Butaud v. Suburban Marine & Sporting Goods, Inc. , 1976 Alas. LEXIS 407 ( 1976 )

BURKE, Justice

(dissenting).

I respectfully dissent.

In our earlier decision, Butaud v. Suburban Marine & Sporting Goods, Inc., 543 P.2d 209, 212 (Alaska 1975), we said:

We believe that appellee misconceives the type of evidence necessary to establish a defense to a products liability claim. Appellee strenuously argues that failing to maintain the machine, driving with a worn belt and racing the machine are sufficient to establish contributory negligence in the use of the product. We disagree. The defense is limited to those occasions where the me concurs with knowledge of the particular defect, not the general negligence of the user as established in this case, (emphasis added)

Today, in an apparent about face, the majority concludes that such “general negligence” will, however, permit a reduction of the award an injured consumer might otherwise recover. Such action, in my opinion, represents a significant step backward, in that it ignores the fundamental policy considerations that gave rise to the doctrine of strict liability in products cases.

As articulated in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 377 P. 2d 897, 901 (1962):

The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.

Clearly, this underlyng policy will be given little effect if a plaintiff is to be held responsible for his own injuries, to the extent that those injuries are caused by his own ordinary negligence, when he is not aware of the defect and the dangers associated with that defect. Accordingly, I would hold that a plaintiff’s own negligence is relevant only in those cases where he is aware of a specific defect and voluntarily proceeds to encounter a known danger. See Luque v. McLean, 8 Cal.3d 1136, 104 Cal.Rptr. 443, 501 P.2d 1163 (1972).

In this case there is no evidence that the plaintiff had any knowledge of the defective condition of the product. Hence, I am of the opinion that his lack of due care, if any, in maintaining and operating the vehicle, should not be considered by the jury in determining its award of damages.