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36 Ark. L. Rev. 360 (1982-1983)
Product Liability: Is Comparative Fault Winning the Day

handle is hein.journals/arklr36 and id is 370 raw text is: Product Liability: Is Comparative Fault Winning the Day? Henry Woods * I. INFLUENCE OF DALY DECISION When the California Supreme Court rendered its 4-3 decision in Daly v. General Motors Corp.,' the scales were tipped in favor of the application of comparative fault to product cases. Daly was a death case involving a defective door latch in an automobile manufactured by the defendant. There the court stated, The most important of several problems which we consider is whether the principles of comparative negligence expressed by us in Li v. Yellow Cab Co. 2 apply to actions founded on strict products liability.3 Under previous California strict liability decisions4 and under Restatement (Second) of Torts § 402A (1965), contrib- utory negligence was irrelevant except for that type of con- tributory negligence masquerading as assumption of risk. In fact the Supreme Court of California had only recently ob- served: Ordinary contributory negligence does not bar re- covery in a strict liability action. 'The only form of plaintiff's negligence that is a defense to strict liability is that which consists in voluntarily and unreasonably proceeding to encounter a known danger, more commonly referred to as assumption of risk.'-' This language is but a paraphrase of § 402A comment n. Negation of comparative fault would seem to be strongly supported not only by prior California decisions but also by the language and comments to § 402A. It was, however, adopted by a bitterly divided court:6 * United States District Judge, Eastern District of Arkansas. 1. 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380 (1978). 2. 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975). 3. 20 Cal. 3d at 731, 575 P.2d at 1164, 144 Cal. Rptr. at 382. 4. Bill Loeper Ford v. Hites, 47 Cal. App. 3d 828, 121 Cal. Rptr. 131 (1975); Young v. Aero Corp., 36 Cal. App. 3d 240, 111 Cal. Rptr. 535 (1974). 5. Luque v. McLean, 8 Cal. 3d 136, 145, 501 P.2d 1163, 1169-70, 104 Cal. Rptr. 443, 449-50 (1972). 6. Richardson, Tobriner, Clark and Manuel, JJ.

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