by Thomas C. Albus1
I. Introduction
One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property. ...2
That brief statement, once adopted by the Supreme Court of Missouri in 1969, profoundly changed the legal relationship between manufacturers and consumers. A consumer was no longer required to prove she had entered into a contract with the manufacturer in order to recover for harm caused by a defective product. Indeed, the consumer could recover for injuries caused to her or her property even if she did not purchase the item from the manufacturer.3 On the other side of the relationship, a manufacturer could no longer raise the reasonableness of its conduct in preparing and marketing a product as a defense to liability.4 In the context of a defectively designed product, a thoughtfully designed and meticulously constructed product may nevertheless be considered in a "defective condition unreasonably dangerous" by a jury. The purpose of this article is to review the important products liability cases handed down by Missouri courts over the past 30 years in order to help practitioners better understand what defective design means. It is a cause of action that, in Missouri, is submitted to juries as an ultimate question. That is, juries are not instructed on what is meant by "defective condition unreasonably dangerous," but are left to define it based upon their personal experience and intellect.5
Part II will trace the origins of our current products liability regime from the early cases allowing recovery for breach of implied warranty through the adoption of strict liability in Keener v. Dayton Elec. Mfg. Co.,6 and into the 1970s and early 1980s. Part III will discuss Nesselrode v. Executive Beechcraft,7 the seminal case governing products liability law handed down by the Supreme Court of Missouri in 1986. Part IV will examine the cases decided since Nesselrode and will discuss how the rule in that case has been interpreted and amplified. Finally, Part V will survey the current state of the law and efforts undertaken to reform the law.8
II. Strict Liability for Defective Products Comes to Missouri
Manufacturers have been liable for certain harmful products, absent privity of contract, for more than 60 years. As early as 1936, a plaintiff recovered for injuries suffered after drinking an adulterated soda in Madouros v. Kansas City Coca-Cola Bottling Co.9 The Court of Appeals reasoned:
Under modern conditions, when products of food or drink have been prepared under the exclusive supervision of the manufacturer and the consumer must take them as they are supplied, the representations constitute an implied contract, or implied warranty, to the unknown and helpless consumer that the article is good and wholesome and fit for use.10
By 1963, the Supreme Court of Missouri expanded Madouros to include all unreasonably safe products, not only food and drink, under a breach of warranty theory in Morrow v. Caloric Appliance Corp.11 The plaintiff's property in Morrow was damaged when a stove manufactured by the defendant caught fire as a result of defective valves.12 The Court observed that not only processed food and drink, but also "manufactured articles and facilities" are held out to be "fit and reasonably safe for use by the 'consumer.'"13 This holding out, coupled with a consumer's general inability to further investigate the fitness of so many and various products, "inevitably" led the Court to the conclusion that the manufacturer of such products impliedly warrants such items to be reasonably safe and may be held liable when they are not.14
The implied warranty principle embraced in Madouros and Morrow was recast by the American Law Institute in the Restatement of Torts in 1965 as a tort. The Restatement provided for strict liability for a seller of "any product in a defective condition unreasonably dangerous to the user or consumer or to his property," with or without privity of contract.15 Four years later, the Supreme Court adopted the Restatement (Second) approach in Keener v. Dayton Elec. Mfg. Co.16
Keener gave three reasons for its adoption of the Restatement. First, the costs of injuries caused by defective products should be borne by their manufacturers and purveyors, rather than by consumers "who are powerless to protect themselves" from such defects.17 Second, adoption of a tort theory of recovery released Missouri law from "the shackles of warranty language," which had caused problems in other jurisdictions.18 Finally, the Court wanted to guide the bench and bar.19 Although it reversed because of an erroneous jury instruction, the Court held that the plaintiff could, on remand, make a case against the manufacturer of a sump pump for her husband's wrongful death caused by an electrical shock from the pump.20
By 1975, the Court of Appeals for the St. Louis District observed in Bender v. Colt Industries, Inc. that Keener had become "firmly rooted" into Missouri law.21 Bender held that a handgun held out to be a reproduction of an 1873 design was not exempted from the rule of strict liability set out in Keener.22 So long as the purchaser was unaware of the defect, a jury could reasonably have found Colt's safety system design (or lack thereof) on its single action army revolver was defective.23
Two years later, the Supreme Court confirmed Bender and held that its adoption of the Restatement included strict liability both for products that are defective by reason of their manufacture or their design in Blevins v. Cushman Motors.24 The Court stated, "[T]here is no rational distinction between design and manufacture in this context, since a product may be equally defective and dangerous if its design subjects protected persons to unreasonable risks as if its manufacture does so."25 Judge Donnelly went on to differentiate between strict products liability and negligence:
[I]n strict liability we are talking about the condition (dangerousness) of an article which is designed in a particular way, while in negligence we are talking about the reasonableness of the manufacturer's actions in designing and selling the article as he did. The article can have a degree of dangerousness which the law of strict liability will not tolerate even though the actions of the designer were entirely reasonable in view of what he knew at the time he planned and sold the manufactured article.26Blevins ultimately held that a golfer who was injured in a golf cart accident made a sufficient case under a defective design theory against the cart's manufacturer.27 Specifically, the Court observed that, among other alternate designs, a four-wheel cart might offer superior stability to the three-wheel model involved in the accident.28
After Blevins, the Court of Appeals decided two products liability cases involving automobiles and second collisions. In Cryts v. Ford Motor Co. the plaintiff argued that the armrest in his 1957 Thunderbird was defectively designed and caused him injuries during a collision with another car.29 In Braun v. General Motors, a plaintiff claimed the rearview mirror in his car was defectively designed such that it injured him in the course of a collision.30 Despite their similar postures, the plaintiff made a submissible case in Cryts, but not in Braun.31 In Cryts, the plaintiff offered expert testimony that the armrest was inadequately padded and unduly pointed so as to concentrate force into a passenger's body.32 The Court of Appeals concluded that the plaintiff had made his case, despite the collision resulting from plaintiff's negligence and Ford's armrest allegedly complying with federal safety standards.33 In Braun, the plaintiff's evidence "proved little more than an injury sustained during the use of defendant's product."34 Plaintiff's expert testimony failed to "go beyond discussion of the laws of physics."35 There was no expert testimony that the defendant's design was dangerous, defective, or inadequate; nor was an alternative design theory offered.36 Thus, the critical difference between Cryts and Braun seemed to be the presence of direct, specific expert testimony explaining how the allegedly defective design is inadequate and a reasonable, safer alternative design theory.37
The "Consumer Expectations" Test Emerges
In 1981, the Court of Appeals took up another products liability case in Racer v. Utterman.38 Racer involved an "unavoidably unsafe" product like that alluded to in Blevins. The product was a surgical drape, which protected against infection but could not be made fire-resistant despite the frequent use of a cautery in surgeries like that for which the drape was designed.39 Thus, the specific posture of plaintiff's case was that of a "failure to warn." The Court of Appeals observed that "[c]ourts have applied what purport to be two different tests of whether a product is unreasonably dangerous," either a negligence test or that test set out in comment i to Sec. 402A: 'dangerous to an extent beyond that which would be contemplated by the ordinary consumer.'"40 Judge Smith concluded, "[T]he two tests may in fact be the same – simply different directions from which to arrive at the same result," even though the Supreme Court had stated "there exists an important distinction between the two concepts" of negligence and strict liability just four years earlier.41 At any rate, consumer expectations had been used to define defect by a Missouri court for the first time.
One year later, in Aronson's Men's Stores, Inc. v. Potter Elec. Signal Co., the Supreme Court referred to comment i during the course of resolving a products liability case on other grounds.42 In Aronson's a merchant sought to recover damages resulting from shoplifting after his burglar alarm failed to work properly.43 The Court at least recognized the consumer expectations definition of defect in dicta, but continued to hold that plaintiff could not recover in any case absent some evidence of affirmative harm to property caused by the defective item.44 The Court put it this way, "[n]either the control box, nor any other part of the system, exploded, ignited or caused harm to appellant's property in any manner, much less suddenly or violently."45
III. Nesselrode
In 1986, the Supreme Court decided the design defect case of Nesselrode v. Executive Beechcraft.46 That case arose out of an airplane accident near Kansas City's Downtown Airport.47 The plaintiffs claimed the accident resulted from defectively designed parts. Specifically, they claimed the right and left "elevator trim tab actuators" were designed to be functionally distinct yet visually identical.48 This design left the actuators susceptible to reverse installation. In Nesselrode, the right and left actuators had been installed in reverse, which caused the airplane to severely malfunction and crash.49 The jury found in favor of the plaintiffs.
On appeal, Beech Aircraft claimed, among other things, that the plaintiffs failed to make a submissible case under the theory of design defect.50 Initially, Judge Billings observed, "the job of defining and giving content to the legal meaning of 'defective' has taxed the creative energies of courts and commentators alike."51 The Court then surveyed the various theories of defect.
"Under the Restatement [second], a product, as designed, is actionable if the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer, who either purchases it or uses it, with the ordinary knowledge common to the community as to its characteristics."52 Judge Billings observed that the "consumer expectation test has met with 'little enthusiasm' from legal scholars."53 The consumer expectations test has been called unnecessarily redundant and subjective.54 Also, the test assumes that average consumers have expectations as to complex and obscure aspects of technologically advanced products, such as automobiles.55 The Court acknowledged that "[t]he leading commentators in this area of the law would give content to the concept of defectiveness in design defect cases through the use of a multi-factor standard, under which the utility of the product is weighed against its demonstrated risks."56
Having reviewed without direct comment these competing means of defining defect, the Court explained, "Under Missouri's rule of strict tort liability, a product's design is deemed defective, for purposes of imposing liability, when it is shown by a preponderance of evidence that the design renders the product unreasonably dangerous."57 That is, the determinative question of unreasonable danger is presented to the jury as an "ultimate issue" without further definition.58 "The jury gives this concept content by applying their collective intelligence and experience to the broad evidentiary spectrum of facts and circumstances presented by the parties."59 The Court expressly decided not to consider which standard Missouri should adopt, noting that the issue had not been raised by either party.60 In passing over this question, the Court stopped to note that at least one scholar, Professor Leon Green, had favorably discussed an "ultimate issue" regime.61 In particular, Green concluded that the "the ritual indulged in by the giving of abstract, abstruse standards, impossible to comply with, only perpetuates the mystical trial by ordeal and may conceal a hook in a transcendental lure that will snag an appellate court."62
Turning to the facts of the case, the Court analyzed the plaintiff's evidence showing that the elevator trim tab actuators were unreasonably dangerous in order to determine whether they had made a submissible case of defective design. The plaintiffs identified an industry design standard for critical flight parts. Simply put, this standard called for manufacturers to design critical parts in a way that makes it physically impossible to install or assemble them incorrectly.63 The standard was referred to at trial as "work or no go."64
The plaintiffs elicited testimony from their own expert witness and Beech employees that suggested "work or no go" was indeed the industry standard.65 The plaintiffs also introduced an FAA regulation and language from Beech's own engineering manual to suggest that "right or no go" was the industry standard for parts like the elevator trim tab actuators.66 The plaintiffs also adduced evidence that the actuators at issue did not meet the "right or no go" standard, but could be, and were, installed in reverse.67 The court ultimately concluded that the plaintiffs had adduced a "host" of evidence sufficient to support a finding that Beech's actuators were unreasonably dangerous as designed.68
It should be noted that evidence of a reasonable alternative design was also permitted at trial. For example, the plaintiff's expert suggested three ways Beech's actuators might have been made "right or no go." One was simply to imprint an "R" or an "L" on the actuator for the appropriate side.69 This alternative design evidence, often discussed as a central element of a risk-utility regime, was apparently part of the "broad evidentiary spectrum of facts and circumstances presented by the parties" that Missouri's ultimate issue system anticipates will be placed before the jury. As the Court put it, the jury was "free to infer that an alternative design would have been safer and would have prevented this accident."70
In 1987, one year after Nesselrode, the Missouri General Assembly passed what would be codified as § 537.760, RSMo Supp. 1987. The statute defined a "products liability claim" as one in which a plaintiff seeks damages from a defendant based upon strict liability because:
IV. Post – Nesselrode Cases and the Restatement (Third) of Torts
How best to define or explain a design defect, a question not addressed by Nesselrode, has only been considered by the Supreme Court of Missouri twice during the 13 years since that landmark case. In Hagen v. Celotex Corp., Judge Blackmar acknowledged there "may be open questions under [Missouri] law about defining [unreasonably dangerous]" in a design defect case.73 However, the Court again did not address the issue because the complaining party failed to offer an alternative risk-utility instruction accompanied by an adequate evidentiary basis.74 In future cases, "[a] party who believes that additional instructions are legally appropriate must request a correct instruction and must develop an evidentiary record in support" for the instruction.75 Seven years later, in Newman v. Ford Motor Co., the Court encountered the same idea of defining defect in terms of risk/utility, but from a different perspective than Hagen.76 Newman affirmed the trial court's decision to reject a risk/utility instruction because it "failed to adequately put the issue of reasonable alternative design to the jury."77 However, the Court did allow that "[n]othing prevents the litigants from arguing that the utility of a design outweighs its risks," and suggested that a risk/utility instruction that specifically addressed alternative design might be permissible.78 Although neither Nesselrode, Hagen nor Newman expressly held a risk/utility instruction was proper, they collectively formed something of a roadmap for its proper submission in the future.
In 1997, after Hagen but before Newman, the American Law Institute approved a revision of the second Restatement. The Restatement (Third) of Torts: Products Liability redefined design defect in this way:
[A product] is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not unreasonably safe.79The third Restatement adopts a reasonableness or "risk/utility balancing" test for judging the defectiveness of design defects.80 While the law governing manufacturing defects remains truly strict liability, the new Restatement essentially establishes a negligence standard for design defects.81 "More specifically, the test is whether a reasonable alternative design would, at reasonable cost, have reduced the foreseeable risks of harm posed by the product and, if so, whether the omission of the alternative design by the seller…rendered the product not reasonably safe."82
According to the third Restatement, a broad range of factors may be considered in determining whether an alternative design is reasonable and that its omission renders the product as distributed not reasonably safe.83 Among these factors are the magnitude and probability of the foreseeable risks of harm, accompanying instructions and warnings, the nature of consumer expectations, the relative advantages and disadvantages of an alternatively designed product and the product as designed, and the effects of the alternative design on the general marketability of the product.84
V. The Current State of the Law
The Supreme Court of Missouri recently assessed the state of products liability in Rodriquez v. Suzuki Motor Corp.85 Suzuki involved an automobile accident in which the Suzuki truck plaintiff occupied flipped over.86 Plaintiff contended that the accident was caused by a design defect that gave the Suzuki Samurai truck a propensity to roll over in emergency driving situations.87
The Court discussed the risk-utility concept of design defect in the context of a proffered jury instruction.88 First, Suzuki II recognized that Nesselrode expressly disavowed a risk-utility test along with a consumer expectations test.89 The Court also noted that Nesselrode had been cited favorably only one year earlier in Newman v. Ford Motor Co.90 Judge Limbaugh continued, "In addition to the force of precedent…any further consideration of risk-utility was effectively foreclosed by the enactment of section 537.760, RSMo 1994, as part of Missouri's 1987 tort reform act, which, inter alia, codified section 402A of the Restatement (Second) of Torts."91 Suzuki II reasoned that, because the legislature essentially tracked the language of the second Restatement, the risk-utility approach of the third Restatement was not available.92 Further, by failing to include a definition of defective condition unreasonably dangerous soon after the Supreme Court had treated the issue similarly, the legislature "tacitly adopted" Nesselrode.93 Based upon what it considered to be sound precedent and clear legislative guidance, the Court declined Suzuki's invitation to adopt the risk-utility test or any other external means of defining defect in design cases.94
VI. Conclusion
The legislature has frozen the law of products liability at § 537.760, and, according to Suzuki II, taken the ability to develop a definition of defective condition unreasonably dangerous away from the courts. Products are judged by jurors without guidance as to what factors may or should be considered when evaluating design. An abstract external standard may serve only to mystify, as the Court in Nesselrode observed; but it should be pointed out that the current state of the law forecloses any argument to the contrary.
© 2000, Thomas C. Albus
Endnotes
1 Mr. Albus is an associate with Bryan Cave, LLP in St. Louis. He graduated from the University of Missouri-Columbia School of Law in 1997. He would like to thank UMC law students Reggie Breshears and Greta Basset for their research assistance and his colleague, Alicia Carpenter, for her helpful suggestions on a previous draft.
2 Restatement (Second) of Torts (1965).
3 Id. at § 402A(2)(b).
4 Id. at § 402A(2)(a).
5 Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 378 (Mo. banc 1986).
6 445 S.W.2d 362 (Mo. 1969).
7 707 S.W.2d 371 (Mo. banc 1986).
8 For a more comprehensive discussion of the issues covered in this article see generally David Owen, Products Liability Restated, 49 S.C. L. Rev. 273 (1998); John F. Vargo, The Emporer's New Clothes: The American Law Institute Adorns a "New Cloth" for Section 402A Products Liability Design Defects – A Survey of the States Reveals a Different Weave, 26 U. Mem. L. Rev. 493 (1996).
9 90 S.W.2d 445 (Mo. App. W.D. 1936).
10 Id. at 450.
11 372 S.W.2d 41 (Mo. banc 1963).
12 Id. at 49-50.
13 Id. at 55.
14 Id.
15 Restatement (Second) of Torts § 402A(1) (1965).
16 445 S.W.2d 362 (Mo. 1969).
17 Id. at 364.
18 Id.
19 Id.
20 Id. at 365.
21 517 S.W.2d 705, 707 (Mo. App. E.D. 1974).
22 Id.
23 Id. (citing Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo. App. E.D. 1970), for the defective design standard).
24 551 S.W.2d 602, 606-07 (Mo. banc 1977).
25 Id. at 607 (quoting Pike v. Frank G. Hough Co., 467 P.2d 229, 236 (In. banc 1970).
26 Id. at 608 (quoting Phillips v. Kimwood Machine Co., 525 P.2d 1033, 1037 (1974) (the "law of strict liability" means, practically speaking, the sensibilities of juror as guided by their instructions – it is interesting to consider the workability of the foregoing distinction from a manufacturer's point of view under Missouri's current regime, whereby the issue of unreasonable danger is submitted to the jury as an ultimate issue. It seems comparatively easy to comprehend this distinction within the context of a defective manufacture case because even the most conscientious management may produce defectively manufactured products from time to time due to the limitations of machinery and personnel charged with operating the machinery and screening for problems); see also Cryts v. Ford Motor Co., 571 S.W.2d 683, 688 (Mo. App. E.D. 1978).
27 Id.
28 Id. (consider this analysis in light of the risk-utility test discussed infra. The Court also discussed the concept of "unavoidably unsafe" products which are incapable of being made safe for their intended and ordinary use – is such a category necessary in a jurisdiction employing the risk-utility definition of defect?)
29 571 S.W.2d 683, 685-86 (Mo. App. E.D. 1978).
30 579 S.W.2d 766, 767-68 (Mo. App. E.D. 1979).
31 571 S.W.2d at 689; 579 S.W.2d at 770-71.
32 571 S.W.2d at 688.
33 Id.
34 579 S.W.2d at 770.
35 Id.
36 Id. (the court observed that to allow a plaintiff to recover upon mere proof of injury in the course of one's use of a product would transform the manufacturer into an "insurer of all who use its product." Id. at 771); see also Brawner v. Liberty Industries, Inc., 573 S.W.2d 376, 378 (Mo. App. E.D. 1978) (failure to include a child-proof spout on a gas can – an item designed for adult use – does not as a matter of law make the product unreasonably dangerous).
37 See also Wilson v. Danuser Mach. Co. Inc., 874 S.W.2d 507, 513-514 (Mo. App. S.D. 1994) (plaintiff's expert testimony pointing out a particular defect sufficient to make a submissible case on design defect); School Dist. of Independence v. U.S. Gypsum, 750 S.W.2d 442, 455 (Mo. App. W.D. 1988) but see Tune v. Synergy Gas Corp., 883 S.W.2d 10, 14 (Mo. banc 1994) (noting that expert opinion is not required to make a submissible products case – this was a failure to warn action).
38 629 S.W.2d 387 (Mo. App. E.D. 1981).
39 Id. at 393-94.
40 Id. at 394 (quoting comment i to s§ 402A Restatement (Second) of Torts (1965)).
41 Blevins, 551 S.W.2d 602 at 607.
42 632 S.W.2d 472 (Mo. banc 1982).
43 Id. at 473.
44 Id. at 474. For an interesting and thorough discussion of this topic, see Miller v. Varity Corp., 922 S.W.2d 821, 829-32 (Mo. App. E.D. 1996) (Crahan, J. concurring). Also, Cf. Aronson's Men's Stores with Crowder v. Vandendeale, 564 S.W.2d 879, 881 (Mo. banc 1978), on the issue of whether Aronson's holding expands the requirement of a violent occurrence to cases in which property other than the allegedly defective product is damaged in contradiction to Keener.
45 Id.
46 707 S.W.2d 371 (Mo. banc 1986).
47 Id. at 373.
48 Id. at 374.
49 Id.
50 Id. at 373 (the plaintiffs were the widow and three children of George Nesselrode, who was killed in the crash).
51 Id at 376; see also John W. Wade, On Product "Design Defects" and Their Actionability, 33 Vand. L. Rev. 551, 576 (1980) (cited immediately after quoted language by the court).
52 Id.
53 Id.
54 Id. (citing Sheila L. Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33 Vand. L. Rev. 593, 611-18 (1980)).
55 Id.
56 Id at 376-77. (citing John W. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L. J. 825 (1973); W. Page Keeton, The Meaning of Defect in Products Liability Law—A Review of Basic Principles, 45 Mo. L. Rev. 579 (1980); David A. Fischer, Products Liability—The Meaning of Defect, 39 Mo. L. Rev. 339 (1974) (the court also recounted cases from a number of jurisdictions, including New York and California, where the risk-utility concept had taken hold).
57 Id. at 377.
58 Id. at 378.
59 Id.
60 Id. (the court did observe that several decisions by the Court of Appeals mentioned, but did not necessarily apply the consumer expectations test).
61 Id. (citing Leon Green, Strict Liability Under Sections 402A and 402B: A Decade of Litigation, 54 Tex. L. Rev. 1185, 1206 (1976))
62 Id. (quoting Green, 54 Tex. L. Rev at 1206 (emphasis added by court)).
63 Id. at 379.
64 Id.
65 Id. at 380.
66 Id. at 379-80.
67 Id. at 380.
68 Id. at 381.
69 Id. at 380.
70 Id. at 382.
71 Section 537.670, RSMo Supp. 1987 (the statute is unchanged since 1987).
72 Restatement (Second) of Torts § 402A(1) (1965).
73 816 S.W.2d 667, 674 (Mo. banc 1991) (citing Nesselrode, 707 S.W.2d at 389 (Blackmar, J. concurring)).
74 Hagen, 816 S.W.2d at 674.
75 Id.
76 975 S.W.2d 147 (Mo. banc 1998).
77 Id. at 154.
78 Id.; see also Dorman v. Bridgestone/Firestone, Inc., 992 S.W.2d 231 (Mo. App. E.D. 1999) (evidence of, among other things, a safe alternative design to a truck wheel was sufficient to submit case of defective design to the jury) but see Miller v. Varity Corp., 922 S.W.2d 821, 826 (Mo. App. E.D. 1996) (mere evidence that alternate design – particularly addition of restraint system – would have made tractor safer sufficient to submit design defect case to jury); Stinson v. E.I. DuPont de Nemours & Co., 904 S.W.2d 428, 431 (Mo. App. W.D. 1995) (mere evidence of toxic paint's danger sufficient to submit design defect case to jury); McDowell v. Kawasaki Motors Corp., USA, 799 S.W.2d 854, 866-67 (Mo. App. W.D. 1990) (plaintiff not required to show injuries would not have resulted from safer alternative design, it was sufficient to show that a part of the motorcycle was a substantial factor in producing the injury).
79 Restatement (Third) of Torts: Products Liability, § 2(b) (1997).
80 Id. at comment d.
81 Of course, products liability for defectively designed products differs from negligence in that intermediate sellers who have played no design role can nonetheless be held strictly liable, also, in Missouri, comparative fault is extremely limited in its application as a defense to a products liability case.
82 Restatement (Third) of Torts: Products Liability, § 2 Comment d (1997).
83 Id. at comment f.
84 Id.
85 996 S.W.2d 47 (Mo. banc 1999) (a judgment in same case was reversed in 1996, Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. banc 1996). The 1999 case, therefore, will be referred to as Suzuki II).
86 Id. at 10.
87 Id.
88 Id. at 23.
89 Id. at 24 (citing Nesselrode, 707 S.W.2d at 377-78) (true, Nesselrode refused to adopt a definition, but its specific reason for declining to do so was not the relative merits of certain definitions (although they are discussed), but that neither party had squarely placed the issue before the Court 707 S.W.2d at 378).
90 Id. at 23-24 (citing Newman, 975 S.W.2d at 154) (the Court concluded that both Nesselrode and Newman "rejected the risk-utility approach," despite the former's refusal to consider any new definitions and the latter's specific contemplation that a risk/utility instruction might, under certain circumstances, be appropriate).
91 Id. at 24.
92 Id. (indeed, the elements of a cause of action for defective design under the third Restatement differ significantly from the second, but see section 1 of the Restatement (Third).)
93 Id. at 24-25.
94 Id. at 25.