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29 Mercer L. Rev. 373 (1977-1978)
Products Liability and Plaintiff's Fault - The Uniform Comparative Fault Act

handle is hein.journals/mercer29 and id is 383 raw text is: Products Liability and Plaintiff's Fault-The Uniform Comparative Fault Act By John W. Wade* I. INTRODUCTION In tort law, the recent revolution in the field of products liability has had a counterpart in the field of contributory fault. There are remarkable simi- larities in the development. In both fields, the restrictive rule of no recov- ery seems to have crystallized in the early part of the nineteenth century.' The harshness of the two rules soon produced some alleviating exceptions that provided relief for a limited number of injured parties.' In the early years of the twentieth century, a more drastic development occurred, lead- ing eventually to substantial reform.' Finally, within the last ten to twenty years, a very substantial further development has taken place,' producing the present situation. But there are marked differences in the development, too. The develop- ment in products liability has been almost entirely judicial; that in com- parative negligence has been largely legislative, although some state su- preme courts have recently adopted compartive negligence., Strict prod- * Distinguished Professor of Law, Vanderbilt University; Dean, 1952-72. Reporter, RESTATEMENT OF TORTS (SECOND). Chairman, NCCUSL Special Committee drafting the Uni- form Comparative Fault Act. 1. Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809) (contributory negli- gence); Winterbottom v. Wright, 10 M. & W. 109, 152 Eng. Rep. 402 (Ex. 1842) (privity required for products liability). 2. E.g., Davies v. Mann, 10 M. & W. 547, 152 Eng. Rep. 588 (Ex. 1842) (last clear chance exception to contributory negligence); Thomas v. Winchester, 6 N.Y. 397 (1852) (privity not required if product is inherently dangerous to life or health). 3. Passage of Federal Employers' Liability Act, ch. 149, 35 Stat. 65 (1908), 45 U.S.C.A. § 51-59 (1972) (adoption of principle of comparative negligence); MacPherson v. Buick Motor Co., 217 N.Y. 382, 11 N.E. 1050 (1916) (requirement of privity essentially eliminated in negligence actions). 4. Comparative negligence. Beginning with Maine in 1965 and four other states in 1969, a wave of adoptions has taken place producing a substantial majority of the states. Products liability. The trio of Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P.2d 897 (1963); and RESTATEMENT OF TORTS (SECOND) §402A (1965) started a trend toward strict tort liability for products that has swept the country. 5. Two-thirds of the states have now adopted comparative negligence in some form. This is not the place to compile the citations to statutes and decisions or to analyze their principal

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