¶1(concurring specially).
¶2This state, heretofore, has not addressed itself to the defenses available on a case brought under the strict liability theory.
¶3I would hold that in the State of South Dakota under a given set of facts that:
(a) assumption of the risk; or
(b) misuse of the product
¶4are available as defenses in strict liability cases.
¶5I would further hold that in the State of South Dakota under a given set of facts that:
(a) the classical negligence defenses are not available in the defense of a strict liability case. The judicially created tort of strict liability is not founded in negligence;
(b) inasmuch as the strict liability theory is not based on negligence, that contributory negligence cannot be interposed as a defense;
(c) although South Dakota has the comparative negligence doctrine, which is akin to the comparative fault theory now adopted by California and Alaska to reduce a plaintiff’s recovery, this is not available as a defense in a strict liability action; and
(d) “contributory fault” is just another way of saying “contributory negligence” and should not be available as a defense to a case founded on strict liability.
¶6Policy considerations, which impelled the adoption of the strict liability doctrine, required the elimination of the contributory negligence defense when not arising to the level of assumption of the risk.
¶7It appears to me that the courts in this nation are divided as regards what defenses are available in strict liability cases. Basically, it appears that this arises because of the fact that misuse of a product or assumption of the risk carries with it, implicitly, a foolish, reckless or negligent act of some kind or wrong doing on the part of a user of a product. Both assumption of the risk and misuse are terms of variable meaning.
¶8There is definitely a trend in the United States to compare negligence on strict products liability actions. Butaud v. Suburban Marine & Sporting Goods, Inc., Alaska, 555 P.2d 42 (1976); Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978); West v. Caterpillar Tractor Co., Florida, 336 So.2d 80 (1976); Busch v. Busch Constr., Inc., Minn., 262 N.W.2d 377 (1977); General Motors Corp. v. Hopkins, Texas, 548 S.W.2d 344 (1977); Powers *163v. Hunt-Wesson Foods, Inc., 64 Wis.2d 632, 219 N.W.2d 393 (1974); Schuh v. Fox River Tractor Co., 63 Wis.2d 728, 218 N.W.2d 279 (1974). However, this creates two great difficulties:
(1) how do you compare the negligence of one party with the strict liability of the other; and
(2) the plaintiff’s misconduct: how may it be used as a basis for reducing the plaintiff’s recovery under the principles of comparative negligence?
¶9It strikes me that were we to adopt comparative negligence as a defense to strict liability cases that we would be placing a burden upon a jury that was highly arithmetic, if not algebraic, and justice for the parties would be lost in a world of technical wonderment. Furthermore, comparative negligence, if applied as a defense, literally eats away, consumes, and destroys the basic purpose of strict liability.
¶10A manufacturer or distributor or retailer should not be at the mercy of a fool. So, lest it be considered that they are under a legal handicap by elimination of the classical negligence defenses, contributory negligence, comparative negligence or comparative fault defenses, these target defendants can plead and prove assumption of the risk or misuse of the product.
¶11I would affirm the jury’s verdict in favor of the employer and against the employee. There was sufficient evidence for the jury to determine whether or not there was a breach of a duty to provide a reasonably safe place to work and reasonably safe equipment. The jury found no breach of that duty.
¶12However, I would reverse the trial court in having instructed the jury that contributory negligence was a defense available to Aurora and Dodd under the doctrine of strict liability in tort. In conclusion, the case should be remanded for proceedings below in spirit with the decision of this court.