concurring.
Should and can comparative negligence be a defense in a strict products liability action? That is the question here. The majority answered it with a “Yes.” I agree with the answer but do so for slightly different reasons.
*513In Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), our Supreme Court applied the doctrine of pure comparative fault in a negligence action and “supplant[ed] the doctrines of contributory negligence, last clear chance, and humanitarian negligence with a comprehensive system of comparative fault_” Gustafson, 661 S.W.2d at 16. But, as indicated in the majority opinion here, the Court in Gustafson went further. It “adopted” the doctrine of pure comparative fault “for the trial of tort cases” and, as a general direction “for accomplishing the transition to comparative fault,” directed the courts in Missouri to apply the doctrine “[ijnsofar as is possible.” Gustafson, 661 S.W.2d at 15. Thus, Gustafson cannot be simply confined to its facts, and the issue here cannot be summarily dismissed on that basis.
In Gustafson, our Supreme Court adopted the doctrine of pure comparative fault because of the Court’s concept of simple fairness. Gustafson, 661 S.W.2d at 15. Prior to Gustafson, the Court’s concept of simple fairness also caused it to adopt the doctrine of strict products liability. Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362, 364 (Mo.1969). For each doctrine, fairness was translated into specific policy reasons, and the policies are carried out by specific concepts. Since both doctrines now apply in an area once exclusively controlled by rules of negligence, the meeting of respective policy reasons and of respective concepts was inevitable. Whether conflicts between doctrinal policy reasons and conflicts between doctrinal concepts are also inevitable, however, depends solely on the policy reasons selected to justify each doctrine and on the definitions given the concepts implementing each doctrine. More specifically, the particular reasons and concepts selected determine the “conceptual feasibility and doctrinal desirability of comparing the misconduct of the plaintiff with the strict liability imposed on the defendant under § 402A, [Restatement (Second) of Torts (1965)].” Murray v. Fairbanks Morse, 610 F.2d 149, 156 (3d Cir.1979).
Policy Reasons
In the strict products liability action, the defendant is presumptively liable if he puts a defective and unreasonably dangerous product on the market. See e.g., Racer v. Utterman, 629 S.W.2d 387, 392-93 (Mo. App.1981), cert. denied, 459 U.S. 803, 103 S.Ct. 26, 74 L.Ed.2d 42 (1982). He bears this liability even though the injured plaintiff negligently “fails to discover the defect in the product or [negligently fails] to guard against the possibility of its existence.” Restatement (Second) of Torts § 402A comment n (1965). The defendant, however, is relieved from liability if the injured plaintiff knew of the defect and “voluntarily and unreasonably” encountered it. Id. Thus, in a strict products liability action, a distinction is made between the defense of objective contributory negligence and the defense of subjective assumption of risk (“contributory fault”). Assumption of risk however, is just a variant and more egregious form of contributory negligence. See, e.g., Bullock v. Benjamin Moore & Co., 392 S.W.2d 10, 13 (Mo.App.1965); Prosser, Torts § 68, at 441 (4th ed. 1971). Why then was the distinction made? The answer to this question is essential to answering the question here. If the policy reasons justifying the doctrine of strict products liability compelled the courts to exclude objective contributory negligence as a defense, then the policy reasons justifying the doctrine of comparative fault may not be of sufficient conter-vailing weight to eliminate this exclusion.
The reasons justifying the doctrine of strict products liability rest on the courts’ economic and social model of our society and the courts’ basic belief that this model demands the “[defendant] bear the financial burden of the injuries which his defective products cause.” Feinberg, The Applicability Of A Comparative Negligence Defense In A Strict Products Liability Suit, 1975 Ins.Couns.J. 39, 40. This basic belief has been variously expressed, see, e.g., Greeman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901 (Cal. banc 1963); Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, *514150 P.2d 436, 443 (1944) (Traynor, J., concurring); Restatement (Second) of Torts § 402A comment c (1965),1 and most, if not all, of these expressed reasons have been adopted or acknowledged with tacit approval by the courts in Missouri. See, e.g., Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362, 364 (Mo.1964); Katz v. Slade, 460 S.W.2d 608, 611-13 (Mo.1970). See also Blevins v. Cushman Motors, 551 S.W.2d 602, 613 (Mo. banc 1977); Giberson v. Ford Motor Co., 504 S.W.2d 8, 12 (Mo. 1974); Winters v. Sears, Roebuck & Co., 554 S.W.2d 565, 573 (Mo.App.1977). The reasons may be divided into two admittedly overlapping groups: one focuses primarily on the defendant; the other focuses primarily on the plaintiff. Neither group will permit comparative negligence as a defense in strict products liability without raising serious policy conflicts. These conflicts must be addressed.
The first group of policy reasons imposes strict liability on the defendant because of his risk-bearing capacity, profit seeking motive and creation of risk. Included also is a desire to deter him from putting dangerous products on the market. See, e.g., Greenman, 27 Cal-Rptr. at 701, 377 P.2d at 901; Katz, 460 S.W.2d at 611. These reasons, however, do not compel the complete exclusion of objective contributory negligence as a defense. It is one thing to hold a defendant presumptively liable because of his risk-bearing capacity, profit seeking motive and creation of risk, “[it is] quite another to use the same arguments to hold him liable for the fault of someone else.” Levine, Buyer’s Conduct, 52 Minn.L.Rev. 627, 648 (1968). Nonetheless, courts could have consciously chosen to exclude any consideration of objective contributory negligence but not subjective assumption of risk because they believed their expressed policy could be achieved simply by excluding the former defense and not the latter. If the exclusion of plaintiff's contributory negligence were for this reason, the exclusion should continue after the adoption of the doctrine of comparative fault. The perceived economic and social model requiring this exclusion has not changed significantly since the adoption of strict products liability, and certainly, it was not changed by the adoption of comparative fault. Thus, if it were fair to impose the entire financial burden on the defendant prior to the adoption of comparative fault, it is still just as fair after its adoption. Therefore, comparative negligence should not be a defense in a strict products liability action.
The second group of reasons also precludes comparative negligence, or at least certain kinds of comparative negligence, as a defense to strict products liability. In our complex, technological society, it is said, the consumer has neither the ability nor knowledge to discover defects in products; therefore, the consumer must rely on the representation of safety impliedly made by the defendant when he markets his product. Keener, 445 S.W.2d at 364.2 Under this reasoning, the plaintiff’s failure to discover or guard against a defect must be *515excluded as a defense. A defendant who, in effect, represents his product as safe cannot sensibly complain that the injured plaintiff should not have relied on the representation. This logic remains sound. Neither plaintiffs inability to determine whether a product is safe nor the defendant’s implied representation of safety has significantly changed since the adoption of strict products liability. Therefore, the adoption of comparative fault should not and cannot change this logic. In fact, several jurisdictions have found this logic persuasive and, in accepting comparative negligence as a defense to strict products liability, have explicitly excluded as a defense the failure to discover or guard against the defect.3
None of this reasoning, however, persuades me that comparative negligence should be excluded as a defense in strict products liability. Quite simply, I am not convinced the distinction made between objective contributory negligence and subjective assumption of risk in a strict products liability action was a consciously thought-out process.
First, in adopting the doctrine of strict products liability most, if not all, courts supported the adoption by focusing on the defendant’s risk-bearing capacity, profit seeking motive, creation of risk, as well as on the use of the doctrine as a deterrent to marketing dangerous products. No one, however, expressed the opinion that these policies could be achieved only by excluding objective contributory negligence as a defense. More important, not one even intimated that excluding objective contributory negligence but not subjective assumption of risk as a defense was essential or necessary to carry out the expressed policies. This is understandable. The economic and social model of the courts was not and is not so finely tuned that it required the exclusion of one defense but not the other.
Moreover, in adopting the doctrine of strict products liability, no court explicitly focused on the plaintiff’s implied reliance on product safety as the reason for distinguishing between an inattentive plaintiff and a plaintiff with knowledge of the defect. This reasoning was expressed, if at all, only at the time a court was adopting the doctrine of comparative fault in the context of an already adopted doctrine of strict products liability. See cases cited supra note 3.
Admittedly, the distinction between objective contributory negligence and assumption of risk is explicitly incorporated into § 402A. To that extent, those courts adopting § 402 consciously adopted the distinction and, thus, also adopted the exclusion of objective contributory negligence as a defense. The Restatement’s rule, however, is best described as “as a rule in search of a rationale,” Schwartz, Comparative Negligence, § 12.6, at 203 (1974). The Restatement’s explanation for disregarding objective contributory negligence is singularly unpersuasive:
Since the liability with which this Section [402A] deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524) applies.
Restatement (Second) of Torts § 402A comment n (1965). Section 524 deals with assumption of risk in abnormally dangerous activities. That section simply states the only contributory negligence that bars the plaintiff in recovery is “knowingly and unreasonably subjecting himself to the risk” from dangerous activities. Restatement (Second) of Torts § 524(2) (1977). It is far from clear, however, “that the policies be*516hind strict liability for abnormally dangerous activities are the same as those relied on by courts moving to strict products liability.” Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 Vand.L.Rev. 93, 116 (1972). To the contrary, the respective policy reasons are different. Note, A Reappraisal of Contributory Fault in Strict Products Liability Law, 2 Wm. Mitchell L.Rev. 235 (1976). To me, the transference of principles from strict liability for abnormal activities to strict products liability “appears to have occurred almost ‘without saying,’ despite the different origin and rationale of these heads of strict liability.” Fleming, The Supreme Court of California 1974-1975—Forward: Comparative Negligence at Last—By Judicial Choice, 64 Calif.L.Rev. 239, 269-70 (1976). See also Note, A Reappraisal, supra, at 236-39.
The most cogent, yet unarticulated, factor for excluding contributory negligence was the constraint of the negligence principles existing when strict products liability was created. Contributory negligence was a complete bar to the plaintiffs action. The courts distrusted this harsh all-or-nothing rule. See Noel, supra, at 111; Schwartz, supra, at 204. It was simply unfair to withhold all protection from a slightly inattentive consumer of a defective product. More important, perhaps, to do so would beg common sense. The doctrine of strict products liability was created to give increased protection to the plaintiff. Barring his recovery for being even slightly inattentive would destroy the protection that had just been created. If this hypothesis is correct, and I believe it is, then, as the majority states, it is sensible to ask whether the rule barring objective contributory negligence as a defense deserves to survive under comparative negligence, now that it is “possible to penalize the plaintiffs failure to protect himself without denying him all protection of the law.” Fleming, supra, at 270.
Why should the defendant, innocent users of the product or the community at large absorb a loss due, in part, to plaintiffs fault? The answer rests on fundamental concepts of fairness. Making a group responsible for an individual’s action is almost always unfair. Moreover, the primary justification for the rule of contributory negligence, in any context, is “the feeling that if one man is to be held liable because of his fault, then the fault of him who seeks to enforce that liability should also be considered.” 2 Harper & James, The Law of Torts, § 22.3, at 1207 (1974). This feeling is put into practice by comparative negligence.
I believe strict products liability was developed mainly to provide more protection for the consumer than is available under negligence principles. Reducing the damages of a plaintiff who can protect himself but who negligently contributes to his own injury does not seriously impair that protection.
Nor am I persuaded that we should tailor the defense of comparative negligence to protect the consumer’s theoretical reliance on product safety. To attempt to distinguish various kinds of negligence and to attempt to exclude only the plaintiff’s failure to discover or to guard against a defect would simply put us back into a conceptual morass. Comparative fault is attractive because it is simple. Under its principles, we avoid the difficulty of distinguishing “failure to discover the defect or guard against the possibility of its existence” from “lack of ordinary care;” between “contributory negligence” and “forseeable and unforseeable misuse;” and between “contributory negligence” and “assumption of risk.” If we succumb to the temptation of making exceptions for comparing negligence, “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.” Simpson v. General Motors Corp., 108 *517Ill.2d 146, 90 Ill.Dec. 854, 860, 483 N.E.2d 1, 7 (Ill.1985) (Ryan, J., dissenting).4
Conceptual Feasibility
As pointed out by the majority, forceful argument has been made that the concept of strict liability for products is different in kind from the concept of negligence in using the product, and, logically, it is argued, the two cannot be compared and weighed against each other. See generally, Wade, Products Liability And Plaintiffs Fault — The Uniform Comparative Fault Act, 29 Mercer L.Rev. 373 (1978).5 Similar to mixing and comparing “apples and oranges” or “oil and water,” it is argued, a mixing and comparing of fault and no-fault is not conceptually feasible. Id. at 376. This conceptual conflict is more imagined than real.
Arguably, strict products liability focuses on the product rather than the defendant’s conduct. This, however, does not prevent the jury in a strict products liability action from weighing the plaintiff’s conduct against the product or from comparing plaintiff’s fault with the defendant’s lack of fault. When the plaintiff is charged with assumption of risk (contributory fault) and the evidence is sufficient, the jury may be required to determine whether plaintiff unreasonably assumed the risk in using the product. If the jury so concludes, then it is directed to find for the defendant. MAI 32.23 (3d 1981). See also Keener v. Dayton Electric Co., 445 S.W.2d 362; Williams v. Ford Motor Co., 454 S.W.2d 611, 619-20 (Mo.App.1970). Assumption of risk, use of the product after discovery of the defect, is both conduct and fault. This comparison of conduct with product defect, or, fault with no fault, seemingly causes no one a problem in logic.
Alternatively, to satisfy the pristine logician, it can be and has been assumed that, in a strict products liability action, we do compare the defendant’s conduct with the plaintiff’s conduct. This court, as well as others, has stated the defendant’s breach of duty is the act of placing a defective and unreasonably dangerous product into the stream of commerce. See Racer v. Utterman, 629 S.W.2d 387, 395 (Mo.App.1981), cert. denied, 459 U.S. 803, 103 S.Ct. 26, 74 L.Ed.2d 42 (1982).6 See also Austin v. Raybestos—Manhattan, Inc., 471 A.2d 280, 285 (Me.1984). This concept premises the defendant’s liability on his conduct; and, thus, it permits the trier of fact to compare the defendant’s conduct with the conduct of the plaintiff.
To me, the most acceptable method of avoiding conceptual conflicts is to treat the Uniform Comparative Fault Act for what it really is. It is a comparative cause act.7 Under the Act, all causes of an injury, independent or concurrent, may be apportioned on a percentage basis. The loss for a particular injury can be simply apportioned “between the product defect and the plaintiff’s misconduct ... [by comparing] the causative contribution of each to the particular loss or injury.” Murray v. Fairbanks Morse, 610 F.2d 149, 159 (3d Cir. 1979). In short, the jury would not compare the defendant’s non-existent fault with the plaintiff’s fault; rather, the jury would be directed to compare how much of the injury was caused by the defect and how much was caused by the plaintiff’s misconduct.
*518There are those who argue no reasonable instruction can be given to the jury to guide it in making this comparison. See, e.g., Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 396, 575 P.2d 1162, 1178 (Cal.1978) (Jefferson, J., dissenting). I disagree. We now instruct the jury on much more complicated issues. Given definite ground rules, our practicing bar has always been ingenious enough to comply. Admittedly, in a strict products liability case, the jury may have a natural tendency to focus on the plaintiff as the party most noticeably blameworthy. Careful instruction, however, could cure this tendency and give the jury the proper formula for apportioning damages. Under this instruction, the jury would ascribe 100% fault to defendant once it found his product to be defective and unreasonably dangerous and the defect caused or contributed to cause plaintiffs injury. If plaintiffs fault is also present, the jury would be instructed to reduce the 100% figure in proportion to plaintiffs causal contribution to his own injury.
There are also those who would argue this evaluation of comparative fault is beyond the prowess of the jury. I again disagree. This task is no more difficult than determinations we now ask the jury to make. For example, on conflicting expert evidence, we ask the jury to determine whether a plaintiffs hiatus hernia was caused by an auto accident which occurred three months prior to the hernia being diagnosed. See Bertram v. Wunning, 385 S.W.2d 803, (Mo.App.1965), appeal on remand, 417 S.W.2d 120 (Mo.App.1967). Moreover, with no apparent difficulty, “[division of damages according to fault is found in cases where plaintiff and defendant both pollute the same stream or flood the plaintiffs property, where two or more defendants pollute a stream, where two defendants inflict personal injury on separable areas of the plaintiff, where defendants’ animals together cause injury, and in cases involving nuisance due to noise or air pollution. By the same token, apportionment is made in cases of separate repetitions of the same defamatory statements or separate acts resulting in alienation of affections.” Levine, Buyer’s Conduct, supra, at 655-56.
In short, I find no insurmountable doctrinal or conceptual conflicts between strict products liability and comparative fault. Therefore, I see no real problem in comparing a plaintiffs misconduct with the strict liability imposed on a defendant by § 402A.
I concur with the majority.
. For example, comment c of § 402A states: On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.
. The consumer no longer has the means or skill enough to investigate for himself the soundness of a product ... and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices_ Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark.
Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436, 443 (Cal 1944) (Traynor, J., concurring).
. [A]n injured person’s conduct which in fact was a cause of her injury and which constitutes a "fault/ including negligence, is to be considered in a products liability action, unless the user’s alleged negligence consists in the kind of unobservant, inattentive, ignorant, or awkward failure to discover or to guard against the defect that goes toward making the product dangerously defective in the first place. Sandford v. Chevrolet Div. of GM, [292 Or. 590] 642 P.2d 624, 628 (Or.1982). See also West v. Caterpillar Tractor Co., 336 So.2d 80, 92 (Fla.1976); Coney v. J.L.G. Industries, Inc., [97 Ill.2d 104, 73 Ill.Dec. 337, 343-44] 454 N.E.2d 197, 203-04 (Ill.1983); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 432 (Tex.1984); Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854, 863 (W.Va.1982).
. New Jersey, a comparative fault state, excepts the defense of "ordinary" contributory negligence in a strict products liability action, when, as here, the plaintiffs injury is work related. See e.g., Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 406 A.2d 140 (1979). This exception sounds attractive. A worker may have no choice in the tools or equipment furnished him on the job. The policy in New Jersey which dictates this exception, however, also dictates the exception in negligence actions. See, e.g., Green v. Sterling Extruder Corp., 95 N.J. 263, 471 A.2d 15 (1984). This policy does not square with our policy in Missouri. See Stevens v. Durbin-Durco, 377 S.W.2d 343, (Mo. 1964).
„ Professor Wade vigorously disagrees with this argument.
. The Court made this statement knowing others have said the doctrine of strict products liability renounces not only the concept of fault but also the concept of duty.
. I do not believe the label "fault” is as constraining as the majority does.