dissenting:
The opinion in this ease severely restricts the holding of this court in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, and places Illinois with the small minority of States which either do not apply comparative fault to products liability cases or do so on a very limited basis.
The Coney opinion sets forth the various States that apply comparative negligence or fault to product liability cases and those States that have declined to do so. As noted in Coney, a vast majority of the jurisdictions that have considered the question have applied comparative principles. In some jurisdictions the courts have considered the doctrine in terms of comparative negligence. Others have referred to it as comparative fault and others as comparative causation. As noted in Coney, in applying comparative negligence or fault to a product liability case, conceptually we do not focus on the negligent conduct of the plaintiff or the defective product of the defendant. The defective product establishes the liability. The negligence or wrongful conduct of the plaintiff is not considered as a defense. It is instead viewed as a recovery-reducing factor. Both the defective product and the plaintiff’s negligent conduct are viewed in terms of causation of the resulting injury.
Although this court in Coney held that the defense of comparative fault applies in products liability cases, in reality the court applied the principle of comparative causation. (See Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 118.) Under either consideration, the defective product establishes the liability and the conduct of the plaintiff reduces the damages by the amount that such conduct contributed to the injury. It seems to be but a matter of semantics whether one speaks in terms of comparative negligence, comparative fault or comparative causation.
I will not in this dissent list the various jurisdictions that apply the principles referred to herein. They are referred to in the literature cited. The rule followed in most States is that of pure comparative fault or causation. Thus, all of plaintiff’s conduct that contributes to his injury is considered against the total damages arising out of an injury involving a defective product. This policy has been established in some States by judicial decisions and in others by legislation. (See Woods, Product Liability: Is Comparative Fault Winning The Day?, 36 Ark. L. Rev. 360 (1982); Woods, The Trend Toward Comparative Fault, 20 Trial 16 (Nov. 1984).) Although several States have previously considered and applied comparative fault in product liability cases, the recent trendsetter seems to be Daly v. General Motors Corp. (1978), 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380. In that case, plaintiff’s husband had been killed when his Opel automobile struck a guard rail on the highway and he was thrown from the car. The suit against General Motors was based on the allegation that the door latch on the car was defectively designed. The court held that comparative-fault principles could be applied in such a case to justify the admission of evidence of plaintiff’s nonuse of safety devices such as seat belts and door locks.
In Daly, the court noted that a majority of scholarly commentators has urged the adoption of the comparative-fault rule which the court, in Daly, applied. Also, Daly noted that the Uniform Comparative Fault Act provides:
“Section 1. [Effect of Contributory Fault.]
(a) In an action based on fault to recover damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery ***.
(b) ‘Fault’ includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability.” (20 Cal. 3d 725, 741, 575 P.2d 1162, 1171-72, 144 Cal. Rptr. 380, 389-90.)
The Uniform Comparative Fault Act was approved by the National Conference of Commissioners on Uniform State Laws in 1977. For the text of the Act see 12 Uniform Laws Annotated, Civil Procedural and Remedial Laws 1975, 1985 Cumulative Annotated pocket part.
Thus the Uniform Comparative Fault Act and the Daly holding and its progeny include all forms of fault on the part of the plaintiff and diminish his recovery whether or not the plaintiff’s fault was a defense under the prior law to a strict products liability action. (See Wade, Products Liability and Plaintiffs Fault — The Uniform Comparative Fault Act, 29 Mercer L. Rev. 373, 374, 382 (1978).) In this article the author stated:
“Even though in many states a user’s negligence in failing to discover a defective condition of a product does not bar or affect the amount of his recovery in a common law strict-liability action, this makes no difference. The Act applies the comparative fault rule, ‘whether or not under prior law the claimant’s contributory fault constitutes a defense or was disregarded under applicable legal doctrines ***.’ ” 29 Mercer L. Rev. 373, 382.
The commentators note that the distinctions that have in the past been drawn between the types of conduct of the plaintiff that constitute a complete defense in a strict product liability case (assumption of the risk) and other conduct that may not be a defense in such a case are distinctions that are difficult to define. Conduct which constituted assumption of the risk is in reality a form of contributory negligence, whereas failure to discover a defective condition, which section 402A, comment n, of the Restatement (Second) of Torts says is not a defense, may not in fact be negligence. The advantage of the position taken by Daly and the uniform act and other cases following this rule is that there is no need to draw these difficult distinctions with resulting extensive litigation on the question. (See Wade, Products Liability and Plaintiff’s Fault — The Uniform Comparative Fault Act, 29 Mercer L. Rev. 373, 382 nn. 34, 35 (1978); Schwartz, Strict Liability and Comparative Negligence, 42 Tenn. L. Rev. 171, 177-78 (1974).) For a current survey of the comparative-fault rule as applied in the various States, see Comment, Comparative Negligence and Strict Products Liability: Where Do We Stand? Where Do We Go?, 29 Villanova L. Rev. 695 (1984).
In Coney, this court did not adopt the complete comparative-fault rule of the uniform act or of the Daly decision. Instead, it excepted from recovery-reducing conduct “a consumer’s unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect.” (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 119.) This exception is a carryover from the Restatement’s position as stated in section 402A, comment n, of the Restatement (Second) of Torts that such conduct should not be a defense in a strict products liability action and has been described by a commentator as “a rule in search of a rationale.” (Schwartz, Strict Liability and Comparative Negligence, 42 Tenn. L. Rev. 171, 176.) The author of that article stated that such holdings are better explained on the ground that the plaintiff in such a case has not been negligent at all. The author also states that in a strict product liability case based on implied warranty there is some logic to the suggestion that the plaintiff has relied on the manufacturer to produce a product without defect and therefore his failure to discover the defect should not bar his claim.
In Coney, this court quoted the rationale of the Florida Supreme Court for the “failure to discover” exception to the comparative-fault rule that “[t]he consumer or user is entitled to believe that the product will do the job for which it was built.” (West v. Caterpillar Tractor Co. (Fla. 1976), 336 So. 2d 80, 92, quoted in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 119.) In West, the Florida court, while recognizing that failure by the consumer or the user to discover a defect is not a factor to be considered in reducing the amount of recovery, held that the defendant may assert that the plaintiff was negligent in some manner other than failure to discover or guard against the defect. The court stated:
“The fact that plaintiff acts or fails to act as a reasonable prudent person, and such conduct proximately contributes to his injury, constitutes a valid defense. In other words, lack of ordinary due care could constitute a defense to strict tort liability.” (West v. Caterpillar Tractor Co. (Fla. 1976), 336 So. 2d 80, 90.)
Thus the Florida court recognized that there is a broad area of plaintiff’s possible negligence not encompassed within the “failure-to-discover or guard-against standard,” and the “assumption-of-risk standard” alluded to in section 402A, comment n, of the Restatement (Second) of Torts. (See Woods, The Trend Toward Comparative Fault, 20 Trial 16, 18-19 (Nov. 1984).) This distinction has also been recognized by the Texas Supreme Court in Duncan v. Cessna Aircraft Co. (Tex. 1984), 665 S.W.2d 414. In that case, after adopting the broad concept of comparative fault (but electing to use the term comparative causation), the court excepted from the damage-reducing negligence of the plaintiff negligent failure to discover or guard against a product defect because this rule serves to protect consumers’ reliance on product safety. (665 S.W.2d 414, 432.) The Texas court thus recognized that there is an area of plaintiff’s contributory negligence not covered by “assumption of risk” or “failure to discover.” (See Woods, The Trend Toward Comparative Fault, 20 Trial 16, 20 (Nov. 1984).) It appears that West Virginia and Oregon are also States that apply the exception to the comparative-fault rule adopted in Coney: See Woods, Product Liability: Is Comparative Fault Winning The Day?, 36 Ark. L. Rev. 360, 369-70.
Thus Illinois, Florida, Texas, West Virginia and Oregon have not accepted the broad comparative-fault rule of the Uniform Comparative Fault Act, the California court in Daly, or the majority of the other jurisdictions that have considered the question. However, the holding that' the failure to discover shall not be considered as comparative fault does not support the conclusion of the opinion in this case that only such conduct as would have previously been a defense and bar to a strict product liability action can be considered as comparative fault. Under Duncan and West, any conduct of plaintiff contributing to his injury that does not measure up to the reasonable-man standard, other than failure to discover, may be considered as comparative fault. In Duncan v. Cessna Aircraft Co. (Tex. 1984), 665 S.W.2d 414, it was charged that the airplane in which the plaintiff’s decedent had been receiving instruction was operated at less than a safe flying speed. In West v. Caterpillar Tractor Co. (Fla. 1976), 336 So. 2d 80, a woman, while looking into her purse, walked into the path of a grader which was traveling in reverse without an operative warning signal. These two cases demonstrate areas of negligence by the plaintiff not encompassed within the types of contributory negligence referred to in comment n of section 402A of the Restatement (Second) of Torts.
The rule that all types of plaintiff’s conduct may be considered as recovery reducing is the favored rule by a majority of jurisdictions and the commentators on the subject. The rationale for the adoption of such a rule is: “[Bjecause it is fair to do so.” (Daly v. General Motors (1978), 20 Cal. 3d 725, 742, 578 P.2d 1162, 1172, 144 Cal. Rptr. 380, 390.) It has also been stated:
“A fundamental argument against this approach is that it might create poor risk distribution. The plaintiff may have to absorb a part of a loss that defendant might otherwise distribute on a wide scale. Obviously, when risks are distributed they increase the cost of the product or the activity. It is a question of policy whether the user of the service or the consumer of the product should bear the total cost of an accident which is due, in part, to plaintiff’s fault. This writer believes that comparative negligence allows a just and simple way of placing a part of the cost where it belongs — on the individual plaintiff.” (Schwartz, Strict Liability and Comparative Negligence, 42 Tenn. L. Rev. 171, 179 (1974).)
It has also been stated, “[E]ach defendant, as well as the plaintiff, will be legally responsible for that portion of the injury which he or she caused.” (Comment, Comparative Negligence And Strict Products Liability: Where Do We Stand? Where Do We Go?, 29 Villanova L. Rev. 695, 724 (1984).) Another author has stated: “The attractiveness of comparative fault is its simplicity. It profits from the obvious drawback to comment (n) [of section 402A of the Restatement (Second) of Torts] that it is difficult to distinguish between ‘failure to discover the defect or guard against the possibility of its existence’ and Tack of ordinary care’; between ‘assumption of risk’ and ‘contributory negligence’; and between ‘contributory negligence’ and ‘foreseeable or unforeseeable misuse.’ ” Woods, The Trend Toward Comparative Fault, 20 Trial 16, 21 (Nov. 1984).
In Alvis v. Ribar (1981), 85 Ill. 2d 1, we adopted the concept of pure comparative negligence. In that case we talked about the harshness of the contributory-negligence rule and the fairness of comparative negligence. We stated that by adopting the pure comparative-negligence rule, everyone would be compensated for the injuries attributable to another. We have enjoyed for but a few short years this concept of fairness. Now, we are already deviating. In this case and in Clarkson v. Wright (1985), 108 Ill. 2d 129, adopted this term, we are now permitting injured persons to recover damages for injuries caused in part by their own conduct. Soon the occasion for other deviations will be presented and the pure comparative-negligence doctrine may then accumulate so many exceptions that its fairness rationale will be severely eroded.
Pure comparative negligence or fault or causation (whichever name we choose to .apply) has given us a wonderful opportunity to break from the artificial concepts and doctrines of the past. This is difficult to do because as we have become so accustomed to thinking in terms of contributory negligence and the many doctrines that evolved to avoid its harshness that it is difficult to view a case solely on the basis of pure comparative fault. However, we must remember that we are writing on a clean slate. We should therefore strive to apply to all actions arising under the common law the fairness doctrine of pure comparative fault so that each person stands responsible for the share of the injuries attributable to him. We no longer have to think in the nebulous terms of contributory negligence, assumption of risk, misuse of the product, failure to discover, mitigation of damages, avoidable consequences, and the like. I urge my colleagues to avoid the temptation to fashion exceptions to the doctrine of pure comparative fault in order to accommodate particular situations. If we succumb to this temptation, exceptions will soon swallow the rule, and the application of pure comparative-fault principles will become just as uncertain, just as unfair, just as artificial, and in some instances just as harsh, as was the old doctrine of contributory negligence.
Although I would prefer adopting the rule of the Uniform Comparative Fault Act and of Daly, I recognize that the law of this State is that announced in Coney, which eliminates from the Uniform Act and Daly rule the failure-to-discover type of contributory negligence. I cannot accept, however, the further erosion of pure comparative-fault or causation principles contained in the majority opinion in this case — that only conduct which would have barred recovery in a strict product liability case may be considered as comparative fault. Such a rule, in addition to ignoring the lack of ordinary care of a plaintiff, user or consumer, also appears to eliminate comparative fault altogether if the injured plaintiff is a bystander and possibly in so-called second-accident cases.
For the reasons stated herein, I dissent.
JUSTICE MILLER joins in this dissent.