“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"
How later courts described this case
- “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"
- refusing to apply comparative fault principles to products liability actions
- declining to apply comparative fault in a strict products liability case
- " 'Fault' includes acts or omissions that are in any measure negligent or reckless"
Written by the judges who cited it.
Distinguished
Distinguished by Henderson v. Terminal Railroad Ass'n of St. Louis, 736 S.W.2d 590 (1987)
While the appeal was pending, the Lippard decision, which held that comparative fault was inapplicable to strict products liability cases, was handed down thus resolving that issue on appeal and rendering a large portion of the Earll decision, including the above quoted passage, dicta.
The opinion
ROBERTSON, Judge,
concurring in result.
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 1 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. Strobel, 589 S.W.2d 293 (Mo. banc 1979).
[W]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 Gustaf-son. 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 produces 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 pre- *497 dieted. 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. 2 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_” Steinman, supra 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 no more than concur in the result reached in the principal opinion.
. Had I been a member of the Court when Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983) was decided, I would have joined the dissenting opinions of Judges Gunn and Rend-len. ("I believe the imposition of comparative negligence is purely a matter for legislative action.... I believe we have intruded into an area which belongs to the legislature_ I believe the imposition of comparative negligence or fault is not a matter for judicial fiat_”) Id. at 29 (Gunn, J. dissenting).
. It can scarcely be ignored that the application of comparative fault was neither briefed nor argued to the trial court, the Court of Appeals or this Court by the parties in Gustafson . The majority simply decided that it would no longer wait for the legislature. "We are now past the time when we should have resolved the uncertainty surrounding comparative fault....” Id. at 15 .