*94ON MOTION FOR REHEARING
PHILLIPS, Chief Justice,dissenting.
My concurring opinion of February 10, 1988, is withdrawn, and the following dissenting opinion is substituted.
By holding that Keen’s admitted negligence is irrelevant merely because he “had no knowledge of the dangerous condition that caused the accident,” the majority comes perilously close to requiring a defendant to prove assumption of the risk in order for plaintiff’s conduct to be considered. Such an approach violates the language and spirit of Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984); cf. First International Bank v. Roper Corp., 686 S.W.2d 602, 603 (Tex 1985). Under Duncan, I believe that Keen’s negligent conduct was more than a mere failure to discover or guard against a product defect. Therefore such conduct was properly considered by the finder of fact, and the judgment of the court of appeals should be affirmed.
Regardless of the result we reach in this case, however, I would change the law prospectively in one fundamental respect. I would abandon any further reliance on the outmoded concepts of comment n of Section 402A of the Restatement (Second) of Torts. Much confusion and uncertainty results when the fact finder is not permitted to consider a negligent plaintiff’s failure to discover or guard against a product defect. I find little, if any, social utility to justify the effort. I would henceforth adopt a system of pure comparative causation, which would allow the trier of fact to consider all negligent conduct by all parties in apportioning responsibility.
FAILURE TO DISCOVER OR GUARD AGAINST PRODUCT DEFECT
Even under current law, I would hold that the harm caused by Keen’s conduct was properly comparable with the harm caused by the defective product of Ashot Ashkelon. Duncan, 665 S.W.2d at 427. I disagree that this comparison was foreclosed by this court’s reaffirmation of comment n in Duncan.
Comment n of Section 402A the Restatement (Second) of Torts provides:
Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in a product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.
(Emphasis added). This comment identifies only two types of contributory negligence: (1) a mere failure to discover or guard against a product defect, and (2) assumption of the risk. Under this polarized scheme for labeling a plaintiff’s negligent conduct, contributory negligence in the “mere failure” category in no way reduces recovery, while conduct in the “assumption of the risk” category operates as a total bar. Using this analysis, it is little wonder that courts labored mightily to fit an injured plaintiff’s conduct within the former category. Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex.1967), and McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967), are representative of cases decided under this anachronistric, all-or-nothing approach.
Duncan v. Cessna, however, presented a factual setting which did not fit neatly into either of the available categories of comment n. None of the parties contended that pilot Smithson was aware of the design and manufacturing defects in the legs of the cockpit seat, yet Cessna, a strictly liable manufacturer, sought contribution from Smithson’s estate on the theory that his negligence as a pilot caused the fatal crash. Duncan, 665 S.W.2d at 418. Because those facts presented a third category of contributory negligence, we framed the question for decision as follows:
*95whether a plaintiff’s contributory negligence is a defense in strict liability actions when that negligence does not rise to the level of assumed risk or unforeseeable product misuse, but is more than a mere failure to discover a product defect. ...
Id. at 422. Although this comparison was never made in a new trial because Cessna failed to preserve error, it is clear that waiver, and not the retention of comment n, was responsible for Cessna’s loss. Id. at 434. And even though comment n was expressly reaffirmed, we held as follows:
[T]he system we adopt will allow comparison of plaintiff’s conduct, whether it is characterized as assumption of risk, misuse, or failure to mitigate or avoid damages, with the conduct or product of a defendant.... Assumption of risk and misuse will no longer be separate defenses, but will be subsumed under the more familiar notion of contributory negligence.
Id. at 428.
Duncan, therefore, implicitly recognizes a middle category of plaintiff conduct not previously provided for in comment n: contributory negligence without regard to discovery of a product defect. This case fits squarely within this category.
The jury found that Keen was contribu-torily negligent in moving his hostling tractor beside the trailer-chassis combination. The majority concedes that Keen knew of the risk that trailers might fall and that he violated a recognized safety rule not to pull alongside a trailer in motion or one in the disengagement process. The jury was instructed to “not consider any conduct of the plaintiff which amounts only to a failure to discover or guard against a product defect, if any.” As in Duncan, evidence of contributory negligence (here the safety rule violation) exists even though Keen had no knowledge of the product defect. But contrary to Duncan, comparison is not allowed. The majority has thus expanded the scope of comment n beyond that envisioned by Duncan and has retreated to a method of apportioning fault that predates our current comparative concepts. Under Duncan, the majority has erred.
PURE COMPARATIVE CAUSATION
I would, however, overrule that part of Duncan that reaffirms the viability of comment n. A relic from the pre-compara-tive fault era, it unduly complicates our law without sufficient corresponding benefit.
Comment n was promulgated in 1965, before the advent of comparative principles in either negligence or strict products liability cases. In the emerging doctrine of strict liability, the drafters of the Restatement (Second) of Torts wisely attempted to avoid the unjust effects of the all-or-nothing concepts of contributory negligence by providing that only extreme forms of behavior would bar recovery under the new theory. The drafters thus drew a sharp distinction between aggravated behavior, i.e., assumption of the risk, which would prevent any recovery by a plaintiff, and all other unreasonable behavior, which would not. But the distinction was rooted more in fairness than in logic. As one recognized treatise states:
Perhaps if comparative negligence had preceded the development of strict liability, contributory negligence would have been recognized as a defense that would diminish recovery in proportion to the percentage of the plaintiff’s fault. But courts were operating under the all-or-nothing doctrines of common law.
W. Prosser & P. Keeton, THE LAW OF TORTS 712 (5th ed. 1984).
In Duncan, this court joined a growing number of states in sweeping aside generations of convoluted legal precedent and adopting a system of comparative causation for product liability cases in which at least one defendant is found liable on a theory other than negligence. The all-or-nothing concepts of contributory negligence and assumption of risk were abandoned in an effort to create a less confusing and more efficient system of loss allocation. Out of a desire to “protect consumer reliance on product safety”, however, we did reaffirm the rule of comment n that *96“negligent failure to discover or guard against a product defect is not a defense.” Duncan v. Cessna, 665 S.W.2d at 432. I believe that even this limited adherence to the old approach was a mistake.
The unfortunate truth is that everyday situations sometimes defy textbook classifications. This case is an excellent example of the difficulties that judges can and do encounter in deciding how to label particular conduct. Yet our choice of that label results in a substantia] difference in the amount of the judgment. I suggest that finders of fact, with the best opportunity to consider all the facts and circumstances, should be allowed to analyze the relative contribution of the respective parties’ conduct to the plaintiff’s injuries. Under the broad form submission now mandated by our rules, the fairest results will be obtained by letting the finder of fact decide to what degree, if any, the plaintiff’s own negligence has contributed to his injury. In short, I would hold that all of plaintiff’s conduct which contributes to his injury should be compared to the defendant’s liability, irrespective of the labels attached to that conduct. See generally, Comment, Duncan v. Cessna Aircraft Company: “Sooner or Later” Is Now, 36 Baylor L.Rev. 429, 463-65 (1984).
I am persuaded by the reasoning of the California Supreme Court in Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978). In adopting pure comparative causation, the court said:
Plaintiffs will continue to be relieved of proving that the manufacturer or distributor was negligent in the production, design, or dissemination of the article in question. Defendant’s liability for injuries caused by a defective product remains strict. The principle of protecting the defenseless is likewise preserved, for plaintiff’s recovery will be reduced only to the extent that his own lack of reasonable care contributed to his injury. The cost of compensating the victim of a defective product, albeit proportionately reduced, remains on defendant manufacturer, and will, through him, be “spread among society.” However, we do not permit plaintiff's own conduct relative to the product to escape unexamined, and as to that share of plaintiff’s damages which flows from his own fault we discern no reason of policy why it should ... be borne by others. Such a result would directly contravene the principle ... that loss should be assessed equitably in proportion to fault.
20 Cal.3d at 736-37, 144 Cal.Rptr. at 386-87, 575 P.2d at 1168-69.
The “failure to discover or guard against a product defect” rule which today’s dissent recognizes and today’s majority expands is an anachronism. The continued retention of a rule which allows a plaintiff to recover full damages, even though con-cededly at fault, is inconsistent with comparative fault principles. Such a rule is unfair and inequitable in its operation because it places the entire burden of loss on one party when, in truth, two parties are at fault. As the court stated in Pan-Alaska Fisheries, Inc. v. Marine Const. & Design Co., Inc., 565 F.2d 1129, 1139-40 (9th Cir. 1977): “[Tjhere is no reason why other consumers and society in general should bear that portion of the burden attributable to the plaintiff’s own blameworthy conduct.” Id. at 1140.
In the instant case, all parties operated under the holding in Duncan v. Cessna. What should be a question of fact, therefore, is in this case a question of law. As discussed above, I believe that Keen’s conduct exceeds a mere negligent failure to discover or guard against a product defect. Hence, I dissent from the majority’s result. I suggest, however, that in the future we discard comment n completely and adopt a pure form of comparative causation for products liability cases in which at least one defendant is found liable on a theory other than negligence.
WALLACE, J., joins in this dissent.