concurring.
I concur in the well-reasoned opinion of Judge Blackmar and write to address the dissent of Welliver, J. Today in sonorous tones he pretends to mourn the “covert overruling” of Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). While there are many who would not long grieve if that case experienced an early demise, the principal opinion sounds not the death knell of Gustafson, instead the bell tolls only for Welliver, J.’s failed attempt in Gustafson to rule questions not then before us.
As Judge Blackmar’s principal opinion and the concurring opinion of Robertson, J., aptly demonstrate, Gustafson introduced comparative fault into Missouri negligence law, but it did not and could not have determined the applicability of comparative fault to strict products liability cases. Welliver, J., in characterizing Gus-tafson as dispositive, unabashedly proclaims that in Gustafson we ruled issues not then before us. Such a grab for general legislative power on behalf of the judiciary was not then and should not now be countenanced, and yet Welliver, J., insists that the Court indulged such practice. At the time of our holding in Gustafson it was all too obvious that the current question as well as innumerable others remained to be decided, and this was recognized in the statement that “[ljittle imagination is required to envision the volume of litigation and endless appeals required to return a semblance of stability to our tort law.” Id. at 29 (Rendlen, J., dissenting).
Prior to the adoption of comparative fault in Gustafson, contributory negligence was not a defense to strict liability. Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 365 (Mo.1969). Consistent with Keener, we now hold that comparative fault, the doctrine that supplanted contributory negligence, is similarly inapplicable to strict liability. Welliver, J., fails to explicate why we now should ignore the obvious implication of Keener.
The facts before us constitute a textbook example of the unsuitability of comparative fault to products liability. Plaintiff’s alleged “fault” consisted of placing his hand too close to the malfunctioning cutterhead guard. Yet plaintiffs complacency can be directly attributed to the previously proper functioning of the guard and his expectation that it would continue to function properly.
If plaintiff is involved in negligent activity while either using or misusing the product, it may be that we ought to demand that the product be designed and marketed so that the particular offensive use will either be precluded or mitigated by some design parameter of the product. If this is the desideratum of the law, then it becomes very questionable whether plaintiffs should have their verdicts reduced when the very aspect which made the product dangerous and defective in the first instance has resulted in the very harm which one could expect from the defective design.
Twerski, From Defect to Cause to Comparative Fault — Rethinking Some Product Liability Concepts, 60 Marq.L.Rev. 297, 343 (1977).
Welliver, J.'s endeavor to pen an epical tragedy would afford his readers a weak measure of comedy were it not for the seriousness of the law. Unfortunately he mistakes the judicial opinion as a platform from which to deliver a harangue and to compile a catalog of those decisions with which he disagrees, accompanied by a peevish assault upon his brethren. By misappropriating the litigants’ cause for use as a private rostrum, the dissent sadly demeans the office of the judiciary. This unfortunate exercise in self-aggrandizement and *496tasteless satire mocks an important issue and belittles the litigation and the litigants.
I was not among those in 1983 who saw fit to adopt Gustafson, but it remains viable today and the dark tragedy invented by the dissent becomes what it is, a thinly veiled pretense for misdirected invective. The work of this Court which Welliver, J., seeks to disparage will be measured not by his unusual personal standard but against the test suggested by the honorable Justice Holmes: “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market_” Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting).