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

Witt & Tani, TCPI 9. Liability without Fault?
We find equally unpersuasive [the] objection that the merger of the two principles
somehow will abolish or adversely affect the liability of such intermediate entities in the chain of
distribution as retailers . . . , and bailors . . . . We foresee no such consequence. Regardless of the
identity of a particular defendant or of his position in the commercial chain the basis for his
liability remains that he has marketed or distributed a defective product. If, as we believe, jurors
are capable of assessing fully and fairly the legal responsibility of a manufacturer on a strict
liability basis, no reason appears why they cannot do likewise with respect to subsequent
distributors and vendors of the product.
. . . .
Having examined the principal objections and finding them not insurmountable, and
persuaded by logic, justice, and fundamental fairness, we conclude that a system of comparative
fault should be and it is hereby extended to actions founded on strict products liability. In such
cases the separate defense of “assumption of risk,” to the extent that it is a form of contributory
negligence, is abolished. While . . . on the particular facts before us, the term “equitable
apportionment of loss” is more accurately descriptive of the process, nonetheless, the term
“comparative fault” has gained such wide acceptance by courts and in the literature that we adopt
its use herein.
. . . .
[U]nder the particular circumstances, comparative principles cannot be applied
retroactively . . . . In the event of retrial, however, the principles herein announced will, of course,
apply.
. . . .
[N]otwithstanding that plaintiffs’ case was founded on strict products liability, evidence of
decedent’s failure to use available seat belts and door locks, and of his intoxication at the time of
the fatal collision, may have been improperly regarded by the jury as authorizing a defense
verdict. It appears reasonably probable that, had such evidence been either excluded or its effect
confined, a result more favorable to plaintiffs would have been reached. Reversal is therefore
required. . . .
. . .
The judgment is reversed.
MOSK, J. dissenting.
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 and steadfastly resisted efforts to inject concepts of
negligence into the newly designed tort 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.
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