Seay v. Chrysler Corporation

Utter, C.J.

(dissenting) — This case presents the question of the applicability of principles of comparative negligence to actions founded on the doctrine of strict products liability. In recent years, courts in several other jurisdictions applied comparative negligence principles to products liability actions to eliminate the unfairness of "all or nothing" damage awards. See, e.g., Daly v. General Motors Corp., 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380 (1978). Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978). See also Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5th Cir. 1975) (applying Mississippi law); Coons v. Washington Mirror Works, Inc., 344 F. Supp. 653 (S.D.N.Y. 1972) (applying New York law); Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42 (Alaska *3251976); West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976); Haney v. International Harvester Co., 294 Minn. 375, 201 N.W.2d 140 (1972); Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 406 A.2d 140 (1979); General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex. 1977); Franklin v. Badger Ford Truck Sales, Inc., 58 Wis. 2d 641, 207 N.W.2d 866 (1973).

The majority refuses to apply comparative fault principles to apportion liability in strict products liability actions because the comparative negligence statute, RCW 4.22.010, applies only to causes of action based on negligence and because it is claimed comparative negligence is a legislative doctrine which should not be modified by this court. Although the majority is correct in stating that the comparative negligence statute is limited to negligence actions, this court may and should apply common-law principles of comparative fault to the judicially created doctrine of strict products liability. See, e.g., Ulmer v. Ford Motor Co., 75 Wn.2d 522, 452 P.2d 729 (1969). The New Hampshire Supreme Court was recently confronted with a similar situation. In Thibault v. Sears, Roebuck & Co., supra, they held that their negligence statute did not apply to products liability actions but held that comparative principles could be applied by the court to the judicially created doctrine of products liability. We can similarly apply comparative negligence principles to Washington's common-law doctrine of products liability.

The principal objection to adopting a comparative strict liability system is the inevitable collision between fault and no-fault concepts. Levine, Strict Products Liability and Comparative Negligence: The Collision of Fault and No-Fault, 14 San Diego L. Rev. 337 (1977). In Washington, legal responsibility in a strict products liability action is determined irrespective of any fault of the plaintiff. See, e.g., Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 570 P.2d 438 (1977); Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 542 P.2d 774 (1975). If strict liability and comparative negligence are merged into a comparative strict liability *326system, liability would be determined regardless of the defendant's fault, and the damage award would be reduced if the plaintiff's own negligence was a contributing factor in the injury. This creates conceptual difficulty because the negligence of the defendant is not a factor in determining liability, but the negligence of the plaintiff is a factor that may reduce the amount of the plaintiff's recovery. This difficulty has not prevented the federal admiralty courts from applying comparative negligence principles to nonnegligence situations for more than 80 years. Comment, Another Citadel Has Fallen — This time the Plaintiffs. California Applies Comparative Negligence to Strict Products Liability, 6 Pepperdine L. Rev. 485, 496 (1979). Under the maritime doctrine for unseaworthiness, a seaman’s negligence causes a reduction in his awarded damages. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-09, 98 L. Ed. 143, 74 S. Ct. 202 (1953). Furthermore, the problems of apportioning liability in products liability actions did not prevent the jury in the present case from determining what percentage the plaintiff's own negligence contributed to his damages. Although the application of comparative principles may not be accomplished with exact measurement, the present "all or nothing" rule is even more imprecise in allocating the burden of loss.

The principal reason why this court should adopt a comparative strict liability system, and why other courts have already adopted such a system, is that it leads to a more just and equitable result than the strict products liability rule that presently exists in Washington. Where the plaintiff, through his own negligence, contributes to his injury, fairness requires us to apportion liability so that the entire burden of loss is not placed upon only one party when two are responsible. The equitable principles supporting strict products liability are more important than the analytical purity of the present "all or nothing" strict products liability doctrine. See, e.g., Daly v. General Motors Corp., supra. The adoption of comparative strict products liability would also eliminate the total defense of assumption of risk in *327strict products liability actions. Under the present law, if a user or consumer of a defective product discovers a defect in a product and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product and is injured by it, the user or consumer is barred from recovery. See, e.g., Seattle-First Nat'l Bank v. Tabert, supra.

If the assumption of risk defense was merged with comparative negligence the plaintiff's award would be reduced only to the extent the plaintiff's negligence was a contributing factor to the injury. The plaintiff would be completely barred from recovery only when the alleged defective product was not a contributing factor.

Comparative negligence principles can be merged with strict products liability without frustrating the goals of strict products liability. One goal of strict products liability is to place the burden of loss caused by a defective product on those that put the product in the stream of commerce rather than on injured persons who are powerless to protect themselves. See, e.g., Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F.2d 1129 (9th Cir. 1977). The plaintiff's recovery will be reduced only to the extent that the plaintiff's lack of reasonable care contributed to his injury. Manufacturers and those in the chain of distribution would continue to bear the burden of loss where injured persons are powerless to protect themselves and the cost of these injuries would continue to be spread throughout society. Another goal of products liability is to relieve plaintiffs of the problems with the burden of proof inherent in negligence causes of action. See, e.g., Ulmer v. Ford Motor Co., supra. In a comparative products liability action the defendant’s liability would remain strict; the plaintiff can continue to recover without having to show that the defendant is in any way negligent.

This court has the power to apply comparative principles to the judicially created strict products liability doctrine. Courts have done a similar balancing in admiralty cases for decades. This court should exercise that power because a comparative strict products liability system will lead to *328more equitable results than the present system and the comparative system will not frustrate the goals of strict products liability. The trial court should be affirmed.

Hicks, J., concurs with Utter, C.J.