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August 1, 1986


Appeal from the Circuit Court of the City of St. Louis, The Honorable Richard J. Mehan, Judge.

Motion for Rehearing Denied September 16, 1986.

Higgins, C.j., Billings, Rendlen, Robertson, Donnelly and Welliver, JJ.

The opinion of the court was delivered by: Blackmar


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 plaintiff's 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 plaintiff's 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 plaintiff's 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 plaintiff's 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. *fn1

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. *fn2 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 (1.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 products is a legal cause of injury, then even a negligent plaintiff should be able to recover.

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. 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). *fn3

If there is dissatisfaction with our Conclusion, the state and national legislatures may be addressed. *fn4 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, J., concurs in separate opinion filed; Rendley, J., concurs in separate opinion filed; Robertson, J., concurs in result in separate opinion filed; Donnelly, J., Dissents in separate opinion filed; Welliver, J., Dissents in separate opinion filed.



I concur. I write only to quote the wisdom of Dean Pound:

The opinions of the Judge of the highest court of a state are no place for intemperate denunciation of the Judge's colleagues, violent invective, attributings of bad motives to the majority of the court, and insinuations of incompetence, negligence, prejudice, or obtuseness of fellow members of the court.

Constitutions and Justice according to law are today under attack throughout the world . . . . Maintenance of our characteristic American constitutional-legal polity demands that the courts hold, as they have held in the past, the respect and confidence of the public. What amounts to attacks upon our courts from within, however well intentioned and motivated . . . are highly unfortunate . . . .

Roscoe Pound, Cacoethes Dissentiendi: The Heated Judicial Dissent, 39 Amer. B. Assn. J. 794 (1953).



I concur in the well-reasoned opinion of Judge Blackmar and write to address the Dissent of Welliver, J. Today in sonorous tones he pretends to mourn the "covert overruling" of Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). While there are many who would not long grieve if that case experienced an early demise, the principal opinion sounds not the death knell of Gustafson, instead the bell tolls only for Welliver, J.'s failed attempt in Gustafson to rule questions not then before us.

As Judge Blackmar's principal opinion and the Concurring opinion of Robertson, J., aptly demonstrate, Gustafson introduced comparative fault into Missouri negligence law, but it did not and could not have determined the applicability of comparative fault to strict products liability cases. Welliver, J., in characterizing Gustafson as dispositive, unabashedly proclaims that in Gustafson we ruled issues not then before us. Such a grab for general legislative power on behalf of the judiciary was not then and should not now be countenanced, and yet Welliver, J., insists that the Court indulged such practice. At the time of our holding in Gustafson it was all too obvious that the current question as well as innumerable others remained to be decided, and this was recognized in the statement that "ittle imagination is required to envision the volume of litigation and endless appeals required to return a semblance of stability to our tort law." Id. at 29 (Rendlen, J., Dissenting).

Prior to the adoption of comparative fault in Gustafson, contributory negligence was not a defense to strict liability. Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 365 (Mo. 1969). Consistent with Keener, we now hold that comparative fault, the doctrine that supplanted contributory negligence, is similarly inapplicable to strict liability. Welliver, J., fails to explicate why we now should ignore the obvious implication of Keener.

The facts before us constitute a textbook example of the unsuitability of comparative fault to products liability. Plaintiff's alleged "fault" consisted of placing his hand too close to the malfunctioning cutterhead guard. Yet plaintiff's complacency can be directly attributed to the previously proper functioning of the guard and his expectation that it would continue to function properly.

If plaintiff is involved in negligent activity while either using or misusing the product, it may be that we ought to demand that the product be designed and marketed so that the particular offensive use will either be precluded or mitigated by some design parameter of the product. If this is the desideratum of the law, then it becomes very questionable whether plaintiffs should have their verdicts reduced when the very aspect which made the product dangerous and defective in the first instance has resulted in the very harm which one could expect from the defective design.

Twerski, From Defect to Cause to Comparative Fault -- Rethinking Some Product Liability Concepts, 60 Marq. L. Rev. 297, 343 (1977).

Welliver, J.'s endeavor to pen an epical tragedy would afford his readers a weak measure of comedy were it not for the seriousness of the law. Unfortunately he mistakes the judicial opinion as a platform from which to deliver a harangue and to compile a catalog of those decisions with which he disagrees, accompanied by a peevish assault upon his brethren. By misappropriating the litigants' cause for use as a private rostrum, the Dissent sadly demeans the office of the judiciary. This unfortunate exercise in self-aggrandizement and tasteless satire mocks an important issue and belittles the litigation and the litigants.

I was not among those in 1983 who saw fit to adopt Gustafson, but it remains viable today and the dark tragedy invented by the Dissent becomes what it is, a thinly veiled pretense for misdirected invective. The work of this Court which Welliver, J., seeks to disparage will be measured not by his unusual personal standard but against the test suggested by the honorable Justice Holmes: "he best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., Dissenting).



We have come full circle. In doing so, we prove the truth that the fruit of judicial trespass into areas properly reserved to the legislative branch of government *fn1 is not a blessing, but a curse.

From 1975 to 1983, this Court resisted the temptation to replace contributory negligence with the doctrine of comparative fault by an exercise of judicial will. Anderson v. Cahill, 528 S.W.2d 742 (Mo. banc 1975); Epple v. Western Auto Supply Co., 557 S.W.2d 253 (Mo. banc 1977); Steinman v. Strobal, 589 S.W.2d 293 (Mo. banc 1979).

e have concluded not to adopt any form of comparative negligence at this time. The subject is complex and takes a variety of forms in the several states where it is in use. The fact that conversion to such a new system involves many policy decisions may be the reason why most states which have adopted the doctrine in some form, have done so by legislative action . . . . The issue seems suited for legislative action.

Epple, supra, at 254.

To adopt comparative negligence without undertaking a systematic treatment of this multitude of related issues would be to place the bar on a violent and stormy sea of uncertainty and frustration that would make the post-Whitehead and Kales era seem a serene and placid mountain lake in comparison. Any single opinion that would attempt to deal with all of these issues could only result in a giant legislative enactment by judicial fiat.

Steinman, supra at 294 (Welliver, J. Concurring).

By 1983, however, the temptation proved too powerful to resist, given the apparent agreement among five members of this Court as to this Court's authority to impose some form of comparative fault in the face of the legislature's affirmative refusal to do so, the form of comparative fault to adopt and the wisdom of exercising that authority. In his opinion for the Court in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), Judge Welliver attempted to resolve the dilemma posed in his Concurring opinion in Steinman by embracing model legislation -- the Uniform Comparative Fault Act.

But for three words, "insofar as possible", Gustafson at 15, this Court might have attained the systematic, all-inclusive solution which Judge Welliver considered essential to the adoption of comparative fault in his Steinman concurrence. It is by now obvious, however, that "insofar as possible" is the critical phrase in Gustafson. One could hardly foresee that the phrase "insofar as possible" in Gustafson could hold such diverse meanings for the members of the Gustafson Court who embraced it. The great ad hominem verbal battle which is now joined in this case -- which produce far more sound than light -- finds its genesis in those words.

In an age of judicial trespass, what is "possible" for a court can scarcely be predicted. The Gustafson majority had, after all, presumed both to define its power to do what the legislature would not and to resolve in a single case all of the potential questions raised by the adoption of comparative fault. *fn2 Nevertheless, the language "insofar as possible" betrays an ambiguity even as to the Gustafson majority's concept of the scope of their holding. That ambiguity is not limited to the issues before us in this case.

A fundamental principle remains. The all-inclusive, systematic treatment of the comparative fault issue for which Judge Welliver called in Steinman is essential if we are to avoid chaos in the law. As this case and Gustafson conclusively prove, however, an all-inclusive, systematic judicial solution is neither appropriate nor possible. It is not appropriate because it is the inherent function of the court to confine its judgment to the questions actually before it. It is not possible because of "the inability to find agreement among . . . my brothers of this court as to the exact form [and scope] of 'comparative negligence' best suited to our social and economic needs . . . ." Id. at 294 (Welliver, J. Concurring).

Broad policy issues are the legislature's business. The question of comparative fault is, and has always been, one for the General Assembly.

Principles of stare decisis, at least as they apply in matters of common law, dictate that Gustafson not be overruled. Consistent with my view that comparative fault is a legislative question, however, I would not extend the scope of comparative fault beyond the unambiguous teachings of Gustafson. Because Gustafson does not address the applicability of comparative fault to products liability actions without ambiguity, I am able to do more than concur in the result reached in the principal opinion.



Today, the Court rejects the concept of comparative fault and permits "plaintiff's own conduct * * * to escape unexamined, and as to that share of plaintiff's damages which flows from his own fault * * * [holds that] * * * it should * * * be borne by others." Daly v. General Motors Corporation, 144 Cal. Rptr. 380, 575 P.2d 1162, 1169 (1978).

This comes as no surprise. In early 1983 it was apparent that fault was targeted for elimination as a component in the tort equation. *fn1 This is unfortunate. In my view, the Court distorts the judicial process when it gives to one what belongs to another.

In Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo. 1969), this Court "recognized the need to allow injured consumers or remote parties the ability to sue suppliers, sellers or manufacturers absent the technical requirements of privity in a contract action or without the need to prove negligence in a tort action." Sharp Brothers Contracting Company v. American Hoist & Derrick Company, 703 S.W.2d 901, 903 (Mo. banc 1986) (Welliver, J., Concurring). In Keener, the Court adopted the rule of strict liability in tort stated in 2 Restatement, Law of Torts, Second, § 402A.

In Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977), the Court expanded the Keener holding to include design defects.

In Elmore v. Owens-Illinois Glass Co., Inc., 673 S.W.2d 434 (Mo. banc 1984), the Court effectually excised the words "unreasonably dangerous" from the Keener model.

In Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. banc 1986), the Court effectually excised the words "use reasonably anticipated" from the Keener model.

The changes wrought can be illustrated by their practical effect on our Missouri Approved Jury Instructions.

The holding in Keener required the giving of MAI 25.04, which reads as follows:

Your verdict must be for plaintiff if you believe:

First, defendant sold the (describe product) in the course of defendant's business, and

Second, the (describe product) was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and

Third, the (describe product) was used in a manner reasonably anticipated, and

Fourth, plaintiff was damaged as a direct result of such defective condition as existed when the (describe product) was sold.

* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number (here insert number of affirmative defense instruction)].

The holding in Keener also required the giving of MAI 32.23, which reads as follows:

Your verdict must be for defendant if you believe:

First, when the (describe product) was used, plaintiff knew of the danger as submitted in Instruction Number [and ] and appreciated the danger of its use, and

Second, plaintiff voluntarily and unreasonably exposed himself to such danger, and

Third, such conduct directly caused or directly contributed to cause any damage plaintiff may have sustained.

The holding in Elmore required that MAI 25.04 be modified to read as follows:

Your verdict must be for plaintiff if you believe:

First, defendant sold the (describe product) in the course of defendant's business, and

Second, the (describe product) was then in a defective condition * * * when put to a reasonably anticipated use, and

Third, the (describe product) was used in a manner reasonably anticipated, and

Fourth, plaintiff was damages as a direct result of such defective condition as existed when the (describe product) was sold.

* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number (here insert number of ...

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