SUTER v. SAN ANGELO FOUNDRY MACHINE COMPANY

CLIFFORD, J., concurring.

I concur in the judgment of the Court. And, most respectfully, in not much else it has done today. Particularly do I deplore the bluntly administered coup de grace to Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152 (1978), barely weaned and now the victim of judicial infanticide. I had thought that decision admirably embodied a method of analysis and of exposition which would serve the profession as a guide to the determination of future cases; but the Court has chosen to treat Cepeda as (to borrow Justice Stone's expression) "not better than an excursion ticket, good for [that] day and trip only * * *." Justice Harlan F. Stone, quoted in C.A. Miller, The Supreme Court and the Uses of History (1969). It appears that Jose Cepeda arrived at the station just a little too early.

In expressing my view I am not unmindful of the salutary principle that one casting a minority vote would do well to state one's reasoned position affirmatively and be done with it, rather than register criticism of any other filed opinion. But the majority's jurisprudential and doctrinal delinquencies in this case are such as to compel response, which I presume to make in order to explicate my own understanding of the field of law in which we find ourselves — one not without its complexities.

Would that my differences with the majority were limited to just its overruling of the precise holding of Cepeda, but unfortunately they are not. To demonstrate the scope of those differences it is perhaps well to start by pointing out exactly what it is the Court has done. As I understand it, henceforth contributory negligence in the sense of an unreasonable and voluntary exposure to a known danger will be available as a defense for a design-defect-strict-tort-liability case only with regard to an injury incurred outside the employee-factory machine setting. To the extent that Cepeda holds to the contrary — and the contrary is, of course, Cepeda's holding — it is overruled. In the process of making that determination the majority has run roughshod over Cepeda's thoughtful approach to design-defect-strict-tort-liability, has rejected its suggested jury charge, and has upset this Court's recent express approval of the definition of strict liability found in ALI Restatement, Torts, 2d, Section 402A (hereafter Rest.2d Sec. 402A), in terms of a "defective condition unreasonably dangerous" for use. See Cepeda, 76 N.J. at 179. As indicated, I am in profound disagreement with all of this. Likewise do I reject the Court's reintroduction of warranty concepts into the analysis of this type of case, its reliance on negligence terminology, and its unhealthy mixing of the two. There is more involved here than mere exegetical or linguistic disputation. As I hope to demonstrate, our differences are fundamental and, I submit, substantial.

The Court declares, ante at 174, that "an appropriate strict liability charge should be given in terms of reasonable fitness, suitability and safety," and that "[f]itness and suitability are terms largely synonymous with safety." Ante at 169. Let us pause right there for a moment. Plainly the language of "fitness" and "suitability" comes from the law of warranty, see, e.g., Jakubowski v. Minnesota Mining Manufacturing, 42 N.J. 177, 184 (1964); N.J.S.A. 12A:2-314, 315, 316, 317, whereas "safety" — that is, "non-dangerousness" — is peculiarly a tort concept. While it is true, as Cepeda points out, that "strict liability in tort began here and elsewhere by borrowing warranty concepts in order to avoid the need of establishing negligence," 76 N.J. at 176, the more recent cases employ notions of tort, specifically as enunciated in Rest.2d Sec. 402A. See particularly Justice Hall's tracing of the development of strict liability in tort in Heavner v. Uniroyal, Inc., 63 N.J. 130, 146-52 (1973). By introducing fitness and suitability into the formula, the Court has suddenly transformed the manufacturer's duty. Heretofore the obligation has been to avoid marketing products which contain harmful defects, 76 N.J. at 174, henceforth it is to avoid putting in the stream of commerce goods which are unsuitable. This, before the ink is yet dry on our explicit rejection of the standard of "reasonable fitness":

The fact that the instant machine was commercially "reasonably fit for its intended purpose" of pelletizing plastic strands is obviously irrelevant to the postulate of strict tort liability to a workman injured by reason of the unsafety of the machine due to a design defect. [ Id. at 176]

But no sooner do we digest this serving of warranty terminology in the majority opinion than we are dished up a negligence course. Now we discover that proofs in respect of proper design "relate to the conduct of the manufacturer. Did the manufacturer act as a reasonably prudent person by designing the item as he did and by placing it on the market in that condition * * *?" Ante at 171. And: "In those design defect situations in which the defect is not self-evident, the trial court should also charge the jury on whether the manufacturer, * * acted as a reasonably prudent one." Ante at 177.

To appreciate the real vice of the stated observations of the Court, one need but return to Cepeda, which makes it abundantly clear that a plaintiff pursuing a strict-liability-in-tort claim for defective design need not prove the manufacturer's negligence under the traditional "conduct-oriented" terminology of the careful and reasonably prudent man. Cepeda explains that the parallel it draws between negligence on the one hand and the now familiar Wade-Keeton- Rest.2d Sec. 402A formula for design defect on the other, 76 N.J. at 172, relates to the balancing of risk and utility incident to a design defect cause of action. The central inquiry in the risk-utility analysis looks not to conduct but rather is this: whether the magnitude of the risk created by the dangerous condition of the product is outweighed by the social utility attained by putting it out in this fashion. See Wade, "On the Nature of Strict Tort Liability for Products," 44 Miss.L.J. 825, 834-35 (1973). See also P. Keeton, "Product Liability and the Meaning of Defect," 5 St. Mary's L.J. 30, 37-38 (1973). While this approach may, to be sure, encompass in a general way a notion of reasonable and prudent behavior on a manufacturer's part, more accurately it views the manufacturer's conduct as irrelevant. The focus is on the product, not conduct.

An excellent statement of this critical distinction is contained in the recent decision of the Iowa Supreme Court in the case of Aller v. Rodgers Machinery Manufacturing Co., Inc., 268 N.W.2d 830 (Iowa 1978), expressly approved in the even more recent case of Eickelberg v. Deere Co., 276 N.W.2d 442, 444 (Iowa 1979), which likewise comments approvingly on Cepeda at 276 N.W.2d at 444. In Aller the Iowa Supreme Court stated:

This balancing process [weighing the utility of the article against the risk of its use] is the same as that used in negligence cases. This process is explained in Prosser, Torts, section 31, pp. 145-149, where it is stated:

* * * [T]he real basis of negligence is not carelessness, but behavior which should be recognized as involving unreasonable danger to others. * * * Against this probability [of harm] and gravity, of the risk, must be balanced in every case the utility of the type of conduct in question.

We believe this similarity in balancing processes had led plaintiff to believe proof of negligence has been injected into proof of strict liability. Despite this similarity in balancing processes, there is a difference between the two theories of liability.

In strict liability the plaintiff's proof concerns the condition (dangerous) of a product which is designed or manufactured in a particular way. In negligence the proof concerns the reasonableness of the manufacturer's conduct in designing and selling the product as he did. Phillips v. Kimwood Machine Company, 269 Or. [485] at 493-495, 525 P.2d [1033] at 1037. [ 268 N.W.2d at 835.]

So it is that Cepeda instructs us that after a trial court has determined, by application of several enumerated factors going to risk-utility, 76 N.J. at 174, that a case should go to the jury, the following model instruction fashioned by Dean Wade would (as modified) be appropriate for inclusion in the charge in a design defect case:

A [product] is not duly safe if it is so likely to be harmful to persons [or property] that a reasonable prudent manufacturer [supplier], who had actual knowledge of its harmful character would not place it on the market. It is not necessary to find that this defendant had knowledge of the harmful character of the [product] in order to determine that it was not safe.

The modification referred to simply calls for substituting Rest.2d Sec. 402A language "defective condition unreasonably dangerous" for the model charge's "not duly safe."

It is well to note, in connection with this model instruction, that the jury is not being asked — as it would be in a negligence case — to evaluate this defendant manufacturer's conduct by application of the standard of reasonable prudence binding upon a hypothetical manufacturer who, in the exercise of reasonable care, knows or should know of his product's dangerous propensity. The jurors are being told, in effect, not to concern themselves with that "negligence-type" question but just to assume that the defendant in court had that knowledge. The question becomes: given that presumed knowledge on the part of the manufacturer, can the product be deemed safe — that is, is its utility such as to outweigh the risks? The Oregon Supreme Court grasped the point when it said:

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. As Professor Wade points out, a way of determining whether the condition of the article is of the requisite degree of dangerousness to be defective (unreasonably dangerous; greater degree of danger than a consumer has a right to expect; not duly safe) is to assume that the manufacturer knew of the product's propensity to injure as it did, and then to ask whether, with such knowledge, something should have been done about the danger before the product was sold. In other words, a greater burden is placed on the manufacturer than is the case in negligence because the law assumes he has knowledge of the article's dangerous propensity which he may not reasonably be expected to have, had he been charged with negligence. [ Roach v. Konoven, 269 Or. 457, 525 P.2d 125, 129 (1974).]

The modified Wade charge, simple enough, set forth above caused not one voice in this Court to be raised against it when approved only fifteen months ago. But today the majority casts it aside. Henceforth, as pointed out above, a jury in a design defect case will be charged in terms of a manufacturer's duty "to distribute products which are reasonably fit, suitable and safe * * *", ante at 177; and in certain special types of design defect cases — namely, those in which the plaintiff does not rely upon reasonable expectations of consumers or users with regard to safety — "the trial court should also charge the jury on whether the manufacturer * * * acted as a reasonably prudent one." Ante at 177. With the greatest deference I suggest that my brothers of the majority, all of whom are capable of some of the most precise thinking and most lucid judicial writing the bench and bar of this nation have been privileged to witness, have hardly simplified the jury's task by this obfuscation — a mixture of the apples of warranty with the oranges of negligence. I for one quite honestly do not understand how the trial judges and jurors are to go about their business; and if I do not, I venture to say there may be some of them who will share my dullness of comprehension.

This remarkable about-face on the critical point of the proper jury charge apparently stems from a recently contracted aversion to Rest.2d Sec. 402A's articulation of the strict liability principle in terms of a product which is in a "defective condition unreasonably dangerous to the user or consumer." (Emphasis supplied.) Remarkable, because after some considerable ambivalence on the question (see Brody v. Overlook Hospital, 66 N.J. 448, 451 (1975)), we last term deliberately and unequivocally adopted that formulation, Cepeda, 76 N.J. at 179, with no objection being registered. I would have thought the matter now entirely free from doubt. As Chitty, J., said (albeit in a different context) in Lavery v. Pursell, 30 Ch.D. 508, 517 (1888), "Courts of Justice ought not to be puzzled by such old scholastic questions as to where a horse's tail begins and where it ceases. You are obliged to say, `This is a horse's tail,' at some time." The reversal of our position on this question is the more remarkable because the only reported case I can find in this jurisdiction which strikes down Rest.2d Sec. 402A's criterion of "unreasonably dangerous" is a Law Division opinion, Glass v. Ford Motor Co., 123 N.J. Super. 599 (1973) — expressly overruled, again without so much as a word of protest, in Cepeda, 76 N.J. at 180. And perhaps most remarkable of all, because the majority's springboard for shunning "unreasonably dangerous" is a seven-year-old case severely criticized by most commentators and now even politely disapproved by the very court which decided it in the first place — Cronin v. J.B.E. Olson Corporation, 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972). Cepeda reviewed and rejected Cronin, 76 N.J. at 171 n. 4, 178-79, noting in the process the California Supreme Court's modification of its Cronin doctrine. Id. at 171 n. 4, 179. Phoenix-like, Cronin has arisen once again to obtrude into the Court's consideration factors which are completely irrelevant to — and, more pointedly, anachronistic in comparison with — the strict-liability-in-tort structure so painstakingly set forth in Cepeda. Cronin can be viewed as the polestar of the line of cases which concluded (mistakenly, as I hope to demonstrate) that the "unreasonably dangerous" requirement of Rest.2d Sec. 402A required a plaintiff in a strict liability case to meet a burden which strict liability was developed to protect against. See discussion of Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436 (1944) (Traynor, J., concurring), in Cronin at 8 Cal.3d 133, 104 Cal.Rptr. 442, 501 P.2d 1162. A somewhat extensive review of the premise underlying Cronin is unavoidable if there is to be a complete understanding of the narrow but exceedingly important question which now has our attention. The California Supreme Court was concerned that Rest.2d Sec. 402A terminology placed an unwarranted "dual burden" on the injured plaintiff. As indicated above, in effect the language seemed to require that the plaintiff prove that a defect existed and that the defect posed a condition which was unreasonably dangerous. Both of these requirements are dealt with in comments to the Restatement. Comment g explains that the requirement of "defective condition" limits application of Section 402A to those situations where "the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." An "unreasonably dangerous" product is defined, in circuitous fashion in Comment i, as one which is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."

The critical concern of the Cronin court was with these definitions. As noted by the California Supreme Court six years later in Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978):

As we noted in Cronin, the Restatement draftsmen adopted the "unreasonably dangerous" language primarily as a means of confining the application of strict tort liability to an article which is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." [ Rest.2d Torts, § 402A, com. i.] In Cronin, however, we flatly rejected the suggestion that recovery in a products liability action should be permitted only if a product is more dangerous than contemplated by the average consumer, refusing to permit the low esteem in which the public might hold a dangerous product to diminish the manufacturer's responsibility for injuries caused by that product. As we pointedly noted in Cronin, even if the "ordinary consumer" may have contemplated that Shopsmith lathes posed a risk of loosening their grip and letting a piece of wood strike the operator, "another Greenman" should not be denied recovery. (8 Cal.3d at p. 133, 104 Cal.Rptr. 433, 501 P.2d 1153). Indeed our decision in Luque v. McLean (1972) 8 Cal.3d 136, 104 Cal.Rptr. 443, 501 P.2d 1163 — decided the same day as Cronin — aptly reflects our disagreement with the restrictive implications of the Restatement formulation, for in Luque we held that a power rotary mower with an unguarded hole could properly be found defective, in spite of the fact that the defect in the product was patent and hence in all probability within the reasonable contemplation of the ordinary consumer.

Thus, our rejection of the use of the "unreasonably dangerous" terminology in Cronin rested in part on a concern that a jury might interpret such an instruction, as the Restatement draftsman had indeed intended, as shielding a defendant from liability so long as the product did not fall below the ordinary consumer's expectations as to the product's safety. As Luque demonstrates, the dangers posed by such a misconception by the jury extend to cases involving design defects as well as to actions involving manufacturing defects: indeed, the danger of confusion is perhaps more pronounced in design cases in which the manufacturer could frequently argue that its product satisfied ordinary consumer expectations, since it was identical to other items of the same product line with which the consumer may well have been familiar. [ 143 Cal. Rptr. at 233, 573 P.2d at 451.]

As the above rather lengthy excerpt indicates, the fears and concerns of the Cronin court are wholly irrelevant to Cepeda's view of design defect strict liability. The most cursory reading of Cepeda discloses that it does not use "consumer expectations" as a "ceiling" of strict liability nor does its definitional treatment of "defective condition unreasonably dangerous" rest in any measure on Comments g and i of Rest.2d Sec. 402A.

As Cepeda makes clear, a careful distinction must be made between ordinary manufacturing defects and design defects. 76 N.J. at 169. The issue in design-defect-strict-tort liability is not what was expected by the plaintiff but rather what the plaintiff actually received and used. Liability is not based on the foreseeability of the risk of harm occasioned by the design, for under the Cepeda formula "the requisite of foreseeability by the manufacturer of the dangerous propensity of the chattel" is imputed to the manufacturer. 76 N.J. at 174. In brief, the actual harm which occasioned the plaintiff's injury is traced backward, through hindsight, to the marketing of the product as designed. It is at this stage that the weighing process envisioned by Cepeda commences. That weighing process recognizes that the product was manufactured flawlessly as designed, but that the design selected may pose an unreasonable risk of harm when viewed against comparable designs, their costs, and their efficiencies. The test evolved from this balancing process, simply put, asks of a jury whether the product contains that degree of dangerousness which, on balance, would have caused the manufacturer to refrain from putting it on the market. (See model charge supra at 143.

It is quite clear that in Barker the Supreme Court of California, while not returning to Restatement language as used in Cepeda, nevertheless has corrected Cronin in ever so clear fashion as to bring California into substantial agreement with New Jersey on the precise nature of design-defect-strict-tort liability. I can find little, if any, difference between the risk/utility analysis proposed in Cepeda, 76 N.J. at 172-76, and the following approach presented in Barker:

As Professor Wade has pointed out, however, the expectations of the ordinary consumer cannot be viewed as the exclusive yardstick for evaluating design defectiveness because "[i]n many situations * * * the consumer would not know what to expect, because he would have no idea how safe the product could be made." (Wade, On the Nature of Strict Tort Liability for Products, supra, 44 Miss.L.J. 825, 829.) Numerous California decisions have implicitly recognized this fact and have made clear, through varying linguistic formulations, that a product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies "excessive preventable danger," or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design. ( E.g., Self v. General Motors Corp., supra, 42 Cal.App.3d [1] at p. 6, 116 Cal.Rptr. 575; Hyman v. Gordon, supra, 35 Cal.App.3d [769] at p. 773, 111 Cal.Rptr. 262; Buccery v. General Motors Corp., supra, 60 Cal.App.3d [533] at p. 547, 132 Cal.Rptr. 605.)

A review of past cases indicates that in evaluating the adequacy of a product's design pursuant to this latter standard, a jury may consider, among other relevant factors, the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design. [ 143 Cal.Rptr. at 236, 573 P.2d at 454-55; citations and footnote omitted.]

This view of design-defect-strict-tort liability is so much more refined than the approach taken in Cronin, and indeed so much more in keeping with the concept that a manufacturer's liability for defective design is best predicated upon the harmfulness of the product, that I am at a loss to understand the Court's assertion that "California has continued to adhere to the position stated in Cronin." Ante at 175. It seems clear that more recent California decisions have embraced Barker, not Cronin, as the best expression of strict liability principles in California. See Titus v. Bethlehem Steel Corp., 91 Cal. App.3d 372, 154 Cal.Rptr. 122, 126-28 (Ct.App. 1979); Korli v. Ford Motor Co., 86 Cal.App.3d 417, 149 Cal.Rptr. 98, 109 (Ct.App. 1978); Garcia v. Joseph Vince Co., 84 Cal. Rptr.3d 868, 148 Cal.Rptr. 843, 847-48 (Ct.App. 1978); McGee v. Cessna Aircraft Co., 82 Cal.App.2d 1005, 147 Cal.Rptr. 694, 702 (Ct.App. 1978). In effect, Barker fielded the criticism leveled at Cronin and concluded that the risk-utility formula adds substance to the definition of design-defect-strict-tort liability. See especially Titus v. Bethlehem Steel Corp., supra, 154 Cal.Rptr. at 127, and discussion of Barker in Brady v. Melody Homes Manufacturer, 121 Ariz. 253, 589 P.2d 896, 898-99 (Ct.App. 1978).

Perhaps even more unfortunate than the reliance on Cronin is the majority's re-introduction of two features of strict liability in tort analysis which Barker tells us, 573 P.2d at 451, Cronin itself discarded, namely, "consumer expectations" and a conduct-oriented test of strict liability. Ante at 170-172. As for the former, the Court suggests that in "some improper design situations" design failure can be shown through proof that a product failed to perform up "to the user's reasonable expectation that it would `safely do the jobs for which it was built.'" Ante at 171, quoting from Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962). Given this resurrection of the much-maligned "consumer's expectation" test, one might reasonably inquire how this standard of "reasonable expectation that [the product] would safely do the jobs for which it was built" can be squared with the modern view that the product must be designed safely with an eye not simply toward use in the jobs for which it was built but for each and every use which is reasonably foreseeable. Ante at 176-177. Our strict-liability-in-tort law has come a long way since Greenman, relied on by the Court for its "consumer expectations" test. Today New Jersey takes a major step backward, one complicated by the Court's attempt to bifurcate design-defect-strict-tort liability between situations where the "factor" of "consumer expectations" is present, and those in which it is absent. In the latter the plaintiff's proofs "relate to the conduct of the manufacturer." Ante at 171. My objections to the "conduct" orientation of this approach have already been detailed herein. To those remarks I would add only the thought that this bifurcation hardly lends simplicity to an area of the law which could profit from some clarification.

Finally, I must record a diligent, although perhaps not exhaustive, effort to find anything to support the majority's use of warranty language in combination with risk-utility factors — the "apples" and "oranges" referred to above. It has been an unproductive search. What has surfaced, however, is the clear preference of Rest.2d Sec. 402A language in the large majority of jurisdictions. I would cast my lot with the many states which within recent times have adopted or reaffirmed the language of "defective condition unreasonably dangerous" in the following cases: Vineyard v. Empire Machinery Co., Inc., 119 Ariz. 502, 581 P.2d 1152, 1155 (App. 1978); Bendix-Westinghouse Automotive Air Brake Co. v. Latrobe Die Casting Co., 427 F. Supp. 34, 40 (D.Col. 1976); Slepski v. Williams Ford, Inc., 170 Conn. 18, 364 A.2d 175, 178 (1975); Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167, 1169-71 (Fla. 1979); Huff v. White Motor Corp., 565 F.2d 104, 106 (7th Cir. 1977); Hunt v. Blasius, 74 Ill.2d 203, 23 Ill.Dec. 574, 384 N.E.2d 368, 372 (Ill. 1978); Aller v. Rodgers Machinery Manufacturing Co., Inc., supra, 268 N.W.2d at 833-35; Eickelberg v. Deere Co., supra, 276 N.W.2d at 444; Bohnert Equip Co. v. Cleveland Crane Eng. Co., 569 S.W.2d 161, 164 (Ky. 1978); Chappuis v. Sears, Roebuck Co., 358 So.2d 926, 929 (La. 1978) (Code equivalent); Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955, 958-60 (Ct.App. 1976) (Statutory equivalent); Lovelace v. Astra Trading Corp., 439 F. Supp. 752, 757 (S.D.Miss. 1977); O'Laughlin v. Minnesota Natural Gas Co., 253 N.W.2d 826, 829 (Minn. 1977) (Statutory equivalent); Winters v. Sears Roebuck and Co., 554 S.W.2d 565, 569 (Ct.App.Mo. 1977); Brown v. North American Manufacturing Co., 576 P.2d 711, 716 (Mont. 1978); Tenney v. Seven-Up Co., 92 N.M. 158, 584 P.2d 205, 206 (Ct.App. 1978); Rudisaile v. Hawk Aviation Inc., 92 N.M. 578, 592 P.2d 175, 177 (1979); Temple v. Wean United Inc., 50 Ohio St.2d 317, 364 N.E.2d 267, 270-71 (1977); Stuckey v. Young Exploration Co., 586 P.2d 726, 730-31 (Okla. 1978); Wilson v. Piper Aircraft Corp., 282 Or. 411, 579 P.2d 1287, 1288 (1978) (rejects Barker in favor of 402A language approved for Oregon in Roach v. Konoven, supra); Kennedy v. Custom Ice Equip. Co., 246 S.E.2d 176, 178 (S.C. 1978); Community Television Services, Inc. v. Dresser Ind. Inc., 435 F. Supp. 214, 216 (S.D.S.D. 1977); Wyatt v. Winnebago, 566 S.W.2d 276, 279 (Ct.App.Tenn. 1977); Hamilton v. Motor Coach Ind. Inc., 569 S.W.2d 571, 574 (Ct.Civ.App.Tex. 1978); Kinney v. Goodyear Tire Rubber Co., 367 A.2d 677, 679 (Vt. 1976); Lamon v. McDonnell Douglas Corp., supra, 576 P.2d at 428-29 (Ct.App.Wash. 1978), aff'd, 91 Wn.2d 345, 588 P.2d 1346 (1979); Schuldies v. Service Machine Co., Inc., 448 F. Supp. 1196, 1200 (E.D.Wis. 1978).

The jury in this case concluded that the machine in question was in a defective condition as designed and marketed by defendant. It computed the total damages proximately resulting from that defective design at $25,000 and allocated fault at 50% each for plaintiff and defendant. Inasmuch as plaintiff's fault was determined to be "not greater" than that of defendant, judgment for plaintiff was entered, in keeping with that fault allocation, for one-half the amount of damages, or $12,500.

The Appellate Division, concluding that plaintiff's conduct, or fault, was not such as to permit application of comparative negligence principles, remanded the cause for entry of judgment for $25,000, the full amount of damages as determined by the jury. Specifically, the Appellate Division held that inasmuch as plaintiff's injury was "caused by the absence of a device intended to avoid the injury which occurred," this Court's decision in Bexiga v. Havir Manufacturing Corp., 60 N.J. 402 (1972), foreclosed the availability of plaintiff's conduct as a defense. The court below rejected defendant's claim that Bexiga is "no longer viable because of the enactment of the comparative negligence law in 1973."

The threshold question is the issue of plaintiff's conduct in a strict-liability-in-tort case based on design defect — that is, I would first determine whether there is any aspect of plaintiff's conduct which would serve to defeat his claim, tested by the law as it existed prior to enactment of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1. In Cepeda v. Cumberland Engineering Co., Inc., supra, this Court examined at length the type of plaintiff's conduct which can be interposed against defendant's strict liability in tort, see discussion at 76 N.J. 183-88 Cintrone v. Hertz Truck Leasing Rental Service, 45 N.J. 434 (1965); Maiorino v. Weco Products Co., 45 N.J. 570 (1965); Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463 (1969); and Bexiga v. Havir Manufacturing Corp., supra, and concluded that conduct of the sort described in Comment n., Rest.2d Sec. 402A — namely, voluntary and unreasonable encountering of a known danger — would serve to bar plaintiff's claims. The Court has today completely undone that holding, preserving the defense of contributory fault only in those strict-tort-liability-design-defect cases which arise in some context other than the employee-factory machine setting.

I would preserve both the analysis and the precise holding of Cepeda. We there concluded that in this type of case a plaintiff's conduct must be viewed from two separate and distinct, although not entirely unrelated, perspectives. The first aspect of plaintiff's conduct bears on the defendant manufacturer's duty to protect against objectively foreseeable use of his product — including careless, negligent or abnormal use where that kind of use is objectively foreseeable. Accordingly, a plaintiff may, under the circumstances of a particular injury, be required to demonstrate as part of his main case that the use of the product which occasioned the injury in question was foreseeable in an objective sense. This is the thrust of Comment h, Rest.2d Sec. 402A, adopted in Cepeda, supra, 76 N.J. at 176-77. However we characterize plaintiff's conduct which fails to meet the Comment h test — as misuse, abnormal use, alteration of product — the significant inquiry is whether plaintiff can demonstrate that the actual use was objectively foreseeable. 2 L. Frumer M. Friedman, Products Liability § 16A[4][d] at 3B-76-77 (1976); V. Schwartz, "Strict Liability and Comparative Negligence," 42 Tenn.L.Rev. 171, 172 (1974). This has nothing to do with contributory negligence.

Perhaps a couple of illustrations, concededly somewhat primitive, will assist in demonstrating the point I seek to make here. If, for instance, a plaintiff undertakes to use his power saw as a nail clipper and thereby snips his digits, he will not be heard to complain of the absence of a guard — not because he is barred by any notion of contributory negligence but because the manufacturer has no duty to protect against that type of use of his product. Likewise with respect, say, to the man who decides to trim his beard with motorized hedge clippers not designed with a protective device to avoid the unintended abbreviation of his nose. Outrageous examples, to be sure, but they serve to illustrate the principle.

The other aspect of plaintiff's conduct critical to a design-defect-strict-tort-liability case goes to the availability of an affirmative defense. As Cepeda instructs us, "only a limited range of plaintiff's conduct — not contributory negligence in the sense of mere carelessness or inadvertence — can be a defense to an action for strict liability in tort." 76 N.J. at 185. Within that "limited range" is conduct by which plaintiff voluntarily and unreasonably proceeds to encounter a danger known to him. This is the formulation found in Comment n, Rest.2d Sec. 402A, specifically adopted in Cepeda, supra, 76 N.J. at 184-86, and reading in full as follows:

Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.

I would reaffirm and underscore the Comment n principle — applying it to all strict-tort-liability-design-defect cases — for the reason that "acceptance of ordinary contributory negligence as a defense in actions for strict liability in tort would be incompatible with the policy considerations which led to the adoption of strict tort liability in the first instance." 76 N.J. at 185, 386 A.2d at 832.

This incompatibility stems from the nature of the duty imposed upon manufacturers to produce and market goods free from unreasonably dangerous defects. As Bexiga demonstrates, that duty in turn represents a frank recognition of salutary policy: a manufacturer has a responsibility to design its product so as to guard against not only those injuries which may arise in the course of intended use but also against injuries which may result from foreseeable carelessness or negligence. See Bexiga v. Havir Manufacturing Corp., supra, 69 N.J. at 412; Cepeda v. Cumberland Engineering Co., Inc., supra, 76 N.J. at 186; Twerski, "Old Wine in a New Flask — Restructuring Assumption of Risk in the Products Liability Era," 60 Iowa L.Rev. 1, 20-22 (1974); Twerski, "The Use and Abuse of Comparative Negligence in Products Liability," 10 Ind.L.Rev. 797, 804-05 (1977).

In acknowledging that Comment n, Rest.2d Sec. 402A, accurately sets forth that kind of plaintiff's conduct — unreasonable, voluntary exposure to a known risk — which will support an affirmative defense to a strict-tort-liability claim, I note in passing the numerous jurisdictions which likewise have accepted this principle: See, e.g., Dulin v. Circle F Industries, Inc., 558 F.2d 456, 468 (8th Cir. 1977) (Ark.Law); Good v. A.V. Chance Co., 565 P.2d 217, 222 (Colo.App. 1977); Hunt v. Harley-Davidson, 147 Ga. App. 44, 248 S.E.2d 15, 16 (Ct.App. 1978); Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F. Supp. 598, 602 (D.C.Id. 1976) (Idaho Law); Clark v. Crane Carrier Co., 69 Ill. App.3d 514, 26 Ill.Dec. 41, 387 N.E.2d 871, 873 (Ill.App. 1979); Coty v. U.S. Slicing Mach. Co., Inc., 58 Ill. App.3d 237, 15 Ill.Dec. 687, 373 N.E.2d 1371, 1377-78 (Ill.App. 1978); Tri-State, Etc. v. Fid. Cas. Ins. Co., 364 So.2d 657, 661 (La.App. 1977); Tulkku v. Macksworth Rees, Etc., 76 Mich. App. 472, 257 N.W.2d 128, 131-32 (Ct.App. 1977); Means v. Sears, Roebuck Company, 550 S.W.2d 780, 787 fn. 6 (Mo. 1977); Brown v. North American Mfg. Co., 576 P.2d 711, 719 (Mont. 1978); Hagenbuch v. Snap-on Tools, Inc., 339 F. Supp. 676, 680-81 (D.C.N.H. 1972) (New Hampshire Law); Rudisaile v. Hawk Aviation, Inc., supra, 592 P.2d at 177; Olson v. A.W. Chesterton Co., 256 N.W.2d 530, 541 (N.D. 1977); Wyatt v. Winnebago Ind., Inc., 566 S.W.2d 276, 281-82 (Ct.App.Tenn. 1977); Mitchell v. Freuhauf Corp., 568 F.2d 1139, 1146 (5th Cir. 1978) (Texas Law); Rigtup v. Strawberry Water Users Assn., 563 P.2d 1247, 1250 (Utah 1977); Morningstar v. Black and Decker Manufacturing Co., 253 S.E.2d 666, 683-84 (W.Va. 1979).

It is desirable to emphasize an important feature of this affirmative defense, namely, its requirement of a subjective analysis of the plaintiff's conduct. Was plaintiff actually aware of the danger posed by the product? Did plaintiff in fact see, know, understand and appreciate the danger, and nevertheless make a conscious decision to proceed in the face of it? Did occupational duress or common inadvertence color plaintiff's capacity to appreciate or avoid that risk of danger? See Brown v. North American Mfg. Co., supra, 576 P.2d at 719; Dulin v. Circle F Ind. Inc., supra, 558 F.2d at 468; Twerski, op.cit., supra, 60 Iowa L.Rev. at 22-25; Twerski, op.cit., supra, 10 Ind.L.Rev. at 811-14; Fischer, "Products Liability — Applicability of Comparative Negligence to Misuse and Assumption of the Risk," 43 Mo.L.Rev. 643, 660-63 (1978). These and other questions pertaining to an affirmative defense based on unreasonable, voluntary self-exposure to a known product hazard should not be permitted to become matters for speculation by a jury. They should be charged only in those cases where the trial court is satisfied that evidence exists which would indicate a plaintiff's actual knowledge of the product's danger and, further, his unreasonable and voluntary encountering of this harm.

The appropriate analysis is well-illustrated in Coty v. U.S. Slicing Machine Co., Inc., supra. There recovery for personal injuries sustained by a worker in a fast-food restaurant was sought against the manufacturer of a meat slicer, based upon strict tort liability for design defect. The manufacturer appealed from a plaintiff's judgment entered upon a jury verdict, raising the issue of plaintiff's unreasonable and voluntary self-exposure to a known risk as set forth in Rest.2d Sec. 402A, Comment n. Defendant's duty and breach thereof presented no problem on appeal, inasmuch as the absence of an available guard, which could easily have prevented plaintiff's getting her hand near the cutting blade, conclusively established the slicer as an unreasonably dangerous product. To determine the availability of the affirmative defense based on plaintiff's conduct, the Illinois court looked to the facts of the accident. These revealed that plaintiff, a fifteen-year-old girl, had worked in the restaurant for over a year prior to the accident. On the occasion of her injury she was slicing meat on defendant's product by means of a stationary rotary blade and a movable tray which held the food product for slicing. The latter component was maneuvered back and forth over the rotating blade by reciprocal gears. Immediately prior to her injury the plaintiff had wrapped the meat in paper towels to prevent juicing, and when she attempted to remove excess paper which was being sliced with the meat during the cutting operation, her hand was moved by the meat and mechanized meat tray into the blade. The blade severed her hand.

The court treated the affirmative defense issue as follows:

In this case plaintiff's conduct in removing the paper towels without switching off the power took place over a period of a few seconds in the midst of filling a customer's order. The evidence establishes that plaintiff made a split-second decision to reach for the paper towels, while the roast was farthest away from the blade, while standing in front of the machine without turning it off and without conscious thought that the operation of the equipment would thrust her hand almost immediately into contact with the revolving blade. The defendant has the burden of proving the defense of assumption of risk. There was neither direct evidence that plaintiff made an informed and voluntary decision to encounter the obvious risk posed by the unreasonably dangerous machine; nor was there sufficient circumstantial evidence, considering plaintiff's age, experience, knowledge, understanding, the obviousness of the defect and the resulting danger, to permit a jury to draw a reasonable inference that plaintiff made a considered choice to encounter the danger. Therefore, the trial judge properly denied defendant's motion that the plaintiff had assumed the risk as a matter of law, and properly granted plaintiff's motion to find in her favor on the issue as a matter of law. [ 15 Ill.Dec. at 694, 373 N.E.2d at 1378.]

Applying the principles stated above to the case before us, it at once becomes apparent that plaintiff Suter's conduct did not give rise to an affirmative defense. Viewing his actions objectively one must conclude that Suter's use of the machine — working close to the operating mechanisms in proximity to the engagement gear — was an objectively foreseeable use. This, along with other factors in our case law bearing on the unreasonable dangerousness of the product, serves to support the jury's conclusion that the machine was defective as designed. However, examination of plaintiff's conduct under the subjective guidelines suggested by Rest.2d Sec. 402A, Comment n, leads to the conclusion that there was no evidence before the trial court of a considered choice to chance injury. Such a choice would necessarily have to have been made in Suter's instance with full knowledge and appreciation of the risk associated with the exposed lever's potential for sudden activation of the roller mechanism due to contact with an object, such as an operator's body, during the course of work. Rather, Suter's conduct was simply careless, and clearly so, entirely free of any element of deliberation. Hence, under my view of the case, whatever negligence may be attributable to plaintiff does not amount to contributory fault for purposes of defeating that liability which is imposed, as a matter of policy and law, upon the manufacturer of an unreasonably dangerous product.

The majority has elected, as a matter of policy, to rule out the application of Comment n conduct in the employee-factory machine setting. It is a policy decision, I suggest, without support in any case anywhere discoverable by diligent research, and specifically I find no such support in Bexiga, supra. However, I will not here embark on the profitless undertaking of rehashing the respective sides of that argument, the object so recently of our energies in Cepeda, see 76 N.J. at 183-88 and 201-03, inasmuch as I cannot improve on Judge Conford's statement in that case of my position then and now.

I would add only this. I understand the bedrock of the policy adopted by the majority to be substantially as stated in Justice Schreiber's dissent in Cepeda, as follows:

* * * [T]he law does not accept the [machine] user's ability to take care of himself as an adequate safeguard of the interests which society seeks to protect. This is particularly so with respect to employees, who generally have limited occupational choices * * * [A]s a matter of public policy and justice an employee should not be precluded from recovery because of remaining on the job. Accordingly some of the burden of looking out for the user is placed on the manufacturer. Furthermore, imposition of this burden should more probably lead to accident avoidance. [ 76 N.J. at 199-201.]

But if all this be true, why then should the defense of contributory fault be abolished only in the employee-factory machine setting? I take it that the Court today reserves that question, as perhaps well it should. While I would not (as the reader may by now have detected) abolish this defense under any circumstances — employment or otherwise — that I can presently imagine, I perceive no reason rooted in policy to distinguish the factory machine worker from, say, the sandblaster electrocuted in a water tank in Dulin v. Circle F. Industries, Inc., supra. Or from the electrician operating a boom device in Good v. A.V. Chance Co., supra. Or from the crane operator in Clark v. Crane Carrier Co., supra. Or from the restaurant employee in Coty v. U.S. Slicing Machine Co. Inc., supra. Or from the employee fixing a tire in Tri-State, Etc. v. Fidelity Cas. Insurance Co., supra. Is it the thought that the limited occupational choices are more "institutionalized" in the employee-factory machine setting? I doubt it. But even if they are, why cannot the jury be entrusted to take that into account in determining whether the defendant manufacturer has successfully borne its burden of proving that the employee-plaintiff's encountering of a known risk was in truth both voluntary and unreasonable? In those rare cases — and I suspect they would be found on only rare occasion — where that burden of proof is sustained, I would not be at all affronted by the notion that the better accident-avoider and cost-avoider would be the employee guilty of Comment n-type fault.

In the absence of the comparative negligence issue, my inquiry would go no further. But the central question of this appeal remains to be addressed, and that is whether the principles set forth in the Comparative Negligence Act, N.J.S.A. 2A:15-5.1, apply to a strict-liability-in-tort case based upon design defect. I would conclude that the statute applies. The bottom line is this: the conclusion stated in Part II hereof being that plaintiff Suter's conduct did not constitute that type of contributory fault which would completely foreclose any recovery under the pre-Comparative Negligence Act standard of contributory fault, neither can that conduct serve as a basis for reducing the liability of the defendant manufacturer or the amount of plaintiff's recovery under comparative negligence principles. The other side of that coin is that those principles should pertain where plaintiff's conduct rises to the level of unreasonable and voluntary self-exposure to a known risk. See generally, Twerski, op.cit., supra, 60 Iowa L.Rev. at 39-51; Twerski, "From Defect to Cause to Comparative Fault — Rethinking Some Product Liability Concepts", 60 Marq.L.Rev. 297, 342 (1977); Teagle v. Fischer Porter Co., 80 Wn.2d 149, 570 P.2d 438, 444-45 (1977); Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, 1182 (dissenting opinion, Mosk, J.); Busch v. Busch Const. Inc., 262 N.W.2d 377, 394-95 (Minn. 1977).

The above serves as both a preface and a conclusion to discussion of this issue, which has recently received considerable attention from both the academic community and the courts. See, e.g., V. Schwartz, Comparative Negligence, 195-96 (1974); Twerski, "The Many Faces of Misuse: An Inquiry Into the Emerging Doctrine of Comparative Causation," 29 Merq.L.Rev. 402 passim (1978); Twerski, op.cit., supra, 60 Marq.L.Rev. 297 passim; Fischer, op.cit., supra, 43 Mo.L.Rev. 643 passim; Wade, op.cit., supra, 29 Merc.L.Rev. 373 passim; V. Schwartz, op.cit., supra, 42 Tenn.L.Rev. 171 passim; V. Schwartz, "Contributory and Comparative Negligence, A Reappraisal," 87 Yale L.J. 697 passim (1978); Note "Products Liability Comparative Negligence and the Allocation of Damages Among Multiple Defendants," 50 S.Cal.L.Rev. 73, 76-80 (1976); Note, "Comparative Fault and Strict Products Liability: Are They Compatible?", 5 Pepperdine L.Rev. 501 passim; Butaud v. Suburban Marine Sporting Goods, Inc., 555 P.2d 42 (Alaska 1976); Daly v. General Motors Corp., supra, 575 P.2d at 1167-73; Kinard v. Coats, 553 P.2d 835 (Colo.App. 1976); Blackburn v. Dorto, 348 So.2d 287 (Fla. 1977); Edwards v. Sears, Roebuck Company, 512 F.2d 276 (5 Cir. 1975); Busch v. Busch Construction, Inc., supra, 262 N.W.2d 377 passim; Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir. 1975) (Neb.Law): Kirkland v. General Motors Corp., 521 P.2d 1353 (Okla. 1974); Kennedy v. Providence Hockey Club, Inc., 376 A.2d 329 (R.I. 1977); Teagle v. Fischer Porter Co., supra, 570 P.2d at 444-45; Pan-Alaska Fisheries v. Marine Const. Design Co., 565 F.2d 1129 (9th Cir. 1977) (Wash.Law); Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967).

It is well to start with the pertinent part of the text of the Comparative Negligence Act, adopted in 1973:

Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering. [N.J.S.A. 2A:15-5.1.] ^fn7

As the majority observes, if one were to read the enactment literally, it would be easy to come a cropper, since it would appear that the comparative scheme extends only to actions "based upon negligence." Indeed, such a literal reading has led at least one court to reject the introduction of comparative negligence principles to strict tort liability. See Kirkland v. General Motors Corp., supra, 521 P.2d at 1367 (where Oklahoma Supreme Court's interpretation of statute nearly identical to New Jersey's focused upon essential doctrinal and semantic distinctions between strict liability and negligence; the ruling was that comparative negligence scheme could not be applied to strict liability causes of action.) See also General Motors Corp. v. Simmons, 558 S.W.2d 855, 862 (Tex. 1977). But I think at this point one might profitably resurrect Judge Jerome Frank's oft-repeated (although not universally reliable) warning that

[t]here is no surer way to misread any document than to read it literally * *. As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final. [ Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944).]

In a word, I would join the majority in rejecting the literal approach and concentrate rather upon the reasoning in policy and law behind the adoption of comparative allocation of fault, leading to the result that this scheme must apply to strict tort liability. As already indicated, I would apply it "across the board."

The principal aim of comparative negligence formulae was to ameliorate the harsh result of the contributory negligence bar. As the Court observes, Governor Cahill recognized this design when he commented at the time of the law's enactment that "[n]o longer will a seriously injured person be prevented from obtaining compensation for his injuries merely because he was partially responsible in a minor way for the accident in which he was injured." Release from Office of the Governor, May 24, 1973. This is the common if not universal reasoning behind comparative fault enactments. See e.g., Butaud v. Suburban Marine Sporting Goods, Inc., supra, 555 P.2d at 46; Daly v. General Motors Corp., supra, 575 P.2d at 1166; Teagle v. Fischer Porter Co., supra, 570 P.2d at 443; Wade, op.cit., supra, 29 Merc.L.Rev. at 373; V. Schwartz, Comparative Negligence, supra, at 77-78.

The comparative fault scheme seeks to compel the balancing of the respective faults of the plaintiff and defendant. Fault, of course, is a generic term connoting legal culpability. In negligence, the defendant's fault corresponds to the failure to exercise the caution of the ordinary and prudent man under the circumstances of the occasion of injury, which failure proximately causes harm. The plaintiff's fault relates to his failure to act as a reasonably prudent person in regard to his own well-being, proximately resulting in his avoidable injury. "Fault" describes the law's view of the respective parties' relationships with the occurrence of injury.

Notions of "fault" likewise serve to support the policy considerations underlying the doctrine of strict liability. Perhaps the best statement of those considerations is found in Justice Traynor's famous concurring opinion in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436, 443-44 (1944):

The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer, and distributed among the people as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and hazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be a general and constant protection and the manufacturer is best suited to afford such protection. [Emphasis in original.]

As spelled out heretofore, in my view the defendant-manufacturer's legal culpability is premised upon the marketing of an unreasonably dangerous product. Further, although the doctrine of strict liability in tort for product failure has evolved from the express salutary purpose of eliminating the difficulties inherent in proving a negligence case, Escola v. Coca Cola Bottling Co., supra, 150 P.2d at 441 (Traynor, J., concurring), there nevertheless remains the requirement that a plaintiff demonstrate defendant-manufacturer's fault. The strict liability doctrine is by no means the equivalent of liability without fault, nor does it mean that a manufacturer is a guarantor or insurer of its product. As the discussion supra has endeavored to make clear, the manufacturer has a duty in a strict-liability-design-defect case. It is to design its product so as to guard against injuries arising in the course of intended use, including those which may result from foreseeable carelessness or negligence. Breach of that duty proximately causing injury constitutes fault on the part of the manufacturer, in turn exposing it to legal liability unless it successfully establishes plaintiff's contributory fault.

And as the discussion in Part II hereof demonstrates, we have long recognized that a particular kind of plaintiff's fault pertains in strict liability cases. In Cepeda, supra, we said that the complete bar to recovery which would result from a jury's determination that plaintiff's unreasonable and voluntary exposure to a known risk proximately causing his injury could be viewed as "a fair balance of justice and policy." 76 N.J. at 190. The Legislature, in fashioning the remedy provided by the Comparative Negligence Act, has struck an even fairer balance in severely limiting those situations ( i.e., where plaintiff's negligence is greater than defendant's) in which contributory fault remains as a complete bar.

I would therefore conclude that the term "negligence" found in the Comparative Negligence Act embraces that fault which heretofore has been operative in our strict-liability-in-tort doctrine. It follows from this that the only kind of plaintiff's conduct which can be permitted to reduce plaintiff's damages is that limited form which heretofore, under the principle of contributory negligence, would have barred his claim completely, namely, unreasonable and voluntary exposure to a known risk, or "Comment n" conduct.

Inasmuch as Suter's conduct did not constitute fault which would serve to bar his claim under the contributory negligence doctrine, neither can it form the basis for reducing his recovery under comparative fault principles. I therefore join in the judgment of the Court affirming the judgment below.

MOUNTAIN and SULLIVAN, JJ., join in this opinion.

For affirmance — Chief Justice HUGHES and Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER and HANDLER — 7.

For reversal — None.