Lippard v. Houdaille Industries, Inc. , 1986 Mo. LEXIS 322 ( 1986 )

WELLIVER, Judge,

dissenting.

I respectfully dissent.

The issue in this case is whether the comparative fault doctrine is applicable in strict products liability cases.¹ The majority alleges that this is an issue of “first impression” in Missouri. I would respectfully suggest that a more accurate description of the issue in the case² is whether Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983) now shall be overruled to the extent that it applies to strict products liability cases.³

In Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), this Court stated that “[ijnsofar as possible this and future cases shall apply the doctrine of pure comparative fault in accordance with the Uniform Comparative Fault Act [(U.C.F.A.)] §§ 1-6, 12 U.L.A.Supp. 35-45 (1983), a copy of which, with commissioners’ comments, is appended to this opinion as Appendix A.” 661 S.W.2d at 15-16. The U.C.F.A. § 1(a) sets forth the comparative fault standard by providing “[i]n an action based on fault ... any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” The U.C.F.A. § 1(b) clearly indicates that U.C.F.A. § 1(a) applies in strict products liability cases by providing that “ ‘Fault’ includes acts or omissions that ... subject a person⁴ to strict tort liability.” This result is logical since “ ‘fault’ clearly encompasses much more than mere negligence.” Anderson & Bruce, Recent Developments in Missouri Tort Laws: Gustafson v. Benda, 52 U.M.K.C.L.R. 538, 546 (1984). Clearly, the majority in Gustafson in stating that “future cases shall apply the doctrine of pure comparative fault in accordance with the Uniform Comparative Fault Act, §§ 1-6, 12 U.L.A.Supp. 35-45 (1983), a copy of which, with commissioner’s comments, is appended to this opinion as Exhibit A”, 661 S.W.2d at 15-16 (footnote omitted) (emphasis added), intended that the comments be as much guidance in future cases as the six paragraphs of the “Act” itself. Those comments specifically state:

Although strict liability is sometimes called absolute liability or liability without fault, it is still included.... Putting out a product that is dangerous to the user or the public or engaging in an activity that is dangerous to those in the vicinity involves a measure of fault that can be weighed and compared, even though it is not characterized as negligence.

Gustafson, 661 S.W.2d at 19 (Appendix A) (emphasis added).

The current majority alleges and assumes that the “[ijnsofar as possible” language of Gustafson indicates that the U.C. F.A. should be applied only where it does not violate prior Missouri common law principles. Were this so, Gustafson would have been a nullity and its adoption either an exercise in futility or a gigantic fraud on the bench, bar and the public. No one could have recognized more clearly our purpose to supplant common law doctrines and prior judicially promulgated doctrines than did Billings, J., stating in his concurring opinion:

Historically, contributory negligence, last clear chance, and humanitarian negligence, were born by judicial decisions. By judicial decision we bury them.

Gustafson, 661 S.W.2d at 28. (Billings, J., concurring). Strict products liability was also born in our case law. Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969).

In Gearhart v. Uniden Corporation of America, 781 F.2d 147 (8th Cir.1986), the Eighth Circuit came to a similar conclusion, stating “given the sweeping language of Gustafson, as well as its specific call for a comprehensive system, we believe that the Missouri Supreme Court intended to apply the principles of the [Uniform Comparative Fault] Act as broadly as possible to Missouri law, without regard to the intricacies of pre-Gustafson case law.” Gearhart 781 F.2d at 150. See also Faries v. Atlas Truck Body Mfg. Co., 797 F.2d 619 (8th Cir.1986).

What the Gustafson majority meant by the “insofar as possible” language was made crystal clear when, by footnote 10, it excepted from the effect of the opinion the then recently amended statute, § 537.060, RSMo Cum.Supp.1984, as it related to settlements and releases in comparative fault cases, and by its recognition in the following sentence that the opinion did not supplant the statute as it related to joint and several liability. Gustafson, 661 S.W.2d at 16.

Not only the clear meaning of both the body of the U.C.F.A. and the Commissioners’ Comments adopted therewith, but also the basic principles of the concept of comparative fault dictate its application to the strict products liability cases. In Gustaf-son, this Court recognized the “fairness and justice” of comparative fault, as opposed to “fairly inflexible rules of tort law.” 661 S.W.2d at 13. The Court included a passage by Dean Prosser stating:

It is still no more reasonable to charge the defendant with the plaintiff’s share of the consequences of his fault than to charge the plaintiff with the defendant’s; and it is no better policy to relieve the negligent plaintiff of all responsibility for his injury than it is to relieve the negligent defendant.

Gustafson, 661 S.W.2d at 13, quoting H. Woods, “The Negligence Case: Comparative Fault 14-15 (1978), quoting Prosser, Comparative Negligence, 51 Mich.L.Rev. 465, 474 (1953). The importance of fairness and justice that prompted this Court to adopt comparative fault in Gustafson is no less compelling in the strict products liability setting since

[t]he primary reason that the plaintiffs conduct should be considered in products liability litigation is the unfairness of requiring defendant, or society through the risk-spreading mechanism, to pay for injuries caused by the plaintiffs wrongdoing. Because the plaintiff is often an active participant in the injury-producing incident, there is no reason not to examine the role his actions played in the incident.

Gershonowitz, Comparative Causation as an Alternative to, Not a Part of, Comparative Fault in Strict Products Liability, 30 St. Louis U.L.J. 483, 485-86 (1986) (citation and footnotes omitted).

The Court in Gustafson specifically stated that “fairness and justice can best be achieved through a broader application of [the comparative fault] doctrine.” 661 S.W.2d at 15. The Court specifically found that “[the comparative fault doctrine] is workable and will fulfill the needs of our complex modern society.” 661 S.W.2d at 15.

If the new and current majority wishes to deny the applicability of comparative fault in strict products liability cases, it should admit that it is overruling Gustaf-son to that extent.

Even if this question were one of first impression as the majority alleges, and we were not bound by stare decisis to follow Gustafson, principles of fairness would demand the application of comparative fault in strict products liability since “[i]n the absence of apportionment, some manufacturers bear the total expense of accidents for which others are partly to blame, while other manufacturers totally escape liability even though they have sold defective products. Either result is unacceptable.” Duncan v. Cessna Aircraft Co. 665 S.W.2d 414, 425 (Tex.1984).

The overwhelming majority of authority, both judicial and academic, recognizes the wisdom of the application of comparative fault in strict products liability cases.

While twenty-eight of the more influential jurisdictions, including the United States, California, Illinois, New York and Texas, have applied comparative fault or negligence to strict products liability, only six jurisdictions have held the contrary.⁵

The reason for the differing results is succinctly set forth by the Supreme Court of Hawaii: “In short, those who oppose the merger [of comparative negligence or fault with strict products liability] believe that neglience and strict liability are different theories and therefore are not compatible. Those jurisdictions that are in favor of the merger argue that fairness and equity are more important than semantic consistency.” Kaneko v. Hilo Coast Processing, 65 Hawaii 447, 654 P.2d 343, 351 (1982). See, e.g., for application: Carestra, The Interaction of Comparative Negligence and Strict Products Liability — Where Are We?, 47 Ins.ComJ. 53 (1980); Fischer, Products Liability — Applicability of Comparative Negligence, 43 Mo.L.Rev. 431 (1978); Gersho-nowitz, Comparative Causation as an Alternative to, Not a Part of, Comparative Fault in Strict Products Liability, 30 St. Louis U.L.J. 483 (1986); Schwartz, Strict Liability and Comparative Negligence, 42 Tenn.L.R. 171 (1974). Against application: Twerski, The Use and Abuse of Comparative Negligence in Products Liability, 10 Ind.L.Rev. 797 (1977).

I agree with the Supreme Court of California that

“[0]ur reason for extending a full system of comparative fault to strict products liability is because it is fair to do so. The law consistently seeks to elevate justice and equity above the exact contours of a mathematical equation. We are convinced that in merging the two principles what may be lost in symmetry is more than gained in fundamental fairness.”

Daly v. General Motors Corp., 20 Cal.3d 725, 742, 575 P.2d 1162, 1172, 144 Cal.Rptr. 380, 390 (1978) (emphasis added). It is the very same concern for the “elevatpon] of justice and equity” that prompted this Court to adopt Gustafson.

In their covert overruling of Gustafson, the majority disregards the long-standing principles of justice and fairness which Gustafson embodied.

I find no error in the circuit court instructing the jury to compare fault in light of Gustafson and would, therefore, affirm the judgment.

EPILOGUE — TO GUSTAFSON

The fair, just, young Gustafson lies mortally wounded and dying behind the curtain which has now been drawn on this day’s performance. You, dear audience of readers, have read the eloquent words of each of the performers, words which are now yours to judge as legal scholarship, legalese or perhaps just legal gobbledygook.⁶ But, pray thee not conclude that our brothers below speak with more enlightenment than we.

In these brief moments I propose to depart the usual legal model and form to address plain words⁷ to some of the subtleties of our performance, in tribute, I hope, to the short and frustrated life of Gustaf-son.

I approach my task by tendering for your view and consideration the prophetic words of a distinguished member of the cast that there were “great prospects for the Decade ahead” in this Court.

In early 1983, the then Chief Justice Rendlen suggested that recent personnel changes in our cast “signals a new beginning — it heralds great prospects for the Decade ahead.”⁸

My search to identify these “great prospects”, unlike my search in State v. Haggard, 619 S.W.2d 44, 55 (Mo. banc 1981), which Chief Justice Rendlen likened to “ ... Quixana’s [Cervantes, 1605] Don Quixote de Lamancha’s search for giants that became a comic tilt with windmills”, in this instance, has been more productive. Among the “great prospects” of the first three years of this decade I found a case holding that the simple word “accident” as used in the workers compensation law means “any job related injury”⁹; a case holding that a person can recover damages for injury without there being impact¹⁰; a case holding that innkeepers hereafter are to be insurors of the safety of persons coming on their premises ¹¹; a case holding that a heart attack on the job is an accident under the workers compensation law¹²; a case holding that suits for damages may be brought for the wrongful death of a viable fetus¹³; a case holding that liability can be based on “appearances (of authority), not on actualities” ¹⁴; a case holding that plaintiffs in malpractice actions can obtain theretofore privileged information from hospital peer group records¹⁵; and, a case holding that one entrusting or leasing personal property to another can be held liable for the acts of an employee of the entrus-tee or lessee who may have injured another.¹⁶

The departure to the Federal Bench of one of those described as having the “Bond in common,”¹⁷ set me in great fear that my search for the “great prospects” might thereafter be in vain, and, in fact might become a “comic tilt with windmills.” But such was not destined to be. Another of our cast soon to become Chief Justice Andrew Jackson Higgins, joined in the continuing production of the “great prospects,” by authoring a case which held that products liability law in Missouri does not recognize state of the art defenses¹⁸; by authoring an opinion that affirmed a $15 million verdict and abolished the doctrine of remittitur and directed that Missouri appellate courts should no longer look at the size of verdicts¹⁹; and by concurring separately in an opinion holding that the owner of property could be held liable for the injury caused by a trespasser leaving the bicycle on which he was riding by flying through the air and striking and injuring another.²⁰ Truly, those of the “Bond in common” have made come to pass the teachings of the prophet by the creation of these “great prospects”, by M.A.T.A. thought to be the coming of the Great society, and by others, thought to be this Court’s contribution to the Tort Crisis.

Had thou but been apprised honestly, directly and forthrightly as to the nature, extent, effect and social cost of the “great prospects” bestowed by the majority having the “Bond in common”, or, had thou been dispensed all of the “great prospects” in a single dose of medicine, and not as the easier digested spoonful at a time, perhaps you would have been better readied for this penultimate of the “great prospects” — today’s decree that the deep pocket be reserved- for the benefit of plaintiffs and their lawyers, even if the deep pocket be but a fraction of a percent the cause of the fault. And, I observe, the early and untimely demise of our friend, Gustafson.

I am aware of the growing length of this epilogue, the lateness of the hour, and, that he who would deliver the epilogue should send you forth in good spirits and not in mourning, frustration and depression. So fear not your escalating insurance premiums resulting from these “great prospects,” or your inability to purchase insurance, or the fact you may be forced to close your business or abandon the pursuit of your profession. Have confidence that the Missouri General Assembly will deliver you from the Sargasso Sea of the crisis of tort (1) by passing a simple statute to place products liability litigation back within the comparative fault contemplated by Gustaf-son; (2) by repealing § 537.060, RSMo Cum.Supp.1986, relating to joint and several liability and settlement and releases in comparative fault cases and providing in lieu thereof that the released parties remain in the litigation for the sole purpose of apportioning their percentage of the fault; and (3) by abrogating joint and several liability.²¹ I have total confidence that the Missouri Legislature will never leave you to the drastic remedy of California’s recent Proposition 51,²² nor has it ever been their bent to leave such matters to the decision of the Federal Congress.

With these small acts, all of which can be accomplished in a single, simple legislative enactment, the General Assembly can bestow upon you the fairest and most just tort system of any state in America, and, may again breathe life into the dying Gustaf-son.

As I withdraw behind the curtain tightly drawn upon the secrecy of the subtleties of the preparations for our next performance; I bid thee God Speed and a restful night, dear patrons of our art.

Go now my friend, depart the play,

“Bond[s] in common”, may have their day,

Fairness and justice have here come to stay

And Gustafson, yet, may prevail in this fray.

APPENDIX A

SNYDER, Judge.

This case presents the novel question of the application of the comparative fault doctrine, Gustafson v. Benda, 661 S.W.2d II (Mo. banc 1983), to actions based on strict liability.

The jury found total damages of $75,-000.00 and assessed fifty percent of the fault to the plaintiff. The trial court judgment was in favor of the plaintiff in the sum of $37,500.00. He appeals.

Before Gustafson, contributory negligence was not a defense in strict liability cases. The negligence of the plaintiff was irrelevant. The question now arises: since Gustafson, should the comparative fault of a plaintiff be considered in awarding damages in a case based on strict liability in tort? We hold that it should and affirm the trial court judgment.

Appellant’s hand was seriously injured when it came into contact with the cutter blades of a jointer machine manufactured by respondent. Appellant alleged the machine was defective.

Appellant asserts error in the submission of Instruction No. 8 for the reason, among others, that comparative fault is not a valid defense in an action based on strict liability.

Instruction No. 8 to the jury read:

You must assess a percentage of fault to plaintiff if you believe:

First, plaintiff failed to look where he was placing his right hand at the time of his accident;

Second, plaintiff knew or by the exercise of ordinary care could have known of the danger from the cutter head, and

Third, plaintiff was thereby negligent, and

Fourth, such negligence directly caused or directly contributed to cause any damage plaintiff may have sustained.

The term “negligent” or “negligence” as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.

The phrase “ordinary care” as used in this instruction means that degree of care that would be reasonable in plaintiffs situation.

This is a case of first impression in Missouri since the adoption of the comparative fault doctrine and requires an extended discussion. We have been aided in our analysis by the excellent briefs of both parties and by the amicus curiae brief of the Missouri Association of Trial Attorneys.

Missouri adopted the pure comparative fault doctrine in Gustafson v. Benda, supra, saying at page 15: “[ijnsofar as possible this and future cases shall apply the doctrine of pure comparative fault in accordance with the Uniform Comparative Fault Act, §§ 1-6, 12 U.L.A.Supp. 35-45 (1983).” A copy of the uniform act was appended to the Gustafson opinion.

Fault is described in § 1(b) of the Uniform Comparative Fault Act (U.C.F.A.) to include “acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability.” (Emphasis added.)

The Commissioners’ Comment to § 1, in which is described the effect of contributory fault, contains this language:

Although strict liability is sometimes called absolute liability or liability without fault, it is still included. Strict liability for both abnormally dangerous activities and for products bears a strong similarity to negligence as a matter of law (negligence per se), and the factfinder should have no real difficulty in setting percentages of fault. Putting out a product that is dangerous to the user or the public or engaging in an activity that is dangerous to those in the vicinity involves a measure of fault that can be weighed and compared, even though it is not characterized as negligence.

Contributory fault diminishes recovery whether it was previously a bar or not, as, for example, in the case of ordinary contributory negligence in an action based on strict liability or recklessness. (emphasis added).

U.C.F.A. § 1(b) Commissioners’ Comment (1977) (amended 1979).

The quoted language from Gustafson v. Benda, supra, the U.C.F.A. and the Commissioners’ Comments seem to make it plain that the comparative fault doctrine should be applied to strict liability actions in Missouri. Because the question of comparative fault as it applies to strict liability actions is a novel and important question which will have significant and pervasive effects on the law of strict liability, however, other reasons for our ruling should be analyzed in some detail.

Before the comparative fault doctrine was adopted in Missouri, contributory negligence was not a valid defense in a strict liability action. Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362, 365 [4, 5] (Mo.1969). The Supreme Court in Keener said, “[contributory negligence, as we ordinarily apply it, is not a defense to strict liability.” The court went on to say, however, that what has been described in the cases as “assumption of risk,” although the court did not use those words, is a defense to strict liability. Id.

There have been no cases in Missouri which have ruled on the question of the application of the comparative fault doctrine to strict liability cases, but there are many cases and some statutory enactments in other jurisdictions.

There are three types of comparative fault systems: pure, modified, and slight-gross. In the pure system, a plaintiff’s contributory negligence reduces his damages in proportion to his fault. Gustafson v. Benda, supra at 15; Kaatz v. State, 540 P.2d 1037, 1049 (Alaska 1975); Li v. Yellow Cab Company of California, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975); Hoffman v. Jones, 280 So.2d 431, 438 (Fla.1973).

In the modified system, the plaintiff’s contributory negligence does not bar recovery so long as it remains below a specified proportion of the total fault. In some of the states, if the plaintiff is fifty percent at fault, he may not recover. Utah Code.Ann. § 78-27-37 (1983), Mulherin v. Ingersoll-Rand Company, 628 P.2d 1301, 1304 (Utah 1981); Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854, 862 (W.Va. 1982). In others he may not recover if his fault is more than fifty percent or if it exceeds the fault of the defendants. N.J. Stat.Ann. §§ 2A:15-5.1—15-5.3 (West 1984); Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 406 A.2d 140, 146 (1979); Or.Rev.Stats. § 18.470 (1983), Sandford v. Chevrolet Division of General Motors, 292 Or. 590, 642 P.2d 624, 635 (1982).

Only two states, Nebraska and South Dakota, have the slight-gross system in which the plaintiff is barred from recovering unless his negligence is “slight.” In re Estate of Tichota, 190 Neb. 775, 212 N.W.2d 557, 560 (Nebraska 1973); American State Bank v. List-Mayer, 350 N.W.2d 44, 47 (S.D.1984).

It is beyond the scope of this opinion to analyze these systems, but it is not difficult to hypothesize fact situations which would give rise to significant problems under any of the three.

One problem with the pure system of comparative fault adopted by Missouri arises when a party who is guilty of the proportionally greater fault may recover a greater absolute amount of damages than the other party whose fault was much less in degree. This might happen if a plaintiffs injuries were slight and a counterclaiming defendant’s injuries much more serious. If the plaintiffs damages are assessed at $10,000.00 and he is ten percent at fault, he will recover $9,000.00. If the counterclaiming defendant’s injuries are assessed at $300,000.00 in the same case, he will obtain damages from the plaintiff of $80,000.00, although the defendant was ninety percent at fault and the plaintiff only ten percent. In theory, however, the result is not unfair since each party pays his share of the loss which he has caused.

Of the 44 states which had adopted comparative fault systems as of early 1985, 23 have applied the comparative fault doctrine to actions br&ught based on strict liability in tort, either by legislation or by judicial decision.¹ In three other states, Idaho, Mississippi and Montana, federal courts have said that under state law, comparative fault applies to strict liability actions.²

The best opinion from another jurisdiction which sets forth the reasons for applying the principles of comparative fault to actions founded on strict liability is Daly v. General Motors Corporation, 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978). The California Supreme Court points out that strict liability has never meant absolute liability and that the manufacturer of a product does not become the insurer of the safety of the product’s user. The theme that strict liability does not mean absolute liability occurs frequently in the cases which deal with this subject. Stevens v. Durbin-Durco, Inc., 377 S.W.2d 343, 346 (Mo.1964); Daly v. General Motors Corporation, 114 Cal.Rptr. at 384, 575 P.2d at 1166; Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55, 63 (1967).

We agree with those cases. The social purpose of the doctrine of strict liability, 1.e., the spreading of the risk of injuries caused by defective products among all the purchasers of those products by holding the manufacturer liable is laudable, and before comparative fault was adopted, that purpose would have been defeated by permitting a manufacturer to escape liability if an injured plaintiff were in any degree contributorily negligent.

Since the advent of comparative fault in Missouri, however, one reason for not considering contributory negligence in strict liability cases has been eliminated. Comparative fault may now be considered without completely relieving the manufacturer of the defective product from liability.

We believe, therefore, that with the adoption of comparative fault in Missouri, the social purpose of the strict liability doctrine is carried far enough by allowing a plaintiff to avoid proof of negligence simply by proving that the product was defective in design or manufacture and caused the injury; and that a plaintiff should be held responsible for any share of the damages proportional to his fault.

The New Hampshire Supreme Court, in disagreeing with a commentator who advocated a social engineering approach that would eliminate completely the requirements of causation and product defect said:

The common-law principle that fault and responsibility are elements of our legal system applicable to corporations and individuals alike will not be undermined or abolished by ‘spreading’ of risk and cost in this State.

Thibault v. Sears, Roebuck and Company, 395 A.2d 843, 846[1].

This is a reasonable approach when considering the question of the application of comparative fault to the doctrine of strict liability. Judicial decisions in new fields of law, or extensions of existing fields of law, necessarily carry with them a degree of social engineering when they affect large segments of the population, both producers and consumers, as does the doctrine of strict liability.

Nonetheless, this tendency to use the courts as instruments of social engineering has been carried to extremes, particularly in some of the federal courts, and should be restrained by established principles of the common law and our constitutions. Otherwise the basic and desirable separation of powers between the legislative and the judicial branches of our government will be eroded still further, to the detriment of all segments of our society.

We believe the law and the public is best served by requiring not only the manufacturer who is at fault (and whose fault exists regardless of negligence) to bear his share of the loss, but also by requiring the plaintiff, who is also at fault, to bear his proportionate share.

The argument is made with some vehemence by appellants that any costs of injuries should be borne by the manufacturer who sells the product rather than by the injured parties. This has been set forth in at least one Missouri case. Cryts v. Ford Motor Company, 571 S.W.2d 683, 687 [1] (Mo.App.1978).

The Missouri Supreme Court adopted the rule of strict liability in Keener v. Dayton Electric Manufacturing Company, supra, giving as one of the reasons:

(1) . the purpose of such liabilities is to insure that the costs of injuries resulting from defective products are borne by the manufacturers [and sellers] that put such products on the market rather than by the injured persons who are powerless to protect themselves.’ Quoting from Greeman v. Uba Power Products Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697 [701], 377 P.2d 897, 901, 13 A.L.R.2d 1049. Keener, supra at 364.

The Cryts and Keener courts, of course, did not consider comparative fault. When they were written, the doctrine of comparative fault had not been adopted in Missouri and contributory negligence would have been a complete defense in a strict liability case if the Supreme Court had not ruled otherwise.

The adoption of comparative fault in Gustafson v. Benda, supra, requires a new analysis of the law, giving consideration to the desirability of sharing any loss between manufacturer and injured party based on the proportionate fault of each.

Appellant argues that because Missouri cases have held that the concept of fault has no place in the law of strict liability, comparative fault should not be applied. The cases they cite, Keener v. Dayton, supra, Elmore v. Owens-Illinois Inc., 673 S.W.2d 434, 438 (Mo. banc 1984), Blevins v. Cushman Motors, 551 S.W.2d 602, 608 (Mo. banc 1977), in fact do state that the concept of fault has no place in the law of strict liability. The cases refer, however, to the strict liability of the manufacturer and not to whether the fault of the consumer or injured party should be considered.

Moreover, if fair social policy is to be a basis for the law in this field, what could be fairer than to require that an injured person be made to bear a share of the burden, to the extent that he is at fault, instead of placing that burden on all of the other consumers of the product? If the manufacturer is required to pay 100 percent of the damages, he will pass that cost on to the consuming public, an unfair assessment because all consumers would then be forced to pay for the damages caused by the injured party.

Appellant also speaks of the impossibility of comparing a concept of negligence on the part of the injured party with the concept of strict liability on the part of the manufacturer, the so-called apples and oranges argument. It is true that the negligence of a manufacturer found liable under the strict liability doctrine is irrelevant. This is not to say that the negligence of the claimant injured party should also be ignored. Although negligence and strict liability are different concepts, they are in fact different types of fault and can be compared on that basis. U.C.F.A. § 1(1) (1977) (amended 1979).

Some of the cases in other jurisdictions address this problem, if it is a problem, by saying that the issue should be decided based on the proportion of causation attributable to the manufacturer and to the consumer. This is a not unreasonable analysis, but in Missouri under Gustafson v. Benda, supra, we are told that comparative fault will be considered in our cases. The U.C.F.A. defines “fault” to include acts or omissions that are negligent or that subject a person to strict tort liability. Therefore, the fault of strict liability can be compared with the fault of negligence because Missouri in Gustafson adopted the U.C.F.A. “insofar as possible.” Id. at 15.

If we were not to apply the comparative fault doctrine to strict liability actions, an anomalous situation results. Before Gustafson v. Benda, supra, contributory negligence was a complete defense to a negligence action, but no defense at all to a strict liability action. Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362, 365 (Mo.1969); Williams v. Ford Motor Company, 454 S.W.2d 611, 618-19 (Mo.App.1970).

Since Gustafson, contributory negligence is a partial defense in a negligence action, but it would be no defense at all in a strict liability action if we were to hold that the comparative fault doctrine does not apply.

On the other hand, under the U.C.F.A. assumption of risk is a degree of fault to be considered in comparative fault cases. Therefore, if the comparative fault doctrine is not applied to strict liability cases, assumption of risk would remain a complete defense to an action based on strict liability but only a partial defense to an action based on ordinary negligence.

The adoption of the comparative fault doctrine provides certainty to the law, fairness, and eliminates the inconsistencies which would exist if the doctrine were not applied in strict liability actions.

The result is that plaintiffs may now recover in a strict liability action, even though there was an assumption of risk, depending on the jury’s assessment of fault. Unless the comparative fault doctrine is applied, however, assumption of risk would remain a complete defense to a strict liability action.

A plaintiff consumer, in a strict liability action is still relieved of the problems of proof under a comparative fault system. He continues to be required to prove only a defect in manufacture or design which is unreasonably dangerous and which caused physical harm.

One of the reasons for the adoption of the strict liability rule was that it was difficult, if not impossible, for plaintiffs to prove negligence on the part of manufacturers. The breach of warranty problem was of course one of the other problems of plaintiffs which was eliminated by the adoption of the strict liability rule. It abolished the requirement of privity between the manufacturer and the plaintiff. D. Fischer, Products Liability-Applicability of Comparative Negligence, 43 Mo.L.Rev. 431 (1978); Wade, Products Liability and Plaintiffs Fault-The Uniform Comparative Fault Act, 29 Mercer L.Rev. 373 (1978); Comparative Negligence and Strict Products Liability: Where Do We Stand? Where Do We Go? 29 Vill.L.Rev. 695 (1983-84); See also extensive list of commentators in Daly v. General Motors Corporation, supra, 144 Cal.Rptr. at 389, 575 P.2d at 1171. See also 9 A.L.R.4th 633 (1981).

The application of the comparative fault doctrine to strict liability cases does not change the law relating to proof of negligence and privity by strict liability plaintiffs. They retain the right to recover without the necessity of proving either negligence on the part of the manufacturer or privity of contract with him. These reasons for the development of the theory of strict liability in tort continue to be satisfied even under a comparative fault system.

In summary, we hold that the doctrine of comparative fault as set forth in Gustafson v. Benda, supra, is applicable to strict liability actions in Missouri. There are three reasons for this: 1) it brings symmetry to the law by holding a plaintiff responsible for his own actions in both negligence cases and strict liability cases; 2) it comports with a policy of fairness in spreading the risk by holding a plaintiff responsible for the damages caused by his own fault and by forcing the community of consumers to bear the cost of only the damages attributable to the defective design or manufacture; 3) it is in agreement with the majority of other jurisdictions in the United States which have adopted the doctrines of strict liability and comparative fault.

Appellant asserts that Instruction No. 8, in addition to being erroneous because of the comparative fault question, is erroneous because it was vague on the point when the duty to keep a lookout arose, because appellant did not have sufficient time to avoid his injury, even though he kept careful lookout, so that failure to keep a lookout was not a cause of his injury; and because the instruction submitted an affirmative defense which had not been pleaded and was not established by the evidence and was accordingly waived. The points are not well taken.

Instruction No. 8 was a modified version of MAI 32.01(1) with a percentage of fault paragraph and definitions of “negligent” and “ordinary care” added. It was simple, brief, impartial and free from argument as required by Rule 70.02(e). It did not require the jury to find detailed evidentiary facts.

It instructed the jury that they must assess a percentage of fault to the plaintiff (Instruction No. 9 of the MAI Committee Comparative Fault Instruction illustrations) if he failed to look where he was placing his right hand at the time of his accident. Appellant complains because no specific time was mentioned. It would be impossible to be more specific than to say at the time of his accident unless one would say two seconds before or two seconds after, or use some other period of time, a detailed evidentiary fact.

It was a factual matter for the jury to determine under the instruction, which was as clear to a juror of average intelligence and understanding as an instruction could be. Plaintiff knew that the cutter head of the jointer machine was dangerous. He knew that if he touched it he would be injured. When the accident happened he was reaching for a board which had dropped out of his hand and he knew the board was close to the cutter head when it fell.

It was for the jury to determine whether 1) he failed to keep a lookout and 2) whether that failure to keep a lookout contributed to cause his injury. “What constitutes negligence and failing to keep a lookout in any direction at any particular time or place depends upon the conditions and circumstances and is usually a jury question.” Slaughter v. Myers, 335 S.W.2d 50, 54 (Mo. 1960); see also Charles v. Ryan, 618 S.W.2d 220 (Mo.App.1981). “[Wjhether a litigant has failed to see what he should have seen is itself usually a question for the jury.” Coulter v. Bi-State Development Agency of Missouri-Illinois Metropolitan District, 434 S.W.2d 793, 796 (Mo. App.1968). The issue of negligence is normally a jury question. Rickman v. Sauerwein, 470 S.W.2d 487, 489 (Mo.1971).

A reference to “at said point mentioned in the evidence” in a plaintiffs verdict directing instruction on vigilant watch and lookout was not objectional as vague and confusing or giving the jury a roving commission as to when the defendant should have discovered plaintiff’s oncoming automobile. Davis v. Werremeyer, 377 S.W.2d 319, 324 (Mo.1964).

Appellant cites automobile cases in his argument. Slaughter v. Myers, 335 S.W.2d 50 (Mo.1960); Charles v. Ryan, 618 S.W.2d 220 (Mo.App.1981); Coulter v. Bi-State Development Agency of the Missouri-Illinois Metropolitan District, 434 S.W.2d 793 (Mo.App.1968). The cases are not apposite, because they involve moving vehicles instead of a machine which does not move with a cutter blade which, although moving, occupies essentially the same space at all times.

Appellant also complains that there was not substantial evidence presented to support a finding that he could have avoided or lessened his injuries had he looked where he was placing his right hand at the time of his accident. This was a question for the jury to decide under all the evidence. The jury could have found that appellant could have looked, failed to do so, and if he had looked, he could have avoided his injury.

Evidence of contributory negligence by reason of appellant’s failure to keep a lookout came in without objection during the trial. Although comparative fault was not pleaded, it was tried by the express or implied consent of the parties and therefore must be treated in all respects as if it had been raised in the pleadings. Rule 55.33(d).

The case was filed before Gustafson v. Benda, supra. The original answer filed pleaded contributory fault because comparative fault was not a part of our law at that time. Again there is the problem of semantics. The contributory fault pleading would seem to be the same as contributory negligence, although respondent’s brief differentiates between the two, perhaps because contributory fault has sometimes been used to describe assumption of risk defenses. In 3 Restatement, Law of Torts, First, § 524 dealing with ultrahazardous activities, what might be described as an assumption of risk defense is referred to as contributory fault. This term and the restatement is also referred to in Keener v. Dayton, supra, at page 365[4-5].

Under the U.C.F.A., the semantic problems are lessened, if not eliminated. Contributory negligence, contributory fault and assumption of risk are all faults to be compared in determining liability.

At any rate, the contributory negligence issue was tried by consent, the evidence came in without objection, and the jury could have found that the evidence supported the defense. There was no error.

Appellant’s other two points allege error in the exclusion of evidence of appellant’s inability to study architecture and become an architect because of the injury to his hand. He offered this evidence to show a loss of future earnings.

Plaintiff was a university graduate with a degree in history, thirty years old at the time of trial. He had never studied architecture. He offered to prove that his employer, Hellmuth, Obata and Kassabaum, would have sent him to architectural school.

Any loss alleged was completely speculative because there was no reasonable certainty that appellant would ever start architectural school, much less finish and be employed in that profession. An extended discussion of this point would have no prec-edential value and it is denied in compliance with Rule 84.16(b).

The judgment is affirmed.

SMITH, P.J., concurs. SATZ, J., concurs in separate concurring opinion.

1 . The strict products liability standard of the Restatement (Second) of Torts § 402A was adopted by this Court in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo. 1969).

2 . The identical issue is also raised in Barnes v. Took & Machinery Builders, Inc., 715 S.W.2d 518 (Mo. banc 1986), decided concurrently herewith.

3 . Lippard v. Houdaille Industries, Inc., 715 S.W.2d 506 No. 49226 (Mo.App. Dec. 3, 1985), a copy of which is attached and appended hereto as an appendix to this dissent and made a part hereof. See also Barnes v. Took & Machinery Builders, Inc., No. 49180 (Mo.App.Dec. 3, 1985); Gearhart v. Uniden Corporation of America, 781 F.2d 147 (8th Cir.1986).

4 . The term "person” includes corporations. § 351.015, RSMo Cum.Supp.1986; Bassen v. Monckton, 308 Mo. 641, 274 S.W. 404 (1925).

5 . The following jurisdictions have applied comparative fault or negligence to strict products liability:

Part-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 565 F.2d 1129 (9th Cir.1977) (federal admiralty cases); Butand v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42 (Alaska 1976); Ark.Stat.Ann. §§ 27-1763 to 27-1765 (1979); Daly v. General Motors Corp., 20 Cal.3d 725, 575 P.2d 1162, 144 Cal.Rptr. 380 (1978); West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976); Kaneko v. Hilo Coast Processing, 65 Hawaii 447, 654 P.2d 343 (1982); Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F.Supp. 598 (D.Idaho 1976) (applying Idaho law); Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 73 Ill.Dec. 337, 454 N.E.2d 197 (1983); Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980); Bell v. Jet Wheel Blast, Division of Erwin Ind., 462 So.2d 166 (La.1985); Me.Rev. Stat.Ann. tit. 14, § 156 (1964); Mich.Comp.Laws § 600.2949 (Supp.1982); Busch v. Busch Construction, Inc., 262 N.W.2d 377 (Minn.1977); Zahrte v. Sturm, Ruger & Co., 661 P.2d 17 (Mont.1983); Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978); Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 406 A.2d 140 (1979); Marchese v. Warner Communications, Inc., 100 N.M. 313, 670 P.2d 113 (N.M.Ct.App.1983), cert. denied, 100 N.M. 259, 669 P.2d 735 (1983); N.Y.Civ.Prac.Law § 1411 (McKinney 1976); Mauch v. Manufacturers Sales & Service, Inc., 345 N.W.2d 338 (N.D.1984); Wilson v. B.F. Goodrich, 292 Or. 626, 642 P.2d 644 (1982); Baccelleri v. Hyster Co., 287 Or. 3, 597 P.2d 351 (1979); McPhail v. Culebra, 598 F.2d 603 (1st Cir.1979) (applying Puerto Rico law); Norman v. Fisher Marine, Inc., 672 S.W.2d 414 (Tenn.1984), app. den., 5-21-84; Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984); Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981); Murray v. Fairbanks Morse, 610 F.2d 149 (3rd Cir.1979) (applying Virgin Islands law); Wash.Rev.Code Ann. §§ 4.22.005 to 4.22.-015 (Supp.1982); Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854 (W.Va.1982); Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967).

The following jurisdictions have refused to apply comparative fault or negligence in strict products liability cases:

Kinard v. Coats Co., 37 Colo.App. 555, 553 P.2d 835; but see Welch v. F.R. Stokes, Inc., 555 F.Supp. 1054 (D.Colo.1983) (interpreting Colo. Rev.Stat. § 13-21-406 (Supp.1982)); Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir.1976) (applying Nebraska law); Young’s Machine Co. v. Long, 100 Nev. 692, 692 P.2d 24 (1984), Nev.Rev.Stat. § 41.141 subd. 1; Kirkland v. General Motors Corp. 521 P.2d 1353 (Okla.1974); Roy v. Star Chopper Co., 584 F.2d 1124 (1st Cir.1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979) (applying Rhode Island law); Klung v. Keller Industries, Inc., 328 N.W.2d 847 (S.D.1982); Smith v. Smith, 278 N.W.2d 155 (S.D.1979).

6 . "Judges should be judged on their opinions”, a statement frequently made by many of the members of our cast.

7 . The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.

Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 197, 86 L.Ed. 192 (1941), Mr. Justice Black (footnote omitted).

8 .Taken from a portion of the text of “Report On The Supreme Court In Transition," by then Chief Justice Rendlen addressing the Tenth Annual Bench-Bar Conference of the Kansas City Bar Association, Marriott’s Tan-Tar-A Resort, April 8, 1983. The relevant portion of the address is set forth in full.

Another monumental development in the life of the Court has been the personnel changes. Three new men came to the Court in late 1982. This was the first time since 1935 three new members have joined the Court in one year. They represent not only fresh points of view but they are bright and effective. The appointment of Judge Blackmar in December marked something of a milestone, in that the entire membership of the Court is composed of post World War II lawyers and all of us have had military service. Further, while the three new men and I come from different parts of the State and had somewhat different backgrounds, the four of us have a Bond in common.

Charles Blackmar has been aptly described as our living, walking Lexis-we may well decide to discontinue the Lexis terminal at the Supreme Court and substitute Charley for the service. He is joined by two especially capable men from the Courts of Appeal-Judge George Gunn from St. Louis and Judge William Billings from Springfield who collectively represent 17 years of appellate court experience. Their accomplishments speak for them-' selves and appear in their published opinions — they are prodigious workers.

Their coming to the Court signals a new beginning — it heralds great prospects for the Decade ahead. (Billings’s Mule story) The term collegiality now has a special meaning on our Court and serving as Chief Justice in such circumstance has become a true pleasure.

(Emphasis added).

9 . Wolfgeher v. Wagner Cartage Service, 646 S.W.2d 781 (Mo. banc 1983).

10 . Bass v. Nooney, 646 S.W.2d 765 (Mo. banc 1983).

11 . Virginia D. v. Madesco Investment Co., 648 S.W.2d 881 (Mo. banc 1983).

12 . Wynn v. Navajo Freight Lines, 654 S.W.2d 87 (Mo. banc 1983).

13 . O’Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983).

14 . Johnson v. P.I.E., 662 S.W.2d 237, 246 (Mo. banc 1983).

15 . Chandra v. Sprinkle, 678 S.W.2d 804 (Mo. banc 1984).

16 . Fowler v. Park Corporation, 673 S.W.2d 749 (Mo. banc 1984).

17 . Hon. George F. Gunn, Judge of the United States District Court, Eastern District of Missouri.

18 . Elmore v. Owens-Illinois, 673 S.W.2d 434 (Mo. banc 1984) (Higgins, J.).

19 . Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99 (Mo. banc 1985).

20 . Jackson v. Ray Kruse Constr. Co., 708 S.W.2d 664-669 (Mo. banc 1986) (Blackmar, J.) (Higgins, C.J., concurring in separate opinion).

21 . Unless joint and several liability be by the Legislature affirmatively abrogated, another of the "great prospects for the Decade” might be a future court decision reinstating joint and several liability as having been born in the common law. See Comment, Abrogation of Joint and Several Liability: Should Missouri Be Next in Line?, 52 U.K.C.L.R. 72 (1983).

22 . California Primary Election June 17, 1986.

1 . Ariz.Rev.Stat.Ann. §§ 12-2505—12-2509 (1984); Ark.Stat.Ann. § 27-1763 (Supp.1983); Mich.Stat.Ann. § 27A-2945-2949 (Supp.1982) M.C.L.A. §§ 600.2945-600.2949; Neb.Rev.Stat. § 25-1151 (1983); Wash.Rev.Code Ann. §§ 4.22.020, 7.72.010—7.72.060 (1984).

Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42 (Alaska 1976); Daly v. General Motors, 20 Cal.3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380 (1978); West v. Caterpillar Tractor Company, 336 So.2d 80 (Fla.1976); Kaneko v. Hilo Coast Processing, 65 Hawaii 447, 654 P.2d 343 (1982); Coney v. J.L.G. Industries, Inc. 97 Ill.2d 104, 73 Ill.Dec. 337, 454 N.E.2d 197 (1982); Forsythe v. Coats Company, Inc., 230 Kan. 553, 639 P.2d 43 (1982); Jack Front, Inc. v. Engineered Building Components Company, Inc., 304 N.W.2d 346 (Minn.1981); Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978); Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 410 A.2d 674 (1980); Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (N.M.1981); Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973); Baccelleri v. Hyster Company, 287 Or. 3, 597 P.2d 351 (1979); Fiske v. MacGregor, Div of Brunswick, 464 A.2d 719 (R.I.1983); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984); Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981); Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854 (W.Va.1982); Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967); Cline v. Sawyer, 600 P.2d 725 (Wyo.1979).

2 . Sun Valley Airlines, Inc. v. Avco-Lycoming Corp. 411 F.Supp. 598 (D.Idaho 1976); Edwards v. Sears, Roebuck and Co. 512 F.2d 276 (5th Cir.1975); Trust Corp. of Montana v. Piper Aircraft Corp. 506 F.Supp. 1093 (D.Mont.1981).