Reda Pump Co., a Div. of TRW, Inc. v. Finck

VANCE, Justice.

The question is whether the contributory negligence of a claimant constitutes an absolute bar to recovery of damages in a products liability action.

The appellee, James R. Finck, was injured when a pump manufactured by appellant exploded while Finck was attempting to repair it. He sought damages based upon negligence, breach of warranty, and strict liability. The case was submitted to a jury under a comparative negligence instruction, and the jury found that appellant and Finck were each negligent and prorated liability 34.25% to Finck and 65.75% to appellant.

Aetna Casualty and Surety Company intervened and was permitted to recover the amounts it had paid to Finck as workers’ compensation benefits. Because of the importance of the issue presented, we granted transfer of this appeal.

Appellant asserted at trial and contends on appeal that as a matter of law it was entitled to judgment because the contributory negligence of Finck constituted an absolute bar to his recovery of damages.

Kentucky has enacted a products liability act. K.R.S. 411.300 — 411.350. The act provides that “a ‘products liability action’ shall include any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, advertising, packaging, or labeling of any product.” K.R.S. 411.300(1).

Pursuant to this definition, the action instituted by Finck is a “products liability action.”

The products liability act, K.R.S. 411.-320(3) provides:

“In any product liability action, if the plaintiff failed to exercise ordinary care in the circumstances in his use of the product, and such failure was a substantial cause of the occurrence that caused injury or damage to the plaintiff, the defendant shall not be liable whether or not said defendant was at fault or the product was defective” (Emphasis ours.)

The appellees contend (1) that the General Assembly did not intend in K.R.S. 411.-320(3) that contributory negligence should completely bar remedy and (2) if K.R.S. 411.320(3) is construed to be an absolute bar to recovery, it is unconstitutional.

We will examine first the meaning of the statute. On its face, it plainly states that in a products liability action in which the plaintiff is shown to be negligent and such negligence substantially contributed to his injury, the defendant shall not be liable for the injury regardless of the fact that the defendant may also have been at fault or the product defective.

We do not perceive any ambiguity in the wording of the statute. It is plain and clear on its face. We have long adhered to the rule in this jurisdiction that statutes will be construed according to the plain *820meaning of the words contained in the statute.

In Burrell v. Electric Plant Board, Ky., 676 S.W.2d 231 (1984), we applied the rule and held the statute in question must be “held to mean what it plainly expresses.” Id. at 234.

In Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984) we said:

“We have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion. Department of Revenue v. Greyhound Corp., Ky., 321 S.W.2d 60 (1959). A legislature making no exceptions to the positive terms of a statute is presumed to have intended to make none. Commonwealth v. Boarman, Ky.App., 610 S.W.2d 922 (1980).”

Id. at 834.

In Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247 (1962) we expressed the rule in the following language:

“The best way in most cases to ascertain such intent or to determine the meaning of a statute is to look to the language used, but no intention must be read into the statute not justified by the language.... The primary rule is to ascertain the intention from the words employed in enacting the statute and not to guess what the Legislature may have intended but did not express.... Resort must be had first to the words, which are decisive if they are clear.... The words of the statute are to be given their usual, ordinary, and everyday meaning....”

Id. at 249.

We find no merit in the contention that the General Assembly in K.R.S. 411.320(3) was merely acknowledging the state of the common law in negligence cases. The entire tenor of the Products Liability Act is to restrict and limit actions concerning products liability.

K.R.S. 411.310(1) creates a rebuttable presumption that a product was not defective if the injury or damage occurred either more than five years after the date of sale to the first customer or more than eight years after the date of manufacture. K.R.S. 411.310(2) created a rebuttable presumption that a product was not defective if the design, methods of manufacture, and testing conformed to the generally recognized and prevailing standards or the state of the art in existence at the time the design was prepared and the product manufactured.

K.R.S. 411.320(1) limits liability to that which would have occurred had the product been used in its original, unaltered, and unmodified form, and K.R.S. 411.320(2) precludes recovery by a plaintiff who performs an unauthorized alteration or modification of the product, which alteration substantially causes injury.

K.R.S. 411.320(3) absolutely bars recovery in cases where contributory negligence of the plaintiff substantially contributes to cause an occurrence which injures the plaintiff.

The whole focus of the products liability act tends toward a restriction of liability in products liability cases. We hold that K.R.S. 411.320(3), by its plain meaning, provides that contributory negligence of a claimant which is a substantial cause of the occurrence that caused injury or damage to him is an absolute bar to recovery of damages resulting from such injury. This statute was similarly construed by the United States District Court for the Eastern District of Kentucky in Anderson v. Black & Decker (U.S.), Inc., 597 F.Supp. 1298 (1984).

Appellant further contends that if we construe K.R.S. 411.320(3) as we do here construe it, then the statute is unconstitutional because it establishes a different standard for recovery in products liability cases from that which is used in negligence cases generally.

This contention is premised upon our holdings in Hilen v. Hays, Ky., 673 S.W.2d 713 (1984), and Tabler v. Wallace, Ky. 704 S.W.2d 179 (1986).

In Hilen, supra, we adopted a comparative negligence rule in ordinary civil negli*821gence cases. In doing so, we overruled by judicial fiat a long-standing rule that contributory negligence was an absolute bar to recovery. In Hilen we did not question the fact that the effect to be accorded to contributory negligence is a matter of public policy nor the absolute right of the General Assembly to determine public policy issues. Instead, we justified the right of this court to overturn the long-established rule upon the ground that it was a court-made rule in the first place. We reasoned that a rule promulgated by a court could be changed by a court.

Our opinion pointed out that our General Assembly, on many occasions, had the opportunity to express the public policy of the state on this issue, but had declined to do so, and a majority of the court felt that the fact that the General Assembly, on more than one occasion, had failed to pass bills which were introduced to overturn the long-standing contributory negligence rule did not amount to legislative ratification of the rule as it then existed. In Hilen, supra, we pointed out that whether contributory negligence constitutes a complete bar to recovery in product liability cases remained an open question for a case in point.

In Tabler v. Wallace, supra, we held K.R.S. 413.135 to be unconstitutional as special legislation because there was no rational basis for a difference in statutes of repose as applied to the purveyor of goods and the purveyor of services. It is contended here that there is no reasonable basis for a different contributory negligence standard to be applied in actions involving products than is applied in other negligence actions.

This contention resolves itself into an argument that because we held by judicial fiat in Hilen, supra, that in ordinary civil actions contributory negligence shall have a different effect from that which the General Assembly has plainly ascribed to it in products liability actions, we must now declare the policy clearly established by the General Assembly to be unconstitutional because it conflicts with the policy created by this court.

To so hold would constitute the ultimate arrogation of power unto ourselves. We adhere to the principle that the establishment of public policy is the prerogative of the General Assembly. If there is any present conflict or confusion in the law applicable to products liability actions it is of our own making. We resolve the issue now by holding that K.R.S. 411.320(3) absolutely bars recovery in products liability options where the plaintiff is contributorily negligent and his negligence is a substantial cause of the occurrence which caused his injury, and by further holding that K.R.S. 411.320(3) is not unconstitutional.

Appellee contends that in the event the judgment is reversed, the case should be remanded for retrial. However, the issue of Finck’s negligence was submitted to the jury, and he was found to be contributorily negligent. We are not cited to any reason why that finding is erroneous except the postulation by appellee that if the jury had known a finding of contributory negligence would bar appellee’s recovery, the jury might have found him free of contributory negligence. We cannot countenance an argument premised upon a supposition that a jury being convinced of one state of facts would make a finding diametrically opposite solely in order to permit a recovery by the plaintiff.

The judgment is reversed with direction that the complaint and the intervening complaint be dismissed.

STEPHENS, C.J., and WHITE, GANT, STEPHENSON, VANCE and WINTER-SHEIMER, JJ., concur. LEIBSON, J., dissents by separate attached opinion.