r i s k .
Does this mean that in the child
situation
the
plaintiff cannot recover in Texas where
volenti test is used?
that
the
Not n e c e s s a r i l y .
only
the
subjective
The Supreme Court of Texas
recognizes
reasonableness of the plaintiff's decision to encounter the
danger
62
may affect the voluntariness requirement found in the volenti d e f e n s e .
is
to
say
child's
that the plaintiff may have been compelled by his
fear
well-being to such an extent that he did not voluntarily
encounter the known d a n g e r .
This
for
proceed
It may have been an involuntary d e c i s i o n .
the
to
H e , in
e f f e c t , may have had no c h o i c e .
In
any given case the fact finder must consider the
age,
intelligence,
e x p e r i e n c e , maturity of judgment and perception of the plaintiff in being able
63
to
recognize
knowledge
of
requirement.
dangers
the
dangerous
condition
of
the
product.
"Mere
general
the hazards or dangers posed by a product does not satisfy
the
Rather,
the
the knowledge must actually sensitize the user to
64
that u l t i m a t e l y cause the injury."
The spongy brake case is not as
clear cut a case as where the brakes completely fail.
It is conceivable that
the
plaintiff in the Corvette hypothetical might have not
the danger if the brakes were spongy but still marginally
When
actually
realized
functional.
faced with an assumption of risk case we might ask ourselves
these
quest ions:
(1)
Did
the
plaintiff
actually know that the product was
in
a
dangerous
condit ion?
(2)
Did the plaintiff actually realize the seriousness of the danger?
(3)
Did the plaintiff voluntarily choose to encounter the danger?
Finally and according to the Restatement
(4)
formulation:
If ( 1 ) , (2) and (3) are answered affirmatively, was this reasonable?
The traditional concept of assumption of risk contemplates that a
party may not recover for injuries received
from a free
and
voluntary exposure to a fully appreciated
danger.
Because
the
doctrine is acknowledged as h a r s h , it is generally recognized
that
assumption of risk will not be applied beyond the salutory
purpose
of precluding recoveries that a r e , and should b e , avoidable by the
ac tor.65
The
latter part of the quote means that we do not ask whether
should
have known of the dangerous c o n d i t i o n ,
risk of h a r m .
plaintiff
or should have appreciated the
This indeed would be to apply the reasonably prudent person or
contributory negligence standard to the issue.
have
the
assumption of risk;
If this is done we would
we would have contributory n e g l i g e n c e .
not
Subjective
knowledge and understanding of the risk are the keys to the assumption of risk
type of plaintiff substandard
conduct.
B.
The
the
key
WHAT IS MISUSE?
to distinguishing misuse from assumption of risk is the use
66
product without specific knowledge of the d a n g e r .
unusual
or
extreme
or
The use must
have amounted to such a substantial
A A O ^ I
MliwVi.
change
be
in
of
so
the
character of the product that it can no longer be called a normal use of
67
product.
Having no specific knowledge of the dangerous condition of
the
the
63
product is enough to set it apart from assumption of risk just d i s c u s s e d .
There are three broad categories of m i s u s e .
illustrated
Unitended or abnormal use is
69
by a man who uses a butcher knife for a t o o t h p i c k .
butcher knife is for c u t t i n g , not p i c k i n g .
Clearly
70
A second category of misuse might be called extreme u s e .
draw
the
line
negligence.
might
in
Driving
the
a
extreme use case
between
misuse
It is hard to
and
be classified contributory n e g l i g e n c e ,
to
legal
while driving at 80
speed
miles
per
It is a clearer
of misuse when the product user has been forewarned of the maximum
safe
71
of a p r o d u c t .
Consider the case of a tire represented to be safe at 70
use
mph,
contributory
car 10 miles per hour over the maximum
hour over the speed limit would seem to be more like m i s u s e .
case
a
but which is driven by the plaintiff beyond 70 m p h , pushing the product
72
its utmost c a p a b i l i t y .
This case is distinguishable
from the simple
abnormal
use
case because the tire is still being used as a tire and
butcher knife or step l a d d e r ,
an obvious m i s u s e .
use per se as much as it is an extreme use.
the
This case also begins to take on
It is not the same h o w e v e r .
capability
asking
One who uses a product to its maximum
may have notice of the dangerous condition and yet still not
subjective
unusual
of
safe operational speed for recognizing the dangerous condition of the
product.
risk.
a
Thus it is not an abnormal
flavor of an assumption of the risk case if one substitutes a warning
maximum
the
not
actual knowledge of the danger that is required to
73
We may say that the misuser should have known
or
for
extreme use of the p r o d u c t .
it"
"he
even though at74 the time he misuses the product he
subjectively know what "it" i s .
We m a y ,
with r e a s o n ,
f'a O C O
a
an
is
just
does
not
charge the negligent
misuser with notice that by making the abnormal or extreme use of the
C
assume
that he was making
In colloquial terms,
have
product
he
takes
on
a
responsibility for the increased liklihood of a dangerous
75
product defect causing injury because of his own a c t s .
This is in effect to
constructively
76
causes.
put
The
him on notice that he may be charged for
the
same can be said for the plaintiff in the third
injury
he
category
of
misuse.
The third type of misuse is material
alteration.
The state of the law on what constitutes a substantial change is in
disarray.
The courts do not seem to adopt the same legal
theory.
Some place it under ordinary rules of contributory
negligence;
others relate it more to the matter of causation of the
injuries,
while others treat it as a question of whether or not the
identity
of the product has been preserved.77
A good illustration of an immaterial or insubstantial c h a n g e , that is a change
which
does
78
Hopkins.
not
is
General
Motors
v.
The plaintiff took an original equipment quadrajet carburetor off
of his truck,
the
change the identity of the product,
replaced it with a high performance c a r b u r e t o r ,
quadrajet back on his truck.
lousy j o b .
and later
put
When he put the quadrajet back on he did a
One of the eleven mistakes he made in replacing the quadrajet was
noted
by the Texas Supreme Court as perhaps having a causal relation to the
79
accident which caused his injury.
Hopkins did not make a material
alteration
care
in the identity of the product;
he merely failed to use
ordinary
making a material mistake in replacing
it - classic
contributory
80
negligence.
But the Court could not hold that this contributory negligence
would
by
be
a
defense.
Both
prediscovery
and
postdiscovery
contributory
negligence were not defenses to strict liability in t o r t , in Texas at the
81
time.
The Court
then had to find something more than
contributory
negligence
in
unforeseeable
Hopkins,
which
the
had
order
misuse
to create a defense
was
on
those particular
f a c t s , and
82
the name given to i t .
"The p l a i n t i f f , Robbie
'misused' the carburetor in that he had mishandled it in a way
83
manufacturer
could not have reasonably
foreseen."
Clearly
mishandling
extreme
connotes
a c a t e g o r y of m i s u s e d i f f e r e n t
use c a t e g o r i e s d i s c u s s e d a b o v e .
from
the
abnormal
and
The truth of the m a t t e r is that
it
was
u n f o r e s e e a b l e c o n t r i b u t o r y n e g l i g e n c e in failing to use o r d i n a r y care
in
the
handling
in
of the c a r b u r e t o r .
This c a s e d e m o n s t r a t e s the
d i s t i n g u i s h i n g c o n t r i b u t o r y n e g l i g e n c e from m i s u s e .
been
m a t e r i a l in terms of c a u s a t i o n ,
difficulty
His m i s h a n d l i n g may have
b u t it did not change the n a t u r e of the
product.
The
m a t e r i a l a l t e r a t i o n c a t e g o r y of m i s u s e is b e t t e r i l l u s t r a t e d by
following
light
hypotheticals.
Putting a trailer h i t c h on a family c a r to pull
trailer or p l e a s u r e boat would be an a l t e r a t i o n of the c a r ,
but it
not m a t e r i a l since a u t o m o b i l e s h a v e b e e n t r a d i t i o n a l l y used for such
But
if gear ratios are c h a n g e d ,
b i g g e r tires are a d d e d ,
family
car h a s b e e n transformed
truck or the l i k e .
changed g e a r s ,
materially
objects.
into a h e a v y towing
altered
to
appartus,
for
The jury should be able to d r a w the line if p r o p e r l y
Some
crashing
been
heavy
whether
For i n s t a n c e , w h e n misuse is defined as a " p a r t i c u l a r
the q u e s t i o n of f o r e s e e a b i l i t y c l o u d s the issue of w h e t h e r the
should
the
instructed.
use that is not f o r e s e e a b l e or o b j e c t i v e l y r e a s o n a b l e to e x p e c t " the
use
is
heavy
towing
c o u r t s tend to c o n f u s e the q u e s t i o n of what m i s u s e is w i t h
it should be a d e f e n s e .
of
a
the family car has
b e c o m e a truck or s i m i l a r v e h i c l e
is
the nature of
S o m e w h e r e b e t w e e n the a d d i t i o n of the t r a i l e r h i t c h ,
tires and added w e i g h t to the f r a m e ,
a
purposes.
and m o r e w e i g h t
added to the frame in o r d e r to pull a m a s s i v e trailer or y a c h t ,
the
the
be called a m i s u s e of the p r o d u c t .
84
a car is a m i s u s e of the c a r .
There is little
injection
particular
doubt
Cars are not p r i m a r i l y d e s i g n e d
taht
as
b a t t e r i n g rams; they are primarily d e s i g n e d to t r a n s p o r t p a s s e n g e r s in m o r e or
less
comfort
from one point to a n o t h e r .
It is true that it is
that
cars will be c r a s h e d (indeed it is i n e v i t a b l e ) .
fiOf* <
[••
17
•••
t\*
'
foreseeable
But f o r e s e e a b i l i t y
of
car crashes has little to do with the question of whether crashing a car is a
35
misuse.
Foreseeability has everything to do with whether misuse ought to be
86
a
defense to an action in products liability.
and
very often each d a y .
crashing
vehicles
vehicles.
The
justification
burden
of
actually
if
Car crashes occur every
There is a grave risk of injury to the drivers
manufacturers do not design crashworthiness
foreseeabiity
of
car
crashes
is
the
injects
cars reasonably
crashworthy.
negligence into the c a s e ,
The
even if it
policy
the
dictated
their
foreseeability
proceeds
of
into
for imposing liability on manufacturers who do not carry
making
day
issue
in
strict
liability.
The following test for misuse approximates what the test ought to be:
use
or
handling
expect
the
which
so unusual that the average consumer could
not
product to be designed and manufactured to withstand
the seller,
therefore
need not anticipate and provide
"a
reasonably
it 87- a
for."
use
This
test does try to get the experience of the jury into the d e t e r m i n a t i o n , but it
goes
further to ask the juror as to whether he could expect a manufacturer to
design and manufacture the product to withstand the u s e .
Jurors need not know
what the manufacturer's design capability is to decide whether the product has
been m i s u s e d .
Why not simply ask them whether "the [productl was used for
purpose
and
average
c o n s u m e r . . . | ? 1"
question
a manner
88 not unlike that which could be
If so,
it was not m i s u s e .
expected
If the
is to be submitted to the jury to determine whether the
foreseeable
Professor
judge,
in
or
not,
Twerski
then
that
submit it separately.
I am
in
the foreseeability question is better
from
a
the
foreseeability
misuse
agreement
left
to
was
with
the
so
whether
analysis.
that he may respond to public policy considerations in determining
89
the misuse should be a d e f e n s e .
This may be done by
duty-risk
90
In this r e g a r d ,
question of fact.
foreseeability becomes a question of l a w ,
not a
If there was a design defect because the particular misuse
C02S5
18
was the very thing to be prevented, or the injury from the misuse was the very
thing to be lessened or avoided, then the misuse would as a matter of law not
91
be a defense.
Such misuse would as a matter of law be foreseeable. To hold
otherwise
the
would be to negate the reason for holding the design defective at
92
outset.
The design defect case is the case which is hard to separate
the foreseeability issue from the misuse issue.
But the two are not identical
questions and can both be answered separately.
93
is much easier in this regard.
The manufacturing defect case
No
matter which category of misuse the plaintiff's
substandard
conduct
falls under, we may be more justified in making his misuse a d e f e n s e .
In each
of the categories,
abnormal use, extreme use, material alteration a n d , if you
will indulge m e , unforeseeable contributory negligence as in the Hopkins case,
the
plaintiff
has voluntarily,
if not with subjective appreciation
of
the
dangers involved, put the product to a use that the average consumer would not
94
expect.
We may be justified in placing a greater burden on him where his
95
reasonably unexpected conduct has contributed to his h a r m .
C.
CONTRIBUTORY NEGLIGENCE
Contributory negligence is a broad enough term to encompass all forms of
96
negligent contributory plaintiff substandard c o n d u c t .
In the
following
discussion the term will be defined so as to limit it to some very special
if
not absolutely discreet m e a n i n g s .
Contributory
negligence
is
distinguished
virtue
from assumption
of
risk
by
of the tests applied to determine their existence.
Volenti
requires
97
subjective knowledge of the plaintiff.
Contributory negligence is measured
98
by our reasonably prudent person standard, an objective standard.
e
.TlOCf®
i^Ot?
19
Misuse
and
contributory
negligence
are
blood
brothers.
The
same
objective standard is applied in both c a s e s , though the special issue may be
99
framed d i f f e r e n t l y .
Misuse and one of the forms of contributory negligence
can be distinguished on the basis of the relationship between the
conduct and the p r o d u c t .
in
the
introduction's
lookout.
So
negligence
extent
the
did
To illustrate, consider our plaintiff Corvette owner
100
first h y p o t h e t i c a l .
He failed to keep a proper
contributory
101
only marginally related to the use of the product.
To the
is
the
substandard
farmer
in that
hypo.
This
type
of
that the particular conduct cannot be said to be aided or
use of the p r o d u c t ,
it is different from m i s u s e .
induced
by
The plaintiff did not
need to use the product in order to fail to keep a proper lookout.
He
could
have done the same thing by tripping over a crack in a sidewalk or by hoisting
a
board
over his shoulder only to hit someone standing behind h i m .
other h a n d ,
the
a misuser of the product cannot misuse it without using
Corvette
owner
who drives 150 mph has misused it,
he had
product to get himself and the car to the speed of 150 m p h .
merely
been
fails
this time while he happened to be in a
the
it.
If
use
the
In contrast if he
to keep a proper lookout while driving the c a r ,
negligent
to
On
car.
he has
To
merely
give
this
marginally product related form of contributory negligence a n a m e , let us call
it inc idental contributory
negligence.
A plaintiff may also be contributorily negligent as a result of more than
his
"incidental"
relationship
with the product.
To the
extent
that
the
particular conduct can be said to have been aided or induced by the use of the
product
it
negligence
is,
depending
on the degree of
the
use,
either
contributory
But if it is contributory n e g l i g e n c e , it is product
102
related contributory n e g 1 i g e n c e .
103
104
There are also the prediscovery
and postdiscovery
forms
of
contributory
or m i s u s e .
negligence.
Conduct
20
can be called
C02S7
prediscovery
contributory
negligence so long as the plaintiff has not discovered the dangerous condition
of
the
product.
product,
his
But
conduct
if
from
he discovers there is something
that
point forward,
if
wrong
negligent
contributes to his injury, is postdiscovery contributory
with
and
the
if
it
negligence.
By what standard are we to determine whether the plaintiff discovered the
defect?
It
would seem that if we are going to keep assumption of
contributory
negligence s e p a r a t e d ,
risk
and
we should adopt an objective standard
in
keeping with the generally recognized definition of contributory negligence as
unreasonable c o n d u c t , as compared to the "reasonable man."
has
done s o .
At least one court
"[W)e affirm the doctrine that failure to discover or
foresee
dangers which the ordinary person would have discovered or foreseen as well as
negligent conduct after discovery of the danger and in use of the product will
105
constitute
a
that
court
this
negligence
defense to an aciton based on strict liability...."
would apparently consider
or product r e l a t e d ,
contributory
and it
should not go so far as to put an affirmative duty on the plaintiff
inspect
"(0]ne
incidental
postdiscovery
would106 hold
the
plaintiff liable for his objective failure to discover the d a n g e r .
But the
court
whether
all
Notice
the product to guard against the possibility of a product
to
107
defect.
of the inherent policies in strict products liability is the right
of
108
the consumer to rely upon the integrity of the product."
is
to
plaintiff
be charged for his negligent failure to discover the defect
objective
inspect
there
If the
standard,
the product?
is
plaintiff
something
who
haven't
109
we
placed at least an implied duty on
Charging the plaintiff who knows
wrong with his brakes is far different from
should have known of the faulty brakes in that the
voluntary assumption of risk.
Such conduct might be
C02S8
21
an
him
to
subjectively
conduct that amounts to more than mere contributory n e g l i g e n c e ,
negligent
under
that
charging
a
former
is
and less than
called
post
actual
discovery
contributory n e g l i g e n c e .
Is this the creation of
another
110
hybrid
contributory
plaintiff
this
negligence
- assumption of
recognizes that something is w r o n g ,
risk
defense?
If
then his actions which
recognition are different from the prediscovery contributorily
plaintiff.
Whether
or
seriousness
of the danger as is required by the assumption of risk
he does have n o t i c e .
not
he
goes
on
to
subjectively
question
presented
we
negligence is a hybrid
There
are
two
mentioned.
Failure
illustrated
by
provided
follow
negligent
appreciate
must
say that
post
actual
the
doctrine,
But to avoid placing an affirmative duty to inspect
the plaintiff we should adopt a subjective test for n o t i c e .
the
on
In answer to the
discovery
contributory
defense.
other types of contributory negligence that need
to
use
safety
equipment is
one
type.
It
the failure to use a safety belt or the like which
111
by the m a n u f a c t u r e r .
This type of conduct will most
to
be
is
best
has
been
often
fall
into the prediscovery c a t e g o r y , but could become assumption of risk if the act
of
discarding safety equipment brings the danger home to the user and he goes
on to voluntarily expose himself to the d a n g e r .
failure to service or maintain the p r o d u c t .
form
of contributory
Ilia
case,
negligence,
but
The other type of conduct is
It is most likely a prediscovery
it may become
misuse
in
a
proper
though it is arguable that it is always a foreseeable m i s u s e .
Thus
we see several types of contributory negligence that do not
to misuse or assumption of risk as previously d i s c u s s e d .
amount
There is incidental
contributory n e g l i g e n c e , product related contributory n e g l i g e n c e , prediscovery
and postdiscovery (subjective recognition of product malfunction or
condition
dangerous
without subjective understanding or appreciation of the seriousness
of the danger) contributory n e g l i g e n c e .
By now the reader may be applauding the Uniform Comparative Fault Act for
lumping all of the forms of substandard conduct under one term:
002S9
fault.
But
the reader is asked to postpone final judgment for the m o m e n t .
may
make a difficult problem easier to solve,
not
to
solve
the
more difficult question
plaintiff conduct should be d e f e n s e s .
Though the Act
to make the problem easier
of
what
forms
of
is
substandard
D.
We
have
SUMMARY OF THE TYPES OF SUBSTANDARD CONDUCT
examined
the
various types
of
substandard
conduct.
On
a
decreasing scale of culpability these would fall in the following order:
MOST CULPABLE:
negligent assumption of risk
LESS CULPABLE:
misuse and post discovery contributory negligence
(using a subjective test for discovery)l12
LEAST CULPABLE:
prediscovery contributory negligence
Negligent assumption of risk is the most culpable substandard c o n d u c t , because
the plaintiff voluntarily and unreasonably proceeds to encounter a danger that
he
has
fully a p p r e c i a t e d .
He is the most c u l p a b l e ,
danger has in a sense explained itself to h i m ,
himself
more
to the d a n g e r .
culpable
constructive
postdiscovery
plaintiff
the
more
than
we
contributorily
negligent actually h a s .
assumed risk t a k e r .
the
misuser
does n o t .
something like wanton and w i l l f u l ,
takers,
because
may place on the misuser and the actual
In
either
disregard.
which
is
Both
basically
He does actually
The post discovery plaintiff's
is
of
the
notice
the
case
the
The postdiscovery plaintiff may even
culpable than the misuser in this r e s p e c t .
reckless
negligence,
the
expose
has come capability to save himself though to a lesser extent
negligent
notice;
and yet he consents to
Misuse and postdiscovery contributory negligence
prediscovery contributory
notice
because in effect
have
than
be
the
scienter is
where the misuser is roughly equivalent to
of these plaintiffs fall below
what an assumed risk taker is,
intentional
above
the
113
prediscovery plaintiff who may only be guilty of ordinary c a r e l e s s n e s s .
CC271
24
and
risk
IV.
SHOULD DAMAGE APPORTIONMENT BE A C C O M P L I S H E D ON THE
BASIS OF THE COMPARATIVE CULPABILITY OF T H E PARTIES?
114
No,
fault
not in products liability a c t i o n s .
concept
plaintiff
and
If strict liability is a non-
substandard plaintiffs are always
faultful,
ever hope to recover from manufacturers in strict
the plaintiff substandard conduct is present?
deciding factor,
how
liability,
a
the plaintiff will not r e c o v e r .
strict liability tortfeasor.
reasons
which
instance.
in
support
the
when
But personal culpability is
It cannot b e ,
imposition
a
If personal culpability is the
not really the issue when apportioning damages between a substandard
and
can
of strict
because
of
liability
plaintiff
the
in
policy
the
first
To compare the parties purely on the basis of personal culpability
the products case would be to ignore the purposes of strict liability
and tort law in g e n e r a l .
law
What we are looking for is a rule which will foster
the achievement of the perceived policy goals of maximizing product safety and
consumer
protection
encourage
general,
safe
in keeping with strict liability theory and
consumer
use
of the product in keeping
which seeks to encourage the prevention of harm by
can be done without regard to personal c u l p a b i l i t y .
personal capability
failed
with
to
approaches
liability
avoid
the
to
it.
type
avoid the l o s s ,
everyone.
will
law
in
This
What we should look at is
the
loss
having
more
nearly
compare
strict
The following policy discussion
should
of blameworthiness that can be used to
bring an understanding as to why this must be s o .
25
tort
not personal culpability for
Personal capability to avoid
and plaintiff n e g l i g e n c e .
which
V.
POLICY - SAFE CREATION AND S A L E , AND SAFE USE OF PRODUCT
Policy,
tendency
"as applied to a ... rule of law, denotes its general purpose or
considered as directed to the welfare or prosperity of the state
115
community."
or
In our accident prone society, rules of law should be directed
to the achievement of the desired policy goal of increased
safety.
Products
liability l a w , as a subspecies of tort l a w , should be aimed at benefitting the
community by encouraging the safe d e s i g n , manufacture and sale of manufactured
goods.
As far as it is p r a c t i c a b l e ,
a damage apportionment rule should as a
rule of products liability l a w , be directed at the same desired
There
are
apportionment
is
two
stages
in the life of a product
rule can be a i m e d .
which
the
damage
Safety can be put into a product before it
used b y the consumer in proportion to the combined measure of safety
is actually put into the d e s i g n ,
is the pre-use safety s t a g e .
to
at
objectives.
the
measure
and sale of the p r o d u c t .
A product can also be made safer in
of care the user of the product actually applies
product is being u s e d .
aware
manufacture,
This is the use safety stage.
A.
This
proportion
while
the
Until the plaintiff is
of the risks he is not avoiding by his substandard
should not fall on h i m .
that
conduct,
the
loss
This is w h y .
PRODUCT SAFETY - SOCIETY'S CRY FOR PROTECTION
From the dawn of man through the early 1800's, the common
man
largely understood
at least intuitively the basic dangers in his
tools and the basic principles of safety by which such risks
could
be reduced to acceptable l e v e l s . . . . Somewhat over a century a g o , all
this began to change....[T]he 1960's witnessed a general
awakening
to the variety of sacrifices that accompanied industrial growth.116
As
larger,
industry
the
inevitable.
progressed
and
the stream of
manufactured
evolution of new legal doctrines to meet emerging
The
creation
goods
problems
and ^^gyit^r^. of strict tort liability is a
26
became
was
prime
example
of
perceived
a
societal
formulating
into
legal
doctrine formulated
to expedite
the achievement
117
goals.
Societal goals are valid considerations
any rule of l a w .
"[C]ourts cannot and should not escape
consideration in the determination of tort and other cases the
of
in
taking
interest
118
of 'we the people' at large...."
It
is generally recognized "that a manufacturer or even a dealer
responsibility
sufficient
to
fact
the
ultimate c o n s u m e r ,
a
public
protection
have
no
would
than
interest
and do harm if they are defective."
in human life
and
safety
requiring
a
the
to
There
maximum
legal
against
dangerously defective p r o d u c t s , against which
consumers
120
realistic ability to protect themselves."
This public
interest
not
appear
the classification
121
action under which the action p r o c e e d s .
By the act of
particular
the
more
that he has so dealt with the goods that they are likely
119
come into the hands of a n o t h e r ,
is
based on nothing
has
to change upon the nature of
of
the
placing
product in the m a r k e t ,
the maker is said to warrant the product's safety
122
and expects the consumer to use the product in reliance on the w a r r a n t y .
"The...safety incentive rationale seeks to place the burden of paying for
the
harm on the party in the best position to prevent
that
if
lack
the skills and knowledge to avoid or prevent
It
presumes
design or warning caused an i n j u r y , the
123
manufacturer can and should market safer products."
" C o n s u m e r s , who often
should
defective
injury.
receive
construction,
full
compensation
those
presumption
that
reality
debatable when dealing with a specific p r o d u c t .
is
manufacturers
for
product-related
injuries,
124
injuries."
Whether
the
can market safer products
here to say that this p r e s u m p t i o n ,
of
strict
is
125
It is
in
enough
which forms part of the basis for adoption
liability does not discourage bona fide manufacturer
make safer p r o d u c t s .
C0Z7-1
27
justified
attempts
to
The presumption would seem to be justified when one observes the
types and the potential severity of products induced loss.
various
Losses in terms of
p r o p e r t y , personal injury or d e a t h , lost or strained family r e l a t i o n s h i p s , and
ultimately
Needless
caused
in
to
lost
say,
to
quality of life are to be avoided if
where
at
all
possible.
money alone cannot really compensate for
an individual,
rules are needed and are
particularly
the
harm
justified,
where they can be formulated to reduce the potential for h a r m .
Thus
safety,
designed
to
allocate
plaintiffs.
We
as a paramount o b j e c t i v e ,
should be fostered by any
loss between blameworthy
defendants
and
blameworthy
126
insurors.
But this is not an argument for making manufacturers
ultimately
seek a rule which in and of itself will
rule
accommodate
societal
127
notions
of
fairness.
substantial
producing
Safety
in
blameworthy
is
plaintiffs
128
so.
justice
a
two
could
Thus
blameworthy
the
Making
manufacturers
a legal system such as
insurers
ours,
which
conduct with liability for the
party
affair.
The reporters are
have avoided products related h a r m s ,
rule
products
finally formulated to
plaintiffs
and
not
awards
harm
caused
full
of
the
should
serve
injury
thereby.
cases
and yet
apportion
defendants
will
did
not
loss
serve
where
do
between
to
foster
plaintiff and defendant safety in the use and manufacture and sale of products
if p o s s i b l e .
So far, only safety concerns have been d i s c u s s e d .
But safety costs money
and
this brings us to another societal interest - the interest in
the
supposed
benefit
to
be
m a n u f a c t u r e d , useable g o o d s .
derived
from
having
a
continued
This interest has clear economic
but is discussed here in the safety c o n t e x t .
preserving
flow
of
considerations,
Requiring manufacturers to make
products so safe that no one could conceivably get hurt would no doubt cost
large fortune by anybody's standards.
could
make
products
so
expensive
Too strict of a loss apportionment
that few
Cfe275
to
none
could
afford
a
rule
them.
Moreover,
some
inherently
even
if
products
dangerous
absolute
are
made useful by the very fact
propensities.
they
Thus a rule requiring absolute
safety was not impossible,
practical or economic r e a l i t y .
that
would have no
firm
have
safety,
basis
in
The point is made here that the apportionment
rule finally formulated must balance safety against the economic and practical
realities of
129
society.
Thus
producing affordable and useable goods to the
society's
answering
the
plea for safer products is in reality
issue as to what effect the
plaintiff's
benefit
of
all
Janus-faced.
In
substandard
should have on his right to recover against products liability
due
and
the
societal
manufactured g o o d s .
A.
tortfeasors,
consideration must be given to both the societal interest in
safety
interest
in preserving
the
flow
conduct
130
encouraging
of
beneficial
The issues break down as follows:
Safety
(1)
Can we formulate a rule which will maximize consumer
(2)
Can
we
formulate
a
rule
which
will
maximize
protection?
overall
safety
incentive?
(3)
B.
Can we formulate a rule that is fundamentally
fair?
Socio-economic
(I)
Can
we
formulate a rule that does all of the above without
unduly
restricting the beneficial flow of useable goods?
B.
Before
economic
we p r o c e e d ,
ECONOMIC ASPECTS FROM THREE SIDES
a caveat is needed and it can simply be stated
considerations in and of themselves pose a great danger to
a
that
legal
philosophy which has as its ultimate aim the just adjudication of c l a i m s . The
131
tactical
search for a deep pocket is a good e x a m p l e .
The unequal access a
29
C0276
poor
person has to the courtroom is a n o t h e r .
though
in
Let it also be said that
economics in and of itself poses a greater danger to our legal
proportion
formulation
there
is
even
system
to the emphasis placed on economic factors when coming to
of
a rule of l a w ,
perhaps
when it comes to enforcing the rule
no greater motivator than
judicial pressure to one's
the
provident
of
the
law,
application
of
pocketbook.
(I)
MANUFACTURERS
"The conventional economic theory underlying strict products liability is
that d e f e n d a n t s , who are manufacturers or s e l l e r s , are in a better position to
distribute
the loss among the consuming public through insurance or
product
132
pricing."
This loss distribution idea is precisely the view of §402A of
133
the R e s t a t e m e n t .
But it is argued that this may not be workable
in
134
practice
small
where
business
competitive
small or highly competitive businesses are
may
business
not
be
able to suffer
the
loss
concerned.
at
all.
could be put out of business b y raising its
A
A
highly
prices
to
A manufacturer who cannot afford the loss cannot spread
it.
cover
the loss.
Thus,
the loss spreading idea may be workable for RCA of General M o t o r s ,
yet
be unworkable when applied to a mom and pop business
that
a
manufacturer
manufacturer
price,
if
has
can pay a products c l a i m ,
loss
that
figured in the payment of future claims
a
Assuming
forward-looking
into
his
current
the price of the product passes beyond the point where its utility
and desirability make it a f f o r d a b l e ,
Thus,
or
concern.
and
spreading
alone
is
the manufacturer will not long
unjustified to the extent
differing manufacturing concerns equally across the b o a r d .
loss spreading is to be found e l s e w h e r e .
*
30
that
survive.
it
treats
Justification
of
Manufacturers
are in the unique position of being able to
risk
of harm products will cause when they are placed on the
they
are
placed
justification
damage
with
for
on
the
market.
This risk
evaluating
the idea of loss spreading just
evaluate
market,
be fore
capability
135
discussed.
the
is
a
Aiming
a
apportionment rule at the pre-use safety stage is perfectly consistent
policy
dictated
protection.
formulated
goals
Therefore,
should
of
any
safer
damage
products,
thus
apportionment
rule
encourage the manufacturer to make an
increased
that
consumer
is
finally
evaluation
of
the
risks their products pose to members of the public likely to come into contact
136
with the product.
If we adopt the view that manufacturers, large or small,
are in the better position to evaluate the risks created by distributing their
products,
risks
we
they
can
be justified in concluding that where manufacturers
must be prepared to spread the losses resulting therefrom
place
or
be
prepared to face the consequences if they cannot.
Therefore, mom and pop are
placed
Motors
137 via
on
an
economic level with RCA or General
pre-use
risk
evaluation and loss spreading are the premises upon which the
idea
evaluation capability and its incentive, loss spreading.
Risk
of enterprise liability is justified.
which it can be made to work.
At the same time they are the means by
Enterprise liability is the theoretical precept
by which manufacturers are held liable for the harm caused by their
products
come
because "(they) have so dealt with the goods that they are likely
to
138
into the hands of another,
because
defective
and do harm if they are
defective,"
they are theoretically able to spread losses when they
spreading,
being
evaluate risk,
justified
because
of the capability of
occur.
manufacturers
and
Loss
to
is the means by which society can be made to foot the bill for
living the improved life which supposedly flows from having a plentiful supply
of
manufactured goods.
evaluate
But again the unique capability of manufacturers
risk and spread loss do not go so far as to support an argument
to
for
making
loss
manufacturers i n s u r o r s .
does
However,
not
this
mean
The mere economic feasibility
that all loss should be
capability
placed
on
the
of
spreading
manufacturer.
is to be a factor to be considered in enforcing
a
rule by which we can apportion damages between plaintiffs and manufacturers in
138a
products liability c a s e s .
b
32
1 <J>
(2)
It
absorb
is
INJURED PLAINTIFFS
said that "[blecause few consumers have the financial ability
the
costs of unanticipated product-related
injuries,
public
to
policy
places
the financial burden on the party who placed the defective product on
139
market...."
Taken as a whole this statement has no place in
products
the
liability law.
It does not mean what it s a y s .
It is makeweight at best for
140
imposition of strict liability.
The invalidity is clearly pointed out
the
in
jurisdictions
conduct
will reduce or negate his award of d a m a g e s .
plaintiffs
whether
the
phrase
are
Certainly
guilty of recovery reducing substandard
statement
manufacturers
What
as a w h o l e ,
it is an
argument
spreading
there
conduct
for
or
making
products
notion by which the loss spreading concept can be
justified.
capability in and of itself is nothing more than a purely
incidental
to
running
a
business
incidental
enterprise.
is
must evaluate the risks the product p o s e s ,
C3n
them.
interest
in
as
a
Public policy demands this to be d o n e .
the
But
whole (a class of potential plaintiffs) has
assuming just compensation to plaintiffs
33
purely
public
l A ^ o u
for
life,
because they
nothing to do with the individual plaintiff's inability to absorb
Society
the
At the pre-use stage in a product's
manufacturers
evaluate
Loss
Small and
must both evaluate the risks they impose on
they market their p r o d u c t s .
is
economic
It
capability in formulating a damage apportionment r u l e .
manufacturers
the
Risk evaluation
manufacturer's ability to evaluate risk that justifies the use of this
when
not.
validity that can be attributed to the quote above is found in
phenomenon
large
are
insurors.
"who placed the defective product on the market."
key
substandard
in those jurisdictions who cannot afford to pay for their d a m a g e s ,
they
Taking
the
holding that at least some forms of plaintiff
141
alone
this
has
loss.
an
products
economic
related
injury.
But
individual
this
interest
plaintiffs
apportionment
the poor.
may
is
not
be
unable
absorb
supported
the
just
because
A
damage
loss.
Society's interest is only indirectly served by the purely economic
putting
before
to
or
rule should not be designed for the redistribution of wealth to
business phenomenon of loss shifting.
by
affected
manufacturers
Society's interest is directly
on notice that they must evaluate
selling products to the public,
served
products' risks
and refrain from selling them if they
pose an unreasonable risk of harm to the ordinary consumer.
for
Cut-reaction notions of justice place the loss on the person
responsible
142
creating unreasonable risks of harm to themselves or others.
In
cases
To
this
person will be a defendant and in others it will be a
plaintiff.
fail to avoid the avoidable injury is to create a risk of harm.
given situation,
some
If in
the capability to avoid creating unreasonable risks of
a
harm
is on the one or the other of the parties and he
143 fails to avoid the risk, then
the loss caused by such failure should be his.
apportionment
should
be
rule
so
at
products
safely.
wholly
use.
the
But
is
preventing
Manufacturers should be encouraged
pre-use
irrelevant
What
can be realistically directed at
directed.
products
To the extent that a damage
stage.
Plaintiffs should be
to
make
encouraged
the plaintiff's inability to absorb
to the encouragement of safer products and
relevant is:
injury,
injury
safe
it
safe
to
use
loss
is
products
(1) the unique capability of manufacturers
evaluate risks before the product is unleashed on an unsuspecting public;
to
(2)
the
practical capabilities of plaintiffs to evaluate risk at the
use
stage;
and
(3)
the
buying
the ability of the manufacturer to shift the loss on to
pub lie.
00281
C.
SOCIETAL ECONOMIC
INTERESTS
While the individual plaintiff's inability to absorb the products related
loss
has
society
no bearing on the issue of who should ultimately pay for the
has
individual
a legitimate interest in preserving the economic well
plaintiffs.
It must be remembered that society is
than an aggregate of potential products liability p l a i n t i f f s .
the
being
nothing
and
political and social endeavors is to
be
objective to be achieved?
In the first p l a c e ,
protected.
Undue
encouraging safe consumer use of manufactured
Society
product
In the second p l a c e , by
products.
also has an economic interest in preserving the flow of
useable
products offer members of society a means for making a
living.
goods.
Many
Product
suppliers offer j o b s .
prices
at an affordable l e v e l ,
what
How is
by encouraging
safety before the product is unleashed on the p u b l i c .
more
industry,
financial hardship is to be avoided in furtherance of this o b j e c t i v e .
this
of
Preservation of
individual's ability to participate in the advancement of a r t ,
technology,
loss,
Society has an interest in keeping
both directly and i n d i r e c t l y .
products'
But
consider
can happen if this societal economic interest is given undue weight when
it is not considered in conjunction with safety p o l i c y .
It
is argued that since a manufacturer's loss is u l t i m a t e l y
to the consuming p u b l i c ,
plaintiff
to
the
argument
it is unfair as between consumers and the individual
that consumers should have to pay the portion of damages attributed
144
plaintiff's own substandard c o n d u c t .
But as persuasive as this
may seem at first g l a n c e ,
145
itself r e v e a l s .
entirely
when
First of a l l ,
one
there is more at stake than the
argument
blameworthiness is taken out of the picture
argues that the damage apportionment issue
battle between the plaintiff and the consuming p u b l i c .
is
distributed
;
'vnq/-*
be
a
And yet this argument
used by t s advocates as an argument for pure comparative
C
should
fault.
Surely
the public cannot be blamed for buying products in the first instance and only
incidentally
subsidizing
the defendant's forced payment of money damages
to
146
the p l a i n t i f f .
In a fault conscious legal system of tort liability such as
ours,
the
reduction
of
the blameworthiness comparison
issue
between
the
plaintiff and the manufacturer to a loss spreading formula between a faultless
consuming public and faultful plaintiff is to take comparative blameworthiness
147
entirely out of the p i c t u r e .
If this is the true nature of
strict
l i a b i l i t y , t h e n comparing fault between plaintiffs and defendant manufacturers
is i n d e f e n s i b l e .
To say that a faultful plaintiff should lose the issue to a
faultless public is truly to compare stepladders to a p p l e s .
this
inventive
undeniably
attempt
divert
society's attention away
primary safety r e s p o n s i b i l i t y ,
Consider
encouragement
justifiable
hits
that
of
means
loss
from
the
In so far as it is
a
product's
an
defendant's
148
pre-use s a f e t y , the argument is m i s l e a d i n g .
spreading is simply an economic
means
toward
pre-use safety on the part of the m a n u f a c t u r e r .
because it encourages risk evaluation be fore
It
the
the
is
a
product
the market and because manufacturers have the unique ability to evaluate
these risks before m a r k e t i n g .
at
importantly,
rhetorical argument does absolutely nothing to encourage
valid goal of encouraging pre-use safety.
to
More
The closer the manufacturer is required to look
the potential risks his product p o s e s ,
its dangerous p r o p e n s i t i e s .
policy
standard
dictated
Indeed,
the less likely he is to
"loss spreading" is nothing more than a
legal restatement of what everyone knows is and
business practice - the shift of loss to all c o n s u m e r s .
put
the loss on the manufacturer only because he can shift it;
the
manufacturer
evaluation.
manufacturer,
to
encourage
better product safety
The substandard plaintiff product u s e r ,
is
overlook
through
must
be
We do
we put it
better
as between him and
a
not
on
risk
the
usually in a much lesser position to evaluate the potential
eM r ' ' - -
risks
the
involved in using p r o d u c t s .
This disparity is widened appreciably
premarketing stage where plaintiffs have n £ chance to
risks.
evaluate
at
products
To say that between a plaintiff and the consuming public (shifting the
focus away from the manufacturer) a plaintiff should suffer a proportionate or
complete
bar to his r e c o v e r y ,
plaintiff
is
research,
and capacity to act on such k n o w l e d g e .
patently
equal to the
is indirectly to say that in safety terms
unjustified
manufacturer,
equation.
in
foresight,
knowledge,
design
Such an argument presents a
The so called socio-economic justice to
derived from reducing plaintiff's recovery pursuant to pure comparative
principles
is dangerous and m i s c o n c e i v e d ,
to
encourage
149
evaluate.
as
the
optimal
the
pre-use
be
fault
because it does absolutely nothing
risk
evaluator,
the
manufacturer,
to
The so called safety incentive which is directed at
plaintiffs
150
a result of a pure comparative fault damage-apportionment rule
is more
of a pipe dream than sound legal p o l i c y ,
because it assumes that
substandard
plaintiff w o u H have the rule in mind before and during the time he engages in
151
substandard
conduct.
I would venture to say that no p l a i n t i f f ,
is suicidal or a s a d i s t ,
substandard
conduct.
increasingly
loss
expects that anyone will get hurt when he engages in
This
is
not
to say that somewhere
risk
responsible
Compared
potential
of
to m a n u f a c t u r e r s ,
anyone else in the w o r l d ,
targets
for
the
with
for every conceivable type of substandard conduct
grounds that society's pocketbook will b e n e f i t ,
evaluation
scale
of
the
to
It is m e r e l y to say that holding
manufacturers who
is to ignore the
should
be
evaluate risks and take reasonable steps to prevent or reduce
poor
a
Where a plaintiff has a realistic capability
avoid loss he should be encouraged to do s o .
the
on
culpable substandard conduct he should not be saddled
his conduct p r o d u c e d .
plaintiffs
unless he
on
unique
encouraged
to
them.
who should know their products
better
than
substandard plaintiffs and the consuming public are
safety
incentive which
is
written
into
a
damage
apportionment
particular
the
to
rule.
It
is safe to say that where the consuming public
plaintiffs will not even know about a damage
apportionment
manufacturer or his lawyer will know about it because it is his
and
rule,
business
know what liabilities will flow from the risks that are created by placing
products into the stream of c o m m e r c e .
can
be
Therefore,
any safety incentive
that
written in to our damage-apportionment rule should be aimed at
those
who will consider it and who can take realistic measures to prevent losses
keeping
with
the
safety
incentive.
position to consider the rule
Defendant manufacturers
are
in
the
and take pre-use a c t i o n .
Plaintiffs are potentially in the position to avoid the injury when
become
actually
aware
in
of the d a n g e r .
In today's society it
is
a
they
bigger
problem to be aware of products' dangers than it used to b e , when dangers were
more
self
produce
evident.
As
far as plaintiffs are c o n c e r n e d ,
results which are substantially j u s t .
liability
on
the p l a i n t i f f ,
That is,
the
rule
should
they should
impose
giving due consideration to
the
realities
of
plaintiff risk evaluation and plaintiff ability to avoid the injury at the use
152
stage in the life of the p r o d u c t .
Safer products will not be encouraged by
"pouring
out" a plaintiff to the extent of his marginal substandard
conduct.
And
this
rule
yet
fashioned
in
may
very
accordance
well result if the
damage
with the argument for so
between consumers and a particular p l a i n t i f f .
be prevented at the outset by a m a n u f a c t u r e r ,
apportionment
called
economic
is
justice
If the plaintiff's injury
can
then we should encourage him to
do so within bounds of r e a s o n .
There
to
a
battle
substandard
should
is one other problem with reducing the damage-approtionment
over the out of pocket expenses that
plaintiffs,
will p a y .
opposed
to
What
the bill be for increased pre-use safety measures or lost a r m s ,
legs,
00285
moral
as
question.
38
It is in part a
society,
scheme
p r o p e r t y , and their respective collateral damages?
will
produce fewer injuries.
money
judgment
unreasonably
damages
he
liabilities
dangerous
Are we to subsidize the manufacturer's
more
products,
often
because
he
continues
or are we to subsidize
the
The safer a product is,
found unreasonably dangerous and thus,
lesser
to
produce
larger
pays less often through increased product safety which
will ultimately pay for.
The
P r e s u m a b l y , safer products
money
again
we
the less likely it will be
the less likely it is to hurt
someone.
argument is made h e r e that society's overall interest in preserving h u m a n
life
and
preventing waste may justify holding manufacturers liable
for
entire loss to which a plaintiff may have contributed if the injury
risk
of
the
producing
harm was such that it could have been better avoided at the
pre-use
s t a g e , than at the use stage of the product in any given s i t u a t i o n , and if the
plaintiff's
practical ability to perceive the risk of harm was less than
manufacturer's
ability
to perceive it and take reasonable steps
to
the
prevent
153
This again is not to argue that manufacturers are to be held liable as
it.
insurors.
policy
Where
objective
i.e.,
where
of
can be furthered by placing the loss on
the
no
valid
manufacturer,
the plaintiff was in a better position than the manufacturer
avoid the r i s k ,
face
the plaintiff's substandard conduct is such that
to
holding the plaintiff liable for the loss does not fly in the
valid products liability policy objectives.'IP Thus we arrive at
the
conclusion that the bill society pays should be for improved pre-use safety to
the extent that pre-use safety measures can be effectively applied to
prevent
abhorrent personal and property injury,
notwithstanding that the plaintiff is
in part responsible for his own injury.
This is to do more than gut reaction
justice
between
should
not
manufacturer
that
the immediate p a r t i e s .
suffer
at
losses
where
such
The bottom line is that
losses
were
preventable
the pre-use stage by giving consideration to
a plaintiff might create an unreasonable risk of harm to
the
plaintiffs
by
the
liklihood
himself
while
using
the product due to his inability to perceive the risk or take action to
154
dispel i t .
To hold otherwise would be to equate manufacturer and plaintiff
capability
to
legitimacy
of enterprise liability theory and the representational nature
the
products
liability
argument
product
liability
on
tort
- which form the
harm,
basis
and
would
for
case.
There
are
155
This would seem
already p r e s e n t .
encourage
manufacturers
independently
of
to
two types of cases in which
deny
imposing
to
injecting foreseeability of plaintiff conduct into
arguably
brake
created risks of
manufacturers in the first p l a c e .
for
liability
avoid
the
strict
be
back
plaintiff
is
But strict liability is the preferred means
to
produce
safe
products.
It
is
supported
a
defective
members of
157
the
substandard
that we encourage manufacturers to produce safer products
society
to u s e .
the
Substantial justice requires that we bring the
from the battle between faultless consumers and
and
an
strict
that fails when plaintiffs are negligent will most often fail when
156
focus
of
foreseeability
foreseeability issues when one considers that
plaintiff is n o n - n e g l i g e n t .
the
Some of these members
will
be
negligent
for
at
times.
At
what
plaintiff
point
conduct
on
can
a
we
scale
of
increasingly
blameworthy
say that policy goals will not
be
substandard
furthered
by
placing the loss on the defendant manufacturer?
VI.
A
DRAWING THE LINE - THE DEFENSES FROM A POLICY PERSPECTIVE
plaintiff who has assumed a risk is an aware p l a i n t i f f .
the danger and proceeded nevertheless to encounter i t .
He has faced
If we say his
action
was u n r e a s o n a b l e , we are in fact saying that he shouldn't have encountered
the
danger;
the
he
should have avoided i t .
«
The assumed risk case is therefore
00287
best
case from a safety policy standpoint for placing loss on the
The
plaintiff.
assumed risk taker is not a helpless p l a i n t i f f .
Some courts h a v e placed
157a
the entire loss on the plaintiff in the assumed risk c a s e .
But unless the
plaintiff's actions were the sole cause of the injury the result seems
unjust
in a similar way that contributory negligence as a complete bar to recovery in
158
negligence
actions
plaintiff
has
unreasonably
has
assumed
injury.
cases
where
there
is
the
dangerous
plaintiff's
been
criticized
risk or n o t ,
product
If
as
unjust.
the
But
manufacturer
whether
has
on the market which did help
to
the manufacturer is to be held strictly
placed
an
cause
the
liable
the plaintiff's conduct is less than an assumption of the
little
policy
based reason for not
holding
him
the
liable
in
risk,
in
the
assumption of risk case; he has still placed an unreasonably dangerous product
159
on the market which has caused i n j u r y .
The
assumed
the
post-discovery contributorily negligent plaintiff is similar to
the
risk taker to the degree that he knows of the dangerous condition
160
of
product.
does
While he may not have subjective knowledge of the
have notice of the d a n g e r .
plaintiff.
risk,
This notice makes him more than a
Depending on what attitude a court holds toward strict
he
helpless
liability,
this notice can form the basis of a duty which can be placed on the p l a i n t i f f .
The
court
establishes
might
phrase the duty question
this
way:
Where
the
evidence
that a plaintiff has actual notice of the dangerous condition
of
the product, using a subjective test to determine n o t i c e , the plaintiff's post
notice
or
the
conduct must conform to the standard of the reasonably prudent
plaintiff
will
run
the risk of a
reduction
in
his
person
recovery
in
proportion to the amount that his negligent conduct contributes to the i n j u r y .
If
the
the jurors find subjective notice then they may be instructed
damage a c c o r d i n g l y .
to apportion
Notice that when the duty issue is framed in
terms the assumption of risk case is automatically taken under
CC288
these
consideration.
Presumably,
if che plaintiff has assumed the risk the jury would find that he
contributed
more to the accident and thus his recovery should be reduced more
than
the
plaintiff with mere n o t i c e .
It would seem that
the
court
which
abolished the assumption of risk defense in negligence cases would welcome the
161
abolition of it in strict products liability actions as w e l l .
The question
for
appreciation
of
the Texas Supreme Court to decide is whether the subjective
the danger and voluntary encounter elements of the volenti defense both of
which go beyond mere notice of the dangerous condition, are enough to increase
plaintiff culpability
162 to the point where making assumption of risk a
complete
bar
and
is
justified.
comparative
If s o ,
then notions of personal culpability
blameworthiness will do s o .
Even in an assumption of risk c a s e ,
unless the plaintiff has caused all of the loss,
But what about the misuse cases?
the defendant is blameworthy
Here we have a plaintiff without actual
notice so that the risk evaluation and injury avoidance capability are
than
the post n o t i c e ,
not
or assumed risk p l a i n t i f f .
lesser
And yet oddly e n o u g h ,
in
Texas misuse is a partial defense where post notice contributory negligence is
not.
The
injury
only reason that I can see for holding the misuser liable for
causing
conduct
can again be framed in
duty-risk
terms.
his
Where
a
plaintiff has made a use of the product which differs from the use an ordinary
consumer might reasonably e x p e c t ,
the user will be deemed to be on notice
of
that part of the injury producing danger which can be attributed to his misuse
163
of
the
injury
product.
This is in effect to hold the plaintiff liable
for
producing conduct when he undertakes to use the product in a way
his
that
164
ordinary
consumers
might
not reasonably e x p e c t .
165
within limits seems j u s t .
C0289
This
seems
fair,
and
And
finally,
what is to be done about the pre-discovery
negligent plaintiff?
reduce
the
contributed
discover
contributorily
I am hard pressed to find a rationale that would bar or
plaintiff's
recovery when his pre-discovery negligence has
166
to the injury.
To bar or reduce his recovery for failing to
the defect is to impliedly place a duty on him to discover or
guard
against the harm.
This would be antithetical to his right to rely on product
167
integrity.
In the products related case, "the tool of (the plaintiff's)
168
negligence is the product of the defendant."
Where the action is for the
defendant's failure to provide a safety device or adequate warning,
plaintiff's
negligence
was in concurrently creating with the product a
that a safety device or warning could have prevented or lessened,
is
clear.
and where
the
risk
answer
"To censure the plaintiff for failing to act reasonably when that
was the very problem to be guarded against is to march up the hill in order to
169
march
down again."
Plaintiff's conduct should not be considered
in
this
context.
But where his conduct is merely incidental to his use of the product such
as
where the plaintiff failed to keep a proper lookout while driving his car,
the case is more difficult.
the
introduction.
its capability.
Take the Corvette owner hypothetical number on in
There the plaintiff was using his new car clearly
His negligence was his failure to keep a proper lookout.
is only incidentally related to his use of the product.
aware that his brakes will fail when he applies them.
farmer
earlier
was
lulled into failing to keep a proper lookout by
It
The plaintiff is not
He might have seen the
if he had been keeping a proper lookout,
hadn't failed he could have avoided the accident anyway.
he
within
but if
his
To the extent
the
brakes
that
representations
that his car had good brakes, are we to penalize him for his failure to keep a
proper
lookout
which would not have mattered if the brakes
could have best avoided the loss?
43
063290
had
held.
Who
Consider another s i t u a t i o n .
zone.
The Corvette owner drives 50 mph in a 30 mph
Suddenly from a side street another car a p p e a r s .
brakes,
they fail,
and he hits the c a r .
could have avoided c o l l i s i o n .
Plaintiff applies his
There is evidence that at 30 mph he
Here again the plaintiff is using the car well
within
its
design
limits.
brakes
had
held.
If we say h e must pay for a proportionate
damage,
His negligence would not have mattered
share
if
the
of
the
aren't we saying that manufacturers only need to make safe brakes for
170
people
who
Professor
travel at the speed limit?
Twerski:
"The
This is basically the position
factor of reliance on product performance
of
is
so
significant that it is simply unfair to penalize the plaintiff for relying 171
on
the
set of consumer expectations which the defendant led him to rely
There is a lot to be said for this p o s i t i o n .
rely
on
it
on."
One who uses a product comes to
to do what it is represented to d o .
In the
simple
negligence
action the two negligent parties have similar duties and pose similar risks to
172
each o t h e r .
Their actions have independent
significance
from
each
173
other.
In the products a c t i o n , if in relying on the product the plaintiff
is also creating a risk of harm by using the faulty p r o d u c t , the action of the
plaintiff is not entirely independent of the defendant's p r o d u c t ,
the
even though
negligence can be said to have been incidental to the use of the
product.
To hold the plaintiff liable for failing to keep a proper lookout and
speeding
in
these
product
There
failure
is to tell him that he has to be
174
all of the time.
This is not what will
on
guard
happen
is little deterrence in putting one to a duty to guard against
failure
when one buys products on the representations that the
function
lived
hypotheticals
properly.
From a pure product safety v i e w p o i n t ,
up to the expectations of the Corvette o w n e r ,
been avoided by furnishing the car with good b r a k e s .
44
0C2P1
against
however.
product
product
will
if the brakes had
the accident would
have
In such c a s e s , it is not
so
much
the
plaintiff's negligence as it is the
manufactuer's
failure
to
manufacture good brakes that causes the h a r m .
But
what about the case where the plaintiff would have hit the car
with good brakes?
we
are
If the defendant escapes liability altogether in this case,
impliedly saying that he only needs to manufacture good
brakes
brake failure is not a concurrent producing cause of the h a r m .
will
even
not maximize consumer protection.
when
Such a result
Consumers are always safer when
the
product performs as represented.
VII.
If
WHAT ROLE FORESEEABILITY?
we can downplay the distinctions between strict liability (non-fault)
and
negligence (fault) in order to compare blameworthiness,
not
to
downplay the perceived impropriety of requiring foresight
manufacturer
in the proper c a s e ,
175
strict liability.
into the product.
discs
of
Plaintiff
metal
on it and then operating a footswitch to engage
its w o r k ,
safety
built
the
press.
free
that is why it is operated by a footswitch.
frees the user's hands so that he can place and remove
The inevitable accident h a p p e n s .
disc is improperly placed on the press.
error
a
of
The product is designed to
the
The
discs
Plaintiff places a disc
the press and at the same time that he presses the footswitch,
his
of
Plaintiff uses a ten ton punch press by placing fiat round
knows the press is dangerous if his hands aren't entirely
more rapidly.
metal
out
Consider that many types of plaintiff conduct are
metal discs rapidly,
footswitch
reason
even though the products action proceeds in
the punching area when he steps on the footswitch.
punch
I see no
on
he notices the
He reaches for it to
correct
at the same time the ten tons of press machinery comes down to
do
but in the process the plaintiff's hands are severed or c r u s h e d .
A
device
which
could
have
45
prevented
, n o r v r > the
e
sic /
•••
injury
was
available
at
176
reasonable c o s t .
W h e n the product left the h a n d s of the m a n u f a c t u r e r ,
the
m a n u f a c t u r e r k n e w there would be a p l a i n t i f f with injured h a n d s .
He just did
177
not k n o w the p l a i n t i f f ' s n a m e .
This is the s i t u a t i o n giving rise to
the
argument
for p u t t i n g f o r e s e e a b i l i t y into the d a m a g e - a p p o r t i o n m e n t
the strict liability
But
case.
for
we
issue,
in
into
the
case.
can h a n d l e this c a s e w i t h o u t injecting f o r e s e e a b i l i t y
T h e p r o b l e m is b e t t e r solved with a directed v e r d i c t for the p l a i n t i f f
all
d a m a g e s , b e c a u s e this w a s c o n d u c t which
the v e r y
thing
178
prevented.
The
trouble is that f o r e s e e a b i l i t y of c o n d u c t is not
implied in the jury findings of the d e f e c t i v e n e s s of the p r o d u c t .
The
m a y h a v e b e e n d e f e c t i v e b e c a u s e of a flawed m a n u f a c t u r i n g p r o c e s s .
is
gained
by
requiring
relationship
to
defectiveness
unreasonable
the
defect
determined
risks
itself.
by
structural
to
benchmark
then
must
the
some
design
weaknesses
created b y o v e r h e a t i n g or the l i k e ,
f o r e s e e a b i l i t y of p l a i n t i f f c o n d u c t .
related
In
defect,
only
cases
in
product
a
be
tenuous
we
the
it
flawed.
L i t t l e will
f o r e s e e a b i l i t y of conduct w h e n it h a s
be
always
True,
f o r e s e e a b l e that the m a n u f a c t u r i n g process will s o o n e r or later be
But this f o r e s e e a b i l i t y d o e s not focus on plaintiff c o n d u c t .
to
may
see
product
or
that d o
not
go
to
The plaintiff's c o n d u c t is so m a r g i n a l l y
that f o r e s e e a b i l i t y cannot be said to be
for h o l d i n g the m a n u f a c t u r e r liable for all d a m a g e s .
be rejected as a standard by which the war o v e r
179
a
viable
Foreseeability
plaintiff
caused
d a m a g e s c a n be w a g e d .
VIII.
- the
W H A T ROLE THE RULE?
It is argued that s t r i c t l i a b i l i t y is enough to e n c o u r a g e p r o d u c t
safety
m o n e y d i f f e r e n c e d o e s n ' t m a t t e r . 180 I am not c o n v i n c e d .
In our
C 0 2 3 3
46
Corvette
hypothetical ,
it is hard for me to imagine that even a
company
as
large as General Motors does not care about the $2,000,000 it will have to pay
because its product did not live up to the owner's e x p e c t a t i o n s .
least
it
can
be said that it will not discourage GM from
design or manufacture of the b r a k e s .
At the very
making
a
better
It will not encourage use safety to put
the burden on the plaintiff for this $2,000,000;
it is too late for h i m .
It
is most likely that average consumers will not consider the effect of a damage
apportionment rule in going about their business in every day life.
rely
T h e y will
on common sense to tell them when they are in danger and use it to avoid
the danger whey they know of i t .
reason to put blame on t h e m .
If they don't use common s e n s e , then we have
But until they have notice of the
danger,
not
even common sense will h e l p them and this is what m a n u f a c t u r e r s can and should
realize.
them
They
will be more inclined to realize it if the loss is placed
181
for prediscovery negligence of the p l a i n t i f f .
point
At
the
of
the
or where he should be aware because of his extraordinary use of
the
where
product,
a
plaintiff
Money t a l k s .
on
becomes aware of the dangerous
condition
p r o d u c t , and only then, should the plaintiff be required to pay any portion of
his
damages
realistic
product
reduce
created
risks of h a r m .
At any r a t e ,
a plaintiff recovery too s o o n .
the
because only then will he have had
ability to avoid the loss produced by what may often
protection
only
if he is to pay at a l l ,
requires this to be s o .
product
caused
we should not be
insidious
willing
to
The encouragement of maximum consumer
The imposition of strict
damage without regard to
the
type
substandard conduct used to reduce his recovery is not enough by
47
be
any
liability
of
for
plaintiff
itself.
IX.
SHOULD THE DAMAGE APPORTIONMENT RULE FINALLY ADOPTED TREAT STRICT
PRODUCTS DEFENDANTS DIFFERENTLY THAN NEGLIGENT PRODUCTS DEFENDANTS?
Up
to
this point in this paper little emphasis has been placed
different types of tortfeasors in products liability law.
on
the
When the action is
brought against a products m a n u f a c t u r e r , irregardless of whether the action is
in strict liability or in n e g l i g e n c e ,
to be a d o p t e d ,
they should apply equally without regard to the type of action
under which the plaintiff p r o c e e d s .
must
admit
negligence
when
we
that
a
negligent
"As a matter of fundamental f a i r n e s s , we
plaintiff in a
strict
products
case
is ignored becomes the recipient of a fortuitous unfair
penalize
substandard
the
and whatever comparative principles are
a
plaintiff in a
182
conduct."
negligence
action
for
whose
advantage
the
identical
I agree with this statement to the extent that both
strict liability defendant and the negligent defendant are both
products
de fendants.
One need only to consider blameworthiness to come to the conclusion
products liability t o r t f e a s o r s ,
183
blameworthy p l a i n t i f f s .
products
tortfeasors
both strict and n e g l i g e n t , can be compared to
The same argument holds true in comparing negligent
(i.e.,
where
negligence must be
proved)
and
liability tortfeasors ( i . e . , where negligence need not be p r o v e d ) .
hold
strict
I n d e e d , to
that a negligent products tortfeasor's obligation to pay for plaintiff's
injury
not
that
is to be reduced by plaintiff's contributory substandard
to
defendant
so
hold in the strict products a c t i o n ,
is to
reward
conduct
one
products
for being "negligent" and to penalize the strict liability products
defendant for being conceptually "non-negligent" and even though as far as
know
he
and
we
has used all due care in the m a n u f a c t u r e , d e s i g n , and sale of his
184
product.
Such holdings have no real basis in furthering the policy
goals
185
already discussed a b o v e .
All
holds
of
the previous argument in support of encouraging
safer
equally sound whether the products defendant is negligent
liable.
In either case, the manufacturer is blameworthy.
products
tortfeasor
and
or
products
strictly
Both the negligent
the strict products liability tortfeasor
have
ability to evaluate at the pre-use stage the potential products related
Both
are manufacturers.
spreading
the
loss
Both types of products tortfeasors are
suffered as a result of their manufacture
the
risks.
capable
and
of
sale
of
injury producing products.
Societal interests in products liability law do not change upon the basis
of
whether
liability
the
or
action
in negligent manufacturer liability.
reduction of loss,
in
reduction
tortfeasors
actually pleaded and proved is
186
of
be
in
strict
Consumer
products
protection,
and the societal preference for paying the bill for safety
personal
or property
encouraged to make safer
injury
dictate
products.
that
all
Unreasonably
products
dangerous
products do not better the lives consumers lead.
Since general products liability goals do not change because of the
of
products
whether
should
liability action,
plaintiffs
any effect the rule formulation may
substandard conduct should effect his right
to
not change because of the type of products liability action
type
have
on
recover,
involved.
But this is as far as the argument goes for equal treatment of tortfeasors.
X . SHOULD NON-PRODUCTS TORTFEASORS AND PRODUCTS TORTFEASORS
BE TREATED EQUALLY?
To
observe that the strict products liability actions have been
created
is to observe the fundamental difference between products tortfeasors and nonproducts tortfeasors.
Consider that where non-product negligent
as opposed to products tortfeasors,
are concerned,
PftOQft
49
tortfeasors,
the non-product negligent
defendant and the substandard plaintiff pose the similar risks to each other 187
risks of casualty loss created by the failure to use ordinary care.
Plaintiffs pose no threat of casualty loss to
by
marketing
defective
products,
create
manufacturers.
such risks of
Manufacturers,
casualty
loss
to
plaintiffs - it is just that they are not "personally responsible," as are the
non-products negligent parties.
Comparative negligence systems,
apportion damages between non-product negligent defendants and
negligent
to
a
contributorily
plaintiffs are inadequate to apportion damages between the
products case because of their failure to consider
special
designed to
the
parties
manufacturer's
risk evaluation capability and loss distribution capability.
If
we
are going to compare blameworth iness, then the system used should take account
of these considerations.
The
duties
suggest
that
analogize
the
which
they
are
owed between the parties to
are nonreciprocal duties.
It is
a
not
duty of a manufacturer to the duty owed by a
products
action
inappropriate
landowner
to
to
a
188
business
invitee.
product,
they
when
If
manufacturers
reap the
benefit
of
selling
the
should owe a greater duty to the product buyer (quasi-invitee)
the product does not live up to manufacture created buyer
expectations.
This analogy is in keeping with enterprise liability theory.
Thus,
from
and
we s«>e that products tortfeasors are in an entirely separate class
non-products tortfeasors precisely because the special
loss
products
risk
evaluation
spreading capabilities of manufacturers are not found in
tortfeasor.
The
risks
manufacturers pose to consumers
the
non-
are
non-
reciprocating, unlike the risks generally posed between non-products negligent
defendants
and
parallel way.
around
negligent plaintiffs.
The duties owed are
different
in
a
In short, the policy of products liability laws which revolves
increased
pre-use product safety and loss distribution,
absent in the non-product related negligence case.
50
are
totally
It is true that we should encourage people to be careful when living
working
in
society,
tortfeasors
for
of
but the best we can do between
negligent
general
tort
law p r i n c i p l e s .
But that is not all
products tortfeasors and substandard plaintiffs.
liability law is a discreet area of tort l a w ,
liability
rule
responsible
Such is the task
we
can
do
between
If we consider that products
we should realize that products
goals of increased pre-use safety can be fostered by formulating
which
takes advantage of the manufacturer's unique
capability
and
enterprise.
treat
non-products
and contributorily negligent plaintiffs is hold them
the losses they generate by their substandard c o n d u c t .
the
loss
spreading
and
scheme already
in
pre-use
place
a
evaluation
in
business
In hopes of preventing needless products related injury we should
products
tortfeasors differently than
where n e c e s s a r y ,
by adopting a rule which
simple
negligent
tortfeasors,
justifiably places a greater burden
189
of
safety on the products t o r t f e a s o r .
be criticized as unfair at first g l a n c e ,
use
safety
benefit
does
not
justify
a
the increased burden
To the extent that such a rule
deeper concerns for encouraging preon
products
manufacturers.
plaintiff receives because he sues a products tortfeasor
receive
may
against a negligent non-products tortfeasor shall
Any
that
he
not
be
fortuitous, but shall be the result of encouraging the achievement of products
liability g o a l s .
XI.
The
general
PROPOSED GUIDELINES
special policy considerations underlying products liability
and
the
special
pre-use
risk
evaluation
and
loss
capabilities
of
the
in products liability cases on a pure comparative
parties
f}§238
in
distribution
manufacturers militate against apportioning damages
5
law
fault
between
basis.
These policy considerations and superior capabilities of manufacturers do
not
change
proceeds.
The
receives
when
with
present
a
fortuitous
against
firm
the
plaintiff
advantage a products
plaintiff
products manufacturers in strict tort liability
policy
liability law,
to
type of action under which
apparent
proceeding
has
the
basis in the relatively
specialized
area
concession
systems
to
those
currently
plaintiff
who
perceive unfairness
in place in some American
in
the
superior
risk
jurisdictions,
evaluation
unwilling
In
damage-apportionment
the plaintiff has a realistic capability to avoid the loss.
the
products
manufacturers.
some
substandard conduct do deserve reduction in d a m a g e ,
situations,
of
notwithstanding cries of "unfair" coming from those
focus upon the superior risk evaluation capability of
actually
forms
that is
of
where
But even in these
capabilities
of
products
manufacturers dictate that justice b e served by placing all of the loss on the
manufacturer
when the substandard conduct of the plaintiff is the very
thing
which was to be avoided and the failure of the product to avoid or lessen
the
risks
reason
the
guidelines
are
created
in
part
by the conduct of the plaintiff is
190
the
product is found to be d e f e c t i v e .
In
proposed.
to
keeping
with
these
considerations
the
following
The damage apportionment guidelines are applicable without
regard
the
nature of the action pleaded and proved in so far as the proof191 shows
that the defendant is a seller as defined under the Restatement §402A,
the
product
which caused the plaintiff injury was unreasonably dangerous and in a
192
defective condition as defined under the Restatement,
and in so far as the
loss
is a casualty loss.
Sellers who are not manufacturers should be
full
contribution and indemnity rights in keeping with policy
193
already d i s c u s s e d .
(1)
Pre-discovery
substandard conduct should be no bar
to the plaintiff's right to recover.194
given
considerations
whatsoever
(2)
(a)
Post
actual discovery negligent plaintiff
conduct,
including assumption of r i s k , should reduce damages
in
oroportion
to the amount that the injury was caused
by
such conduct using comparative causation principles.195
(3)
Product misuse should be determined objectively when the seller
proves that the product was used for a purpose and in a manner
unlike
that which could b e expected
from
the
average
consumer.196
If such misuse is n e g l i g e n t , then recovery should
be reduced as in guideline (2) a b o v e .
(4)
Guidelines
(2) and (3) are not to be applied in those
cases
where the product was defective for the very reason
that it
should have been designed or marketed in such a w a y as to
reduce or negate the potentiality of harm arising
from
the
particular substandard plaintiff conduct without regard to the
personal culpability of such conduct.197
(5)
In no event should the manufacturer avoid payment
for
the
damages the unreasonably dangerous defective product has caused
using comparative causation principles.198
(6)
If damage reducing plaintiff conduct is present and has caused
injury, the manufacturer should pay 50% of the percentage
of
the total damages that the plaintiff's conduct has caused.199
(7)
Damages should be apportioned the parties to a non-products
negligence
case using traditional comparative
negligence
principles whether
the non-products action is joined with a
products action or not.200
The following special issues should help clarify the guidelines and given
an idea of h o w the guidelines might b e implemented on the damage-apportionment
issue.
201
Question 1:
Did the plaintiff misuse the product?
Question 2:
Did the plaintiff have actual knowledge of
condition of the product?
202
the
dangerous
Question 3:
If you have found in question 1 above that the
plaintiff
misused
the p r o d u c t , was this misuse unreasonable when it is
compared
to a reasonably prudent person under the same or
similar
c ircumstances?203
Question 4:
Was this unreasonable misuse a proximate
plaintiff's injury?204
cause
of
the
Question 5: If you have found in question 2 above that the plaintiff had
actual knowledge of the dangerous condition of the p r o d u c t , do you
find
that the plaintiff's post-discovery conduct was
unreasonable
when compared
to a reasonably prudent person under the same or
53
mm
similar circumstances?
Question 6: Was this unreasonable conduct which followed the plaintiff's
actual knowledge of the dangerous condition off the product a
proximate cause of the plaintiff's injury?
Question 7: If you have answered yes to either questions 4 or 5 above or
to both of these questions, determine on a percentage basis what
amount of the plaintiff's conduct contributed to the cause of the
plaintiff's injury and what amount the defect in the product
contributed
to the cause of the product, totaling 100%
of the
cause205
Product defect
%
+ Plaintiff conduct
%
=
100
%
Question 8:
What amount of money would compensate the plaintiff for all
the injury he has sustained without regard to whether he or the
product caused these injuries?
XII.
You
have
PRE-CONCLUSION SUMMARY
already seen how I would resolve the issue as to
plaintiff
substandard
negligent
and strict liability tortfeasor.
what
conduct should have on his right to recover
In a capsule,
even
effect
from
the
though
the
results derived from applying Texas law to the introductory h y p o t h e t i c a l seem
incongruous,
they
at
first
concerned
results
it is my feeling that the results are not so far off the mark as
I
appear to b e .
have
no
As far as the plaintiff and
argument for treating them any
in both hypotheticals.
the
farmer
are
than
the
differently
Modified comparative negligence can
operate
between them to do justice as it does in any non-products negligence case.
At least part of the absurdity in the products actions can be ameliorated
by placing products tortfeasors, whether negligent or liable under warranty or
strict
tort
liability,
in
a separate
class
from
non-products
negligent
tortfeasors.
I have already given what I feel are good reasons for drawing a
line
the two classes.
between
products
Products tortfeasors can spread
tortfeasors cannot in the normal c a s e .
Products
loss;
non-
tortfeasors
have
unique
pre-use
tortfeasors
risk
do
not
evaluation
have
and
safety
capability
because they are not
that
manufacturers
non-products
of
products.
Products tortfeasors pose nonreciprocal risks to c o n s u m e r s , where non-products
negligent tortfeasors and negligent consumers pose generally reciprocal
to each o t h e r .
with
the
Products tortfeasors make representations about their products
expectation
tortfeasors
risks
that
consumers
will
rely
on
do not make any such r e p r e s e n t a t i o n s .
money off of c o n s u m e r s .
them.
Non-products
Products tortfeasors make
Non-products tortfeasors do n o t .
T h e only conclusion
to be drawn from all of this is that there is no grave h a r m done to justice by
treating
products
tortfeasors and non-products
damage apportionment r u l e s .
tortfeasors
with
In fact, grave injustice would result if the two
classes
of tortfeasors were treated equally across the b o a r d .
that
damage
a
apportionment
rule can be used
to
action
I
have already d i s c u s s e d ,
under
warranty,
strict l i a b i l i t y ,
valid
products
differently.
policy does not change with the
which a products plaintiff p r o c e e d s .
or
To the extent
further
liability goals it should treat the two types of tortfeasors
As
different
Whether
in
type
of
negligence,
the blame will most often come home
to
manufacturer unless the non-manufacturing seller should take part of i t .
the
For
this reason, personal c u l p a b i l i t y , as found in the negligence products a c t i o n ,
should
rules.
the
be
the basis upon which we draw different
damage
apportionment
Whether the manufacturer is personally negligent or strictly
liable,
defenses should be the same because we are still dealing with an
206
optimal
pre-use
of
not
risk evaluator in any c a s e .
reducing
products
the
action,
extinguished.
impropriety
damages a plaintiff should receive
in
a
negligence
type
and not reducing them in the strict products action will be
Such
of
Once this is recognized the absurdity
a
result
is truly a b s u r d .
If
we
can
downplay
comparing non-fault liability to fault when comparing
the
strict
liability
to plaintiff negl igence,
pristine
tort
"justness"
then we can downplay the virtues
which is to be derived
from
reducing
of
plaintiff's
judgment just because he proved that the manufacturer was personally
in
any
culpable
his action and because two personally culpable parties should not
benefit
from their personal culpability to the extent it contributed to the h a r m .
reduce
plaintiff's
culpable
judgment because he and the manufacturer were
To
personally
is to reduce the action theoretically to a simple negligence
action
and to forget that we are talking about products liability and that one p a r t y ,
the m a n u f a c t u r e r ,
to
avoid
wants
harms before the product ever hits the m a r k e t .
to
prove
damages,
are
has pre-use risk evaluation capability that can be utilized
then
designed
actual
is
to
the
worthy
he should by all means be allowed to do s o .
plaintiff
of
punitive
Punitive damages
punish the extremely culpable tortfeasor whether
manufacturer or n o t .
actual
personal culpability which
If
negligence
it
But a plaintiff should not be discouraged from
is
proving
because of the risk that his compensatory damages will
reduced if he proves i t .
a
be
That is a b s u r d .
Failure to discover or guard against product defects should not be termed
substandard
integrity,
express
conduct at a l l .
and
duty
this right should not be derogated by placing an
on
him to discover or
substandard c o n d u c t ,
reduce
guard
principles
the
and
recovery
to
plaintiffs more s a f e .
Guidelines
(2)
against
a
defect.
the
damage in
this
situation
or
Incidental
should not
because nothing would be gained
that is not already gained by existing
reduce
product
implied
if it occurs before discovery of the d e f e c t ,
the plaintiff's right to r e c o v e r ,
reducing
general
would
not
by
tort
make
Guideline (1) recognizes these two t h i n g s .
and (3) recognize that we should encourage consumers
use products more s a f e l y ,
the
The plaintiff has the right to rely on
to
and that is is substantially unjust to allow all of
loss to be attributed to one party when two are
56
responsible.
Guideline
(4)
properly injects the element of foreseeabi1ity into the strict
action,
duty
liability
and would give the judiciary the support it needs to answer difficult
questions
applicable.
factors
by
But
to
using
even
which
the
foreseeability
in this c o n t e x t ,
consideration
can
be
concept
where
it
is
foreseeability is only one
given.
It
is
not
an
most
of
the
absolute
requirement to arriving at a just duty d e c i s i o n .
Guideline (5) recognizes that the harshness of the all or nothing rule is
to
be
avoided not withstanding the degree of culpability chargeable
plaintiff's
conduct.
If
the defendant's product caused harm he
to
the
should
be
liable for that h a r m .
Guideline
unique
(6)
pre-use
evaluate
is
risk
direcced at encouraging manufacturers
evaluation
capability to go
further
what injuries their products will c a u s e .
to
use
than
their
to
merely
It is added incentive for
them to prevent the injury to the plaintiff and thus maximize consumer
safety.
If manufacturers are encouraged to look more carefully at their products
presumably
foreseeable
risks can be ameliorated
dangerous products do not benefit s o c i e t y .
the
plaintiff
should
owes
owe
to
least
liability
out
of
negated.
Unreasonably
The liability for an added 50% of
caused injury also recognizes the face that
the
manufacturer
a dury to the consumer that is greater than the one the
himself
manufacturer.
at
or
a
because of the pre-use risk evaluation
consumer
capability
of
It is also supported by loss spreading capability which
part
action.
then
of the foundation for the emergence
of
the
the
forms
strict
tort
It is supported by the fact that m a n u f a c t u r e r s make money
selling their p r o d u c t s .
The added 50% also recognizes that
we
are
talking about products liability and its goals as opposed to simple negligence
actions and its g o a l s .
if
To treat the products defendant and the plaintiff
the action were only a negligence a c t i o n ,
57
as
would be to equate them in pre-
use
risk evaluation c a p a b i l i t y .
Lastly,
that if the plaintiff has injured h i m s e l f ,
product was introduced into c o m m e r c e .
in
his
the added 50% recognizes the
he has done so in part because the
If the defendant had not been derelict
duty to refrain from unleashing his unreasonably dangerous
product into c o m m e r c e ,
fact
the injury could have been totally a v o i d e d .
defective
Guideline
(7) recognizes that comparative negligence statutes that h a v e been directed at
simple negligence cases are inadequate in the products c a s e .
XIII.
EXISTING DAMAGE APPORTIONMENT
SCHEMES
Pure comparative fault, as outlined in the Uniform Comparative Fault A c t ,
fails to draw the line between products and non-products t o r t f e a s o r s , fails to
recognize
and
the realistic risk evaluation disparity between products
manufacturers,
and in so doing fails to treat products liability law
the discreet area of tort law that it i s .
Any fault,
between prediscovery of postdiscovery fault,
fault
and
without distinguishing
would reduce the plaintiff's damages a c c o r d i n g l y .
only the defect caused i n j u r y ,
This
takes
By holding the seller liable
we do not encourage the
refrain from selling the p r o d u c t .
as
is included in its definition of
207
some of the strictness out of strict liability.
for
plaintiffs
manufacturer
to
208
The Model Uniform Product Liability A c t ,
is preferred over the Uniform
Comparative Fault Act because it would not hold a plaintiff liable for failure
to discover a d e f e c t .
But it does hold the plaintiff to an objective standard
208a
for failing to discover an apparent defective c o n d i t i o n .
close to putting an implied duty of discovery on h i m .
modification
or
use
plaintiff's recovery
with
a known defective
208b
proportionately.
58
00305
This comes
Misuse,
condition,
would
very
alteration or
reduce
the
A majority of the courts have adopted comparative principles to apportion
damage
between substandard plaintiffs and strict liability tortfeasors.
courts
are split as to whether prediscovery negligence will be considered
reducing
the plaintiff's damages.
prediscovery
Generally speaking,
The
in
drawing the line
at
plaintiff substandard conduct brings them into line with one
or
the other of the acts mentioned above.
Some
courts
negligence
liability
have
legislation,
actions,
merely
even
apply
to
declared
that
their
though not expressly
apportion
state's
comparative
applicable
damages between the
to
products
parties
to
a
products action, because it is in keeping with the general policy of the
209
state.
Wisconsin has gone so far as to suggest that strict liability is
the
equivalent
of negligence per se,
and thus
the
comparative
210
negligence
211
statute
should apply.
Supreme
Court reversed a judgment for the plaintiff when it found that
matter
of
In Schuh v . Fox River Tractor Co.,
the Wisconsin
law the negligence of the plaintiff exceeded that of
the
as
a
product
212
supplier's
the harm,
negligence per se.
Thus even though the product contributed to
the plaintiff lost all right to recover.
Such a holding is not in
keeping with policy considerations already discussed.
Recently,
213
principles,
actions.
usually
Alaska
as
The
and
opposed
California
have
used
to comparative negligence,
difference is more than semantic.
a
in
strict
the principle applied between negligent tortfeasors.
less
negligence,
action.
questions
applying
liability
comparative principles in
To the
doctrine,
proper term than "fault," which would include
when
fault
Comparative negligence
that strict liability is a liability without negligence
is
comparative
the
extent
negligence
liability
strict
is
without
liability
This approach can be viewed as a refusal to face the difficult policy
presented by products liability law as already discussed.
00306
Finally
some jurisdictions simply say that their comparative
negligence
214
statutes
are
215
nor
applicable
or
that
fault
and
non-fault
cannot
bo
compared.
CONCLUSION
This
area
discriminating
strict
of
when
products
the
law is unsettled.
deciding
liability
what
M a n y of the courts have been
defenses should be
action in keeping with
increased product safety and consumer protection.
clear
however.
products
the
applicable
perceived
The author's views on the subject have
216
whether these decisions will be accepted by other
derogation
of
Comparative principles will in some form be applied in strict
liability actions.
seen
goals
a
The trend for the future is
been rejected by at least two courts, California and A l a s k a .
be
to
already
It remains to
jurisdictions
of what I feel to be overwhelming policy concerns for
in
encouraging
manufacturers to make safer products before the product is m a r k e t e d .
The
guidelines set forth in the earlier section filter out the types
substandard
conduct
that
cannot with certainty be
said
to
be
foreseeable
to the manufacturer and the rule will thus impose no duty
of
reasonably
to
go
to extreme measures to make products safe for every conceivable plaintiff.
At
the
same time the guidelines will encourage manufacturers to make
reasonably
safe products.
The encouragement of pre-use risk evaluation is factored into
the
and
guidelines
recognized.
recognized
general
as
and
determined
be
The
given.
are
realistic plaintiff capability to evaluate
risks
is
differences between product and non-product tortfeasors
is
the
differences between the policy behind
products liability law in particular,
in so far as
tort
law
in
it
can
be
to be a discreet legal area to which special consideration
A
comparison
of
these guidelines
O03O7
60
with
the
various
should
existing
approaches
discussed
understanding
of
the
above
wiLl
various
hopefully bring to
issues
perplexing area of products liability
There
is
no
which
emerge
the
reader
upon
a
better
examining
this
law.
boilerplate answer to the main issue of
what
effect
the
plaintiff's substandard conduct should have on his r e c o v e r y .
given
One
case
thing
The facts of any
217
may require judicial modification of any hard and
fast
rule.
is clear h o w e v e r .
Treating products cases as if they
were
mere
negligence cases is simply inadequate when consideration is given to the goals
of
products
strict tort
liability law and the bases for the creation and
liability.
61
imposition
of
1
U N I F O R M C O M P A R A T I V E FAULT A C T <Sl(b)(1977) p r o v i d e s :
(b)
" F a u l t " includes acts or o m i s s i o n s that are in any m e a s u r e n e g l i g e n t
or r e c k l e s s toward the p e r s o n or property of the actor o r o t h e r s . . . . "
2
See W a d e ,
Products L i a b i l i t y and P l a i n t i f f ' s
Fault - The
Uniform
C o m p a r a t i v e Fault A c t , 29 M E R C . L . R E V . 373 (1978); S a l e s , A s s u m p t i o n of
the Risk and Misuse in Strict Tort L i a b i l i t y - P r e l u d e
to
Comparative
F a u l t . 1 1 T E X . TECH L . R E V . 7 2 9 , 775 ( 1 9 8 0 ) . A c c o r d : F i s c h e r , P r o d u c t s
L i a b i l i t y - A p p l i c a b i l i t y of C o m p a r a t i v e N e g l i g e n c q . 4 3 M O .
R E V . 431
(1978).
See O w e n ,
1980).
Restructuring Products Liability Law.
16 T r i a l
58,
61
(Nov.
4
H e n d e r s o n v . Ford M o t o r C o m p a n y , 519 S.W.2d 87 ( T e x . 1 9 7 4 ) .
5
The
term " d a m a g e - a p p o r t i o n m e n t rule" is here used to m e a n a rule by which
the e f f e c t the p l a i n t i f f ' s s u b s t a n d a r d conduct can be m e a s u r e d and applied
a g a i n s t his right
to r e c o v e r .
T h e r e are s e v e r a l
types of
damageapportionment rules.
C o m p a r a t i v e n e g l i g e n c e r u l e s , of e i t h e r the pure or
m o d i f i e d v a r i e t y , are a p p l i e d to the " n e g l i g e n c e " of the p a r t i e s .
These
rules h a v e b e e n a d o p t e d
primarily
to apply to n o n - p r o d u c t s
cases.
C o m p a r a t i v e fault is a n o t h e r type of r u l e .
Fault is a b r o a d e r term
than
n e g l i g e n c e and for this r e a s o n it more aptly d e s c r i b e s the strict p r o d u c t s
l i a b i l i t y d e f e n d a n t ' s b l a m e w o r t h i n e s s , which
is c o n c e p t u a l l y
without
negligence.
Pure c o m p a r a t i v e
fault is to b e d i s t i n g u i s h e d
from
those
comparative
fault rules w h i c h are selective in d e f i n i n g s p e c i f i c types of
s u b s t a n d a r d plaintiff c o n d u c t as f a u l t .
6
C o m p a r e F i s c h e r , supra note 2 at 4 4 9 .
7
See T w e r s k i , The Use and Abuse of C o m p a r a t i v e N e g l i g e n c e
in
Products
L i a b i l i t y , 10 1 N D . L . REV.,
797,829 ( 1 9 7 7 ) w h e r e it is argued that the
fundamental
duty of m a n u f a c t u r e r s to make safe p r o d u c t s will be
negated
under p u r e c o m p a r a t i v e fault p r i n c i p l e s .
8
See g e n e r a l l y , i d .
0 0 3 0 9
62
157a
202
This is not the issue of contribution and indemnity rights between
concurrent tortfeasors.
Contribution and indemnity rights have only a
collateral relationship to the main issue.
Contribution and
indemnity
rights are a current problem in states where there is no applicable
comparative negligence statue.
See Ceneral Motors Corp. v . Simmons. 558
S.W.2d 855 (Tex. 1977).
Some states draw no distinction between the
degrees of culpability found in negligent as opposed to strict
liability
tortfeasors. See Ladwig v . Ermanco Inc., 504 F. Supp. 1229 (ED W i s . 1981)
(applying Wis. law).
10
28 Car and Driver 39 (No. 9 , March 1983).
The magazine does some of
General Motors' sales work for it by touting the four-wheel-disc brake
systems as making "the car stop as if it had been dropped into a sand
bank." Id. at 36.
11
The third type of products action, warranty, is excluded because for all
practical purposes and to the extent it should be considered applicable to
the facts of this hypothetical, nothing would be gained by addressing it
separately. "Negligence, breach of warranty, and strict liability in tort
have basically the same elements in a products liability context. None of
the three theories allows recovery against the manufacturer or seller
unless, "(1) the product was defective; (2) the defect existed at the time
the manufacturer or seller relinquished control; and (3) the defect caused
the injury."
Epstein, Products Liability Defenses Based on Plaintiffs
Conduct; 1968 UTAH L. REV. 267, 283 (May 1968).
12
The elements of a cause of action in strict tort liability are set out in
the RESTATEMENT (SECOND) OF TORTS 5402A (1966).
The Restatement view has
been adopted in Texas.
See McKisson v . Sales Affiliates, Inc. 416 S.W.2d
787 (Tex. 1967).
13
"Producing cause differs from proximate cause in that the former does not,
in Texas, include the element of foreseeability." J.H. Edgar, Products
Liability in Texas, 11 TEX. TECH
L. REV. 23 (1979).
Alaska and
Connecticut use the term proximate cause to describe the causation
ascribed to the product defect.
See Butaud v . Suburban Marine & Sporting
Goods, Inc., 555 P.2d 4 2 , 46 (Alaska, 1976); DeFelice v . Ford Motor
Company, 28 Conn. Supp. 164, 255A.2d 636, 639 (1969).
519 S.W.2d at 89.
15
Punitive damages are not allowed in Texas in a strict liability action.
Presumably, there is no personal culpability to which they could be
directed.
This is a "modified" comparative negligence statute.
See TEX. REV. CIV.
_STAT.
JVNN. art. 2212a.
The pure comparative negligence statues make
contributory negligence in any degree a partial defense.
00310
63
135
See 519 S.W.2d at 8 9 - 9 2 .
18
Id.
For criticisms of the Henderson Court's decision to make assumption
of risk a complete bar to recover see E d g a r , The Effect of
Plaintiff's
Conduct
in Strict Products Liability in Texas:
A Time for R e e v a l u a t i o n ,
43 T E X . BAR J R N L . 1103, 1106-07 (Dec., 1980); C o m m e n t , To Bar Plaintiff's
Recovery in Strict L i a b i l i t y , Conduct After the Discovery of a Defect Must
Amount Only to a V ^ r u n t a r y " E n c o u n t e r of the R i s k , 6 ~ T E X . TECH
IT
REV.
1211 ( 1 9 7 5 ) .
19
See E d g a r ,
(1979).
Products Liability in T e x a s ,
11 T E X .
TECH L .
REV.
23,
42
20
See supra note
16.
21
General Motors is more likely to have a deep pocket than the farmer in the
negligence case and will have to pay more under strict liability in the
first h y p o .
22
See infra notes 29-38 and accompanying
text.
23
E d g a r , supra note 18 at 1104.
24
"(W]e see no reason that a manufacturer found strictly liable under
the
lesser standards of proof of Section 402A should be more culpable than the
negligent manufacturer." General Motors C o r p . v . S i m m o n s , 558
S.W.2d
855,861
(Tex. 1977) (in a discussion about contribution and
indemnity).
Consider the following quote from Pizza Inn v . T i f f a n y , 454 S.W.2d 4 2 0 , 4 2 3
(Tex. C i v . A p p . 1970), (emphasis added): "When the strict liability rule
attaches
or is a p p l i c a b l e , conventional contributory negligence
of
plaintiff is not a defense; nor is contributory negligence of failure
to
discover
the defect in the p r o d u c t , or guard against its e x i s t e n c e , a
defense."
The court apparently recognizes the nonsense of the holding
presented by the text.
It resolves the question by concluding that
the
contributory negligence of the plaintiff should not change his
recovery
because he has plead and proved n e g l i g e n c e , if strict liability
is
applicable.
This holding would not hold the plaintiff liable for
going
beyond proving strict liability to prove actual manufacturer
negligence.
It makes good s e n s e .
25
T w e r s k i , supra note 7 at 7 9 7 .
142
519 S.W.2d 8 7 .
123
E d g a r , supra note 18 at 1104.
28
Id.
29
Edgar,
31
s u
P
r a
note 19 at 2 5 .
Id.
Usually the issue is phrased in terras of comparing manufacturer
strict
liability (non-fault) with the negligence (fault of the p l a i n t i f f ) .
See
W a d e , supra note 2 at 3 7 6 . The question as I have phrased it is somewhat
d e c e p t i v e , but if the focus is on the p r o d u c t , it would seem that
this
phrasing is r e q u i r e d .
"[The reasons for adopting strict liability]
stem
from a desire to change risk distribution p r i n c i p l e s , to fulfill consumer
e x p e c t a t i o n s , and to free the plaintiff from proving fault when it is
supposed fault is present but cannot be easily d e m o n s t r a t e d . Given such a
multiplicity of reasons for the adoption of strict l i a b i l i t y , it is not
untoward
to suggest that the seriousness of the defect should be equated
in some rough sense with a percentage of fault." T w e r s k i , supra note 7 at
807 (footnotes o m i t t e d ) .
The "supposed fault" mentioned in the quote
derives in part from what Dean Leon Green suggests is a breach of
duty,
even if it is not a "negligent" b r e a c h .
See infra, notes 3 2 , 37 and
accompanying t e x t .
Compare the dissenting opinion of Justice Mosk in Daly v . General M o t o r s ,
575 P.2d
1162,1181
(arguing
the impossibility of comparing
strict
liability
to plaintiff negligence) with Justice Clark's
concurring
o p i n i o n , ick at 1175 and Justice Jefferson's concurring and
dissenting
o p i n i o n , ici. at 1177, where both argue basically that there is a lack of a
trustworthy standard for making the c o m p a r i s o n .
32
Unreasonably dangerous products do not enter the stream of commerce all by
themselves.
This
is
the reason that strict liability
is
only
"technically"
a non-fault c o n c e p t .
See infra note 37 and
accompanying
text.
"(S]imply maintaining the bad condition or placing the bad product
on the market is enough for liability....[I]t is not n e c e s s a r y to prove
negligence in letting the [product] get into the dangerous condition or in
failing
to discover or rectify it.
This is legal fault, and it can be
mixed w i t h , and compared w i t h , fault of the morally reprehensible type."
W a d e , supra note 2 at 3 7 7 .
33
See T w e r s k i , supra note 7 at 805-06;
supra note 2 at 7 6 1 .
34
See T w e r s k i , supra note 7 at 8 0 6 .
134
See id.
65
Wade,
supra note 2 at 376;
Sales,
135
"[Slection 402A dons not apply to products not introduced into the
stream
of commerce." E d g a r , supra note 19 at 24 citing Armstrong Rubber C o . v .
U r q u i d e z , 570 S.W.2d 374 (Tex. 1978) (tire being tested not in c o m m e r c e ) .
37
G r e e n , Strict Liability Under Section 402A and 402B;
Decade of
L i t i g a t i o n 5 4 T E X . L . R E V . 1 185 (1976) reprinted 'in G r e e n , The Litigation
Process in Tort Law 6 0 3 , 604 (2d.ed. , 1977).
See W a d e , supra note 2 at
376-77.
38
T w e r s k i , supra note 7 at 8 0 6 .
39
See L e v i n e , Buyer's Conduct as Affecting the Extent of
Liability in W a r r a n t y , 52 M I N N . L . R E V . 6 2 7 , 628 ( 1 9 6 8 ) .
Manufacturer's
40
See supra note 11.
41
See L e v i n e , supra note 39 at 6 4 5 - 4 7 .
42
See J o h n s o n ,
The Interests Protected by Strict Product
Liability,
(unpublished),
presented
for Products Liability Seminar Texas Tech
University (Spring 1 9 8 3 ) .
CAVEAT: What the law should be and what it is,
widely d i f f e r s .
In Signal Oil and Gas C o . v . Universal Oil P r o d u c t s , 572
S.W.2d 320 (Tex. 1978) the court applied comparative causation principles
to apportion the damage between a contributorily negligent plaintiff and a
strict warranty d e f e n d a n t .
Contributory negligence was held to be a
partial defense in the action because of the Texas Business and
Commerce
Code §2.715 setting out the rule on buyers incidental and
consequential
damages.
These damages are not unlike casualty losses which are the
object of tort law in general and to the extent that these are the
losses
to be redressed under tort principles, which have always redressed
such
losses, to apply a different rule in products cases on the basis of the
type of action pleaded and proved is very hard to j u s t i f y .
43
See Epstein, supra note 11 at 268 "Contributory n e g l i g e n c e ,
generally defined
is sufficiently broad enough to encompass
categories." Id. See also L e v i n e , supra note 39 at 6 4 3 .
as it is
all
three
44
See supra note 1.
142
N o e l , Defective P r o d u c t s :
Abnormal U s e , Contributory Negligence
and
Assumption of R i s k , 25 V A N D . _L. R E V . 9 3 , 120-28 (1972); K e e t o n , Assumption
of Products Ris»-s, 19 S W . L . J . 62 (1965).
123
N o e l , supra note 45 at 120.
Id. at
120-21.
48
See id; K e e t o n , supra note 45 at 6 3 - 6 7 .
49
N o e l , supra note 45 at 121.
Id.
50
Assumption of risk is a stricter measure of plaintiff contributory
than simple contributory negligence due to the subjective s t a n d a r d .
fault
51
S a l e s , supra note 2 at 7 4 0 - 4 1 .
52
C o m m e n t , To Bar Plaintiff's Recovery in Strict L i a b i l i t y , Conduct After
tlvi? Discovery of _a Do feet Must Amount Only to j> V o l u n t a r y Encounter of the
R i s k , 6 T E X . TECH _L. R E V . 1211, 1215 ( 1 9 7 5 ) .
53
See id. at
1211.
54
519 S.W.2d at 9 1 .
55
See Comment n to 5402A of the R e s t a t e m e n t .
57
S a l e s , supra note 2 at 7 4 3 - 4 4 .
Id. at 746 quoting from Johnson v .
P.2d 132, 140 (1976).
Clark Equipment C o . , 274 O r e . 4 0 3 , 547
58
Compare S a l e s , supra note 2 at 745 where it is noted
that other
jurisdictions inquire into the reasonableness of the use of the product as
distinguished from the user's decision to use i t .
59
Negligent voluntary assumption of risk is the term Professor Edgar uses in
a helpful hypothetical discussion of the types of plaintiff
substandard
conduct and the effect
this conduct should have on the
plaintiff's
recovery. See E d g a r , supra note 18 at 1106-08.
134
E d g a r , supra note 18 at 1108.
67
C031-5
A much more difficult case is presented when the facts suggest
that
employment or business pressures rather than health emergency is involved.
Consider Micallef v . Miehle C o . , 39 N.Y.2d 3 7 6 , 348 N.E.2d
5 7 1 , 384
N.Y.S.2d 115 (1976). Plaintiff was operating a large printing press which
took three hours to put into a run posture when it was s t o p p e d . A foreign
object was interfering with the quality of printing as the m a c h i n e was
running.
Plaintiff knew of the danger of "chasing hickies,"
i.e. the
process by which the application of a piece of plastic to the p l a t e , which
was wrapped around
the machine's printing c y l i n d e r , would remove the
foreign object and restore printing q u a l i t y .
He informed the
supervisor
that he would chase this "hickie" on the r u n .
It was the usual procedure
in the industry to do s o .
Experts testified that a safety guard could be
placed near the rollers to avoid the contact of human hands with
the
obviously dangerous r o l l e r s .
Was the three hour downtime enough to make
the plaintiff's assumption of risk reasonable? T w e r s k i , The Many Faces of
Misuse:
An Inguiry[. into the Emerging Doctrine of Comparative
Causation,
29 "MERC. L . "REV. "403 , 429-30 ( f978)
62
See C o m m e n t , supra note 52 at
1216.
63
S a l e s , supra note 2 at 7 4 7 .
For a good example of h o w important
these
factors are in the outcome of a case see Sperling v . H a t c h , 10 C a l . A p p .
3d 5 4 , 5 8 , 88 C a l . R e p t r . 704 (1970), noted in N o e l , Supra note 45 at 12223 (husband with mechanical experience held to have assumed the risk of
brake failure as a matter of law, while wife's assumption of the risk was
held to be a j u r y q u e s t i o n ) .
64
S a l e s , supra note ?. at 748 (footnotes o m i t t e d ) .
65
I d . at 7 4 1 - 4 2 .
66
See L e v i n e , supra note .39 at 6 4 3 .
67
See g e n e r a l l y , T w e r s k i , supra note 60; L e v i n e , supra note 39; S a l e s , supra
note 2;
E p s t e i n , supra note 11; and C o m m e n t , Substantial
Change:
A1 terat ion of ^ Product as ji Bar to ji M a n u f a c t u r e r ' s L i a b i l i t y , 80 DICK L .
R E V . 245 (1976)(all discussing various views on m i s u s e ) .
68
See supra note 51 and accompanying
text.
69
T w e r s k i , supra note 61 at 4 1 7 .
Other examples are the failure to heed
instructions and w a r n i n g s , failure to properly maintain and service a
p r o d u c t , which can be viewed as an abnormal or unintended u s e . See Sales
supra note 2 at 7 5 5 .
68
157a
See Twerski, supra note 7 at 818-19.
Id.
72
Id,
73
This is the objective standard generally applied to misuse cases.
74
While his conduct may be viewed as more reprehensible
negligence, he still has not assumed the risk subjectively.
than
simple
75
Cf. Levine, supra note 39 at 643.
76
In General Motors Corp. v . Hopkins, 548 S.W.2d 344, 349 (Tex. 1977) the
court held that if there had been enough evidence that the plaintiff's
conduct had somehow caused the loss he would be charged with the damages
flowing from his contribution to the cause since his conduct was
unforeseeable.
See Twerski supra note 60 for an exhaustive analysis of
this case focused on the comparative causation principles espoused by the
Texas Supreme Court in the case.
77
Comment,
supra note 67 at 246 (footnotes omitted).
78
548 S.W.2d 344.
79
See Twerski, supra note 61 at 409.
80
"(A primary problem of the misuse defense] has involved the overlap of
misuse with the traditional defense of contributory negligence."
Sales,
supra note 2 at 749.
81
Edgar, supra note 18 at 1103.
83
548 S.W.2d at 351.
Twerski, supra note 61 at 431.
202
See cases cited in Twerski, supra note 61, 420-21 n32.
69
115
Foreseeability does have something to do with the issue of whether
the
misuse was a proximate c a u s e , that is from the plaintiff's
standpoint.
The term proximate cause is used in negligence c a s e s .
See Dallas R y . C .
Terminal C o . v . B l a c k , 152 T e x . 3 4 3 , 257 S.W.2d 4 1 6 , 417 (1953).
86
In the Hopkins c a s e , the court made it clear that foreseeable misuse would
not be a d e f e n s e .
548 S.W.2d at 3 5 1 .
For a criticism of the bifurcated
nature of the foreseeability issue in the Hopkins case see S a l e s , supra
note 2 at 7 5 2 .
~
~'
S a l e s , supra note 2 at 750 quoting from Findlay v .
265 O r e . 3 0 0 , 509 P.2d 28 (1973).
Copeland Lumber Co.,
88
T w e r s k i , supra note 61 at 425 quoting
from
Instructions - Civil §2: 141 (Vol. 1, 1974).
New
"*
York
Pattern
Jury
89
See T w e r s k i , supra note 61 at 4 2 3 - 2 4 .
90
I d . , discussing Dean Leon Green's approach to foreseeability by including
it in the judge made duty d e c i s i o n .
Id., at 4 2 1 .
92
I d . , Strict liability is said to focus on the p r o d u c t . Negligence is said
to focus on the conduct of the m a n u f a c t u r e r .
If in strict liability we
find a product unreasonably dangerous as designed b e c a u s e of the
failure
to include a safety device we are in effect saying that it should
have
included o n e .
Who should have included
it in the product?
The
manufacturer,
of
course.
There
is no escaping the fact
that
foreseeability is involved here as a matter of p o l i c y .
General
Motors
C o r p . v . Hopkins is on p o i n t . Foreseeable misuse is not a d e f e n s e , only
the unforeseeable m i s u s e .
Can strict liability d e s i g n cases have a focus
only on the product? Y e s , t h e o r e t i c a l l y . Not a l w a y s , in p r a c t i c e .
93
"A defectively manufactured product is one that is not manufactured
as
intended." E d g a r , supra note 19 at 2 5 .
A defectively designed
product
may create an unreasonable danger even though manufactured
exactly as
intended.
Id., at 2 8 .
If the injury results either in w h o l e or in part
from a manufacturing defect in the product a strong argument can be made
for keeping
foreseeability out of the case unless there was also a
contributing design d e f e c t .
Foreseeability and d e s i g n are
inseparable.
But foreseeability of misuse and manufacturing process are n o t .
In the
case of a manufacturing defect I would hold
that only
post-discovery
negligence of the plaintiff should be the only d e f e n s e .
The relation of
design defect cases and negligence (foreseeability) has prompted a move to
return to negligence principles in litigating these c a s e s .
See Uniform
Product Liability A c t , 44 F e d . Reg. 6 2 , 714-50 (1979) and Senate Bill 4 4 ,
C03.1.7
98th C o n g . , 1st Sess. (1983) discussed in Polewski, M a n u f a c t u r i n g , Design
and Marketing D e f e c t s , (unpublished) presented by the author at Products
Liability S e m i n a r , Texas Tech University (Spring, 1983).
94
See text accompanying note 8 8 , s u p r a .
95
See L e v i n e , supra note 39 at 6 4 3 .
96
E p s t e i n , supra note 11 at 267.
97
Supra note 51 and accompanying
text.
98
"Contributory negligence is conduct of the plaintiff that falls below the
standard of conduct expected of ordinary prudent man under the same or
similar circumstances...." C o m m e n t , supra note 52 at 1215.
Compare note 98 supra with text accompanying note 83 s u p r a .
Text at note 10 supra
101
See
T w e r s k i , supra note 7 at 8 1 6 .
"In product liability a c t i o n s , ...
land) |i]f the plaintiff is n e g l i g e n t , the tool of his n e g l i g e n c e is the
product of the defendant."
Ld. at 8 0 4 .
102
See T w e r s k i , supra note 7 at 8 1 6 .
103
See Shamrock Fuel and Oil Sales C o . v . T u n k s , 416 S.W.2d 779 ( T e x . 1967);
A n n o t . , 46 A.L.R.3d 2 4 0 , 248 (1972).
519 S.W.2d 87; A n n o t . , supra note 103 at 2 6 2 .
N o e l , supra note 45 at 114 quoting Stephan v .
A.2d 855 (N.H.
1970).
Sears,
Roebuck & C o . , 266
106
See N o e l , supra note 45 at 114.
107
To put such a duty on the plaintiff would go far beyond Restatement §402a,
Comment rK_ I d .
108
E d g a r , supra note 18 at 1106.
,00318
7
179
Compare hypotheticals N o . 2 and N o . 3 used by Professor Edgar to explain
pre-discovery and post-discovery n e g l i g e n c e . I d .
110
Compare foregoing discussion with text accompanying note 56 s u p r a .
111
Daley v . Ceneral Motors C o r p . ,
Rptr.|3R0 (1978).
1 1 la
Wenzel v . Rollins Motor C o . ,
ref. n.r.e.)
20 Cal.3d 7 2 5 ,
575 P.2d 1142,
598 S.W.2d 895 (Tex.
Civ.
144
Cal.
A p p . 1 9 8 0 , writ
112
The Hopkins case would seem to fall into the post-discovery
contributory
negligence category because he was aware that the quadrajet carburetor had
a propensity for hanging in the open position before he replaced it with
the high performance Holley c a r b u r e t o r . See Twerski supra note 60 at 4 3 0 .
A p p a r e n t l y , by the time he replaced the Holley carburetor with
the
original quadrajet carburetor he had "dismissed this from his mind," in a
similar way to Professor Edgar's hypothetical N o . 3 . See supra note 109.
A much more difficult task would be to fit the Hopkins case into the
culpability scheme presented in the text if Hopkins had not had the Fulton
Street encounter with
the original carburetor where he learned
of its
dangerous c o n d i t i o n .
If he would have had no subjective knowledge of the
defect his case would not be a post-discovery contributory negligence case
as I have defined it.
It would not be a misuse case as I have defined it
either.
Hopkins did alter the carburetor but the alteration was not
material
in the sense that the product was changed into a product intHied
for another p u r p o s e . The alteration was material in the sense that it was
found
to be a change which bore a causal relationship to the
accident.
Perhaps
the best way to describe this hypothetical Hopkins case would
be
to call
it a "mishandling" case and place it somewhere between
prediscovery
contributory
negligence
and misuse
and
post-discovery
contributory negligence on the culpability scale set forth in the
text.
See Twerski supra note 61 at 430 where Professor Twerski recognizes
the
problem but does not attempt to solve it and compare his discussion
with
S a l e s , supra note 2 at 749-59 who calls it simply an "alteration...rather
than a misuse or unintended use" and does resolve the question of how to
classify by calling it misconduct and making it a d e f e n s e .
113
The analogy to criminal scienter is intentional and hopefully
to explain the culpability s c h e m e .
appropriate
114
An argument will be made later on that the type of products
liability
action pleaded
should make no difference if it proceeds against
the
manufacturer of the injury inflicting p r o d u c t .
See text beginning
at
Section I X .
72
cestf)
115
Rlacks Law Dictionary (5th E d . 1979).
O w e n , supra note 3 at 5 8 .
117
Section 402A of the Restatement is designed to do m o r e than m e r e l y reduce
plaintiff proof p r o b l e m s .
It was also designed to eliminate the
privity
requirement in warranty a c t i o n s . See E d g a r , supra note 18 at 1 1 0 4 . It is
a subpart of the more or less discreet area known as products
liability
l a w , which has as its aim the improvement of products and
consumer
protection.
These aims are not to be overlooked by focusing too narrowly
on the proof problems and privity requirements §402A was designed
to
a m e l i o r a t e . See S402A Comment
I 18
G r e e n , Tort Law Public Law in D i s g u i s e , 38 T E X . L . R E V . , 1, 2 (1959)
reprinted in G r e e n , The Litigation Process in Tort Law 116 (2d e d . 1977).
119
P r o s s e r , The Law of Torts 642 (4th e d . 1971).
120
n
I d . at 6 5 1 .
Seie Greenmae-e v . Yuba Power P r o d u c t s , 59 C a l . 2d 57 , 6 3 , 27
C a l . Rptr i. 697 , 701 , 377 P.2d 8 9 7 , 901 (1963); Restatement (Second) of
T o r t s , Comment £ (1965).
~
~
121
The public interests in improving product safety and consumer
protection
will remain constant without regard to whether
the products
action
proceeds in w a r r a n t y , n e g l i g e n c e or strict tort l i a b i l i t y . Any holding as
to what the defenses ought to be to the action which
focuses on the
difference between
fault and non-fault concepts discussed earlier
will
very likely derogate these policy g o a l s .
If we can overcome
this
hypertechnical
problem in determining to compare fault we should be
able
to overcome it by considering what defenses should apply to the
products
liability a c t i o n , w i t h o u t
fine line distinctions b e t w e e n the types of
products liability a c t i o n s .
122
P r o s s e r , supra note 119 at 6 5 1 . For a discussion of the affinity between
warranty and tort principles and the "representational
grounds"
for
imposing strict liability see G r e e n , supra note 3 7 .
See also
Twerski,
supra note 7 at 802-04 and authorities cited t h e r e i n .
One writer has
called
the representational nature of the products liability tort a "de
facto victimization" of the c o n s u m e r .
E p s t e i n , supra note 11 at 6 8 4 . To
explain,
the representational
theory of liability means that when
m a n u f a c t u r e r s , through massive hard-sell advertising campaigns extolling
the virtues of the p r o d u c t , induce the buyer to b u y , and when the buyer is
lulled
into a sense of security about the product h e m i g h t otherwise
not
h a v e , he has been victimized by the manufacturer and should not be forced
to pay for injury he receives when the product turns out to be
unreliable
and injurious.
See Green supra note 37 at 608; M c C o w n v .
International
Harvester C o . , 342 A.2d 381 (Pa. 1975) cited in W a d e , supra note 2 at 733
n . 12.
73 e§32fi
123
Comment, Product Liability Reform Proposals in Washington
Policy Analysis, 4 U . PUG. SOUND L. REV. 143, 146 (1980).
- A
Public
Id.
125
Is the product unreasonably dangerous?
Frequently, this question is
resolved using a risk versus utility analysis.
Edgar, supra note 19 at
28-29.
See generally Prosser, supra note 119 at 659 (general discussion
of the tests).
126
The majority of courts do not hold manufacturers or
insurers. Levine, supra note 39 at 631.
sellers
liable
as
127
Just adjudication is no less a valid goal than safety concerns.
128
Take any negligent assumption of risk case and you have a case where
injury could have been avoided.
Risk avoidance capability comes with
subjective knowledge of the defect.
Where this capability arises, there
arises policy oriented defense potential.
129
For a recent argument that manufacturers are
with products liability recoveries of massive
Venditor;
Failure to Heed Instructions is
Products Liability Actions, 30 DEPAUL L. REV.
being forced out of business
damages, see Comment, Caveat
Not a Defense to Illinois
477, 495-98 (1981).
130
No distinction is made here between strict tortfeasors and negligence
tortfeasors so long as they are both manufacturers.
See text at Section
TX.
131
See Sales, supra note 2 at 730 where he states that "(i|n some
jurisdictions adoption of the doctrine (of strict liability] has been
predicated on the deep pocket theory; that is, the product supplier, as
part of an enterprise liability, is better able to absorb the costs of
injuries than the consumer by a proportionate distribution of these costs
to the purchasing public" (footnote omitted).
132
Plant, Comparative Negligence and Strict Tort Liability,
'•03, 416 (1980).
133
See Restatement §402A, Comment
134
Plant, supra note 132 at 416.
74
40 LA.
L . REV.
135
Compare K n e p p e r , Review of 1976 Tort T r e n d s , 26 D e f . L . J r n l . I, 5 (1977)
"[The doctrine of strict liability] is based on the concept that
the
m a n u f a c t u r e r is an expert who should be able to avoid defective
products,
and is better able to bear the cost of accidental injuries than are his
injured customers."
136
Foreseeability
is an issue here without regard to the type of action a
plaintiff may plead and prove.
It is an express issue in negligence
and
implied in strict l i a b i l i t y .
137
Mom and Pop businesses do not have the risk evaluation capability of
General M o t o r s .
But compared to c o n s u m e r s , Mom and Pop h a v e
exclusive
pre-use evaluation c a p a b i l i t i e s .
138
Supra note
119.
138a
Loss spreading has played a major role in the evolution of strict
tort
liability.
I have gone further to try to justify the use of
loss
spreading which
in and of itself is a purely incidental phenonenon
to
running a b u s i n e s s .
I am always suspect of any rule of law which focuses
too much on e c o n o m i c s . But loss spreading is real and is a h i g h l y useable
means
for achieving the overall goal of product s a f e t y .
T feel
it is
justified when one looks at the pre-use risk evaluation c a p a b i l i t y of
manufacturers as opposed to product u s e r s , even though approaching strict
liability in this
fashion does conjure up the ugly head of
negligence
which of course requires focus on a manufacturer's c o n d u c t , not
the
product, and which predictably would upset the strict liability applecart
to many p u r i s t s ' way of t h i n k i n g .
C o m m e n t , supra note 123.
140
This statement is makeweight because it is not the plaintiff's
inability
to absorb the l o s s , but a manufacturer's ability to shift l o s s , justified
by a manufacturer's ability to evaluate and spread risk that is a basis
for imposing strict l i a b i l i t y .
Strict liability should not be a search
for a deep p o c k e t . Economics simply should not play this role in imposing
strict l i a b i l i t y .
To argue that deep pocket theory is all that
strict
liability is a b o u t , is to unduly discredit a valuable legal d o c t r i n e .
141
The Texas assumption of risk cases are e x a m p l e s .
142
This
is
thought to be the major virtue of pure c o m p a r a t i v e
fault.
179
This
is an oversimplification of the thinking behind
pure
comparative
causation
principles which reduce plaintiff's recovery in proportion
to
the
amount of his injury causing conduct in whatever degree
of
c u l p a b i l i t y . See g e n e r a l l y , T w e r s k i , supra note 6 1 . It differs from pure
comparative
fault in that it avoids the technical problem of comparing
strict liability with negligence discussed in the text at Section I I . See
P l a n t , supra note 132 at 4 0 7 .
W a d e , supra note 2 at 3 7 9 , 387-88; S a l e s , supra note 2 at 7 6 1 , 7 7 8 .
145
See g e n e r a l l y , Twerski supra note 7 .
146
To argue for the adoption of comparative fault p r i n c i p l e s , and then argue
that the public should not have to pay for the plaintiff's f a u l t , is to
forget that it is the manufacturer who made the product that injured
the
plaintiff.
And yet this is what Professor Wade and Attorney Sales would
seem to h a v e us d o .
Comparative
fault principles do not
compare
plaintiffs to the public; they would compare manufacturers to
plaintiffs
without undue doctrinal weight given to non-fault and fault
comparison
problems.
147
This is the danger of arguments that focus too much on economic
justice.
148
Professor Twerski considers that comparing any and ail
substandard
plaintiff conduct may dilute the duties placed on manufacturers to make
reasonably safe p r o d u c t s , whether the duties are derived d i r e c t l y
from
negligence theory or impliedly from strict liability.
See T w e r s k i , supra
note 7 at 8 1 0 . Accord: O w e n , supra note 3 at 6 1 .
149
See T w e r s k i , supra note 7 at 8 0 2 .
150
There will be some i n c e n t i v e , at least to the extent people hear of each
other's misfortunes at the hands of a manufacturer who has
successfully
defended on comparative fault g r o u n d s .
151
Even if the individual is an assumed risk taker.
152
Even if it is assumed that plaintiffs and manufacturers are equal in terms
of risk evaluation
it is silly to assume that a plaintiff who has
not
discovered
the dangerous product has any capability to avoid the
injury.
The duty to inspect the product is on the m a n u f a c t u r e r .
If we place a
duty on the plaintiff to inspect the product we are in effect saying
the
plaintiff has no right to rely on the product's i n t e g r i t y .
That is
precisely what would be accomplished if pure comparative fault principles
are a d o p t e d . We cannot in reality asume that they are on equal footing in
terms of risk evaluation even if we put an express d u t y or implied
duty
76
(using pure comparative fault principles) on the plaintiff.
The more
insidious the danger the less evaluation capability is in the plaintiff.
153
See Twerski supra note 7 at 804.
154
See
Mohr v . B.F. Goodrich Rubber Co., 371 A.2d 288, 292 (N.J. Super. Ct.
App. Div., 1977) wherein it is stated: "Contributory negligence can be a
bar to recovery in strict liability, with the exception of those cases
where the consequences of plaintiff's contributory negligence could have
been avoided by the manufacturer's exercise of due care"
(citations
omitted).
See also Shamrock Fuel & Oil Sales Co. v . Tunks, 416 S.W.2d
779, 785-86 (Tex., 1967) wherein it is stated: "Under modern conditions
of advertising and marketing, there exists a strong consumer reliance upon
the integrity of the manufacturer and vendor of a product.
The
representation of safety in use is not restricted to those consumers of
the reasonably prudent variety.
It would be incongruous to hold that one
could not recover upon the representation that a product was safe because
he had failed to meet the test of the reasonably prudent man in
discovering that the representation was not true."
155
I am aware that apples and oranges are mixed when foreseeability is
injected into strict liability in a similar way that there may be a
perceived
impropriety
in comparing strict liability to
plaintiff
substandard conduct.
But substantively speaking, I see no policy reason
for not injecting foreseeability into the matter in the strict
liability
marketing case. "(Tlhe duty to warn arises only if the manufacturer knows
or should know of the potentiality of h a r m , that duty becomes opertive
only with respect to foreseeably unreasonable risks." Edgar, supra note
19 at 31.
We cannot ignore the element of foreseeability that goes into
designing a product.
Even if strict liability supposedly focuses on the
product, the finding of a defective design which poses an unreasonable
danger, at the very least implies a finding that it should have been
designed differently.
If it should have been designed differently, the
manufacturer was impliedly negligent because of the failure to design the
product as a reasonbly prudent manufacturer would have designed it.
If
strict liability is to reduce proof problems, so be it. But we should not
say
that
this is a reason for denying
considerations
of
the
foreseeability of the substandard conduct of the plaintiff from a policy
perspective.
To inject foreseeability into some strict liability design
and marketing cases is to do no more than to take the concept out of the
cupboard and put it on the table.
156
See
Twerski, supra note 7 at 808 (speaking of second collision
814-17 (use within product tolerance).
157
See supra note 154.
77
cases),
157a
Mulcahy v . Harris C o r p . , 487 F . S u p p . 499 (ND 1 1 1 . , 1980) (applying 111.
law); Brown v . Luik Belt C o r p . , 565 F.2d 1107 (9th C i r . , 1977) (applying
O r e . law); Henderson v . Ford Motor C o m p a n y , 519 S.W.2d 87 (Tex. 1974);
Green v . Edmands C o . , 639 F.2d 286 (5th C i r . 1981) (applying T e x . L a w ) .
See other cases collected at A n n o t . , 46 ALR 3d 240 e t . s e q . (1972).
See Butand v . Suburban Marine & Sporting G o o d s ,
(Alaska, 1976); W a d e , supra note 2 .
Inc.,
555 P.2d 4 2 ,
46
159
This would
seem to be the rationale in those jurisdictions
applying
comparative
principles in such c a s e s .
See Butaud v . Suburban Marine &
Sporting G o o d s , Inc., 555 P.2d 42 (Alaska, 1976); Bacceleri v . Hyster C o . ,
287 O r e . 3, 597 P.2d 351 (1979) (assumption of risk treated as subspecies
of contributory negligence under comparative negligence); Devaney
v.
S a r n o , 125 N . J . S u p e r . 4 1 4 , 311 A.2d 208 (1973).
160
Both have n o t i c e .
The assumed risk taker goes further
assume a subjectively understood d a n g e r .
to
voluntarily
161
The El Paso Court of Appeals has laid the groundwork for doing s o .
See
Wenzel v . Rollins Motors C o . 598 S.W.2d 895 (Tex. C i v . A p p . 1 9 8 0 , writ
r e f . n.r.e .).
162
Jurisdictions applying comparative principles do not hold that assumption
of risk is a complete b a r .
See Daly v . General Motors C o r p . , 575
P.2d
1162 (1978); Butand v . Suburban Marine & Sporting G o o d s , Inc., 555 P.2d 42
(Alaska, 1976).
163
C f . L e v i n e , supra note 39 at 6 4 7 .
164
See supra note 88 and accompanying
text.
165
See text beginning at Section V I I .
202
The prediscovery plaintiff has no real risk evaluation
capability.
167
Such a duty is inconsistent with the representational theory for imposing
strict l i a b i l i t y . See supra note 122.
T w e r s k i , supra note 7 at 8 0 4 .
I d . at 8 0 5 .
78
115
See i d . at 8 1 3 .
171
I d . at 8 1 7 .
172
See F l e t c h e r , Fairness and Utility in Tort T h e o r y , 85 H A R V . _L. R E V . 537,
(1972) reprinted in R a b i n , Perspectives on Tort L a w , 2 1 3 , 217-18 ( 1 9 7 6 ) .
Fletcher's article is specifically directed at non-products c a s e s .
His
basic theory is that non-reciprocal risk takers should bear the
loss.
Reciprocal risk takers who cause damage should not be held
liable.
He
apparently recognizes that the interests of the victim or of the class he
represents may have a bearing on the paradigm of r e c i p r o c i t y .
Assuming
that these considerations do have a bearing on the p a r a d i g m , it.would seem
that m a n u f a c t u r e r s of dangerous products pose non-reciprocating risks of
harm to members of the p u b l i c , whether c o n s u m e r s , u s e r s , or b y s t a n d e r s .
See
T w e r s k i , supra note 7 at 8 0 4 .
See supra note 108 and accompanying
text.
174a
See T w e r s k i , supra 7 at 8 1 3 .
175
See supra note 5 5 .
176
These are the basic facts of Bexiga v . Havir Manufacturing C o r p . , 290 A.2d
281 (N.J. 1972).
177
T w e r s k i , supra note 7 at 8 0 0 .
178
"Foreseeabilitv may be a relevant factor for the judge to consider;
other
factors may and are usually more important in the determination of
the
defendant's duty; the fact of risk in the particular case is what actually
took place as a result of defendant's c o n d u c t , not what was foreseen b y
the actor as likely to take p l a c e , and it is this risk that must be
brought
into focus by the court's judgment on the duty issue."
Twerski,
supra note 61 at 423 quoting from G r e e n , D u t i e s , R i s k s , C a u s a t i o n ,
D o c t r i n e s , 41 T E X . L . R E V . 4 2 , 58 (1962) (emphasis in o r i g i n a l ) . "Under a
duty-risk a n a l y s i s , the issue of the scope of the legal
system's
protection never goes to a jury....The only question would b e for the
court; and
it could or could not factor in foreseeability
in its
determination of the duty risk issue." I d . at 4 2 4 .
179
"We realize that there is some dispute...concerning the foreseeability
of
misuse of products....[W]e are not convinced that the doctrine provides a
viable conceptual basis upon which to predicate a defense in
products
liability
cases....To
require
foreseeability is to
require
the
manufacturer to use due c a r e . fl]n strict liability...[foreseeability] is
hard to apply." Butand v . Suburban Marine & Sporting G o o d s , Inc. 555 P.2d
42,46 ( A l a s k a , 1976) (footnotes o m i t t e d ) .
"(A) court must first
decide
whether the basic purposes of product liability law will be furthered
by
permitting
the affirmative d e f e n s e .
This is a duty question that cannot
be avoided by asserting that in all products cases assumption of the
risk
is a defense or that foreseeable misuse is not a d e f e n s e .
These
blunderbuss
statements cover too much territory with too broad a brush."
T w e r s k i , supra note 61 at 4 3 0 .
180
S a l e s , supra note 2 at 771-777 discussing Daley v . General Motors C o r p . ,
and Butand v . Suburban Marine & Sporting G o o d s , I n c . , both cited supra
note 162.
181
"The |Daly] majority deny their opinion diminishes the therapeutic
effect
of products liability upon producers of defective p r o d u c t s .
It seems
self-evident that procedures which evaluate the injured consumer's conduct
in each
instance, and thus eliminate or reduce the award against
the
producer or distributor of a defective product, are not designed
as an
effective incentive to maximum responsibility to c o n s u m e r s .
The converse
is more accurate:
the motivation
to avoid polluting
the stream
of
commerce with defective products increases in direct relation to the
size
of potential damage awards." Daly v . General Motors C o r p . , 575 P.2d 1 1 6 2 ,
1186, (Cal. 1978) (Mosk, J . , dissenting and arguing against
apply/
comparative negligence to strict liability c a s e s ) .
182
E d g a r , supra note 18 at 1104.
183
See text at Section I I .
184
See P l a n t , supra note 132 at 4 1 8 .
185
See supra notes 120-124 and accompanying
text.
186
See supra notes 121, 157 and accompanying
text.
187
Compare note 172 s u p r a .
188 See generally P r o s s e r , Law of Torts §61 (4th E d . , 1971)
80
157a
T believe Professor Twerski would agree with this c o n c l u s i o n .
See
generally T w e r s k i , supra note 7 .
See also Caterpillar v . B e c k , 593 P.2d
871,
893
(Alaska,
1979) (Dimond,
Senior Justice diisenting
and
concurri n g ) .
See T w e r s k i , supra note 7 at 8 0 5 .
See also Mohr v . B . F . Goodrich Rubber
C o . , 371 A.2d 2 3 8 , 292 (N.J. Super. C o u r t . A p p . D i v . , 1977); Bexiga v .
Havir Manufacturing C o r p . , 290 A.2d 281 (N.J. 1972).
191
RESTATEMENT j)F TORTS (SECOND) 5402A, Comment £_.
192
I d . at comments g , h , and
i.
193
See generally Heil Company v . G r a n t , 534 S.W.2d 916 (Tex. C i v . A p p . 1976,
writ r e f . n.r.e.); authorities cited in General Motors C o r p . v . S i m m o n s ,
558 S.W.2d 8 5 5 , 860-61 ( T e x . 1977).
See supra notes 108, 166-173 and accompanying
text.
195
See supra notes 110-111, 160 and accompanying
text.
Conduct
is not
substandard
if it is not negligent or unreasonable when the
conduct
amounts to assumption of the r i s k .
The discovery test should be a
subjective one to avoid placing a duty to inspect the product on the
plaintiff.
See generally T w e r s k i , supra note 61; E d g a r , supra note 18 at
1110 n.29 for a discussion of comparative c a u s a t i o n .
See text accompanying note 8 8 , s u p r a .
197
Compare supra notes 89-93 and accompanying text with notes 175-178
and accompanying text.
This maximizes policy objectives by making the defendant liable
damage his unreasonably dangerous defective product has c a u s e d .
199
See text at page 5 1 - ^ 8 .
See text at Section X .
202
See text accompanying note 88 s u p r a .
See text following notes 102 e t . s e q .
C03'"Q
81
for
supra
all
203
See text accompanying note 88 supra for a test for m i s u s e .
204
I'he causation
issue should be phrased as proximate cause in regard
to
plaintiff's contributory n e g l i g e n c e .
See supra note 13 and
accompanying
text.
205
Notice that the but for causation issue is separated from the
proximate
cause i s s u e , h o p e f u l l y to reduce possible confusion of the issues because
of the foreseeability element in proximate c a u s e .
Compare E d g a r , supra
note 18 at 1108, 1110 n . 2 9 .
206
The text does not mean that we put a duty of care in terms of
foreseeability on the manufacturer and thereby inject negligence into the
strict
liability c a s e .
It would encourage pre-use risk evaluation
in
hopes of maximizing consumer protection without regard to whether
the
conduct of the plaintiff was foreseeable or n o t .
Compare E d g a r , supra
note 19 at 44 n.98 noting that the Court in Hopkins would
reject
foreseeable uses of the product as a defense
if the product
is
unreasonably dangerous for those u s e s .
This would seem to put a duty to
protect the consumer on the manufacturer at the risk of being saddled with
the whole loss if the duty is b r e a c h e d .
Professor Edgar goes on to note
that where the substandard
plaintiff concurs with the defect of the
product
to cause injury to a third p e r s o n , the substandard
plaintiff's
causative conduct should not alter the duty to the third person who is
basically a bystander in such a situation, unless he too is guilty of
substandard c o n d u c t .
207
T o compare
fault in this manner is to reduce the action to a negligence
action even if plaintiff proof benefits are preserved in strict l i a b i l i t y .
44 F e d . R e g . 62,714-50
(1979).
208a
S a l e s , supra note 2 at 7 7 5 .
209
I d . at 7 7 5 - 7 6 .
See Sun Valley A i r l i n e s , I n c . v . Avco-Lycoming C o r p . , 411 F . S u p p . 598 (D.
Idaho 1976) discussed in S a l e s , supra note 2 at 7 6 6 .
See Sales supra note 2 at 7 6 2 - 6 6 .
21 I
63 Wis.2d 7 2 8 , 218 N.W.2d 279 (1974).
212
S a l e s , supra note 2 at 7 6 4 .
See Btitaud v . Suburban Marine & Sporting G o o d s , Inc., 555 P.2d 42 (Alaska
1976); Caterpillar Tractor C o . v . Beck, 593 P.2d 871 (Alaska 1979); Daly
v . General Motors C o r p . , 20 Cal.3d 7 2 5 , 575 P.2d 1162, 144 C a l . R p t r . 380
(1978).
214
See Seay v . Chrysler C o r p . , 93 Wash.2d 319, 609 P.2d 1382 (1980) (fearing
that to apply the state's comparative negligence would usurp
legislative
authority).
215
See Kirkland v . General Motors C o r p . , 521 P.2d 1353 (Okl. 1974); Melia v .
Ford Motor C o . , 534 F.2d 795 (8th C i r . 1976); Kinard v . Coats C o . , Inc.,
553 P.2d 8 3 5 , 837 (Colo. A p p . 1976) all discussed in Daly v . General
M o t o r s , supra note 213 (dissenting opinion of Justice M o s k ) .
216
Compare authorities at note 213, supra.
S e e , Twerski supra note 7 at 8 1 0 .
00330
83