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42 Tenn. L. Rev. 171 (1974-1975)
Strict Liability and Comparative Negligence

handle is hein.journals/tenn42 and id is 185 raw text is: STRICT LIABILITY AND COMPARATIVE NEGLIGENCE* VICTOR E. SCHWARTZ** One of the major unresolved problems facing the courts in the developing law of strict liability concerns the question of when a plaintiff's conduct should be deemed to bar his claim. In those states which have adopted comparative negligence, a more specific aspect of the general problem of plaintiff misconduct has arisen: Should comparative negligence principles be applied to a claim based on strict liability? While courts are just beginning to develop the relationship between comparative negligence and strict liability, it is already apparent that comparative negligence principles may be particularly helpful in resolving the problem of plaintiff misconduct in the strict liability case.' In dealing with the general issue of strict liability and plain- tiff misconduct, the growing body of legal literature on the sub- ject2 has made it clear that it is necessary to be precise in describ- ing the kind of misconduct that may either reduce or bar plain- tiffs strict liability claim. Thus, before discussing in detail the question of whether comparative negligence should apply in strict liability cases, one must isolate the precise patterns of plaintiff * This article is derived from chapter 12 of Professor Schwartz's treatise on Compar- ative Negligence published by The Allen Smith Company in 1974. ** A.B., Boston University; LL.B., Columbia University. Professor of Law, Univer- sity of Cincinnati; Chairman, Faculty Liaison Committee of the Negligence, Insurance and Compensation Section of the American Bar Association. 1. Hagenbuch v. Snap-On Tools Corp., 339 F. Supp. 676 (D.N.H. 1972); Haney v. International Harvester Co., 294 Minn. 375, 201 N.W.2d 140 (1972); Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 186 N.W.2d 258 (1971); Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967). 2. See 2 L. FRUMER & M. FRIEDMAN, PRODUcTS LIABILrrY § 16.01 (1974); 2 F. HARPER & F. JAMES, THE LAW OF TORTS § 22.7 (1956); R. HURSH, AMERICAN LAW OF PRODUCTS LIABILITY § 3.9 (1961); W. PROSSER, THE LAW OF TORTS § 79, at 522-24, § 102, at 667 (4th ed. 1971) [hereinafter cited as PROSSER]; Epstein, Products Liability: Defenses Based on Plaintiff's Conduct, 1968 UTAH L. REv. 267; Groark, Contributory Negligence-An Integral Part of Product Liability Cases, 56 ILL. B.J. 904 (1968); Horsley, Products Liability Defenses, 15 DEFENSE L.J. 399 (1966); Levine, Buyer's Conduct as Affecting the Extent of Manufacturer's Liability in Warranty, 52 MINN. L. REV. 627 (1968); Noel, Defective Prod- ucts: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 VAND. L. REv. 93 (1972); Postillion, Strict Liability and Contributory Negligence: The Two Just Don't Mix, 57 ILL. B.J. 26 (1968); Comment, Products Liability: For the Defense- Contributory Fault, 33 TENN. L. REv. 464 (1966); Annot., 46 A.L.R.3d 240 (1972).

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