Webb v. Navistar International Transportation Corp.

Annotate this Case

Webb v. Navistar International Transportation Corp. (93-501); 166 Vt. 119;
692 A.2d 343

[Filed 20-Dec-1996]

[Motion for Reargument Denied 3-Jan-1997]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 93-501

Bruce and Martha
Webb Supreme Court

On Appeal from
v. Franklin Superior Court

Navistar International November Term, 1994
Transportation Corporation

Linda Levitt, J.

A. Gregory Rainville of Farrar & Rainville and Michael Rose (On the
Brief), St. Albans, for plaintiffs-appellees

Samuel Hoar, Jr. of Dinse, Erdmann & Clapp, Burlington, and John A.
Rupp and Ann L. Gibson of Coffield, Ungaretti & Harris, Chicago, Illinois,
for defendant-appellant

Peter B. Joslin and John Davis Buckley of Theriault & Joslin, P.C.,
Montpelier, and Victor E. Schwartz, Mark A. Behrens and David Bernstein of
Crowell & Moring, Washington, D.C., for amicus curiae Product Liability
Advisory Council

Michael F. Hanley and Barney L. Brannen of Plante, Hanley & Gerety,
P.C., White River Junction, for amicus curiae Kim P. Lussier

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.),
Specially Assigned

DOOLEY, J. Defendant Navistar International Transportation
Corporation (Navistar) appeals from a jury verdict that held defendant
liable to plaintiffs Bruce and Martha Webb on a theory of strict products
liability for a design defect and/or failure to warn plaintiffs of dangers
inherent in the design of a tractor. A majority of the Court agrees to
reverse and remand this case.

Justice Morse, Justice Peck and I hold that principles of comparative
causation apply in this products liability action. We do not agree,
however, to a general rule on when comparative

principles apply in strict products liability actions, nor on how to
implement these principles when they do apply. I believe this case must be
reversed and remanded for a new trial because the trial judge failed to
instruct the jury on comparative causation. Justice Morse concludes that
Bruce Webb is more than fifty percent responsible, as a matter of law, and
therefore, under 12 V.S.A. § 1036 (comparative negligence), he would enter
judgment for defendant. Justice Peck agrees with Justice Morse that
judgment should be entered for defendant but on the ground that the tractor
is not defective as a matter of law. Justice Johnson and Justice Gibson
would affirm the judgment for plaintiffs; they would hold that comparative
principles are not applicable in products liability actions.

The positions of the Justices produce no majority on the mandate. A
majority of the Court agrees, however, that the judgment entered on the
jury verdict cannot be affirmed. Thus, although Justices Morse and Peck
would prefer a mandate of "reversed," they have joined in a mandate of
"reversed and remanded" because it accurately represents the center of
gravity of the Court. See Cell v. Drake, 100 P.2d 949, 951 (Idaho 1940).
Thus, the mandate requires a new trial based on principles of comparative
causation.

The dissent criticizes the majority for creating a rat's maze from
which there is no exit. We strongly disagree with the characterization of
the cause or consequence of the Court's voting. If the dissent would
accept that comparative causation has now become the rule in products
liability cases in Vermont, and participate in an implementation design to
guide future cases, the trial judge in this case might know exactly what to
do on remand. If a majority could not agree on an implementation design,
the trial judge and parties would at least know the full range of options
and votes in support of each on this Court. I share Justice Peck's view
that we should do all in our power to avoid stalemate, if possible.

On November 13, 1985, at approximately 9:30 p.m., Bruce Webb learned
that some of his cows might be out of the pasture. He and his father got
out their tractor, a 1978 Model 464

farm tractor manufactured by Navistar, and they proceeded down Route 207
with Bruce Webb standing on the draw bar and his father driving. En route,
the tractor was struck in the rear by a car driven by an allegedly
intoxicated operator. As a result of the accident, Bruce Webb suffered
serious injuries to his legs.

Plaintiffs filed suit against Navistar, the driver of the car, and
others. The complaint alleged negligence, breach of warranty, and strict
products liability. Claims against all defendants other than Navistar were
ultimately dismissed, and the case proceeded to trial against Navistar
solely on the products liability claim. Plaintiffs argued that the tractor
was defectively designed because (1) it allowed operation of a white field
light at highway speeds without provision for separate red tail lights, and
(2) it failed to provide a safe passenger location so that Bruce Webb could
have ridden on the tractor without exposure to injury. They contended
further that defendant failed to provide adequate warnings of these
dangers.

The case was tried, and the trial court directed a verdict in
defendant's favor on both claims. On appeal, we affirmed the directed
verdict regarding defendant's failure to provide a safe passenger location,
but reversed as to whether the design of the field light was defective and
whether the manufacturer's warning on its use was inadequate. See Webb v.
Navistar Int'l Transp., No. 91-384 (Vt. July 1, 1992) (Webb I) (unpub.
mem.).

The second trial focused on the lighting system of the tractor. The
Model 464 tractor has a red taillight, two amber lights with road flashers,
two red rear reflectors, a reflective slow-moving-vehicle triangle and a
white field light mounted on the left rear bumper. A cautionary decal on
the left front fender directs operators to use the flashing amber lights at
all times when on public roads. The light system is designed so that when
the flashing amber lights are in use, the red taillight activates and the
white field light does not work. At the time of the accident, the flashing
amber lights (FN1) and the taillight did not work, and the reflectors were
missing. In

addition, by riding on the draw bar, Webb blocked the view of the
reflective triangle. The cautionary decal also warned against riding the
tractor unless a seat or platform is provided and instructed the operator
to "[k]eep others off."

The owner's manual for the tractor also provides warnings and
instructions. On pages 3 and 4, the manual sets forth rules for safe
operation of the tractor. Here, the manual warns: "No riders allowed." It
also contains an instruction not to use the white field light on the
highway on page 55, under the heading CAUTION!

Webb testified that while travelling on the highway he employed both
the headlights and the rear field light on the rationale that more light
was better than less light. He indicated that it had not occurred to him
that operating the tractor on the highway at night with the rear field
light on was a hazard. The operator of the automobile that collided with
the tractor testified that he believed the white field light mounted on the
left rear bumper was the headlight of an approaching "one-eyed" car.

Plaintiffs tried the case on two theories: (1) that the lighting
system was defective because it allowed the tractor to be operated on
highways with the field light illuminated, and (2) that defendant failed to
adequately warn consumers of the known risk of using the field light while
operating the tractor on the highway. The jury returned a verdict in favor
of plaintiffs on liability, and the parties stipulated to damages.
Defendant appeals, arguing that the evidence was insufficient to support
the verdict and that the court erred by failing to instruct the jury that
it may apportion liability between the parties. We have the benefit of
briefs of amicus parties on both sides of the comparative liability
issue.(FN2)

II.

Defendant argues that the evidence was insufficient for the jury to
find that its tractor was defective, that its warnings were inadequate, and
that either the defective tractor or the inadequate warnings proximately
caused Webb's injuries. These arguments all war with our decision in Webb
I. On this point, I understand that four of us agree. Except for those
eliminated by our decision in Webb I, the parties' claims and defenses
remained essentially the same at the second trial. If Webb I remains the
law, the evidence was sufficient for the jury to reach a judgment against
defendant. See McGee Constr. Co. v. Neshobe Dev., Inc., 156 Vt. 550, 556,
594 A.2d 415, 418 (1991) (verdict will be sustained if, considering
evidence in light most favorable to verdict and excluding effect of
modifying evidence, there is evidence fairly and reasonably tending to
support it).

The jury could reasonably conclude that the danger of operating the
tractor on a highway at night with the field light illuminated was not a
danger obvious to the ordinary consumer, and plaintiffs presented evidence
of a safety device that could have been installed by defendant to prevent
such use. Despite the evidence that the automobile operator was
intoxicated and changed his story between the time of the accident and the
trial, the jury could reasonably conclude that the lighting system on the
tractor was defective and was the cause of the accident. Moreover, the
question of whether a manufacturer provided adequate warnings about
foreseeable dangers is a question of fact properly left to the jury. See
McCullock v. H.B. Fuller Co., 981 F.2d 656, 658 (2d Cir. 1992) (applying
Vermont law).

III.

I do not believe, however, that the judgment in this case can be
affirmed. I agree with defendant that comparative liability principles are
applicable in strict products liability actions and should have been
charged to the jury in this case. Because the split in the Court reserves
the details of implementing comparative principles for another day, I state
only the reasons we adopt a comparative causation rule.

The doctrine of strict products liability was first developed by the
California Supreme Court in Greenman v. Yuba Power Prods., Inc., 377 P.2d 897, 901 (Cal. 1962), and then set forth in the Restatement (Second) of
Torts § 402A (1965). This doctrine was created in response to the
limitations of traditional negligence and warranty actions for injuries
caused by defective consumer goods. Butaud v. Suburban Marine & Sporting
Goods, Inc., 555 P.2d 42, 44 (Alaska 1976). In negligence actions,
plaintiffs were unable to isolate the negligence of the manufacturer as
manufacturing processes became more complex. Id. In actions based on
warranty theories, plaintiffs confronted defenses of disclaimer, notice of
breach and lack of privity, also problematic in complex distribution
systems. Id.; see also O'Brien v. Comstock Foods, Inc., 125 Vt. 158, 162,
212 A.2d 69, 72 (1965) (abolishing privity requirement to prove liability
of food producer). Strict products liability removed the difficulties
plaintiffs faced in proving warranty or negligence claims against mass
producers and distributors by imposing liability upon them without regard
to fault or privity of contract. See W. Keeton et al., Prosser and Keeton
on the Law of Torts § 98, at 692 (5th ed. 1984). The purpose of this
judicially created doctrine is to lessen the burden of proof for plaintiffs
injured by defective products. Daly v. General Motors Corp., 575 P.2d 1162,
1168 (Cal. 1978); see also Zaleskie v. Joyce, 133 Vt. 150, 154-55, 333 A.2d 110, 113 (1975) (one reason to adopt strict products liability is to
respond to problems of availability of proof).

Justifications for reducing plaintiffs' burden rest upon two public
policies. First, strict liability protects the consumer, see Restatement
(Second) of Torts § 402A cmt. c (consumer

entitled to maximum protection), by creating an incentive for manufacturers
to produce safe products, see, e.g., Whitehead v. Toyota Motor Corp., 897 S.W.2d 684, 693 (Tenn. 1995) (strict liability encourages greater care in
manufacture of products), or as other courts have stated, a deterrence to
producing unreasonably dangerous products. See, e.g., Kimco Dev. Corp. v.
Michael D's Carpet Outlets, 637 A.2d 603, 607 (Pa. 1993) (strict products
liability imposes deterrent to production of dangerous products). Second,
strict products liability is justified on the ground that manufacturers are
in the best position to spread the cost of injury resulting from defective
products by passing it on to consumers as a cost of doing business.
Zaleskie, 133 Vt. at 154-55, 333 A.2d at 113; Greenman, 377 P.2d at 901;
see also Restatement (Second) of Torts § 402A cmt. c (public policy demands
that burden of accidental injuries caused by products be placed on those
who market them who may treat as cost of production against which liability
insurance may be obtained).

In 1975, we adopted the doctrine of strict products liability set
forth in the Restatement (Second) of Torts § 402A. See Zaleskie, 133 Vt.
at 155, 333 A.2d at 114 (judicially adopting doctrine of strict products
liability as set forth in the Restatement (Second)). Under that doctrine,
a manufacturer is strictly liable for physical harm or property damages
resulting from a defective product that reaches a user without undergoing
substantial change. Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571,
574, 367 A.2d 677, 679 (1976). A defective product "must be dangerous to
an extent beyond that which would be contemplated by the ordinary consumer
who purchases it, with the ordinary knowledge common to the community as to
its characteristics." Restatement (Second) of Torts § 402A cmt. i. The
plaintiff bears the burden of proving that the product is defective, and
that its defect was the proximate cause of the harm, see Gilman v. Towmotor
Corp., 160 Vt. 116, 119, 621 A.2d 1260, 1261 (1992) (proximate cause is one
element of strict liability), but is relieved of showing that the defendant
was negligent. Kinney, 134 Vt. at 574, 367 A.2d at 679.

A manufacturer also has a duty to warn users and consumers when it
knows or has

reason to know of dangers inherent in the product at the time the product
is sold, Restatement (Second) of Torts § 402A cmt. k, or when the product
is dangerous to an extent beyond that which would be contemplated by an
ordinary consumer. Menard v. Newhall, 135 Vt. 53, 55, 373 A.2d 505, 507
(1977). To establish strict liability for an inadequate warning, a
plaintiff must prove that the inadequate warning made the product
unreasonably dangerous and was the proximate cause of the injury. Id. at
54, 373 A.2d at 506.

Under the Restatement (Second) formulation of products liability,
defenses are limited. Assumption of risk is a complete bar to recovery.
"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, [the user or consumer] is barred from recovery."
Restatement (Second) of Torts § 402A cmt. n. Product misuse has
traditionally been a bar to recovery as well. Id. § 402A cmt. h; see,
e.g., Kennedy v. City of Sawyer, 618 P.2d 788, 796 (Kan. 1980) (assumption
of risk and product misuse traditionally barred all recovery for strict
products liability claims); Smith v. Smith, 278 N.W.2d 155, 161 (S.D. 1979)
(recovery barred where consumer assumes risk or misuses product). On the
other hand, the Restatement (Second) provides that negligence that
"consists merely in a failure to discover the defect in the product, or to
guard against the possibility of its existence" is not a defense at all.
Restatement (Second) of Torts § 402A cmt. n.

The Restatement (Second) does not address the issue of shared
responsibility and does not address the effect of the user's negligence
beyond the limited circumstances described in comment n to § 402A. If we
view these omissions as intentional, and we choose to follow § 402A, we are
left with the harsh "all-or-nothing" approach of negligence actions prior
to the adoption of our comparative negligence statute. Compare Langevin v.
Gilman, 121 Vt. 440, 446, 159 A.2d 340, 344 (1960) (there can be no
recovery for plaintiff if plaintiff negligence contributed "in the least
degree" to accident) with 12 V.S.A. § 1036 (contributory negligence shall
not bar recovery by plaintiff in negligence action, but plaintiff
negligence may

proportionately reduce damages).

The overwhelming majority of states have rejected the "all or nothing"
rule, either by rejecting the limits of § 402A or by supplementing its
provisions, and have applied principles of comparative liability in strict
products liability actions. Whitehead, 897 S.W.2d at 691; see, e.g.,
Kaneko v. Hilo Coast Processing, 654 P.2d 343, 354 (Haw. 1982) ("[W]e
eliminate the harshness of the `all or nothing' bar to recovery that
results if a plaintiff is found to have misused the product or to have
assumed the risk of using the product."); Suter v. San Angelo Foundry &
Machine Co., 406 A.2d 140, 147 (N.J. 1979) (applying comparative negligence
statute to strict liability action to relieve inequities incurred by
plaintiffs and defendants as result of all-or-nothing approach to
recovery); see also Butaud, 555 P.2d at 45-46 (adopting comparative
principles in strict products liability actions); Daly, 575 P.2d at 1172
(same); Kennedy, 618 P.2d at 796-97 (same); Austin v. Raybestos-Manhattan,
Inc., 471 A.2d 280, 288 (Me. 1984) (same); Zahrte v. Sturm, Ruger & Co.,
661 P.2d 17, 18-19 (Mont. 1983) (same); Thibault v. Sears, Roebuck & Co.,
395 A.2d 843, 848 (N.H. 1978) (same); Day v. General Motors Corp., 345 N.W.2d 349, 357 (N.D. 1984) (same); Sandford v. Chevrolet Div. of Gen.
Motors, 642 P.2d 624, 628 (Or. 1982) (same); Fiske v. MacGregor, Div. of
Brunswick, 464 A.2d 719, 727 (R.I. 1983) (same); Duncan v. Cessna Aircraft
Co., 665 S.W.2d 414, 425 (Tex. 1984) (same); Star Furniture Co. v. Pulaski
Furniture Co., 297 S.E.2d 854, 863 (W. Va. 1982) (same); Dippel v. Sciano,
155 N.W.2d 55, 64-65 (Wis. 1967) (same).(FN3) The United States District
Court for the District of Vermont has endorsed this approach and predicted
we will do so also. See Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1568 (D. Vt. 1985).

In addition, the tentative draft of the Restatement (Third) of Torts
provides for apportioning liability between the plaintiff and the
manufacturer or seller. See Restatement (Third) of Torts: Products
Liability § 7 (Tentative Draft No. 1, 1994). Similarly, the Uniform
Comparative Fault Act § 1 provides that a claimant's contributory fault
proportionately reduces compensatory damages in strict products liability
actions. 12 U.L.A. 127 (1996). Many commentators maintain that adopting
comparative liability principles in strict products liability actions is
the fairest approach. See, e.g., Keeton et al., supra § 102, at 712
(comparative fault system fairest way to allocate costs of accidents); D.
Noel, Defective Products: Abnormal Use, Contributory Negligence, and
Assumption of Risk, 25 Vand. L. Rev. 93, 117-18 (1972) (contributory
negligence should diminish plaintiff's damages); V. Schwartz, Strict
Liability and Comparative Negligence, 42 Tenn. L. Rev. 171, 179-81 (1974)
(comparative principles should apply in strict products liability); J.
Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J.
825, 850 (1973) (same).

The primary reason that courts adopt comparative liability principles
in strict products liability actions is "because it is fair to do so."
Daly, 575 P.2d at 1172. Adopting comparative liability principles "will
accomplish a fairer and more equitable result" because the plaintiff's
award is reduced by an amount equal to the degree to which the plaintiff is
responsible for the accident. Kaneko, 654 P.2d at 352. Most courts reject
the framework that places the burden of loss on one party where two parties
contributed to causing the injury. Daly, 575 P.2d at 1172. Comparative
liability principles also further fairness by preventing a negligent
plaintiff from recovering as much as a plaintiff who has taken all
reasonable precautions. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. at 1568.

Moreover, there is no reason to impose the cost of a plaintiff's
negligence upon the manufacturer to spread among other consumers of the
product. Daly, 575 P.2d at 1168-69; see also Restatement (Third) of Torts:
Products Liability § 7 cmt. a (Tentative Draft No. 1, 1994) (unfair to
impose costs of substandard plaintiff conduct on manufacturers, who will be
impelled

to pass on costs to all consumers, including those who use and consume
product safely). The instant case is illustrative. Here, plaintiff stood
on the draw bar of the tractor while it traveled down a public road.
Although he understood the importance of the warning against such action,
he chose to disregard the warning. As a result, he blocked the view of the
reflective triangle and the single amber flashing light that may have been
operable. Moreover, he failed to maintain the reflectors and the other
flashing light. If the jury may reduce plaintiff's recovery to the extent
that his injuries were caused by his negligence, defendant is not held
liable for the cost of injuries attributed to plaintiff's negligence and
does not pass this cost on to those farmers who heed the warnings posted on
their tractors. Strict products liability was intended to spread the cost
of injuries resulting from defective products; it was never intended to
spread the cost of injuries resulting from user negligence. Daly, 575 P.2d
at 1166.

Apportioning liability more effectively spreads recoveries from
manufacturers for selling defective products than the "all or nothing"
framework. Under the "all or nothing" framework, some plaintiffs receive
windfalls because they collect damages for injuries caused by their own
negligence in addition to damages for injuries caused by the product
defect. On the other hand, some plaintiffs receive nothing because the
court or jury has determined that their negligence constitutes misuse,
assumption of risk or an intervening cause, concepts often difficult to
distinguish. See Sunday v. Stratton Corp., 136 Vt. 293, 300, 390 A.2d 398,
402 (1978). Applying principles of comparative liability will reduce the
total damages awarded to some plaintiffs but will also extend recoveries to
some plaintiffs formerly barred from any recovery; thus, recoveries will be
more equitably distributed among plaintiffs.

A minority of courts have rejected comparative liability principles in
the context of strict products liability actions and continue to impose the
"all or nothing" framework set forth in the Restatement (Second) of Torts §
402A. See, e.g., Bowling v. Heil Co., 511 N.E.2d 373, 380 (Ohio 1987)
(finding no rationale to persuade it that comparative fault principles
should apply to products liability actions); Kimco Dev. Corp., 637 A.2d at
606 (declining to extend

negligence concepts to strict products liability area); Smith v. Smith, 278 N.W.2d at 160-61 (negligence of either party is irrelevant in strict
liability).

We draw two reasons from those decisions for retaining the "all or
nothing" rule. First, several courts have suggested that it is too
confusing to inject negligence concepts into strict liability actions, see,
e.g., Kimco Dev. Corp., 637 A.2d at 606 (conceptual confusion would ensue
should negligence and strict liability concepts be commingled), and that
juries will be unable to compare a defective product with a plaintiff's
negligent conduct to apportion liability. See Smith v. Smith, 278 N.W.2d at
161 n.7 (adoption of comparative fault would present unworkable problems
for juries).

Most courts have rejected this concern as semantic and theoretical.
"We are convinced that in merging the two principles what may be lost in
symmetry is more than gained in fundamental fairness," Daly, 575 P.2d at
1172, and "fairness and equity are more important than conceptual and
semantic consistency." Kaneko, 654 P.2d at 352. Further, apportioning
liability will be less difficult for juries than the current framework,
which requires juries to distinguish between defenses that courts and
scholars are often unable to differentiate. As the Supreme Court of Texas
noted, assumed risk and unforeseeable misuse are nothing more than extreme
variants of contributory negligence. See Duncan, 665 S.W.2d at 423. And
the line between contributory negligence -- resulting in total recovery --
and assumed risk or misuse -- resulting in no recovery -- is difficult to
draw. See Thibault, 395 A.2d at 848 (distinction between assumption of
risk and contributory negligence merely semantics); Noel, supra, at 128
(distinctions between misuse, contributory negligence and assumption of
risk are not clear); cf. Perkins v. Windsor Hosp. Corp., 142 Vt. 305, 310,
455 A.2d 810, 813-14 (1982) (error to introduce assumption of risk language
into charge on comparative negligence). There is no need to draw shadowy
lines between misuse, assumption of risk and contributory negligence,
however, if all defenses may constitute a basis for apportioning liability.
Schwartz, supra, at 175.

Second, the "all or nothing" courts maintain that comparative
principles would undermine the purposes of imposing strict liability on
manufacturers because this approach reduces the incentive to produce safe
products and fails to allocate the risk for loss from injury to
manufacturers who are in a better position to absorb it. See Kimco Dev.
Corp., 637 A.2d at 606-07. On the contrary, applying principles of
comparative liability in strict products liability actions is completely
consistent with the purposes of imposing strict liability on manufacturers.
Indeed, it will have no effect on the principal purpose of adopting this
doctrine; the plaintiff is still relieved from proving negligence of the
manufacturer or privity of contract with it. See Daly, 575 P.2d at 1168
(plaintiffs continue to be relieved of proving negligence). Manufacturers
remain strictly liable for injuries resulting from their defective
products. Kaneko, 654 P.2d at 353.

Nor is it clear that adopting comparative principles will
significantly reduce the incentive to produce safe products. Cf. Swett v.
Haig's Inc., ___ Vt. ___, ___, 663 A.2d 930, 933 n.3 (1995) (in dram shop
action, dram shop's incentive to avoid serving intoxicated persons is not
reduced by availability of contribution from intoxicated motorist).
Recoveries may be reduced in some cases, but more plaintiffs will recover
if assumption of the risk and product misuse are no longer total bars to
recovery. Overall, the cost of a defect may be the same under either
approach.

Courts rejecting comparative liability assume that the primary purpose
in strict products liability actions is to spread the cost of injury.
Because manufacturers are in a better position than plaintiffs to spread
this cost, they reason that it is inconsistent with strict products
liability to reduce recoveries in proportion to plaintiff negligence. See,
e.g., Bowling, 511 N.E.2d at 380; Kimco Dev. Corp., 637 A.2d at 606. If
spreading the cost of all injuries were the goal,

then apportioning liability between the parties would be adverse to the
goal.(FN4) We note, however, that the purpose has been to spread the cost of
injuries resulting from defective products. The issue here is whether to
spread the cost of injuries resulting from user negligence in addition to
that resulting from a defect. No rationale to support such risk allocation
has been presented. Strict liability is not absolute liability;
manufacturers are not insurers of user safety. Daly, 575 P.2d at 1166;
Kaneko, 654 P.2d at 353; Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301,
1302 (Utah 1981).

On balance the reasons to adopt comparative principles greatly
outweigh the reasons to reject this approach. The comparative approach is
fairer to all parties, and properly implemented, will not reduce the
incentive to produce safe products.

VI.

Unlike Justice Morse, I reach this conclusion as part of the
development of the common law of products liability in this state and not
because of the Vermont comparative negligence statute, 12 V.S.A. § 1036.
The statute applies only to "an action . . . to recover damages for
negligence." (Emphasis added.) We must presume that the Legislature
intended the plain meaning of the statutory language. See Bisson v. Ward,
160 Vt. 343, 348, 628 A.2d 1256, 1260 (1993); Armstrong v. Cione, 738 P.2d 79, 82 (Haw. 1987) (plain meaning of words shows Legislature did not intend
to include actions based on strict liability within coverage of comparative
negligence statute). The wording covers actions based on negligence, but
not on strict liability. The majority of courts confronting this question
have reached the same conclusion. See, e.g., Armstrong, 738 P.2d at 82;
Thibault, 395 A.2d at 848; Day, 345 N.W.2d at 354; Duncan, 665 S.W.2d at
426; Mulherin, 628 P.2d at 1303.

Nor can I agree that the statute reaches some kinds of products
liability actions and not

others. Nothing in our case law suggests that some products liability
cases are based on negligence principles and others are not. Section
402A(2)(a) of the Restatement (Second) provides that a seller of a
defective product is liable although "the seller has exercised all possible
care in the preparation and sale of his product." Relying on section 402A,
we have squarely held that "[l]ack of negligence . . . does not bar the
liability." Kinney, 134 Vt. at 574, 367 A.2d at 679.

Even though the comparative negligence statute does not apply, we
could construct a comparable causation rule that would mirror its terms.
In this case, the main significance of such a rule is that plaintiffs could
not recover if the causal effect of the negligence of Bruce Webb was
greater than the causal effect of the liability of defendants. Using this
test, Justice Morse would hold that, as a matter of law, a majority of
plaintiffs' damages were caused by the negligence of Bruce Webb so that
plaintiffs cannot recover at all.

I do not subscribe to the "half-or-nothing" framework of § 1036 for
products liability cases. The rule is inconsistent with the policy of
ensuring that manufacturers bear the cost of casting defective products
into the market. The manufacturer must remain responsible for damages
resulting from the defect, regardless of the extent to which other factors
contributed to the injuries. See Day, 345 N.W.2d at 357 ("half or nothing"
policy of comparative negligence statute is incompatible with basic
concepts of strict liability); see also Butaud, 555 P.2d at 45-46 (pure
comparative liability is fair method to apportion liability in strict
products liability cases); Armstrong, 738 P.2d at 82-83 (pure comparative
principles necessary to prevent all-or-nothing decisions and to create
economic incentives for safer products); Duncan, 665 S.W.2d at 429
(policies underlying strict liability best served by pure comparison);
Schwartz, supra, at 179 (pure comparative principles should apply to
further policy of risk distribution). I would allow plaintiffs to recover
irrespective of the extent to which Bruce Webb's negligence contributed to
his injuries; of course, the amount of recovery would be reduced to reflect
the contribution of this negligence.

The dissent characterizes the adoption of comparative causation as a
major step toward abolishing the doctrine of strict products liability. I
find this conclusion to be greatly exaggerated. I doubt that a balanced
and properly designed rule on comparative causation will significantly
reduce the incentive for manufacturers to produce safe products; indeed, it
may increase the incentive. The posture of this case prevents us from
fashioning a fair and balanced rule that eliminates or reduces the adverse
side-effects claimed by the dissent. The first question before us is
whether comparative causation can ever apply in a products liability case,
and we have divided on that question. I emphasize the narrowness of the
question because much of the criticism of comparative causation rules
applies to rules I would not adopt.

If comparative principles ever apply in a strict liability case, they
should apply here. The jury could find that a number of Bruce Webb's
actions or omissions reflected lack of due care for his safety. Some of
these actions or omissions do not involve the condition of the tractor and
are not related to plaintiffs' liability theory. For example, irrespective
of what lighting was available or in use, the jury could find that Bruce
Webb was negligent in riding on the draw bar and covering up a reflector
and an amber light while the tractor was being operated on a highway. On
remand, I would allow at least that determination.

Reversed and remanded.

FOR THE COURT:

_______________________________
Associate Justice

-----------------------------------------------------------------------------
Footnotes

FN1. There was some evidence that one of the amber lights was
functioning but covered from the driver's view by Webb.

FN2. The Product Liability Advisory Council, Inc. (PLAC) is a
nonprofit corporation with a membership of more than 100 major
manufacturers in industries ranging from electronics to automobiles to
pharmaceutical products. PLAC was formed for the purpose of submitting
amicus curiae briefs in appellate cases involving significant public policy
issues affecting the law of products liability. PLAC argues that
comparative fault principles should be applied in strict liability actions
brought under Vermont law.

FN3. On the other side of the issue is amicus curiae Kim Lussier,
who currently has a products liability action pending in the United States
District Court for the District of Vermont against a Texas corporation that
manufactured the industrial ice handling equipment involved in a work-
related accident in which Lussier lost his leg. Because the jurisdiction
of the federal court is based upon the diversity of citizenship of the
parties, a definitive decision here would determine whether comparative
negligence is a defense to Lussier's claim. Lussier argues that
comparative negligence should not be a defense in a products liability
action.

In addition, some states have adopted comparative principles in strict
products liability actions by statute. See, e.g., Ark. Code Ann. §
16-64-122 (Michie 1987 & Supp. 1995); Colo. Rev. Stat. § 13-21-406 (1987);
Minn. Stat. Ann. § 604.01 (West 1988 & Supp. 1997); Miss. Code Ann. §
11-7-15 (1972); Mo. Ann. Stat. § 537.765 (Vernon 1988); N.Y. Civ. Prac. L.
& R. § 1411 (McKinney 1976); Utah Code Ann §§ 78-27-37, -38 (1996); Wash.
Rev. Code Ann. §§ 4.22.005, .015 (West 1988).

FN4. Requiring a plaintiff to prove that the product is defective is
also inconsistent with the goal of spreading the cost of injuries.
Thibault, 395 A.2d at 845. The purpose of strict products liability is,
however, to hold the manufacturer responsible for casting a defective
product into the market, not for user negligence, even if such negligence
results in injury.

----------------------------------------------------------------------------
Concurring

No. 93-501

Bruce and Martha Webb Supreme Court

On Appeal from
v. Franklin Superior Court

Navistar International November Term, 1994
Transportation Corporation

Linda Levitt, J.

A. Gregory Rainville of Farrar & Rainville and Michael Rose (On the
Brief), St. Albans, for plaintiffs-appellees

Samuel Hoar, Jr. of Dinse, Erdmann & Clapp, Burlington, and John A.
Rupp and Ann L. Gibson of Coffield Ungaretti & Harris, Chicago, Illinois,
for defendant-appellant

Michael F. Hanley and Barney L. Brannen of Plante, Hanley & Gerety,
P.C., White River Junction, for amicus curiae Kim P. Lussier

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.),
Specially Assigned

MORSE, J., concurring. I agree with Justice Dooley that principles of
comparative fault should apply to some products liability claims. We
disagree, however, on the basis for comparative fault. Justice Dooley
believes we should reverse and remand this case for a third trial because
the trial judge failed to instruct the jury on comparative causation. I
would reverse because on the facts no reasonable juror could find Bruce
Webb less than fifty-one percent responsible for the accident, and thus,
under 12 V.S.A. § 1036 (comparative negligence), judgment would have been
entered for defendant.

No matter how the claim is labeled, the 402A claim here is essentially
a negligence claim

that defendant did not design the tractor carefully enough or warn
plaintiff reasonably of the dangers. In any products liability
design/warning case, ever since the doctrine was first formulated, the
plaintiff has been required to prove that the product was negligently
designed or negligently warned. Accordingly, it follows that 12 V.S.A. §
1036, our comparative negligence statute, should control. Section 1036
provides in part:

Contributory negligence shall not bar recovery in an action by any
plaintiff, or his legal representative, to recover damages for
negligence resulting in death, personal injury or property damage,
if the negligence was not greater than the causal total negligence
of the defendant or defendants, but the damage shall be diminished
by general verdict in proportion to the amount of negligence
attributed to the plaintiff.

(Emphasis added.)

The plain language of the statute indicates that it applies in an
action to recover damages for negligence. Because plaintiffs' defective
design/warning claim is a negligence claim, § 1036 must therefore apply.
Other courts have similarly applied their comparative negligence statutes
to such claims. See, e.g., Suter v. San Angelo Foundry & Machine Co., 406 A.2d 140, 146-47 (N.J. 1979) (because notion of fault is "inherent in the
concept of strict liability," comparative negligence statute is applicable
to strict products liability actions); Dippel v. Sciano, 155 N.W.2d 55,
64-65 (Wis. 1967) (strict products liability is negligence per se;
therefore, comparative negligence statute applies).

Comparative fault, it seems to me, is the fairest way to resolve the
parties' varying appreciation of the dangerousness of a product. If a
product is obviously dangerous in the sense that a reasonable person would
consider it dangerous (a bowling ball dropped on one's foot, for example),
there should be no liability. For a defendant to be held liable, the risk
should be obscure to the expected user. Graduations in expectations of
risk can be reconciled on a case-by-case basis in comparing the
unreasonably faulty design and less-than-careful use of a product under the
varying circumstances. The doctrine of comparative negligence allows for
such flexibility.

If there were such a thing as true "strict liability" whereby a
manufacturer is liable for injury no matter how carefully the product is
designed and warned for safety, I would agree the comparative negligence
statute should not apply. (I have not as yet come across such a cause of
action in the product design/warning field). When a product is defective
in the sense it did not turn out as it was intended in the manufacturing
process, the manufacturer should be strictly liable for proximate resulting
harm. But that is not this case.

Under § 1036, recovery is barred if a plaintiff's total negligence is
greater than the negligence of the defendant. Applying § 1036 in this
case, I would reverse the jury verdict and enter judgment for defendant
because the evidence showed as a matter of law that Bruce Webb's negligence
was greater than the negligence of defendant due to defective design or
inadequate warnings. Neither the lighting system of the tractor nor the
allegedly inadequate warning against use of the field light on a public
road was a significant cause of the accident. Rather, Webb failed to
maintain the flashing lights, and consequently, could not mind the warning
decal on the tractor to "use flashing warning lights at all times on public
roads." Had the flashing lights worked and been turned on as instructed by
the warning, the field light would not have operated. Any deficiency in the
lighting system of the tractor was exceedingly minor when compared with
plaintiff's failure to keep the flashing lights in working order.
Moreover, plaintiff aggravated the situation further by riding on the draw
bar and blocking view of the reflective slow-moving-vehicle triangle and
the single flashing amber light that may have been working. A reasonable
juror would have to conclude that the major fault and cause for the
accident was attributable to plaintiff.

Accordingly, I would reverse.

_______________________________________
Associate Justice

----------------------------------------------------------------------------
Concurring

No. 93-501

Bruce and Martha Webb Supreme Court

On Appeal from
v. Franklin Superior Court

Navistar International November Term, 1994
Transportation Corporation

Linda Levitt, J.

A. Gregory Rainville of Farrar & Rainville and Michael Rose (On the
Brief), St. Albans, for plaintiffs-appellees

Samuel Hoar, Jr. of Dinse, Erdmann & Clapp, Burlington, and John A.
Rupp and Ann L. Gibson of Coffield Ungaretti & Harris, Chicago, Illinois,
for defendant-appellant

Michael F. Hanley and Barney L. Brannen of Plante, Hanley & Gerety,
P.C., White River Junction, for amicus curiae Kim P. Lussier

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.),
Specially Assigned

PECK, J., concurring in the mandate. I concur, albeit somewhat
reluctantly, in a mandate to reverse and remand for a new trial. I do so
only because the failure of a majority in this case would in all
probability result in an affirmance based solely on a technicality rather
than on the merits of either party on appeal. The retrial, if any, should
use comparative causation principles. While stalemates do occur, I believe
appellate courts should do everything within reason to avoid such results.
Not only do they have an adverse effect on the public confidence in the
courts, they inevitably deny to one of the parties the full benefit of the
judicial

appellate process through no fault of that party.

I agree also with the other concurring opinion that "no reasonable
juror could find Bruce Webb less than fifty-one percent responsible for the
accident." Ante, at 1. However, in view of my own sentiment that judgment
for defendant should be entered here, it becomes unnecessary for me to
explore this further. It is irrelevant to the disposition I would have
preferred.

In my judgment the evidence was insufficient, as a matter of law, for
the jury to find that defendant's tractor was defective or that its
warnings were inadequate. Were I in a position to do so, I would reverse
the verdict for plaintiffs and enter judgment here for defendant. I would
not reach the issues regarding comparative fault.

In my view, there was nothing wrong with the tractor, based on the
evidence at least, as a matter of law. Plaintiffs failed to show any
defect or inadequate warning. Although many farmers may drive their
tractors on public roads, this is not their primary or intended use.
Tractors are not designed for travel on public roads, as are automobiles,
trucks, buses, motorcycles, and the like. Knowing that some consumers may
nonetheless operate tractors on public roads, as for instance between one
farm field and another, defendant affixed a cautionary decal on the tractor
directing operators to "use flashing warning lights at all times on public
roads."

Plaintiff Bruce Webb failed to use the flashing lights when on a
public road. It makes no difference whether plaintiff failed to maintain
the lights or failed to turn them on; failure to use the flashing lights on
the public road was plaintiff's fault, not defendant's. The risk was
obvious and the warning adequate, if necessary at all. No design defect or
failure to warn caused this accident. See Webb v. Navistar Int'l Transp.,
No. 91-384, slip op. at 2 (Vt. July 1, 1992) (Webb I) (unpub. mem.) ("A
product that bears a warning and is safe for its intended purpose if the
warning is followed is not in defective condition."); Restatement (Second)
of Torts § 402A cmt. j (1965) (same). I conclude that the evidence, even
viewed in the light most

favorable to plaintiffs, is insufficient to support plaintiffs' claim.
McGee Constr. Co. v. Neshobe Dev., Inc., 156 Vt. 550, 556, 594 A.2d 415,
418 (1991) (we consider evidence in light most favorable to jury verdict).

___________________________
Associate Justice (Ret.)
Specially Assigned

----------------------------------------------------------------------------
Dissenting

No. 93-501

Bruce and Martha Webb Supreme Court

On Appeal from
v. Franklin Superior Court

Navistar International November Term, 1994
Transportation Corporation

Linda Levitt, J.

A. Gregory Rainville of Farrar & Rainville and Michael Rose (On the
Brief), St. Albans, for plaintiffs-appellees

Samuel Hoar, Jr. of Dinse, Erdmann & Clapp, Burlington, and John A.
Rupp and Ann L. Gibson of Coffield Ungaretti & Harris, Chicago, Illinois,
for defendant-appellant

Michael F. Hanley and Barney L. Brannen of Plante, Hanley & Gerety,
P.C., White River Junction, for amicus curiae Kim P. Lussier

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.),
Specially Assigned

JOHNSON, J., dissenting. Although there are three votes in this
Court for reversal of the judgment below, the differences among the members
of the majority are such that there is no direction to the trial court on
how to proceed. Justice Dooley would remand with instructions to charge
the jury on a theory of "pure" comparison; Justice Morse would remand with
instructions to charge on the theory of comparative negligence (sometimes
characterized as "half or nothing") embodied in 12 V.S.A. § 1036; and
Justice Peck would reverse because no form of comparative negligence was
charged, but without any direction on precisely what or how to compare.
Thus, even though the next unfortunate trial judge will have been told to
apply some form of comparative negligence doctrine, he or she will not know
which of several versions

should be applied, and the use of any of them will inevitably result in
reversal in this Court if another appeal is taken.

To remand this case for a third trial transforms the litigants into
rats in a maze, compelled to run indefinitely between a place called
"trial," where one or the other would prevail, and a place called "appeal,"
where the party prevailing at "trial" would inevitably be defeated. In
other words, unless this case is settled, or one of the parties becomes too
exhausted to continue, the case will proceed indefinitely. The only honest
course is to acknowledge that the Court is stalemated on this issue,
summarily affirm on that basis, and leave the issue for another day or for
resolution by the legislature. Cf. Suhor v. Gusse, 377 So. 2d 1259,
1262-63 (La. Ct. App. 1979) (on rehearing) (where two justices would affirm
jury verdict, two would reverse, and one would remand, judgment is affirmed
for lack of majority to change it). The worst we can do is force these
parties to stay in a litigation maze with no exit.

Justice Dooley's opinion asserts that if I "would accept that
comparative causation has now become the rule in products liability cases
in Vermont, and participate in an implementation design to guide future
cases, the trial judge . . . might know exactly what to do on remand."
Ante, at 2. I disagree. Without concurrence on the details of
implementation, the doctrine of comparative negligence is meaningless,
indeed, nonexistent. It would be as if one were to say that the state
recognizes the doctrine of divorce, when there was no agreement as to what
constituted the grounds therefor. Acceptance of the general concept is by
itself insufficient to let trial judges know what to do. Thus, even if
Justice Gibson and I agreed that some form of comparative negligence should
be applied, there would be no majority position unless the two of us were
also in agreement on what variant of the doctrine to apply, and our
position coincided with that of either Justice Morse or Justice Dooley.(FN1)

Forced to this disposition, I state my views on the substantive
issues.

Justice Dooley and Justice Morse would hold, under varying
circumstances, that when a plaintiff alleges injury caused by a defective
product, the defendant that produced or distributed the product can reduce
or eliminate its liability for damages by showing that the plaintiff's
negligent conduct was a contributing cause of the injury. I believe that
such a holding would take a major step toward abolition of the doctrine of
strict products liability by undermining the principal purpose of the
doctrine -- to promote the manufacture and distribution of safe products. I
see no justification in law, policy, or the facts of this case to extend
the doctrine of comparative fault to strict products liability actions.(FN2)

Notwithstanding assertions to the contrary in Justice Dooley's
opinion, my position is followed by a significant number of jurisdictions.
1 A. Best, Comparative Negligence: Law and Practice § 9.20[6], at 41-42
(1996) (significant number of jurisdictions continue to reject or limit
application of comparative negligence in strict products liability
actions); Annotation, Applicability of Comparative Negligence Doctrine to
Actions Based on Strict Liability in Tort, 9 A.L.R.4th 633, 638-41 (1981)
(reviewing cases in which courts have refused to compare fault); see, e.g.,
Kinard v. Coats Co., 553 P.2d 835, 837 (Colo. Ct. App. 1976)
(better-reasoned position is that comparative negligence has no application
to products liability actions); Lippard v. Houdaille Indus., Inc., 715 S.W.2d 491, 493 (Mo. 1986) (en banc) (refusing to apply comparative fault
principles to products liability actions); Bowling v. Heil Co., 511 N.E.2d 373, 380 (Ohio 1987) (better-reasoned decisions are those that have
declined to inject plaintiff's negligence into law of products liability);
Kimco Dev. Corp. v. Michael D's Carpet Outlets, 637 A.2d 603, 605-06 (Pa.
1993) (agreeing with cited jurisdictions refusing to extend negligence
concepts to

products liability actions).(FN3)

Further, although a majority of jurisdictions compare fault in
products liability actions, that majority is hopelessly divided on when and
what to compare and how to implement the comparison. See M. Roszkowski &
R. Prentice, Reconciling Comparative Negligence and Strict Liability: A
Public Policy Analysis, 33 St. Louis U. L.J. 19, 40-47 (1988) (discussing
various approaches taken by jurisdictions that compare fault in products
liability actions). Some courts compare any and every type of contributory
negligence, other courts compare only contributory negligence that rises to
the level of assumption of risk or unforeseeable misuse, and still others
compare all types of contributory negligence except when the negligence can
be labeled as a failure to discover or guard against the risk posed by the
defective product. See id. at 47; Lippard, 715 S.W.2d at 493 n.2; W.
McNichols, The Relevance of the Plaintiff's Misconduct in Strict Tort
Products Liability, the Advent of Comparative Responsibility, and the
Proposed Restatement (Third) of Torts, 47 Okla. L. Rev. 201, 253-65 (1994).
As I point out below, these attempts to label types of contributory
negligence to determine what conduct may be compared complicate the law and
detract from the principal issues that need to be resolved in products
liability actions. Courts also differ, as we do here, on whether to apply
a "pure" form of comparison, under which all plaintiffs less than 100% at
fault may recover damages to the extent that defendants are at fault, or a
"modified" form of comparison, under which plaintiffs are barred from any
recovery if their negligence is equal to or greater than that of
defendants. McNichols,

supra, at 244-46. Courts that compare are also splintered on what to
compare -- causation, fault, or some other factor. Id. at 246-52.

II.

A closer examination of the facts will be helpful before I detail the
reasoning behind my position against comparing fault in products liability
actions. On a wet, drizzly November night, Bruce Webb was awakened with
the news that some of his cows might be out of the pasture. His father
drove the tractor onto the highway in search of the cows while Bruce Webb
stood on the tractor's draw bar. En route, the tractor was struck in the
rear by a car whose driver was allegedly intoxicated. As a result of the
accident, Bruce Webb was permanently disabled.

The evidence at trial indicated that the manufacturer of the tractor,
Navistar International Transportation Corporation, knew as early as the
1970s that white field lights on tractors were dangerous if used on the
road, and that they were capable of causing precisely the kind of accident
that occurred here -- a rear-end collision. A retired product-performance
engineer for Navistar, John Hassler, testified that it was "general
knowledge" in the company, prior to 1978, that white lights on the back of
tractors could be hazardous if used in road operation. Plaintiffs' expert,
John Sevart, confirmed that it was general knowledge in the industry that
the risk of rear-end collisions between vehicles and tractors on roads
should be considered in designing lighting systems for tractors. Sevart
referred to technical literature from the 1970s detailing numerous safety
studies. Different findings emerged from different studies, but one of the
frequent factors identified in nighttime rear-end collisions was poor
lighting. In Sevart's opinion, there were two problems. First, the speed
differential between cars and tractors caused errors in judging closure
rates, and second, use of single white field lights was confusing to
drivers and caused misidentification of the vehicle ahead.

In sharp contrast, the evidence indicated that Webb, and farmers in
general, were unaware of the danger posed by using the tractor's field
light on the highway at night. Numerous witnesses testified that it was
common practice for experienced farmers to use field lights in such

a manner. Webb too testified at trial that it had not occurred to him that
driving the tractor on the highway at night while using the rear field
light was a hazard. He indicated that while travelling on the highway he
employed both the headlights and the rear field light on the rationale that
more light was better than less light. The owner's manual contained a
warning against using the white field light on the highway. Neither of the
Webbs had read it. It is found on page 55 of the manual, while
instructions for the safe operation of the tractor are found on pages 3 and
4. In a hurry, and oblivious to the danger posed by the field light, Webb
and his father headed down the road looking for their cows with the white
light shining from the rear of the tractor. The driver whose car struck
the tractor testified that he believed the white light mounted on the left
rear bumper was the headlight of an approaching "one-eyed" car. While
defendant argues that the driver was not credible, the jury apparently felt
otherwise.

In sum, the evidence showed that the accident was predictable to the
manufacturer of the defective product, but was not foreseen by the
consumer. Webb's conduct may have been negligent, but if Navistar failed
to provide adequate warnings of the tractor's dangerous features, it is my
view that Webb's ordinary negligence should not lessen the liability of
Navistar, which was in a better position to avoid the harm.

III.

The principal argument for comparing plaintiffs' negligence in
products liability actions is couched in terms of fairness. It is fairer
to compare, so the argument goes, because the comparison avoids imposing
upon manufacturers and careful consumers the costs caused by negligent
consumers. But the real issue is whether a higher value should be placed
on the deterrence of product defects than is placed on laying the correct
amount of blame on the particular actors involved in an accident that was
statistically predictable. When this Court adopted the doctrine of strict
liability for defective products more than twenty-one years ago, see
Zaleskie v. Joyce, 133 Vt. 150, 155, 333 A.2d 110, 114 (1975), it chose
deterrence over fault. Neither defendant nor the amicus manufacturers'
association has cited any occurrence in the last

twenty years that has rendered that judgment obsolete.

The ultimate goal of the doctrine of strict products liability is to
protect consumers from unsafe products. See Smith v. Smith, 278 N.W.2d 155, 160 (S.D. 1979) (principal purpose behind strict products liability is
to protect public). The doctrine's most direct means of achieving that
goal is to relieve plaintiffs of proving that the defendant was negligent
or that there was privity of contract between the parties. Relieving
plaintiffs of this burden of proof focuses products liability cases on the
product rather than on the conduct of the parties. In contrast, allowing
an allocation of damages based on the plaintiff's conduct will have the
opposite effect. Because imperfect user behavior is a common, indeed an
inevitable, contributor to most product-related accidents, every products
liability case hereafter will center around the behavior of the parties.
See Daly v. General Motors Corp., 575 P.2d 1162, 1183 (Cal. 1978) (Mosk, J.
dissenting) ("We can be as certain as tomorrow's daylight that every
defendant charged with marketing a defective product will hereafter assert
that the injured plaintiff did something, anything, that conceivably could
be deemed contributorily negligent."). Defendants will emphasize the
plaintiff's fault in the hopes of reducing their liability.(FN4)
Consequently, the plaintiff's conduct will be elevated while the defect is
downplayed, forcing the plaintiff to prove, once again, that the defendant
was negligent to counterbalance the defendant's allegations of fault. 1
Best, supra § 9.30[5][b], at 71; Roszkowski & Prentice, supra, at 51-52.

Some courts have reasoned that comparing negligence does not greatly
affect the incentive to produce safe products because a manufacturer's
liability is reduced only to the extent that the trier of fact finds that
the user's conduct contributed to the injury, and manufacturers are not
able

to predict in any given case whether contributory negligence will reduce
the plaintiff's judgment. E.g., Daly, 575 P.2d at 1169. This reasoning
does not hold up under scrutiny.

Although manufacturers may not be able to anticipate careless behavior
in any given case, they know with virtual certainty that a product will
cause a calculable number of accidents, and they will often be able to
predict the extent of plaintiffs' negligence by evaluating accidents on a
statistical basis. H. Latin, The Preliminary Draft of a Proposed
Restatement (Third) of Torts: Products Liability -- Letter, 15 J. Prod. &
Tox. Liab. 169, 179 (1993); D. Sobelsohn, Comparing Fault, 60 Ind. L.J.
413, 438 (1985). From their calculations, manufacturers can approximate
the total liability exposure that those accidents will create, and will
then incur increased production costs for safety features only when it
makes economic sense to do so. In this way, "the effect of reductions in
liability costs as a result of comparative apportionment can make a major
difference on the manufacturer's marginal investments in safety." Latin,
supra, at 179.

To the extent that product liability would be reduced by comparing
plaintiffs' negligence, the incentive to produce safe products would also
be reduced. Sobelsohn, supra, at 438; see Daly, 575 P.2d at 1186 (Mosk,
J., dissenting) (motivation to avoid producing defective products increases
in direct relation to size of potential damage award); M. Davis, Individual
and Institutional Responsibility: A Vision for Comparative Fault in
Products Liability, 39 Vill. L. Rev. 281, 344 (1994) (if manufacturers need
only compensate those injured during careful use, losses resulting from
defective product will never be fully considered in evaluating needed
investment in safety). For example, if a particular feature of a product
results in accidents costing $1 million, and redesign of the product to
eliminate the dangerous feature would cost $900,000, the manufacturer would
not have any incentive to redesign the product if the manufacturer could
predict that a certain percentage of consumers would negligently contribute
to their injuries while using the product, thereby making it cheaper for
the manufacturer to pay tort claims rather than redesign the defective
product. Sobelsohn, supra, at 438.

We can be certain that, based on statistical accident data and
marketing analyses,

manufacturers make conscious, calculated choices regarding the safety of
their products, choices that are affected by legal principles. If the law
provides an economic incentive for a manufacturer to add safety features to
a particular product, thousands of people may be spared injury. If, on the
other hand, reduced tort damages from comparing plaintiffs' negligence
convinces a manufacturer that it would not make economic sense to add
safety features to its product, many consumers, including careful ones, may
later be injured by the defective product. Assuming that they are able to
fend off a defendant's claims of comparative negligence, those careful
consumers may obtain full monetary damages, but at the expense of their
health or even their lives. This is not a fair result.

Further, applying comparative fault principles in products liability
actions cannot be expected to have a deterrent effect on plaintiffs'
negligence, any more than allowing plaintiffs full recovery for damages
caused by defective products would encourage people to be more negligent.
Latin, supra, at 179 ("[T]here is no reason to think the prospect of
apportionment of damages will have any appreciable effect on the degree of
care users exercise."); see Sobelsohn, supra, at 440 (considering that risk
of injury rests on many contingencies, and that victim is probably covered
by insurance and knows next to nothing about tort law, there is room for
skepticism that adoption of comparative fault will induce consumers to
handle products with greater care). People already have powerful,
inherent, nonlegal incentives to avoid injuries, such as fear of pain and
death. If the threat of injury or death does not deter carelessness, a
change in the doctrine of strict liability certainly will not.

But there is another important reason why I am persuaded that it is
unfair to use comparative principles in strict liability cases. The
victim's negligence may be the result of a moment's inattention to some
detail, carelessness in a time of crisis, or miscalculation as to the
danger involved in using a product a certain way. These types of ordinary
negligence, to which all of us fall prey at times, cannot be regarded as
equivalent to the manufacturer's responsibility to design safe products and
warn the public of dangers that accompany use of their products.

See Davis, supra, at 348-50 (careless conduct not grounded on voluntary
assumption of known risk should not be compared to manufacturer's failed
responsibility to design safe product or adequately inform user of
product's defects).

This is where the superficial appeal to fairness falls apart. As a
general proposition, we can all agree that each person should bear
responsibility for his or her own conduct. It is for this reason that
comparative negligence has been accepted as fair in other contexts. But
the doctrine of comparative negligence arose in cases where the fault of
the parties was of a similar order -- carelessness versus carelessness. In
strict products liability cases, however, we have fault of very different
kinds. The garden-variety carelessness that may contribute to an injury in
the use of a product is simply not of the same magnitude as the design,
manufacture and release into commerce of a dangerously defective product or
a product whose dangers are hidden by inadequate warnings. It is not fair,
therefore, to treat the two as equivalent.

In an effort to strengthen the argument that comparing plaintiffs'
negligence is somehow fairer, Justice Dooley's opinion repeatedly labels
current products liability law under the Restatement (Second) of Torts §
402A as the "all or nothing" approach. Under this approach, plaintiffs'
contributory negligence generally cannot be compared with the product
defect to apportion liability, but "assumption of risk" provides a complete
defense. Because Justice Dooley believes that triers of fact will find it
difficult to distinguish assumption-of-risk conduct from ordinary
contributory negligence, he concludes that some plaintiffs who should be
barred from recovery will actually obtain a windfall, while others who are
only contributorily negligent may be unfairly deprived of any recovery.
According to Justice Dooley, comparing negligence is fairer because there
is no need to draw "shadowy lines" between assumption of risk and
contributory negligence if all defenses constitute a basis for apportioning
liability.

I find these arguments unpersuasive for two reasons. First, the
assumption-of-risk defense has not proved to be an unfair obstacle to
consumer recovery. See generally 1 Best, supra, at § 9.40[3][a], at 81-82.
(stating elements of assumption-of-risk defense and citing cases in which

defense has been rejected). Assumption of risk applies in very limited
circumstances in which the consumer's knowledge or conduct has placed him
in a position of equality with the manufacturer. The plaintiff must
voluntarily encounter the risk despite being subjectively aware of the
existence of the risk and appreciating the extent of the danger. Id.

Plaintiffs who voluntarily assume a known risk should, in my judgment,
be barred from recovery. Limiting the assumption-of-risk defense tends to
penalize legitimate commercial interests unfairly rather than promote
fairness to consumers. Justice Dooley's opinion proclaims that comparing
conduct amounting to a voluntary assumption of a known risk benefits
consumers, but it undermines the doctrine of strict liability, which
provides a powerful incentive for manufacturers and vendors to create and
purvey only those products that are safe for everyone. In short, the
majority imagines a problem negatively affecting consumers and then creates
a cure far worse than the "problem" it seeks to rectify.

Second, while it may not always be easy to distinguish assumption of
risk from ordinary contributory negligence, the subjective component of
assumption of risk makes the defense qualitatively distinct from other
forms of contributory negligence. See id. (plaintiff must voluntarily
encounter risk despite being subjectively aware of existence of risk and
appreciating extent of danger; many courts distinguish assumption of risk
from contributory negligence on point that only assumption of risk involves
application of subjective standard to plaintiff's conduct); see also Zahrte
v. Sturm, Ruger & Co., 661 P.2d 17, 18 (Mont. 1983) (subjective element of
assumption of risk makes it distinct from contributory negligence);
Roszkowski & Prentice, supra, at 82 n.306 (requirements of subjective
knowledge and appreciation, plus voluntary action, render assumption of
risk qualitatively different from mere plaintiff carelessness). Thus,
courts and fact finders are able to distinguish between assumption of risk
and contributory negligence under the § 402A approach.

On the other hand, Justice Dooley's approach would require much more
difficult line-drawing. Apparently, his approach would require that the
trial court instruct the jury that

plaintiffs' damages could be reduced based on Webb's contributory
negligence in riding on the draw bar, but not based on Webb's negligence in
failing to use or maintain the tractor's taillights and flashing lights,
because Webb may have maintained those lights had he been adequately warned
of the danger of using the field light on the highway at night. This
suggested direction to the trial court demonstrates the difficulty in
drawing lines to determine when the plaintiff's contributory negligence may
be compared to reduce damages in strict products liability actions. Here,
had defendant adequately apprised Webb of the danger of depending on the
field light while traveling on the highway at night, Webb not only may have
maintained and used the tractor's reflectors and flashing lights, but he
then may also have been careful, in the absence of the field light, not to
ride on the tractor in a manner that would obstruct the reflectors and
flashing lights. In short, all of Webb's alleged negligent conduct could
be characterized as a failure to discover or guard against the defect, or
as resulting from defendant's failure to adequately warn him of the
tractor's dangers. See 1 Best, supra § 9.40[5][a], at 100 (phrase "failure
to discover a defect or to guard against its existence" could arguably
cover virtually any plaintiff conduct that led to product-related
injuries); Roszkowski & Prentice, supra, at 67 (distinguishing "failure to
discover or guard against" negligence from other forms of contributory
negligence is difficult task).

I believe that the trial court should not be required to draw lines
among types of contributory negligence or to allow the jury to apportion
damages by comparing the plaintiff's conduct with the product defect. This
does not mean that defendants cannot present evidence of plaintiffs'
alleged negligent conduct, as was done in the two previous trials in the
instant case, to demonstrate that the defect, if it existed at all, was not
a proximate cause of the accident. See Kinard, 553 P.2d at 837-38, Correia
v. Firestone Tire & Rubber Co., 446 N.E.2d 1033, 1040 (Mass. 1983);
Lippard, 715 S.W.2d at 493; Kirkland v. General Motors Corp., 521 P.2d 1353, 1366 (Okla. 1974).

In sum, (1) manufacturers have the opportunity to make calculated,
informed choices

concerning product safety; (2) economic factors and legal principles drive
their decisions; (3) those decisions can affect the health and safety of
thousands or even millions of people; and (4) enterprises can more easily
absorb and equitably pass on to the public the costs of defective products
as part of doing business. On the other hand, (1) consumers lack the
expertise and information about products possessed by manufacturers; (2)
liability law provides no incentive for them to be more careful; (3) their
contributory negligence is foreseeable, such that its costs can be
equitably spread among all product users; and (4) most importantly, their
negligence is simply not equivalent in kind to the act of designing and
manufacturing a defective product. For these reasons, there is nothing
unfair about imposing full liability on a manufacturer who places in the
stream of commerce a defective product that is a proximate cause of the
plaintiff's injuries, even if the plaintiff's negligence contributed to
those injuries. Products should be designed to protect not only ideal
consumers, but also careless, illiterate, ignorant, and inattentive ones as
well. See Daly, 575 P.2d at 1183 (Mosk, J., dissenting) (defective
products are comparable to time bombs that maim their victims
indiscriminately, whether righteous or evil, careful or careless; thus,
litigation involving defective products should not be diverted to
consideration of plaintiff's negligence).

IV.

Finally, this case illustrates why purported moves toward tort
"reform" must be examined critically. For the first half and more of this
century, one of the major trends in the development of tort law was toward
equitable sharing of the costs that are inevitable by-products of modern
society. Injecting principles of comparative negligence into strict
products liability actions is a regrettable departure from that trend.
What in my view is an overly simplistic attempt to achieve fairness has in
fact illegitimately advanced the interests of a small segment of society
over the interests of the whole. See Davis, supra, at 342-44; J. Vargo,
The Emperor's New Clothes: The American Law Institute Adorns a "New Cloth"
for Section 402A Products Liability Design Defects -- A Survey of the
States Reveals a Different Weave, 26 U. Mem. L. Rev. 493, 509-10,

515 (1996); . See generally A Symposium on the ALI's Proposed Restatement
(Third) of Torts: Products Liability, 61 Tenn. L. Rev. 1043 (1994).

I would affirm the judgment below. I am authorized to say that
Justice Gibson joins in my opinion.

_________________________________
Associate Justice

----------------------------------------------------------------------------
Footnotes

FN1. Of course, the dissenters are under no compulsion to concur, either on
the general doctrine or on any of its many variations. This is a case of
first impression in this Court. We are not, therefore, bound by principles
of stare decisis here.

FN2. For the reasons stated by Justice Dooley, I oppose Justice Morse's
position, which would unabashedly return strict products liability actions
to the realm of negligence law, at least with respect to warning/design
cases.

FN3. Justice Dooley points out that the tentative draft of the Restatement
(Third) of Torts provides for apportioning liability between the plaintiff
and the manufacturer or seller. See Restatement (Third) of Torts: Products
Liability § 7 (Tentative Draft No. 1, 1994). These changes have been
roundly criticized, however. See generally A Symposium on the ALI's
Proposed Restatement (Third) of Torts: Products Liability, 61 Tenn. L. Rev.
1043 (1994) (collection of twelve articles written in response to proposed
changes in § 402A); M. Davis, Individual and Institutional Responsibility:
A Vision for Comparative Fault in Products Liability, 39 Vill. L. Rev. 281,
342-44 (1994); H. Latin, The Preliminary Draft of a Proposed Restatement
(Third) of Torts: Products Liability -- Letter, 15 J. Prod. & Tox. Liab.
169, 179-82 (1993).

FN4. Because of the increased emphasis on the element of fault, the jury
may give unwarranted weight to the plaintiff's "fault" when comparing it to
the defendant's "no-fault" conduct. Roszkowski & Prentice, supra, at
51-52; see Daly v. General Motors Corp., 575 P.2d 1162, 1183 (Cal. 1978)
(Mosk, J., dissenting) (however delicately described, comparing plaintiff's
negligence in products liability cases elevates conduct of injured consumer
to issue of equal significance with product defect).

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