In cases brought on a negligence theory, such “contributory negligence” by a plaintiff barred her entirely from recovery in most states, until the 1960s. Since then, however, contributory negligence has been replaced in most states by comparative negligence. Under comparative negligence, a plaintiff whose negligence contributed to an injury may still recover, but her recovery will be reduced by the percentage of fault the jury attributes to her. If, for example, Ramirez sued Accu-Cut on a negligence theory, and the jury concluded that Ramirez was 30 percent at fault for continuing to use the saw for thick cuts, his damages would be reduced by 30 percent. In a good many states, Ramirez would be barred from any recovery if his negligence reached a certain level-either 50 or 51 percent. For a full discussion of comparative fault see Chapter 25.
When §402A was added to the Restatement (Second) of Torts in 1965, contributory negligence-which fully barred the negligent plaintiff from recovery-was the general rule in negligence cases. However, the drafters concluded that contributory negligence should not bar recovery on a strict products liability claim. Restatement (Second) of Torts §402A cmt. n. Strict liability was thought of as a different type of liability, intended to place the risk of injury from defective products on the seller, even if the plaintiff’s negligence was also a cause of her injury. Early cases under §402A followed comment n, refusing to bar plaintiffs in strict products liability cases even if their negligence was a factor in causing their injury. See Prosser & Keeton at 712.
However, as states abandoned the complete bar of contributory negligence in negligence cases, in favor of comparative negligence, litigants inevitably began arguing that comparative negligence principles should apply to strict products liability claims as well. Indeed, in many products liability cases, the plaintiff asserts both a negligence claim and a strict products liability claim, based on the same underlying conduct of the defendant. It seems odd that the plaintiff’s negligence would reduce her recovery on the negligence count, but be ignored on the strict liability count in the same case.
One argument against applying comparative fault to strict products liability claims is that it requires the jury to compare apples and oranges. In a negligence case, the jury compares the defendant’s negligence to the plaintiff’s. But how do you compare a defendant’s strict liability for selling a defective product to the plaintiff’s negligence in using it? These are conceptually different types of conduct: The defendant’s liability arises without any fault at all (at least, in manufacturing defect cases), while the plaintiff’s fault is based on negligence.