Lippard v. Houdaille Industries, Inc.

DONNELLY, Judge,

dissenting.

Today, the Court rejects the concept of comparative fault and permits “plaintiff’s own conduct * * * to escape unexamined, and as to that share of plaintiff’s damages which flows from his own fault * * * [holds that] * * * it should * * * be borne by others.” Daly v. General Motors Corporation, 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, 1169 (1978).

This comes as no surprise. In early 1983 it was apparent that fault was targeted for elimination as a component in the tort equation.1 This is unfortunate. In my view, the Court distorts the judicial process when it gives to one what belongs to another.

In Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo.1969), this Court “recognized the need to allow injured consumers or remote parties the ability to sue suppliers, sellers or manufacturers absent the technical requirements of privity in a contract action or without the need to prove negligence in a tort action.” Sharp Brothers Contracting Company v. American Hoist & Derrick Company, 703 S.W.2d 901, 903 (Mo. banc 1986) (Welliver, J., concurring). In Keener, the Court adopted the rule of strict liability in tort stated in 2 Restatement, Law of Torts, Second, §• 402A.

*498In Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977), the Court expanded the Keener holding to include design defects.

In Elmore v. Owens-Illinois Glass Co., Inc., 673 S.W.2d 434 (Mo. banc 1984), the Court effectually excised the words “unreasonably dangerous” from the Keener model.

In Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. banc 1986), the Court effectually excised the words “use reasonably anticipated” from the Keener model.

The changes wrought can be illustrated by their practical effect on our Missouri Approved Jury Instructions.

The holding in Keener required the giving of MAI 25.04, which reads as follows:

Your verdict must be for plaintiff if you believe:
First, defendant sold the (describe product) in the course of defendant’s business, and
Second, the (describe product) was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and
Third, the (describe product) was used in a manner reasonably anticipated, and
Fourth, plaintiff was damaged as a direct result of such defective condition as existed when the (describe product) was sold.
•[unless you believe plaintiff is not entitled to recover by reason of Instruction Number — (here insert number of affirmative defeme imtruction) ].

The holding in Keener also required the giving of MAI 32.23, which reads as follows:

Your verdict must be for defendant if you believe:
First, when the (describe product) was used, plaintiff knew of the danger as submitted in Instructions] Number _ [and _] and appreciated the danger of its use, and
Second, plaintiff voluntarily and unreasonably exposed himself to such danger, and
Third, such conduct directly caused or directly contributed to cause any damage plaintiff may have sustained.

The holding in Elmore required that MAI 25.04 be modified to read as follows:

Your verdict must be for plaintiff if you believe:
First, defendant sold the (describe product) in the course of defendant’s business, and
Second, the (describe product) was then in a defective condition * * * when put to a reasonably anticipated use, and
Third, the (describe product) was used in a manner reasonably anticipated, and
Fourth, plaintiff was damaged as a direct result of such defective condition as existed when the (describe product) was sold.
•[unless you believe plaintiff is not entitled to recover by reason of Instruction Number — (here imert number of affirmative defeme imtruction) ].

The holding in Nesselrode required that MAI 25.04 be modified further to read as follows:

Your verdict must be for plaintiff if you believe:
First, defendant sold the (describe product) in the course of defendant’s business, and
Second, the (describe product) was then in a defective condition * * *, and Third, the (describe product) was used * * *, and
Fourth, plaintiff was damaged as a direct result of such defective condition as existed when the (describe product) was sold.
•[unless you believe plaintiff is not entitled to recover by reason of Instruction Number — (here imert number of affirmative defeme imtruction) ].

*499Today, the majority eliminates the giving of MAI 32.23 and requires that MAI 25.04 be modified further to read as follows:

Your verdict must be for plaintiff if you believe:
First, defendant sold the (describe product) in the course of defendant’s business, and
Second, the (describe product) was then in a defective condition * * *, and Third, the (describe product) was used * * *, and
Fourth, plaintiff was damaged as a direct result of such defective condition as existed when the (idescribe product) was sold.
* * * * # *

And, given the holding in Jackson v. Ray Kruse Construction Company, Inc., 708 S.W.2d 664 (Mo. banc 1986), we can reasonably anticipate that MAI 25.04 will be modified further in the near future to read as follows:

Your verdict must be for plaintiff if you believe:
First, defendant sold the (describe product) in the course of defendant’s business, and
Second, the (describe product) was then in a defective condition * * *, and Third, the (describe product) was used * * *, and
Fourth, plaintiff was damaged * * *.

After all the twists and turns since Keener and Anderson v. Cahill, 528 S.W.2d 742, 749 (Mo. banc 1975) (Donnelly, J., concurring), I continue to believe that this Court should apply to negligence and products liability cases the system of pure comparative fault suggested in Steinman v. Strobel, 589 S.W.2d 293, 296, 297 (Mo. banc 1979) (Donnelly, J., dissenting).

The principal opinion is fundamentally flawed because the majority refuses to acknowledge the difference articulated in Keener between negligence and fault. After Keener, negligence was not a consideration in products liability cases. After Keener, fault in products liability cases consisted of acts or omissions that subject a person to strict tort liability; and the essential question which bore on fault in such cases was submitted under MAI 25.-04: Did defendant sell a product in a defective condition unreasonably dangerous when put to a reasonably anticipated use? The question of contributory fault was submitted under MAI 32.23. Mention of negligence in a products liability case is obfuscation.

I would return to Keener (and its inclusion of fault in the strict liability in tort equation) and would adopt a system of pure comparative fault, as follows:

I. 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 a claimant diminishes proportionately the amount awarded as compensatory damages for any injury attributable to that claimant’s contributory fault, but does not bar recovery. This rule applies whether or not the claimant’s contributory fault heretofore constituted a defense or was disregarded under applicable legal doctrines, such as the last clear chance and humanitarian doctrines.
(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. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.
II. Apportionment of Damages.
(a) In all actions involving fault of more than one person, the court, unless otherwise agreed by all parties, shall instruct the jury to make findings, indicating:
*500(1) the amount of damages each claimant would be entitled to recover if his contributory fault is disregarded; and
(2) the percentage of the total fault that is allocable to each tort-feasor-party, including claimants. For this purpose the court may determine that two or more persons are to be treated as a single party. The percentages shall total 100%.
(b) A tort-feasor’s percentage of fault shall be taken into consideration in determining the total fault even though judgment cannot be entered against him. Where the evidence warrants it, the court shall add that person as a party solely for the purpose of determining and allocating fault upon a 100% basis.
(c) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of the person and the extent of the causal relation between the conduct and the damages claimed.
(d) The court shall determine the award of damages to each claimant, and shall state in the judgment the amount which represents each party’s share of the obligation to each claimant in accordance with the respective percentages of fault found, holding each party responsible by judgment only for his apportioned amount. There shall be no set-off between claimants.
(e) The court shall not enter judgment against a tort-feasor-party, in accordance with the percentage of his fault found, if the claim against him is barred by release or by law.

In my view, a court should strive for fairness “in assigning rights arid duties and in defining the appropriate division of social advantages.” J. Rawls, A Theory of Justice 10 (1971). Otherwise, it can degenerate “into interest government, a government of jobbers enriching * * * their friends * * * and ruining itself.” A. Bick-el, The Morality of Consent 23 (1975).

I dissent.

. Of course, the people should, and will, make their own judgments as to the accuracy of this statement. The evidence is now in the books. See Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881 (Mo. banc 1983); Johnson v. Pacific Intermountain Express Co., 662 S.W.2d 237 (Mo. banc 1983); Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434 (Mo. banc 1984); Fowler v. Park Corporation, 673 S.W.2d 749 (Mo. banc 1984); Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. banc 1986); and Jackson v. Ray Kruse Construction Company, Inc., 708 S.W.2d 664 (Mo. banc 1986).

This is not a day for the sounding of trumpets. The Missouri Court Plan could have fulfilled its promise of equal treatment under the law. It deserved a better fate.