About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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 *
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.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most