Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
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. 532 P.2d 1226 (1975), even though Li is purely and simply
a negligence case which merely rejects contributory negligence and substitutes therefor comparative
negligence.
. . .
In any event if the consumer used the product as intended or as foreseeable . . . 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. . . . .
Notes
1. Dissents and concurrences. Who do you think has the better argument, Justice
Richardson, writing for the majority, or Justice Mosk? In a separate opinion, concurring in part
and dissenting in part from the majority’s opinion, Justice Jefferson raised practical concerns
about juries’ ability to determine what percentage of fault is attributable to a negligent plaintiff in
a case where the comparator is a defective product. Such an expectation would be akin to
instructing a jury that a “quart of milk (representing plaintiff's negligence) and a metal bar three
feet in length (representing defendant's strict liability for a defective product)” together “equal
100” and then asking the jury to assign a percentage to each. 575 P.2d at 1178 (Jefferson, J.,
concurring in part and dissenting in part). Most jurisdictions that have shifted from contributory
negligence to comparative negligence have also now applied comparative fault principles to
product defect cases. The Restatement (Third) of Products Liability also takes this view. DAN B.
DOBBS ET AL.,THE LAW OF TORTS (2d ed. 2019) § 470. Note that this trend makes sense if
products liability silently imports negligence principles in its regime of liability for defective
products.
Justice Clark, who had dissented in Li v. Yellow Cab Co., concurred in this case,
recognizing the majority’s decision as a logical extension of Li. But his concurring opinion
sounded less than pleased (“Under the compulsion of Li, I have signed the majority opinion”).
575 P.2d at 1175 (Clark, J., concurring). Clark wrote separately to flag the fairness concerns
inherent in any kind of comparative fault scheme, whether limited to negligence or extended to
products liability, and to float the idea of a fixed percentage discount of the negligent plaintiff’s
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