dissenting.
I must respectfully dissent because I believe the plaintiffs’ modification of MAI 25.04 [1978 Revision] Verdict Directing— Strict Liability — Product Defect was fundamentally erroneous and prejudicial.’ As noted in the majority opinion, the paragraph of MAI 25.04 submitting causation reads as follows.
“Fourth, plaintiff was damaged as a direct result of such defective condition as existed when the (describe product) was sold.” (Emphasis added.)
Plaintiffs’ verdict directing instruction (Instruction No. 7) modified that paragraph to read as follows.
“Fifth, such defective condition as existed when the product was sold by said defendant directly caused or directly contributed to cause the death of Gene Eagleburger,”. (Emphasis added.)
The effect of this modification must be evaluated considering the defendant’s submission of Gene Eagleburger’s contributory fault by an instruction patterned upon MAI 32.23 [1978 Revision] Affirmative Defenses — Product Liability — Strict Liability — Contributory Fault. Instruction No. 8 read as follows.
“Your verdict must be for defendant Emerson Electric Co. if you believe:
First, when the product was used, Gene Eagleburger knew of the danger as submitted in Instruction No. 7 and appreciated the danger of its use, and
Second, Gene Eagleburger voluntarily and unreasonably exposed himself to such danger, and
Third, such conduct directly caused or directly contributed to cause any damage plaintiffs may have sustained.”
“Under the substantive law of Missouri and Section 402 A, supra, while contributory negligence does not bar recovery, contributory fault is an affirmative defense to strict liability.” McGowne v. Challenge-Cook Bros., Inc., 672 F.2d 652, 662 (8th Cir.1982) (emphasis in original.)
“The Restatement position is that if the user ‘discovers the defect and is aware of the danger, and nevertheless proceeds *244unreasonably to make use of the product and is injured by it, he is barred from recovery.’ 2 Restatement, supra, § 402A, p. 356. In 3 Restatement, Law of Torts, First, § 524, this defense is referred to as ‘contributory fault.’ ” Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362, 365 (Mo.1969).
Lippard v. Houdaille Industries, Inc., 715 S.W.2d 491 (Mo. banc 1986), held that comparative fault based upon negligence did not apply to actions based upon the doctrine of strict liability which was adopted in Keener. But, Lippard does not hold that the doctrine of contributory fault, as distinguished from comparative fault, set forth in the Restatement and adopted in Keener is not applicable to such actions. In fact, Lippard holds:
“Contrary to what is said in Judge Donnelly’s dissent, this opinion does not eliminate the giving of MAI 32.23 in an appropriate case.” Lippard, at 493.
The viability of the defense of contributory fault was also acknowledged in Barnes v. Tools & Machinery Builders, Inc., 715 S.W.2d 518 (Mo. banc 1986). The continued existence of that defense was also recognized in the Tort Reform Act of 1987.
“Contributory fault, as a complete bar to plaintiff’s recovery in a products liability claim, is abolished. The doctrine of pure comparative fault shall apply to products liability claims as provided in this section.” § 537.765.1.
That act was effective July 1, 1987.
The plaintiffs’ modification is not supported or approved by Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. banc 1986). In that case, the defendant manufacturer sought to escape strict liability by asserting the mechanics were negligent in improperly installing unreasonably dangerous interchangeable parts. It was in denying that contention the court appropriately made the statement concerning proximate cause. Nesselrode did not involve the defense of contributory fault which has remained a part of the law of product liability until the Tort Reform Act of 1987. The defense of contributory fault was available to the defendant in this action.
MAI 25.04 and MAI 32.23 were drafted to properly submit that defense in a product liability action. The concept of contributory fault is based upon the fact that a product known to the actor to be unreasonably dangerous has contributed to an injury. In every action based upon an unreasonably dangerous product, that product will be involved in or contribute to an injury resulting from its use. Yet, if a plaintiff voluntarily and unreasonably exposes himself to such danger and that exposure causes or directly contributes to cause injury, contributory fault bars recovery. In such circumstances, the plaintiff will not be injured “as a direct result of such defective condition”. (Emphasis added.)
The plaintiffs’ modification of MAI 25.04 virtually eliminates the defense of contributory fault. The prejudicial effect of the modification is established by the fact Gene Eagleburger was an experienced roofer and was specifically warned of the power line. He replied “not to worry, he wouldn’t be no where near those wires.” He also declined the offer of the Priest to cause the power to be turned off. Under Instruction No. 7 and Instruction No. 8, a jury could find Gene Eagleburger “knew of the danger as submitted in Instruction No. 7 and appreciated the danger of its use, and ... voluntarily and unreasonably exposed himself to such danger, and ... such conduct directly caused or directly contributed to cause” his death, yet also find the unreasonably dangerous ladder contributed to that death and return a verdict for the plaintiffs. The plaintiffs’ modification denied the defendant the proper cqnsideration of the defense of contributory fault.
I also believe the court erroneously admitted Plaintiffs’ Exhibit 54-A. This exhibit was a summary that read as follows.
*245“C.P.S.C. STATISTICS SUMMARIZED
AN ALUMINUM LADDER INADVERTENT CONTACT BETWEEN AND A POWER LINE, 1977-87:
Injuries Total Victims Deaths
‘Death Certificate’ File 238 OO CO (M
‘Accident File 24 ^ OO r-1
‘Reported Incidents’ File 86 ^ LO t-H CO
CO <M ^
As noted in the majority opinion, Exhibit 54-A was prepared by expert Greene. He reviewed a print-out of electrical accident reports from the Consumer Products Safety Commission (C.P.S.C.) which was derived from the sources indicated on Exhibit 54-A. From that print-out, Greene extracted reports of incidents he found to involve an aluminum ladder contacting an electric line outside. Greene testified that Exhibit 54-A was a summary of those incidents.
The legal background for consideration of Exhibit 54-A is set forth in the excellent article cited in the majority opinion. McCarter and Corrigan, Evidence of Similar Occurrences and Non-Occurrences, 46 Jour, of The Missouri Bar 126 (Mar. 1990). A relevant federal case cited in that article is Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322 (8th Cir.1985). In that case, the plaintiffs sought recovery upon the basis of a defective RH5° truck wheel rim. “The district court over objection permitted appellees to present evidence of accidents involving explosive separation of RH5° rims, with no restriction as to the circumstances or the dates of the accidents.” Hale, at 1332. This was held to be error and the following basic standard was enunciated.
“Evidence of prior accidents is admissible only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar.” Id.
That test is recognized in this state. McJunkins v. Windham Power Lifts, Inc., 767 S.W.2d 95 (Mo.App.1989). Other cases establish a more refined test dependent upon the purpose for which the evidence is used.
“In appraising the relevancy of similar incidents in product liability cases, courts have required the other incidents to be ‘substantially similar’ to the case at bar. See, e.g., Edwards v. Consolidated Rail Corp., 567 F.Supp. 1087, 1105-07 (D.D.C.1983). How substantial the similarity must be is in part a function of the proponent’s theory of proof. ‘If dangerousness is the issue, a high degree of similarity will be essential. On the other hand, if the accident is offered to prove notice, a lack of exact similarity of conditions will not cause exclusion provided the accident was of a kind which should have served to warn the defendant.’ 1 Weinstein & Berger, Weinstein’s Evidence § 401[10], at 401-66-67.” Exum v. General Elec. Co., 819 F.2d 1158, 1162-1163 (D.C.Cir.1987).
A similar limitation has been applied in negligence actions. Pierce v. Platte-Clay Elec. Co-Op., Inc., 769 S.W.2d 769 (Mo.banc 1989). In that case, the plaintiff predicated recovery upon the basis of the negligence of the defendant in maintaining unmarked guy wires in an agricultural field. The plaintiff offered nine “trouble tickets” concerning contact between farm machinery and guy wires that occurred within the four years prior to the accident in question. The trial court admitted two of those tickets. The supreme court approved of the admission of those two tickets.
“When evidence of other accidents is introduced to show notice of danger, the similarity in the circumstances of the accidents need not be completely symmetrical. McCormick on Evidence, § 200 p. *246590 (3rd ed. 1984). See also Martin, Basic Problems of Evidence, § 10.04(3) p. 234 (6th ed. 1988). In this case, both trouble tickets introduced described incidents similar to the Pierce accident where farm machinery contacted appellant’s guy wires resulting in support poles breaking.” Pierce, at 774. (Emphasis added.)
The court emphasized the limitation by the following observation.
“The attorneys’ questions were strictly limited to the target issue of notice.” Id.
The only circumstance of the incidents reflected in the statistics of Exhibit 54-A that could be considered as similar to the circumstances of this case is the fact that an aluminum ladder contacted wires charged with electricity. In this case, an aluminum track for hoisting equipment contacted a power line. Witness Greene acknowledged this to be true. Greene bolstered these meager facts and his reliance upon those statistics by citing a section of the National Electric Safety Code. That section prescribes that uninsulated wires carrying electricity shall be at least 15 feet from the ground. He assumed the contacts referred to in Exhibit 54-A were between an uninsulated line 15 feet above the ground and an aluminum ladder. He ignored other possibilities such as the fact uninsulated lines might be maintained at a height of less than 15 feet, or that an aluminum ladder might be used by a householder to restore a temporarily downed power line. He ignored his own admission that in referring to the reports included in Exhibit 54-A, “There was a few of those that involved the drop lines.”
The only circumstance of the incidents reflected in Exhibit 54-A common to the incident in question is the fact that an aluminum ladder and the aluminum track conduct electricity. That is generally acknowledged to be true. That is the import of the testimony of Monohan in which he acknowledged - the statistics gathered by the Consumer Products Safety Commission to be relevant “[i]n so far as electrocution of aluminum ladder and powerlines, yes”. The fact that aluminum will conduct electricity cannot be regarded as an issue in this case.
The product in question was a hoist using an aluminum track to raise heavy loads for projects such as roofing. It was obviously a device designed and intended to be used by professionals in hoisting materials to appreciable heights. It is equally obvious that such a device often, if not always, must be longer than 15 feet.
The issue in this case is not whether or not an aluminum track will conduct electricity. It is acknowledged the hoist track manufactured by the defendant would do so. Nor is the issue whether or not that hoist on any given occasion was involved in an injury or death by electricity. The issue is whether or not the hoist posed an “unreasonable danger”. An important consideration in determining whether or not a product is unreasonably dangerous is the frequency and severity of injuries involving the use of that product. To be relevant in this case statistics should be based upon the use of a commercial hoist by professional workmen.
The plaintiffs’ use of the number of victims shown in Exhibit 54-A is comparable to the attempted use of 570 incidents of a given model of gun accidentally firing. Shields v. Strum, Ruger & Co., 864 F.2d 379 (5th Cir.1989). In approving the rejection of 500 of such incidents, even to prove notice of an alleged defect, the court observed: “The Shields apparently believe that the district court should have allowed them to argue to the jury that in those reports that did not state why the gun accidentally fired, the jury should assume that the accident was caused by the defect alleged by the plaintiffs. That argument clearly would have been improper.” Shields, at 381.
The prejudice arising from the plaintiffs’ use of Exhibit 54-A is clearly demonstrated in Hale v. Firestone Tire & Rubber Co., supra. In Hale, the plaintiffs contended it was proper to present evidence of 210 prior accidents because they involved a given model of a wheel rim. In rejecting that contention, the court succinctly held the following.
*247“The district court erred in admitting evidence of all RH5° explosive separation accidents and in shifting to Firestone and Budd the burden of showing dissimilarity-after the evidence was admitted. [Plaintiffs] admit that the circumstances of the accidents differ; the only similar circumstance indicated in the record is the explosive separation of the wheel rim. This is an insufficient showing of similarity.” Hale, at 1332.
In this case, the only similarity is the contact of an aluminum ladder with a power line. This is an insufficient showing of similarity.
The plaintiffs made persuasive use of the number of victims shown by Exhibit 54-A not to establish notice, but that the product was unreasonably dangerous. Counsel used the number of victims in voir dire, opening statement and cross-examination. Expert Greene, with painstaking care, explained to the jury how one should analyze whether a product is unreasonably dangerous. He prepared a chart to visualize to the jury the steps or factors involved in that evaluation. He said you should first look at the severity of the hazard. Then he testified, “And then you also consider the frequency of the occurrence”. Greene used the statistics to establish and bolster his opinion the hoist was unreasonably dangerous. He emphasized the importance of those statistics when he was permitted, over Emerson’s objection, to speculate that no more than half of the instances of such inadvertent contact were reported to the C.P.S.C.
The prejudice to Emerson from the admission of those statistics was enhanced by the admission, over objection, of Plaintiffs’ Exhibit 82. Exhibit 82 was the American National Standards Institute, Inc. (ANSI) safety requirements for portable metal ladders. Greene testified that one of those standards prescribed that a single metal ladder should not exceed 30 feet in length. Those standards expressly declare they are not applicable to hoisting equipment. Nonetheless, Greene concluded that the hoist track violated that standard. This standard was emphasized when Greene said that if the hoist track had been 30 feet long the accident wouldn’t have happened. The combination of the C.P.S.C. statistics and the ANSI standards for ladders provided a virtually unanswerable argument the aluminum hoist track 40 feet in length was unreasonably dangerous.
“It has uniformly been held that incompetent evidence on a material issue is presumed to be prejudicial, Holmes v. Terminal R.R. Ass’n of St. Louis, 363 Mo. 1178, 257 S.W.2d 922, 927; Schears v. Missouri Pacific Railroad Company, Mo., 355 S.W.2d 314, 318, unless clearly shown to be otherwise, Zarisky v. Kansas City Public Service Co., 239 Mo.App. 396, 186 S.W.2d 854, and the burden of so showing is on the respondent. Schears v. Missouri Pacific Railroad Company, supra.” Hamilton v. Missouri Petroleum Products Co., 438 S.W.2d 197, 201 (Mo.1969).
Exhibit 54-A was incompetent evidence on a material issue. The record affirmatively demonstrates it was prejudicial to Emerson and its admission constitutes reversible error. Cf. Hale v. Firestone Tire & Rubber Co., supra. As I would reverse and remand the case upon each of the above two points, I have not accepted or rejected Emerson’s other points.