Day v. General Motors Corp.

GIERKE, Justice,

concurring specially.

I agree with the affirmative answers to Questions 1 and 3 as expressed by the majority opinion. I also agree with the concern voiced in Justice VandeWalle’s concurring opinion concerning Question 2. I join in his conclusion that only the “injury enhancing fault” should be considered for the purpose of reducing, or, as the case may be, defeating plaintiffs recovery for his enhanced injuries. I write separately because I am concerned that certain language contained in the majority opinion seems to blur the distinction between a strict products liability theory of recovery and a common negligence theory.

.1 wish to emphasize that ordinary contributory negligence principles are not relevant to a consideration of the comparative *359fault of the parties in a strict liability action. We have stated today in Mauch v. Manufacturers Sales & Service, Inc., 345 N.W.2d 338, 347 (N.D.1984), that

“The focus of a products-liability action is on whether or not the product is defective and unreasonably dangerous, and thus the reasonableness of the defendant’s conduct under negligence concepts is not relevant to this action. The defenses which we have previously recognized in ... [Olson v. A. W. Chesterton Company, 256 N.W.2d 530 (N.D.1977)], of assumption of risk and unforeseeable misuse are, in our opinion, adequate to protect a seller or manufacturer from unjust liability in a case of this type.”

It follows from this that only those acts of the plaintiff which may be characterized as either misuse of the product or assumption of risk may be considered in reducing his recovery for enhanced injuries.