Lippard v. Houdaille Industries, Inc.

715 S.W.2d 491, 1986 Mo. LEXIS 322

• Court: Supreme Court of Missouri
• Decided: August 1, 1986
• Docket: 67802
• Status: Published

Opinions

BLACKMAR, Judge.

In this case of first impression with us we are called upon to decide whether the comparative fault principles of Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983) apply to strict products liability cases. After considering thorough briefs, excellent oral argument, cases from other jurisdictions, and scholarly writings, we conclude that comparative fault should not be applied in cases of this kind.

The facts are simple. The plaintiff had the duty of operating a planing machine in the course of his employment. The blades of the machine were protected by a metal guard which was designed to close after the board being planed had cleared the cutterhead. A board slipped out of the plaintiffs hand and he reached down to catch it as it fell. The guard plate had not covered the blades as it should have and his hand engaged the blades, resulting in the loss of two fingers and severe laceration of others.

The plaintiff brought suit on two strict liability theories, alleging both that the planing machine was defective and unreasonably dangerous and that inadequate warning of the danger had been given. The defendant sought and obtained an instruction directing the jury to assess a percentage of fault against the plaintiff if it found that his negligence had contributed to his injury. The jury determined that the plaintiff had been damaged in the amount of $75,000.00, and that each party was 50% at fault. The trial court therefore entered judgment for the plaintiff in the amount of $37,500.00. The plaintiff appealed. The Court of Appeals affirmed, accompanying its decision with eloquent and well reasoned opinions finding that comparative fault should be applied in products liability cases. Because we disagree with the trial court and the Court of Appeals on this issue, we reverse and remand with directions to enter judgment for the full amount of plaintiffs damages as determined by the jury.

Missouri products liability law has its origin in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo. banc 1969). This case followed the lead of Restatement (Second) of Torts, § 402 A, which states emphatically that liability may be found if a person is injured by a defective product unreasonably dangerous, even though the manufacturer or supplier has taken all possible precautions. Id. Sec. 402(a)(2). Missouri courts have consistently applied this principle in a line of authority culminating in Elmore v. Owens-Illinois Glass Co., Inc., 673 S.W.2d 434 (Mo. banc 1984) in which we held that a manufacturer could be liable for a defective product, even though the state of the art at the time of manufacture or sale was such that the defective character could not have been known. The purpose of products liability law, essentially, is to socialize the losses caused by defective products.

Inasmuch as negligence is not an element of a products liability case, Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977), we have consistently held that the claimant’s contributory negligence does not operate as a bar to recovery. Keener, supra at 365; see also Uder v. Missouri Farmers Association, Incorporated, 668 S.W.2d 82 (Mo.App.1983).

Gustafson v. Benda, supra, introduced the concept of comparative fault into Missouri negligence law. This opinion abolished contributory negligence as a bar to the plaintiffs recovery in negligence cases, and also abolished the humanitarian doctrine and the doctrine of last clear chance as expedients through which a plaintiff who is negligent in some degree may sometimes recover. The case substituted a rule under which the jury may assign a percentage of fault to the plaintiff and to all defendants. The plaintiffs recovery is then reduced by such percentage of fault, if any, as the jury may find to be attributable to him or her.

Gustafson v. Benda began as a humanitarian case. It involved only negligence concepts, and could not be an appropriate vehicle for determining rules of products liability law. This Court, in the common law tradition, decides only the case before it. A holding that comparative fault applies to products liability cases, then, must go beyond Gustafson.

There has been confusion because annotated sections of the Uniform Comparative Fault Act were appended to the Gustafson opinion, as a guide to proceedings in comparative fault cases. It was not the purpose of Gustafson to enact that model act as a virtual statute of the state of Missouri, to establish substantive principles controlling cases not then before the Court. Much less was there any purpose of giving special authority to the annotations and commissioners’ comments. The direction in the opinion was simply to apply the procedures of the Uniform Comparative Fault Act “insofar as possible.” The uniform act, for example, commits us to “pure” comparative fault in negligence cases, rather than to a system in which the plaintiff recovers nothing if his or her fault exceeds the defendants’. But the Act does not give authentic guidance in solving the case now before us.¹

The respondent argues eloquently, however, that the rule of comparative fault is a fair one in products liability cases just as in negligence cases, that it gives product users a motive for being more careful, and that it states a good rule for decision. Authorities in other states are divided on the point.² We therefore make the choice for ourselves, based on our doctrines of products liability, as expounded in our numerous cases.

We conclude that there should be no change in the Missouri common law rule, as established in the Keener opinion (l.c. 365), that the plaintiff’s contributory negligence is not at issue in a products liability case. It should neither defeat nor diminish recovery. The defendant may sometimes make use of the plaintiff’s alleged carelessness in support of arguments that the product is not unreasonably dangerous, or that the alleged defects in a product did not cause the injury, but these are traversing claims not appropriate for instruction. If the defective product is a legal cause of injury, then even a negligent plaintiff should be able to recover.

Contrary to what is said in Judge Don-nelly’s dissent, this opinion does not eliminate the giving of MAI 32.23 in an appropriate case. It is true that the defendant requested two instructions based on MAI 32.23 and directing the jury to assess a “percentage of fault” against the plaintiff if it found that he voluntarily and unreasonably exposed himself to a known danger. The trial judge refused these instructions and the defendant does not argue for them on appeal, even conditionally. We perceive no evidence that the plaintiff knew that the guard had failed to close. The defendant’s basic claim, rather, was that he had “failed to look where he had placed his right hand.” Thus, it appears that instructions in the 32.23 pattern are not supported by the evidence in the record, and were properly refused.

Reference has been made to situations in which defendants have been held to share liability on the basis of percentages determined by the jury, in cases in which some defendants were held liable on a negligence theory and others by reason of strict products liability. In this case there is only one defendant and the conclusions here expressed have nothing to do with sharing of liability by defendants under principles first enunciated in Missouri Pacific Railroad Company v. Whitehead & Kales Company, 566 S.W.2d 466 (Mo. banc 1978).³

If there is dissatisfaction with our conclusion, the state and national legislatures may be addressed.⁴ A legislature is far more capable than we are of determining whether there are problems in the products liability area, requiring changes in the law. We adhere to the view that distributors of “defective products unreasonably dangerous” should pay damages for injuries caused by the products, without reduction because a plaintiff may have been guilty of a degree of carelessness. The fact that some recoveries may be reduced is not a ' sufficient reason for changing the underlying principles of our products liability law.

Plaintiff sought to introduce testimony about his desire to become an architect and how the injuries caused by the accident prevented him from performing architectural tasks. The defendant objected to testimony on these points and the objections were sustained. Plaintiff made offers of proof indicating that (1) he would have testified that he wished to become an architect and that his employer would have sent him to architectural school, and (2) his doctor had advised him not to become an architect because his hand wasn’t strong enough for the job. At the time of the accident, the defendant was not an architect and had not trained to become one. Any evidence concerning his loss of future earnings as an architect would have been speculative and its exclusion was not error. Thienes v. Harlin Fruit Company, 499 S.W.2d 223 (Mo.App.1973).

The verdict, in spite of the errors in submission, provides a sufficient basis for calculating the plaintiff’s damages on a proper legal theory. Cf. Hudson v. Carr, 668 S.W.2d 68 (Mo. banc 1984). The judgment is reversed and the cause is remanded with directions to enter judgment for the plaintiff for the full amount of damage determined by the jury.

HIGGINS, C.J., concurs. BILLINGS and RENDLEN, JJ„ concur in separate opinions filed. ROBERTSON, J., concurs in result in separate opinion filed. DONNELLY and WELLIVER, JJ., dissent in separate opinions filed.

1 . We note the opinion of Circuit Judge Arnold in Gearhart v. Uniden Corporation of America, 781 F.2d 147 (8th Cir.1986), in which he performs his required duty of "predicting” what our Court might do if asked to apply comparative fault concepts to a products liability case. His prediction is understandable, by reason of the appendix to our Gustafson opinion, but he gives the appendix a substantive effect which goes beyond the issues in that case, and which we do not now choose to give to it.

2 . As revealed by the briefs, oral argument, and independent research, there appear to be four approaches to this problem. It must be noted that, in each state, the decision of which approach to take has been influenced by that particular state’s statutes or common law relating to strict liability and comparative fault. Thus, these cases have limited value for assisting us in making a decision based on Missouri law.

The Court of Appeals espoused the viewpoint of the California Supreme Court in Daly v. General Motors Corporation, 20 Cal.3d 725, 144 Cal. Rptr. 575 P.2d 1162 (1978), in which the California court found that comparative fault should be applied in all strict liability cases, with no limitations based on the level of the plaintiff’s culpability. The Hawaii Supreme Court has also adopted this approach, Kaneko v. Hilo Coast Processing, 65 Hawaii 447, 654 P.2d 343 (1982).

In contrast, some courts have refused to apply comparative fault principles in strict liability cases. E.g. Kinard v. Coats Company, Inc., 37 Colo.App. 555, 553 P.2d 835 (1976) (legislatively altered by Colo.Rev.Stat. § 13-21-406 (1985 Supp.)); Seay v. Chrysler Corp., 93 Wash.2d 319, 609 P.2d 1382 (1980).

Other jurisdictions have taken two intermediate viewpoints: 1) Comparative fault principles should be applied in those cases where the plaintiffs culpability would have amounted to a defense under prior strict liability law. E.g. Austin v. Raybestos-Manhattan, Inc., 471 A.2d 280 (Me.1984) (only in assumption of risk situations); Suter v. San Angelo Foundry and Mach. Co., 406 A.2d 140, 81 N.J. 150 (1978) (in any situation where contributory negligence would have been a defense to a strict liability action). 2) Comparative fault principles should be applied in cases involving any level of plaintiff culpability, including negligence, except where plaintiffs negligence consisted solely of a failure to guard against or discover the defect which caused the injury. E.g. Busch v. Busch Const., Inc., 262 N.W.2d 377 (Minn.1977); Duncan v. Cessna Aircraft, 665 S.W.2d 414 (Tex. 1984).

3 . Many plaintiffs combine allegations of strict liability against one defendant with allegations of negligence against another defendant in their initial petition. Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th Cir.1981). See also Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. banc 1986) (case submitted to jury only on strict liability allegations).

4 . See, e.g., Colo.Rev.Stat. § 13-21-406 (1985 Supp.).