Products liability law in America has crossed a new threshold. The current trend toward comparative fault in strict products actions moves with such force that it is only a question of time before it assumes majority status. The fundamental question of what comparative fault means to products liability law has yet to be answered. Of the courts that have ruled on comparative fault and strict liability, none have offered elaborate rationales for their position; those in favor maintain that "equity" demands comparative fault, while those against stress that fault and strict liability are incapable of comparison. As this Note shall suggest, both rationales serve only to confuse the law of products liability. As more states move to implement comparative principles in strict liability actions, there is a growing need for a consistent theory that rationally justifies the confluence of the two doctrines. This Note contends that such a theory is available, and that comparative fault can rationally comport with the essential meaning of strict liability, thus providing a coherent basis on which the two doctrines may function. This Note traces the current trend toward comparative fault in strict products actions. It begins by discussing briefly the background of defenses traditionally available to strict liability, and then turns to the actual treatment of comparative fault and strict liability by the courts, attempting to demonstrate how courts have so far failed to resolve adequately the problem of rationally merging the two doctrines. This Note then examines the widely divergent perceptions of strict liability and suggests an analysis of the doctrine, centered on the concept of defectiveness, which will obviate the conceptual pitfalls to which courts have so far been prone, and provide the needed symmetry for comparative fault and strict liability.
Note, Loosing the Shackles of No-Fault in Strict Liability: A Better Approach to Comparative Fault, 33 Clev. St. L. Rev. 339 (1984-1985)