Daly v. General Motors Corp. , 20 Cal. 3d 725 ( 1978 )

MOSK, J.

I dissent.

This will be remembered as the dark day when this court, which heroically took the lead in originating the doctrine of products liability (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049]) and steadfastly resisted efforts to inject concepts of negligence into the newly designed tort (Cronin v. J. B. E. Olson Corp. (1972) 8 Cal.3d 121 [104 Cal.Rptr. 433, 501 P.2d 1153]), inexplicably turned 180 degrees and beat a hasty retreat almost back to square one. The pure concept of products liability so pridefully fashioned and nurtured by this court for the past decade and a half is reduced to a shambles.

The majority inject a foreign object—the tort of negligence—into the tort of products liability by the simple expedient of calling negligence something else: on some pages their opinion speaks of “comparative fault,” on others reference is to “comparative principles,” and elsewhere the term “equitable apportionment” is employed, although this is clearly not a proceeding in equity. But a rose is a rose and negligence is negligence; thus the majority find that despite semantic camouflage they must rely on Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], even though Li is purely and simply a negligence case which merely rejects contributory negligence and substitutes therefor comparative negligence.

Professor Schwartz made this acute observation (Schwartz, Li v. Yellow Cab Company: A Survey of California Practice Under Comparative Negligence (1976) 7 Pacific L. J. 747, 756): “The Li opinion, which was concerned with a typical automobile negligence case, contained no discussion of strict liability. In its April 24th modification of the opinion, the court in a number of places deleted the word ‘fault’ and substituted the word ‘negligence,’ perhaps indicating that it did not intend for its holding to apply to strict liability. Further, in a footnote of the modified opinion the court stated that ‘[i]n employing the generic term “fault” throughout this opinion we follow a usage common to the literature on the subject of comparative negligence. In all cases, however, we intend the term to import nothing more than “negligence” in the accepted legal sense.’ ”

What Professor Schwartz sensed was factually accurate. We desired, in Li, to affect only the concept of contributory negligence, and to substitute therefor the doctrine of comparative negligence. Where contributoiy negligence would have previously been relevant, comparative negligence was to be its replacement. It was never contemplated that comparative negligence would be injected into litigation in which contributoiy negligence had been specifically barred as a valid defense.

This court has emphasized over and over again that strict products liability is an independent tort species wholly distinct from contract warranties (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63) and from negligence (Cronin v. J. B. E. Olson Corp., supra, 8 Cal.3d at p. 133). Indeed, in Cronin we stressed that “the very purpose of our pioneering efforts in this field was to relieve the plaintiff from problems of proof inherent in pursuing negligence” (id.).¹ And in Luque v. McLean (1972) 8 Cal.3d 136 [104 Cal.Rptr. 443, 501 P.2d 1163], this court unanimously declared that “contributory negligence does not bar recoveiy in a strict liability action” (id. at p. 145). To the same effect are Bill Loeper Ford v. Hites (1975) 47 Cal.App.3d 828, 835-836 [121 Cal.Rptr. 131], and McGoldrick v. Porter-Cable Tools (1973) 34 Cal.App.3d 885, 889 [110 Cal.Rptr. 481],

The bench and bar have abided by this elementary rule. They have learned to avoid injecting negligence—whether of the defendant or the plaintiff—into a products liability case. And they have understood the reason behind the distinction between negligence of any party and products liability. It was expressed over three decades ago by Justice Traynor in his concurring opinion in Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 467 [150 P.2d 436]: “As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered. Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken . of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks. [Citations.] Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark.... The manufacturer’s obligation to the consumer must keep pace with the changing relationship between them; . . .” And again in Greenman, Justice Traynor declared 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.” (59 Cal.2d at p. 63.)

In Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 258 [85 Cal.Rptr. 178, 466 P.2d 722], this court warned that “it would do violence to the doctrine of strict liability and thwart its basic purpose, if we were to interpret [an indemnity] clause as transferring the liability for a defective article from the party putting the article in the stream of commerce, to the user or consumer of the article who is within the class the doctrine was designed to protect.”

Transferring the liability, or part of the liability, from the party responsible for putting the article in the stream of commerce to the consumer is precisely what the majority propose to do. They do this by employing a euphemism: the victim’s recovery is to be “proportionately reduced.” The result, however delicately described, is to dilute the defect of the article by elevating the conduct of the wounded consumer to an issue of equal significance. 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: he drove the vehicle with a defective steering mechanism 56 miles an hour instead of 54; or he should have discovered a latent defect hidden in the machinery; or perhaps he should not have succumbed to the salesman’s persuasion and purchased the defective object in the first instance. I need no crystal ball to foresee that the pleading of affirmative defenses alleging contributory negligence—or the currently approved substitute terminology—will now become boilerplate.

. The majority see no problem in assessing the liability of intermediate entities in the commercial chain. I do. Consider, for example, the not uncommon situation in which, pursuant to a faulty design, a manufacturer produces widgets without negligence and precisely as designed. He turns the widgets over to a distributor who sells them to a wholesaler who in turn consigns them to a retailer, none of whom commits any active act of negligence. After a defective widget finally reaches and injures the consumer, it would be consummate supererogation for a trier of fact to attempt to measure some consumer negligence against either the faulty design of the product or the responsibility of the congeries of nonnegligent persons who placed the defective product in the stream of commerce, or their responsibility vis-a-vis each other. We have retained joint and several liability in comparative negligence (American Motorcycle Assn. v. Superior Court (1978) ante, p. 578 [146 Cal.Rptr. 182, 578 P.2d 899]) partly because of that very problem. In any event if the consumer used the product as intended or as foreseeable (Barker v. Lull Engineering Co. (1978) ante, p. 413 [143 Cal.Rptr. 225, 573 P.2d 443]) it is inconsequential that he committed some extraneous act of negligence, since the injury occurs whether or not there was an act of omission or commission by the user; it results from the commercial exploitation of a defective product.

The defective product is comparable to a time bomb ready to explode; it maims its victims indiscriminately, the righteous and the evil, the careful and the careless. Thus when a faulty design or otherwise defective product is involved, the litigation should not be diverted to consideration of the negligence of the plaintiff. The liability issues are simple: was the product or its design faulty, did the defendant inject the defective product into the stream of commerce, and did the defect cause the injury? The conduct of the ultimate consumer-victim who used the product in the contemplated or foreseeable manner is wholly irrelevant to those issues.

The majority devote considerable effort to rationalizing what has been described as a mixture of apples and oranges. Their point might be persuasive if there were some authority recognizing a defense of contributory products liability, for which they are now substituting comparative products liability. However, all our research to discover such apples and oranges has been fruitless. The conclusion is inescapable that the majority, in avoiding approval of comparative negligence in name as a defense to products liability, are thereby originating a new defense that can only be described as comparative products liability. We may now anticipate similar defenses in the vast number of other tort actions. Can comparative libel, comparative slander of title, comparative wrongful litigation, comparative nuisance, comparative fraud, be far behind? By whatever name, negligence, heretofore just one subtopic in the elaborate spectrum of torts—which require six volumes and appendices of the Restatement Second of Torts to cover—now seems destined to envelop the entire tort field.

Reliance by the majority upon federal maritime cases is to a certain extent misleading and at best unpersuasive. Pope & Talbot, Inc. v. Hawn (1953) 346 U.S. 406 [98 L.Ed. 143, 74 S.Ct. 202], which considered the plaintiff’s negligence to “mitigate, but not bar, recovery,” involved a carpenter, not a seaman, who was working on board a ship in dock, and who sued the shipowners for negligence in maintaining an unseaworthy vessel. No novel theory of law was involved in weighing the negligence of the plaintiff against the negligence of the defendant. None of the other Supreme Court cases cited by the majority (The Osceola (1903) 189 U.S. 158 [47 L.Ed. 760, 23 S.Ct. 483]; Mitchell v. Trawler Racer, Inc. (1960) 362 U.S. 539 [4 L.Ed.2d 941, 80 S.Ct. 926]; Seas Shipping Co. v. Sieracki (1946) 328 U.S. 85 [90 L.Ed. 1099, 66 S.Ct. 872]) mention the doctrine of comparative negligence.

Conceding, nevertheless, that federal courts today are likely to apply comparative negligence in maritime cases, I find there is a sound rationale for treating the law of the sea differently from common law tort litigation. Justice Stone articulated the Supreme Court’s theory in Socony-Vacuum Co. v. Smith (1939) 305 U.S. 424 [83 L.Ed. 265, 59 S.Ct. 262], He observed that a seaman, while on a vessel abroad or on the high seas “is subject to the rigorous discipline of the sea and has little opportunity to appeal to the protection from abuse of power which the law makes readily available to the landsman.. . . Withal, seamen are the wards of the admiralty, whose traditional policy has been to avoid, within reasonable limits, the application of rules of the common law____” (Id., at pp. 430-431 [83 L.Ed. at p. 270].) In short, admiralty is recognized as a unique field of law, generally uninfluenced by the common law, and thus it is improvidently cited for the purpose of influencing the common law.

The best reasoned authorities decline to inject negligence, contributory or comparative, into strict products liability litigation. In Kirkland v. General Motors Corporation (Okla. 1974) 521 P.2d 1353, the Oklahoma Supreme Court refused to apply a comparative negligence statute to products liability because it consistently determined that “manufacturers’ products liability is not negligence, nor is it to be treated as a negligence action” (id. at p. 1367). A similar result followed in Melia v. Ford Motor Co. (8th Cir. 1976) 534 F.2d 795, 802, in which the court held application of a comparative negligence statute would be “inappropriate in a strict liability case.” Even more emphatic was the court in Kinard v. Coats Co., Inc. (1976) — Colo.App. — [553 P.2d 835, 837]: “Although some other jurisdictions have chosen to apply comparative negligence to products liability cases [citation] in our view the better-reasoned position is that comparative negligence has no application to products liability actions under § 402A. [If] Products liability under § 402A does not rest upon negligence principles, but rather is premised on the concept of enterprise liability for casting a defective product into the stream of commerce. [Citations.] Thus, the focus is upon the nature of the product, and the consumer’s reasonable expectations with regard to that product, rather than on the conduct either of the manufacturer or of the person injured because of the product. [Citations.]” The Colorado Supreme Court completely eliminated negligence from products liability actions, declaring in such proceedings it “ ‘shifts the focus from the conduct of the manufacturer to the nature of the product.’ ” (Hiigel v. General Motors Corporation (1975) — Colo. — [544 P.2d 983, 988].)

We also declared in Ault v. International Harvester Co. (1974) 13 Cal.3d 113 [117 Cal.Rptr. 812, 528 P.2d 1148, 74 A.L.R.3d 986], that the focus is not on the conduct of the defendant, but on the nature of the product. That being so, the majority create an impossible dilemma for trial courts. If comparative negligence is to be applied, how can the trier of fact rationally weigh the conduct of the plaintiff against the defective product? I know of no other instance in American jurisprudence in which the antagonists are the conduct of a human being versus an inanimate object.

Professor Levine discusses the Alaska case (Butaud v. Suburban Marine & Sport. Goods, Inc. (Alaska 1976) 555 P.2d 42) and others relied upon by the majority (Levine, Strict Products Liability and Comparative Negligence: The Collision of Fault and No-Fault (1977) 14 San Diego L.Rev. 337) and concludes that it is impossible to apply a comparison of fault doctrine—comparative negligence—to a no-fault doctrine—strict products liability: “In California, comparative fault cannot logically and consistently be applied to the strict liability cause of action. Prejudice to a plaintiff would result if the jury was required to determine the plaintiff’s fault and to compare it to the defendant’s conduct in a cause of action not requiring that a jury consider the existence, nature, or extent of defendant’s culpability. How can comparative fault exist in a cause of action which proceeds irrespective of fault? What can a jury compare the plaintiff’s fault with if the defendant’s fault is not at issue? If the jury has not determined the nature, extent, or degree of the defendant’s fault but has merely concluded the product is defective, how can it reduce the plaintiff’s damages in proportion to respective fault?

“The application of ‘comparative’ fault to the strict products liability cause of action would prejudice a plaintiff because of the unusual and impossible demand placed upon a jury. In essence we would ask a jury that if they find the defendant’s product was defective, irrespective of fault, they should reduce the plaintiff’s damage by considering the plaintiff’s culpability in proportion to the defendant’s non-culpability. This requirement may be a feat which is beyond the prowess of an American jury.” (Id. at p. 356; italics omitted.)

The Court of Appeal reached the same conclusion in Buccery v. General Motors Corp. (1976) 60 Cal.App.3d 533, 549 [132 Cal.Rptr. 605]: “Comparative negligence, therefore, as adopted in Li, entails a comparison of the respective negligence of the plaintiff on the one hand and of the defendant on the other. Strict liability for defective products is not based upon defendant’s negligence. There may be, therefore, no negligence of the defendant to compare with that of plaintiff.”

The majority note one “felicitous result” of adopting comparative negligence to products liability: the merger of assumption of risk—which they term a “bizarre anomaly”—into their innovative defense. I find that result neither felicitous nor tenable. In Barker v. Lull Engineering Co., supra, ante, at page 429, we defined a defective product as one which failed to perform safely when used in an intended or foreseeable manner. If a consumer elects to use a product patently defective when other alternatives are available, or to use a product in a manner clearly not intended or foreseeable, he assumes the risks inherent in his improper utilization and should not be heard to complain about the condition of the object. One who employs a power saw to trim his fingernails—and thereafter finds the number of his fingers reduced— should not prevail to any extent whatever against the manufacturer even if the saw had a defective blade. I would retain assumption of risk as a total defense to products liability, as it always has been.

The majority deny their opinion diminishes the therapeutic effect of products liability upon producers of defective products. It seems self-evident that procedures which evaluate the injured consumer’s conduct in each instance, and thus eliminate or reduce the award against the producer or distributor of a defective product, are not designed as an effective incentive to maximum responsibility to consumers. The converse is more accurate: the motivation to avoid polluting the stream of commerce with defective products increases in direct relation to the size of potential damage awards.

In sum, I am convinced that since the negligence of the defendant is irrelevant in products liability cases, the negligence—call it contributory or comparative—of the plaintiff is also irrelevant. The majority, by considering the comparative negligence of a plaintiff in an action in which defendant’s negligence is not an issue, apply an untenable double standard. Their error is grievously unsettling to the law of torts. More significantly, this decision seriously erodes the pattern of the law which up to now reflected a healthy concern for consumers victimized by defective products placed on the market in this mechanized age through the dynamics of mass production, national and international distribution, and psychologically subtle marketing.

The length of the majority opinion and this opinion dissuades me from discussing the other issues involved herein. My abstention should not be construed as acquiescence in the majority’s conclusions. I see no reason to reverse the trial court.

I would affirm the judgment.

Appellants’ petition for a rehearing was denied April 13, 1978, and the opinion was modified to read as printed above. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.

1 The distinction between products liability and negligence was explicated in Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 383 [93 Cal.Rptr. 769, 482 P.2d 681, 52 A.L.R.3d 92]: “It is pointed out that in a products liability case the plaintiff in order to recover in strict liability in tort must prove that he was injured by a defect in the product and that the product was defective when it left the hands of the retailer or manufacturer; whereas to recover in negligence the plaintiff must prove the same two elements plus an additional element, namely, that the defect in the product was due to negligence of the defendant.”