Cardozo, J.

The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car, it suddenly collapsed. He was *385thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. The case, in other words, is not brought within the rule of Kuelling v. Lean Mfg. Co. (183 N. Y. 78). The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser.

The foundations of this branch of the law, at least in this state, were laid in Thomas v. Winchester (6 N. Y. 397). A poison was falsely labeled. The sale was made to a druggist, who in turn sold to a customer. The customer recovered damages from the seller who affixed the label. “The defendant’s negligence,” it was said, “put human life in imminent danger.” A poison falsely labeled is likely to injure any one who gets it. Because the danger is to be foreseen, there is a duty to avoid the injury. Cases were cited by way of illustration in which manufacturers were not subject to any duty irrespective of contract. The distinction was said to be that their conduct, though negligent, was not likely to result in injury to any one except the purchaser. We are not required to say whether the chance of injury was always as remote as the distinction assumes. Some of the illustrations might be rejected to-day. The principle of the distinction is for present purposes the important thing.

Thomas v. Winchester became quickly a landmark of the law. In the application of its principle there may at times have been uncertainty or even error. There has never in this state been doubt or disavowal of the principle itself. The chief cases are well known, yet to recall *386some of them will he helpful. Loop v. Litchfield (42 N. Y. 351) is the earliest. It was the case of a defect in a small balance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who wished a cheap article and was ready to assume the risk. The risk can hardly have been an imminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had made a lease of the machinery. It was held that thti manufacturer was not answerable to the lessee. Loop v. Litchfield was followed in Losee v. Clute (51 N. Y. 494), the case of the explosion of a steam boiler. That decision has been criticised (Thompson on Negligence, 233; Shearman & Redfield on Negligence [6th ed.], § 117); but it must be confined to its special facts. It was put upon the ground that the risk of injury was too remote. The buyer in that case had not only accepted the boiler, hut had tested it. The manufacturer knew that his own test was not the final one. The finality of the test has a bearing on the measure of diligence owing to persons other than the purchaser (Beven, Negligence [3d ed.], pp. 50, 51, 54; Wharton, Negligence [2d ed.], § 134).

These early cases suggest a narrow construction of the rule. Later cases, however, evince a more liberal spirit. First in importance is Devlin v. Smith (89 N. Y. 470). The defendant, a contractor, built a scaffold for a painter. The painter’s servants were injured. The contractor was held liable: He knew that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was to he used by the workmen. He was building it for that very purpose. Building it for their use, he owed them a duty, irrespective of his contract with their master, to build it with care.

From Devlin v. Smith we pass over intermediate cases and turn to the latest case in this court in which Thomas v. Winchester was followed. That case is Statler v. Ray Mfg. Co. (195 N. Y. 478, 480). The defendant *387manufactured a large coffee urn. It was installed in a restaurant. When heated, the urn exploded and injured the plaintiff. W e held that the manufacturer was liable. We said that the urn “was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed.” It may be that Devlin v. Smith and Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons — things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (Torgeson v. Schultz, 192 N. Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke v. Ireland (26 App. Div. 487), in an opinion by Cullen, J., it was applied to a builder who constructed a defective building; in Kahner v. Otis Elevator Co. (96 App. Div. 169) to the manufacturer of an elevator; in Davies v. Pelham Hod Elevating Co. (65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.

*388 Devlin v. Smith was decided in 1882. A year later a very similar case came before the Court of Appeal in England (Heaven v. Pender, L. B. [11 Q. B. D.] 503). We find in the opinion of Brett, M. B., afterwards Lord Esher (p. 510), the same conception of a duty, irrespective of contract, imposed upon the manufacturer by the law itself: “Whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing.” He then points out that for a neglect of such ordinary care or skill whereby injury happens, the appropriate remedy is an action for negligence. The right to enforce this liability is not to be confined to the immediate buyer. The right, he says, extends to the persons or class of persons for whose use the thing is supplied. It is enough that the goods “would in all probability be used at once * * * before a reasonable opportunity for discovering any defect which might exist,” and that the thing supplied is of such a nature “that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it.” On the other hand, he would exclude a case “in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not; or whether they would be used before there would probably be means of observing any defect,” or where the goods are of such a nature that “a want of care or skill as to their condition or the manner 'of supplying them would not probably *389produce danger of injury to person or property.” What was said by Lord Esher in that case did not command the full assent of his associates. His opinion has been criticised “as requiring every man to take affirmative precautions to protect his neighbors as well as to refrain from injuring them” (Bohlen, Affirmative Obligations in the Law of Torts, 44 Am. Law Reg. [N. S.] 341). It may not be an accurate exposition of the law of England. Perhaps it may need some qualification even in our own state. Like most attempts at comprehensive definition, it may involve errors of inclusion and of exclusion. But its tests and standards, at least in their underlying principles, with whatever qualification may be called for as they are applied to varying conditions, are the tests and standards of our law.

We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will housed by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will he shared by others than the buyer. Such knowledge may often be *390inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow. We are not required at this time to say that it is legitimate to go back of the manufacturer of the finished product and hold the manufacturers of the component parts. To make their negligence a cause of imminent danger, an independent cause must often intervene; the manufacturer of the finished product must also fail in his duty of inspection. It may be that in those circumstances the negligence of the earlier members of the series is too remote to constitute, as to the ultimate user, an actionable wrong (Beven on Negligence [3d ed.], 50, 51, 51; Wharton on Negligence [2d ed.], § 134; Leeds v. N. Y. Tel. Co., 178 N. Y. 118; Sweet v. Perkins, 196 N. Y. 482; Hayes v. Hyde Park, 153 Mass. 511, 516). We leave that question open. We shall have to deal with it when it arises. The difficulty which it suggests is not present in this case. There is here no break in the chain of cause and effect. In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.

From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant’s liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This *391automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer. This was apparent from its size; there were seats for three persons. It was apparent also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin v. Smith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.

In reaching this conclusion, we do not ignore the decisions to the contrary in other jurisdictions. It was held in Cadillac M. C. Co. v. Johnson (221 Fed. Rep. 801) that an automobile is not within the rule of Thomas v. Winchester. There was, however, a vigorous dissent. Opposed to that decision is one of the Court of Appeals of Kentucky (Olds Motor Works v. Shaffer, 145 Ky. 616). The earlier cases are summarized by Judge Sanborn in Huset v. J. I. Case Threshing Machine Co. (120 Fed. Rep. 865). Some of them, at first sight inconsistent with our conclusion, may be reconciled upon the ground that the negligence was too remote, and that another cause had intervened. But even when they cannot be reconciled, the difference is rather in the applica*392tion of the principle than in the principle itself. Judge Sanborn says, for example, that the contractor who builds a bridge, or the manufacturer who builds a car, cannot ordinarily foresee injury to other persons than the owner as the probable result (120 Fed. Rep. 865, at p. 867). We take a different view. We think that injury to others is to be foreseen not merely as a possible, but as an almost inevitable result. (See the trenchant criticism in Bohlen, supra, at p. 351). Indeed, Judge Sanborn concedes that his view is not to be reconciled with our decision in Devlin v. Smith (supra). The doctrine of that decision has now become the settled law of this state, and we have no desire to depart from it.

In England the limits of the rule are still unsettled. Winterbottom v. Wright (10 M. & W. 109) is often cited. The defendant undertook to provide a mail coach to carry the mail bags. The coach broke down from latent defects in its construction. The defendant, however, was not the manufacturer. The court held that he was not liable for injuries to a passenger. The case was decided on a demurrer to the declaration. Lord Esher points out in Heaven v. Pender (supra, at p. 513) that the form of the declaration was subject to criticism. It did not fairly suggest the existence of a duty aside from the special contract which was the plaintiff’s main reliance. (See the criticism of Winterbottom v. Wright, in Bohlen, supra, at pp. 281, 283). At all events, in Heaven v. Pender (supra) the defendant, a dock owner, who put up a staging outside a ship, was held liable to the servants of the shipowner. In Elliott v. Hall (15 Q. B. D. 315) the defendant sent out a defective truck laden with goods which he had sold. The buyer’s servants unloaded it, and were injured because of the defects. It was held that the defendant was under a duty “not to he guilty of negligence with regard to the state and condition of the truck.” There seems to have been a *393return to the doctrine of Winterbottom v. Wright in Earl v. Lubbock (L. B. [1905] 1 K. B. 253). In that case, however, as in the earlier one, the defendant was not the manufacturer. He had merely made a contract to keep the van in repair. A later case (White v. Steadman, L. R. [1913], 3 K. B. 340, 348) emphasizes that element. A livery stable keeper who sent out a vicious horse was held liable not merely to his customer but also to another occupant of the carriage, and Thomas v. Winchester was cited and followed (White v. Steadman, supra, at pp. 348, 349). It was again cited and followed in Dominion Natural Gas Co. v. Collins (L. R. [1909] A. C. 640, 646). From these cases a consistent principle is with difficulty extracted. The English courts, however, agree with ours in holding that one who invites another to make use of an appliance is bound to the exercise of reasonable care (Caledonian Ry. Co. v. Mulholland, L. R. [1898] A. C. 216, 227; Indermaurv. Dames, L. R. [1 C. P.] 274). That at bottom is the underlying principle of Devlin v. Smith. The contractor who builds the scaffold invites the owner’s workmen to use it. The manufacturer who sells the automobile to the retail dealer invites the dealer’s customers to use it. The invitation is addressed in the one case to determinate persons and in the other to an indeterminate class, but in each case it is equally plain, and in each its consequences must be the same.

There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use. We may find an analogy in the law which measures the liability of landlords. If A leases to B a tumbledown house he is not liable, in the absence of fraud, to B’s guests who enter it and are injured. This is because B is then under the duty to repair it, the lessor has the right to suppose that he will fulfill that duty, and, if he *394omits to do so, his guests must look to him (Bohlen, supra, at p. 276). But if A leases a building to be used by the lessee at once as a place of public entertainment, the rule is different. There injury to persons other than the lessee is to be foreseen, and foresight of the consequences involves the creation of a duty (Junhermann v. Tilyou R. Co., 213 N. Y. 404, and cases there cited).

In this view of the defendant’s liability there is nothing inconsistent with the theory of liability on which the case was tried. It is true that the court told the jury that “an automobile is not an inherently dangerous vehicle.” The meaning, however, is made plain by the context. The meaning is that danger is not to be expected when the vehicle is well constructed. The court left it to the jury to say whether the defendant ought to have foreseen that the car, if negligently constructed, would become “imminently dangerous.” Subtle distinctions are drawn by the defendant between things inherently dangerous and things imminently dangerous, but the case does not turn upon these verbal niceties. If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent. In varying forms that thought was put before the jury. We do not say that “the court would not have been justified in ruling as a matter of law that the car was a dangerous thing. If there was any error, it was none of which the defendant can complain.

We think the defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was a manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests (Richmond & Danville R. R. Co. v. Elliott, 149 U. S. 266, 272). Under the charge of the trial judge nothing more was *395required of it. The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger, the greater the need of caution. There is little analogy between this case and Carlson v. Phoenix Bridge Co. (132 N. Y. 273), where the defendant bought a tool for a servant’s use. The making of tools was not the business in which the master was engaged. Reliance on the skill of the manufacturer was proper and almost inevitable. But that is not the defendant’s situation. Both by its relation to the work and by the nature of its business, it is charged with a stricter duty.

Other rulings complained of have been considered, but no error has been found in them.

The judgment should be affirmed with costs.

Willard Bartlett, Ch. J. (dissenting).

The plaintiff was injured in consequence of the collapse of a wheel of an automobile manufactured by the defendant corporation which sold it to a firm of automobile dealers in Schenectady, who in turn sold the car to the plaintiff. The wheel was purchased by the Buick Motor Company, ready made, from the Imperial Wheel Company of Flint, Michigan, a reputable manufacturer of automobile wheels which had furnished the defendant with eighty thousand wheels, none of which had proved to be made of defective wood prior to the accident in the present case. The defendant relied upon the wheel manufacturer to make all necessary tests as to the strength of the material therein and made no such tests itself. The present suit is an action for negligence brought by the subvendee of the motor car against the manufacturer as the original vendor. The evidence warranted a finding by the jury that the wheel which collapsed was defective when it left the hands of the defendant. The automobile was being prudently operated at the time of the accident and was moving at a speed of only eight miles an hour. There was *396no allegation or proof of any actual knowledge of the defect on the part of the defendant or any suggestion that any element of fraud or deceit or misrepresentation entered into the sale.

The theory upon which the case was submitted to the jury by the learned judge who presided at the trial was that, although an automobile is not an inherently dangerous vehicle, it may become such if equipped with a weak wheel; and "that if the motor car in question, when it was put upon the market was in itself inherently dangerous by reason of its being equipped with a weak wheel, the 'defendant was chargeable with a knowledge of the defect so far as it might be discovered by a reasom able inspection and the application of reasonable tests. This liability, it was further held, was not limited to the original vendee, but extended to a subvendee like the plaintiff, who was not a party to the original contract of sale.

I think that these rulings, which have been approved by the Appellate Division, extend the liability of the vendor of a manufactured article further than any case which has yet received the sanction of this court. It has heretofore been held in this state that the liability of the vendor of a manufactured article for negligence arising out of the existence of defects therein does not extend to strangers injured in consequence of such defects but is confined to the immediate vendee. The exceptions to this general rule which have thus far been recognized in New York are cases in which the article sold was of such a character that danger to life or limb was involved in the ordinary use thereof; in other words, where the article sold was inherently dangerous. As has already been pointed out, the learned trial judge instructed the jury that an automobile is not an inherently dangerous vehicle.

The late Chief Justice Cooley of Michigan, one of the most learned and accurate of American law writers, *397states the general rule thus: “The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of such article.” (2 Cooley on Torts [3d ed.], I486.)

The leading English authority in support of this rule, to which all the later cases on the same subject refer, is Winterbottom v. Wright (10 Meeson & Welsby, 109), which was an action by the driver of a stage coach against a contractor who had agreed with the postmaster-general to provide and keep the vehicle in repair for the purpose of conveying the royal mail over a prescribed route. The coach broke down and upset, injuring the driver, who sought to recover against the contractor on account of its defective construction. The Court of Exchequer denied him any right of recovery on the ground that there was no privity of contract between the parties, the agreement having been made with the postmaster-general alone. i£If the plaintiff can sue,” said Lord Abinger, the Chief Baron, “every passenger or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who enter into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.”

The doctrine of that decision was recognized as the law of this state by the leading New York case of Thomas v. Winchester (6 N. Y. 397, 408), which, however, involved an exception to the general rule. There the defendant, who was a dealer in medicines, sold to a druggist a quantity of belladonna, which is a deadly poison, negligently labeled as extract of dandelion. The druggist in good faith used the poison in filling a prescription calling for the harmless dandelion extract and the plaintiff for whom the prescription was put up was poisoned by the *398belladonna. This court held that the original vendor was liable for the injuries suffered by the patient. Chief Judge Ruggles, who delivered the opinion of the court, distinguished between an act of negligence imminently dangerous to the lives of others and one that is not so, saying: “If A. build a wagon and sell it to B., who sells it to C. and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.’s obligation to build the wagon faithfully, arises solely out of his contract with B. The public have nothing to do with it. * * * So, for the same reason, if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith’s negligence in shoeing; the smith is not liable for the injury. ”

In Torgeson v. Schultz (192 N. Y. 156, 159) the defendant was the vendor of bottles of aerated water which were charged under high pressure and likely to explode unless used with precaution when exposed to sudden changes of temperature. The plaintiff, who was a servant of the purchaser, was injured by the explosion of one of these bottles. There was evidence tending to show that it had not been properly tested in order to insure users against such accidents. We held that the defendant corporation was liable notwithstanding the absence of any contract relation between it and the plaintiff “under the doctrine of Thomas v. Winchester (supra), and similar cases based upon the duty of the vendor of an article dangerous in its nature, or likely to become so in the course of the ordinary usage to be contemplated by the vendor, either to exercise due care to warn users of the danger or to take reasonable care to present the article sold from proving dangerous when subjected only to customary usage.” The character of the exception to the general rule limiting liability for negligence to the original parties to the contract of sale, was still more clearly stated by Judge *399Hiscock, writing for the court in Statler v. Ray Manufacturing Co. (195 N. Y. 478, 482), where he said that “in the case of an article of an inherently dangerous nature, a manufacturer may become liable for a negligent construction which, when added to the inherent character of the appliance, makes it imminently dangerous, and causes or contributes to a resulting injury not necessarily incident to the use of such an article if properly constructed, but naturally following from a defective construction.” In that case the injuries were inflicted by the explosion of a battery of steam-driven coffee urns, constituting an appliance liable to become dangerous in the course of ordinary usage.

The case of Devlin v. Smith (89 N. Y. 470) is cited as an authority in conflict with the view that the liability of the manufacturer and vendor extends to third parties only when the article manufactured and sold is inherently dangerous. In that case the builder of a scaffold ninety feet high which was erected for the purpose of enabling painters to stand upon it, was held to be liable to the administratrix of a painter who fell therefrom and was killed, being at the time in the employ of the person for whom the scaffold was built. It is said that the scaffold if properly constructed was not inherently dangerous; and hence that this decision affirms the existence of liability in the case of an article not dangerous in itself but made so only in consequence of negligent construction. Whatever logical force there may be in this view it seems to me clear from the language of Judge Rapallo, who wrote the opinion of the court, that the scaffold was deemed to be an inherently dangerous structure; and that the case was decided as it was because the court entertained that view. Otherwise he would hardly have said, as he did, that the circumstances seemed to bring the case fairly within the principle of Thomas v. Winchester.

I do not see how we can uphold the judgment in the *400present case without overruling what has been so often said by this court and other courts of like authority in reference to the absence of any liability for negligence on the part of the original vendor of an ordinary carriage to any one except his immediate vendee. The absence of such liability was the very point actually decided in the English case of Winterbottom v. Wright (supra), and the illustration quoted from the opinion of Chief Judge Ruggles in Thomas v. Winchester (supra) assumes that the law on the subject was so plain that the statement would be accepted almost as a matter of course. In the case at bar the defective wheel on an automobile moving only eight iniles an hour was not any more dangerous to the occupants of the car than a similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same speed; and yet unless the courts have been all wrong on this question up to the present time there would be no liability to strangers to the original sale in the case of the horse-drawn carriage.

The rule upon which, in my judgment, the determination of this case depends, and the recognized exceptions thereto, were discussed by Circuit Judge Sanborn of the United States Circuit Court of Appeals in the Eighth Circuit, in Huset v. J. I. Case Threshing Machine Co. (120 Fed. Rep. 865) in an opinion which reviews all the leading American and English decisions on the subject up to the time when it was rendered (1903). I have already discussed the leading New York cases, but as to the rest I feel that I can add nothing to the learning of that opinion or the cogency of its reasoning. I have examined the cases to which Judge Sanborn refers, but if I were to discuss them at length I should be forced merely to paraphrase his language, as a study of the authorities he cites has led me to the same conclusion; and the repetition of what has already been so well said would contribute nothing to the advantage of the bench, the bar or the individual litigants whose case is before us.

*401A few cases decided since his opinion was written, however, may he noticed. In Earl v. Lubbock (L. R. 1905 [1 K. B. Div.] 253) the Court of Appeal in 1904 considered and approved the propositions of law laid down by the Court of Exchequer in Winterbottom v. Wright (supra), declaring that the decision in that case, since the year 1842, had stood the test of repeated discussion. The master of the rolls approved the principles laid down by Lord Abinger as based upon sound reasoning; and all the members of the court agreed that his decision was a controlling authority which must he followed. That the Federal courts still adhere to the general rule, as I have stated it, appears by the decision of the Circuit Court of Appeals in the Second Circuit, in March, 1915, in the case of Cadillac Motor Car Co. v. Johnson (221 Fed. Rep. 801). That case, like this, was an action by a subvendee against a manufacturer of automobiles for negligence in failing to discover that one of its wheels was defective, the court holding that such an action could not be maintained. It is true there was a dissenting opinion in that case, but it was based chiefly upon the proposition that rules applicable to stage coaches are archaic when applied to automobiles and that if the law did not afford a remedy to strangers to the contract the law should he changed. It this be true, the change should he effected by the legislature and not by the courts. A perusal of the opinion in that case and in the Huset case will disclose how uniformly the courts throughout this country have adhered to the rule and how consistently they have refused to broaden the scope of the exceptions. I think we should adhere to it in the case at bar and, therefore, I vote for a reversal of this judgment.

Hiscock, Chase and Cuddeback, JJ., concur with Cardozo, J., and Hogan, J., concurs in result; Willard Bartlett, Ch. J., reads dissenting opinion; Pound, J., not voting.

Judgment affirmed.

*456GIBSON, C. J.

Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her hand. She alleged that defendant company, which had bottled and delivered the alleged defective bottle to her employer, was negligent in selling “bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous . . . and likely to explode.” This appeal is from a judgment upon a jury verdict in favor of plaintiff.

Defendant’s driver delivered several cases of Coca Cola to the restaurant, placing them on the floor, one on top of the other, under and behind the counter, where they remained at least thirty-six hours. Immediately before the accident, plaintiff picked up the top case and set it upon a near-by ice cream cabinet in front of and about three feet from the refrigerator. She then proceeded to take the bottles from the case with her right hand, one at a time, and put them into the refrigerator. Plaintiff testified that after she had placed three bottles in the refrigerator and had moved the fourth bottle about eighteen inches from the ease “it exploded in my hand.” The bottle broke into two jagged pieces and inflicted a deep five-inch cut, severing blood vessels, nerves and muscles of the thumb and palm of the hand. Plaintiff further testified that when the bottle exploded, “It made a sound similar to an electric light bulb that would have dropped. It made a loud pop.” Plaintiff’s employer testified, “I was about twenty feet from where it actually happened and I heard the explosion.” A fellow employee, on the opposite side of the counter, testified that plaintiff “had the bottle, I should judge, waist high, and I know that it didn’t bang either the case or the door or another bottle . . . when it popped. It sounded just like a fruit jar would blow up. . . .” The witness further testified that the contents of the bottle “flew all over herself and myself and the walls and one thing and another.”

The top portion of the bottle, with the cap, remained in plaintiff’s hand, and the lower portion fell to the floor but did not break. The broken bottle was not produced at the trial, the pieces having been thrown away by an employee of the restaurant shortly after the accident. Plaintiff, however, described the broken pieces, and a diagram of the bottle was made showing the location of the “fracture line” where the bottle broke in two.

*457One of defendant’s drivers, called as a witness by plaintiff, testified that he had seen other bottles of Coca Cola in the past explode and had found broken bottles in the warehouse when he took the cases out, but that he did not know what made them blow up.

Plaintiff then rested her case, having announced to the court that being unable to show any specific acts of negligence she relied completely on the doctrine of res ipsa loquitur.

Defendant contends that the doctrine of res ipsa loquitur does not apply in this case, and that the evidence is insufficient to support the judgment.

Many jurisdictions have applied the doctrine in cases involving exploding bottles of carbonated beverages. (See Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762 [73 S.E. 1087] ; Stolle v. Anheuser-Busch, 307 Mo. 520 [271 S.W. 497, 39 A.L.R. 1001] ; Bradley v. Conway Springs Bottling Co., 154 Kan. 282 [118 P.2d 601] ; Ortego v. Nehi Bottling Works, 199 La. 599 [6 So.2d 677] ; MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868]; Moeres v. Coca-Cola Bottling Co., 290 Mich. 567 [287 N.W. 922] ; Benkendorfer v. Garrett (Tex. Civ. App.), 143 S.W.2d 1020.) Other courts for varying reasons have refused to apply the doctrine in such cases. (See Gerber v. Faber, 54 Cal.App.2d 674 [129 P.2d 485] ; Loebig’s Guardian v. Coca-Cola Bottling Co., 259 Ky. 124 [81 S.W.2d 910]; Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60 [68 P.2d 952]; Glaser v. Seitz, 35 Misc. 341 [71 N.Y.S. 942]; Luciano v. Morgan, 267 App. Div. 785 [45 N.Y.S.2d 502]; cf. Berkens v. Denver Coca-Cola Bottling Co., 109 Colo. 140 [122 P.2d 884]; Ruffin v. Coca Cola Bottling Co., 311 Mass. 514 [42 N.E.2d 259]; Slack v. Premier-Pabst Corporation, 40 Del. 97 [5 A.2d 516] ; Wheeler v. Laurel Bottling Works, 111 Miss. 442 [71 So. 743, L.R.A. 1916E 1074] ; Seven-Up Bottling Co. v. Gretes, _Va._[27 S.E.2d 925]; Dail v. Taylor, 151 N.C. 284 [66 S.E. 135, 28 L.R.A.N.S. 949].) It would serve no useful purpose to discuss the reasoning of the foregoing cases in detail, since the problem is whether under the facts shown in the instant case the conditions warranting application of the doctrine have been satisfied.

Res ipsa loquitur does not apply unless (1) defendant had exclusive control of the thing causing the injury and (2) the accident is of such a nature that it ordinarily *458would not occur in the absence of negligence by the defendant. (Honea v. City Dairy, Inc., 22 Cal.2d 614, 616-617 [140 P.2d 369], and authorities there cited; cf. Hinds v. Wheadon, 19 Cal.2d 458, 461 [121 P.2d 724]; Prosser on Torts [1941], 293-301.)

Many authorities state that the happening of the accident does not speak for itself where it took place some time after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view, however, the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant’s possession. (See cases collected in Honea v. City Dairy, Inc., 22 Cal.2d 614, 617-618 [140 P.2d 369].) As said in Dunn v. Hoffman Beverage Co., 126 N.J.L. 556 [20 A.2d 352, 354], “defendant is not charged with the duty of showing affirmatively that something happened to the bottle after it left its control or management; ... to get to the jury the plaintiff must show that there was due care during that period.” Plaintiff must also prove that she handled the bottle carefully. The reason for this prerequisite is set forth in Prosser on Torts, supra, at page 300, where the author states: “Allied to the condition of exclusive control in the defendant is that of absence of any action on the part of the plaintiff contributing to the accident. Its purpose, of course, is to eliminate the possibility that it was the plaintiff who was responsible. If the boiler of a locomotive explodes while the plaintiff engineer is operating it, the inference of his own negligence is at least as great as that of the defendant, and res ipsa loquitur will not apply until he has accounted for his own conduct.” (See, also, Olson v. Whitthorne (& Swan, 203 Cal. 206, 208-209 [263 P. 518, 58 A.L.R. 129].) It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it. (Cf. Prosser, supra, p. 300.) If such evidence is presented, the question becomes one for the trier of fact (see, e. g., *459 MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868, 869]), and, accordingly, the issue should be submitted to the jury under proper instructions.

In the present case no instructions were requested or given on this phase of the case, although general instructions upon res ipsa loquitur were given. Defendant, however, has made no claim of error with reference thereto on this appeal. Upon an examination of the record, the evidence appears sufficient to support a reasonable inference that the bottle here involved was not damaged by any extraneous force after delivery to the restaurant by defendant. It follows, therefore, that the bottle was in some manner defective at the time defendant relinquished control, because sound and properly prepared bottles of carbonated liquids do not ordinarily explode when carefully handled.

The next question, then, is whether plaintiff may rely upon the doctrine of res ipsa loquitur to supply an inference that defendant’s negligence was responsible for the defective condition of the bottle at the time it was delivered to the restaurant. Under the general rules pertaining to the doctrine, as set forth above, it must appear that bottles of carbonated liquid are not ordinarily defective without negligence by the bottling company. In 1 Shearman and Redfield on Negligence (rev. ed. 1941), page 153, it is stated that: “The doctrine . . . requires evidence which shows at least the probability that a particular accident could not have occurred without legal wrong by the defendant.”

An explosion such as took place here might have been caused by an excessive internal pressure in a sound bottle, by a defect in the glass of a bottle containing a safe pressure, or by a combination of these two possible causes. The question is whether under the evidence there was a probability that defendant was negligent in any of these respects. If so, the doctrine of res ipsa loquitur applies.

The bottle was admittedly charged with gas under pressure, and the charging of the bottle was within the exclusive control of defendant. As it is a matter of common knowledge that an overcharge would not ordinarily result without negligence, it follows under the doctrine of res ipsa loquitur that if the bottle was in fact excessively charged an inference of defendant’s negligence would arise. If *460the explosion resulted from a defective bottle containing a safe pressure, the defendant would be liable if it negligently-failed to discover such flaw. If the defect were visible, an inference of negligence would arise from the failure of defendant to discover it. Where defects are discoverable, it may be assumed that they will not ordinarily escape detection if a reasonable inspection is made, and if such a defect is overlooked an inference arises that a proper inspection was not made. A difficult problem is presented where the defect is unknown and consequently might have been one not discoverable by a reasonable, practicable inspection. In the Honea case we refused to take judicial notice of the technical practices and information available to the bottling industry for finding defects which cannot be seen. In the present case, however, we are supplied with evidence of the standard methods used for testing bottles.

A chemical engineer for the Owens-Illinois Glass Company and its Pacific Coast subsidiary, maker of Coca Cola bottles, explained how glass is manufactured and the methods used in testing and inspecting bottles. He testified that his company is the largest manufacturer of glass containers in the United States, and that it uses the standard methods for testing bottles recommended by the glass containers association. A pressure test is made by taking a sample from each mold every three hours—approximately one out of every 600 bottles—and subjecting the sample to an internal pressure of 450 pounds per square inch, which is sustained for one minute. (The normal pressure in Coca Cola bottles is less than 50 pounds per square inch.) The sample bottles are also subjected to the standard thermal shock test. The witness stated that these tests are “pretty near” infallible.

It thus appears that there is available to the industry a commonly-used method of testing bottles for defects not apparent to the eye, which is almost infallible. Since Coca Cola bottles are subjected to these tests by the manufacturer, it is not likely that they contain defects when delivered to the bottler which are not discoverable by visual inspection. Both new and used bottles are filled and distributed by defendant. The used bottles are not again subjected to the tests referred to above, and it may be inferred that defects not discoverable by visual inspection do not develop in bottles after they are manufactured. Obviously, if such defects do *461occur in used bottles there is a duty upon the bottler to make appropriate tests before they are refilled, and if such tests are not commercially practicable the bottles should not be re-used. This would seem to be particularly true where a charged liquid is placed in the bottle. It follows that a defect which would make the bottle unsound could be discovered by reasonable and practicable tests.

Although it is not clear in this case whether the explosion was caused by an excessive charge or a defect in the glass, there is a sufficient showing that neither cause would ordinarily have been present if due care had been used. Further, defendant had exclusive control over both the charging and inspection of the bottles. Accordingly, all the requirements necessary to entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply an inference of negligence are present.

It is true that defendant presented evidence tending to show that it exercised considerable precaution by carefully regulating and cheeking the pressure in the bottles and by making visual inspections for defects in the glass at several stages during the bottling process. It is well settled, however, that when a defendant produces evidence to rebut the inference of negligence which arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled. (Druzanich v. Criley, 19 Cal.2d 439, 444 [122 P.2d 53]; Michener v. Hutton, 203 Cal. 604, 610 [265 P. 238, 59 A.L.R. 480].)

The judgment is affirmed.

Shenk, J., Curtis, J., Carter, J., and Sehauer, J., concurred.

TRAYNOR, J.

I concur in the judgment, but I believe the manufacturer’s negligence should no longer be singled out as the basis of a plaintiff’s right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used, without inspection, proves to have a defect that causes injury to human beings. McPherson v. Buick Motor Co., 217 382 [111 N.E. 1050], Ann.Cas. 1916C 440, L.R.A. 1916F, established the principle, recognized by this court, that irrespective of privity of contract, the manufacturer *462is responsible for an injury caused by such an article to any person who comes in lawful contact with it. (Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229 [34 P.2d 481].) In these cases the source of the manufacturer’s liability was his negligence in the manufacturing process or in the inspection of component parts supplied by others. Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards not. Those who suffer injury from defective products are unprepared to meet its consequences. 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 public 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 however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.

The injury from a defective product does not become a matter of indifference because the defect arises from causes other than the negligence of the manufacturer, such as negligence of a submanufacturer of a component part whose defects could not be revealed by inspection (see Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; O’Rourke v. Bay & Night Water Heater Co., Ltd., 31 Cal.App.2d 364 [88 P.2d 191]; Smith v. Peerless Glass Co., 259 N.Y. 292 [181 N.E. 576]), or unknown causes that even by the device of res ipsa loquitur cannot be classified as negligence of the manufacturer. The inference of negligence may be dispelled by an affirmative showing of proper care. If the evidence against the fact in*463ferred is “clear, positive, uncontradicted, and of such a nature that it cannot rationally be disbelieved, the court must instruct the jury that the nonexistence of the fact has bee established as a matter of law.” (Blank v. Coffin, 20 Cal.2 457, 461 [126 P.2d 868].) An injured person, however, is not ordinarily in a position to refute such evidence or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is. In leaving it to the jury to decide whether the inference has been dispelled, regardless of the evidence against it, the negligence rule approaches the rule of strict liability. It is needlessly circuitous to make negligence the basis of recovery and impose what is in reality liability without negligence. If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly.

In the case of foodstuffs, the public policy of the state is formulated in a criminal statute. Section 26510 of the Health and Safety Code prohibits the manufacturing, preparing, compounding, packing, selling, offering for sale, or keeping for sale, or advertising within the state, of any adulterated food. Section 26470 declares that food is adulterated when “it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been rendered diseased, unwholesome or injurious to health.” The statute imposes criminal liability not only if the food is adulterated, but if its container, which may be a bottle (§ 26451), has any deleterious substance (§26470 (6)), or renders the product injurious to health. (§26470 (4)). The criminal liability under the statute attaches without proof of fault, so thaf the manufacturer is under the duty of ascertaining whether an article manufactured by him is safe. (People v. Schwartz, 28 Cal.App.2d Supp. 775 [70 P.2d 1017].) Statutes of this kind result in a strict liability of the manufacturer in tort to the member of the public injured. (See eases cited in Prosser, Torts, p. 693, note 69.)

The statute may well be applicable to a bottle whose defects cause it to explode. In any event it is significant that the statute imposes criminal liability without fault, reflecting the public policy of protecting the public from dangerous products placed on the market, irrespective of negligence in their manufacture. While the Legislature imposes criminal lia*464bility only with regard to food products and their containers, there are many other sources of danger. It is to the public interest to prevent injury to the public from any defective goods by the imposition of civil liability generally.

The retailer, even though not equipped to test a product, is under an absolute liability to his customer, for the implied warranties of fitness for proposed use and merchantable quality include a warranty of safety of the product. (Goetten Owl Drug Co., 6 Cal.2d 683 [59 P.2d 142] ; Mix v. Ingersoll Candy Co., 6 Cal.2d 674 [59 P.2d 144] ; Gindraux v. Maurice Mercantile Co., 4 Cal.2d 206 [47 P.2d 708]; Jensen v. Berris, Cal.App.2d 537 [88 P.2d 220]; Ryan v. Progressive Grocery Stores, 255 N.Y. 388 [175 N.E. 105; 74 A.L.R. 339] ; Race v. Krum, 222 N.Y. 410 [118 N.E. 853, L.R.A. 1918F 1172].) This warranty is not necessarily a contractual one (Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d 520, 524 [125 P.2d 113]; see 1 Williston on Sales, 2d ed., §§ 197-201), for public policy requires that the buyer be insured at the seller’s expense against injury. (Race v. Krum, supra; Ryan v. Progressive Grocery Stores, supra; Chapman v. Roggenkamp, 182 Ill.App. 117, 121; Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 94 [120 N.E. 225, 5 A.L.R. 242]; see Prosser, The Implied Warranty of Merchantable Quality, 27 Minn.L.Rev. 117, 124; Brown, The Liability of Retail Dealers For Defective Food Products, 23 Minn.L.Rev. 585.) The courts recognize, however, that the retailer cannot bear the burden of this warranty, and allow him to recoup any losses by means of the warranty of safety attending the wholesaler’s or manufacturer’s sale to him. (Ward v. Great Atlantic & Pacific Tea Co., supra; see Waite, Retail Responsibility and Judicial Law Making, 34 Mich.L.Rev. 494, 509.) Such a procedure, however, is needlessly circuitous and engenders wasteful litigation. Much would be gained if the injured person could base his action directly on the manufacturer’s warranty.

The liability of the manufacturer to an immediate buyer injured by a defective product follows without proof of negligence from the implied warranty of safety attending the sale. Ordinarily, however, the immediate buyer is a dealer who does not intend to use the product himself, and if the warranty of safety is to serve the purpose of protecting health and safety it must give rights to others than the dealer. In the words *465of Judge Cardozo in the McPherson ease: “The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used.” Yet, the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a solution.” While the defendant’s negligence in the McPherson case made it unnecesssary for the court to base liability on warranty, Judge Cardozo’s reasoning recognized the injured person as the real party in interest and effectively disposed of the theory that the liability of the manufacturer incurred by his warranty should apply only to the immediate purchaser. It thus paves the way for a standard of liability that would make the manufacturer guarantee the safety of his product even when there is no negligence.

This court and many others have extended protection according to such a standard to consumers of food products, taking the view that the right of a consumer injured by unwholesome food does not depend “upon the intricacies law of sales” and that the warranty of the manufacturer to the consumer in absence of privity of contract rests on public policy. (Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 282 [93 P.2d 799]; Ketterer v. Armour & Co., 200 F. 321, 322, 323 [160 C.C.A. 111, L.R.A. 1918D 798]; Decker & Sons v. Capps, 139 Tex. 609 [164 S.W.2d 828, 142 A.L.R. 1479]; see Perkins, Unwholesome Food As A Source of Liability, 5 Iowa L.Bull. 6, 86.) Dangers to life and health inhere in other consumers’ goods that are defective and there is no reason to differentiate them from the dangers of defective food products. (See Bohlen, Studies in Torts, Basis of Affirmative Obligations, American Cases Upon The Liability of Manufacturers and Vendors of Personal Property, 109, 135; Llewellyn, On Warranty of Quality and Society, 36 Col.L.Rev. 699, 704, note 14; Prosser, Torts, p. 692.)

In the food products cases the courts have resorted to various fictions to rationalize the extension of the manufacturer’s warranty to the consumer: that a warranty runs with the chattel; that the cause of action of the dealer is assigned to the consumer; that the consumer is a third party beneficiary of the manufacturer’s contract with the dealer. They have also held the manufacturer liable on a mere fiction of negli*466gence: “Practically he must know it [the product] is fit, or bear the consequences if it proves destructive.” (Parks v. C. C. Yost Pie Co., 93 Kan. 334 [144 P. 202, L.R.A. 1915C 179]; see Jeanblane, Manufacturer’s Liability to Persons Other Than Their Immediate Vendees, 24 Va.L.Rev. 134.) Such fictions are not necessary to fix the manufacturer’s liability under a warranty if the warranty is severed from the contract of sale between the dealer and the consumer and based on the law of torts (Decker & Sons v. Capps, supra; Prosser, Torts, p. 689) as a strict liability. (See Green v. General Petroleum Corp., 205 Cal. 328 [270 P. 952, 60 A.L.R. 475]; McGrath v. Basich Bros. Const. Co., 7 Cal.App.2d 573, 46 P.2d 981]; Prosser, Nuisance Without Fault, 20 Tex.L. Rev., 399, 403; Feezer, Capacity To Bear The Loss As A Factor In The Decision Of Certain Types of Tort Cases, 78 U. of Pa.L.Rev. 805, 79 U. of Pa.L.Rev. 742; Carpenter, The Doctrine of Green v. General Petroleum Corp., 5 So.Cal.L.Rev. 263, 271; Pound, The End of Law As Developed In Legal Rules And Doctrines, 27 Harv.L.Rev. 195, 233.) Warranties are not necessarily rights arising under a contract. An action on a warranty “was, in its origin, a pure action of tort,” and only late in the historical development of warranties was an action in assumpsit allowed. (Ames, The History of Assumpsit, 2 Harv.L.Rev. 1, 8; 4 Williston on Contracts (1936) § 970.) “And it is still generally possible where a distinction of procedure is observed between actions of tort and of contract to frame the declaration for breach of warranty in tort.” (Williston, loc. cit.; see Prosser, Warranty On Merchantable Quality, 27 Minn.L.Rev. 117, 118.) On the basis of the tort character of an action on a warranty, recovery has been allowed for wrongful death as it could not be in an action for breach of contract. (Greco v. S. S. Kresge Co., 277 N.Y. 26 [12 N.E.2d 577, 115 A.L.R. 1020]; see Schlick v. New York Dugan Bros., 175 Mise. 182 [22 N.Y.S.2d 238]; Prosser, op. cit., p. 119.) As the court said in Greco v. S. S. Kresge Co., supra, “Though the action may be brought solely for the breach of the implied warranty, the breach is a wrongful act, a default, and, in its essential nature, a tort.” Even a seller’s express warranty can arise from a noncontractual affirmation inducing a person to purchase the goods. (Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d 520 [125 P.2d 113].) “As an actual agreement to contract is not essential, the obli*467gation of a seller in such a case is one imposed by law as distinguished from one voluntarily assumed. It may be called an obligation either on a quasi-contract or quasi-tort, because remedies appropriate to contract and also to tort are applicable.” (1 Williston on Sales, 2d ed. §197; see Ballantine, Classification of Obligations, 15 Ill.L.Rev. 310, 325.)

As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered. Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks. (See Thomas v. Winchester, 6 N.Y. 397 [57 Am.Dec. 455]; Baxter v. Ford Motor Co., 168 Wash; 456 [12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521]; Crist v. Art Metal Works, 230 App.Div. 114 [243 N.Y.S. 496], affirmed 255 N.Y. 624 [175 N.E. 341]; see also Handler, False and Misleading Advertising, 39 Yale L.J. 22; Rogers, Good Will, Trade-Marks and Unfair Trading (1914) ch. VI, A Study of The Consumer, p. 65 et seq.; Williston, Liability For Honest Misrepresentations As Deceit, Negligence Or Warranty, 42 Harv.L.Rev. 733; 18 Cornell L.Q. 445.) Consumers, no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark. (See Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 463 [55 P.2d 177]; Old Dearborn etc. Co. v. Seagram-Distillers Corp., 299 U.S, 183 [57 S.Ct. 139, 81 L.Ed. 109, 106 A.L.R. 1476]; Schechter, The Rational Basis of Trade Mark Protection, 40 Harv.L.Rev. 813, 818.) Manufacturers have sought to justify that faith by increasingly high standards of inspection and a readiness to make good on defective products by way of replacements and refunds. (See Bogert and Pink, Business Practices Regarding Warranties In The Sale Of Goods, 25 Ill.L.Rev. 400.) The manufacturer’s obligation to the consumer must keep pace with the changing relationship between them; it cannot be escaped because the marketing of a product has become so complicated as to require one or more *468intermediaries. Certainly there is greater reason to impose liability on the manufacturer than on the retailer who is but a conduit of a product that he is not himself able to test. (See Soule, Consumer Protection, 4 Encyclopedia of The Social Sciences, 282; Feezer, Manufacturer’s Liability For Injuries Caused By His Products: Defective Automobiles, 37 Mich.L. Rev. 1; Llewellyn, Cases And Materials on Sales, 340 et seq.)

The manufacturer’s liability should, of course, be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market.

Appellant’s petition for a rehearing was denied August 3, 1944. Edmonds, J., voted for a rehearing.

Eldridge, J.,

delivered the opinion of the Court.

We are here presented with two questions of law certified to this Court by the United States District Court for the District of Maryland pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974), § 12-601 et seq. of the Courts and Judicial Proceedings Article.

The plaintiff, James D. Phipps, an employee in the service department of Marbert Motors, Inc., of Annapolis, Maryland, was injured on November 1, 1972, when a 1972 *339Pontiac automobile which had been delivered to Marbert for servicing, and which Phipps was test driving in Annapolis, left the highway and crashed into a tree. A co-worker, Alexander F. Barchanowicz, who was a passenger in the automobile, was also injured.

James Phipps and his wife, Evalyn Phipps, instituted this action on October 31, 1975, in the United States District Court for the District of Maryland against the manufacturer of the automobile, General Motors Corporation. They alleged that the accident occurred when the accelerator of the automobile became stuck without warning, causing the automobile to accelerate suddenly at a high rate of speed and leave the road. It was further alleged that this malfunction of the automobile was caused by latent defects in the automobile’s accelerator mechanism, in the carburetor and its components, and in the motor mounts.

The complaint contains six counts. In the first three counts, three separate causes of action are set forth. Count one alleges negligence in the design and manufacture of the automobile. Count two alleges breach of express and implied warranties. Count three alleges that the automobile was in a defective condition rendering it “not reasonably safe” when it left the control of the defendant and predicates liability upon the theory of strict liability in tort.1 The final three counts of the complaint, in which James Phipps was joined by his wife, are each based upon the above theories respectively and seek damages for loss of consortium.

General Motors filed an answer to the complaint and also filed motions to dismiss both counts based upon the theory of strict liability in tort and the count seeking damages for loss of consortium caused by the alleged breach of warranty. In support of its motion to dismiss the strict liability counts, General Motors relied upon several prior cases of this Court which had declined, under the circumstances involved, to adopt the theory of strict liability in tort. General Motors argued that no such cause of action is recognized in this *340State. As to the loss of consortium count, General Motors relied upon Deems v. Western Maryland Ry., 247 Md. 95, 231 A. 2d 514 (1967), in contending that an action for loss of consortium is actually an action for damages to the marriage relationship and not for damages sustained by an individual. Since a seller’s warranty extends only to a non-purchaser who is a “natural person” and who is “injured in person” under § 2-318 of the Maryland Uniform Commercial Code, Maryland Code (1975), § 2-318 of the Commercial Law Article, General Motors argued that no action for loss of consortium could be brought by a non-buyer as the marriage relationship was not a “natural person” who was “injured in person.”

Phipps opposed both motions. Citing several trial court opinions, he argued that the. courts of Maryland have recognized the theory of strict liability in cases where it would be applicable. Phipps also argued that a joint action for loss of consortium was proper where one spouse sustains bodily injury.

The United States District Court, finding that there were no controlling precedents in the decisions of this Court, certified the following two questions:

“1. Do the third and sixth counts of the Complaint (alleging that the defendant manufactured and placed on the market an automobile in a defective condition which condition rendered the automobile not reasonably safe for its intended use) state causes of action under Maryland law by a person who allegedly sustained bodily injuries by reason of the defective condition?

“2. Does the fifth count of the Complaint (alleging injury to a marital relationship by reason of breaches of express and implied warranties) state a cause of action under Maryland law?”

(1)

The theory of strict liability is set forth in the Restatement (Second) of Torts § 402 A (1965):

*341“Special Liability of Seller of Product for Physical Harm to User or Consumer

“(1) 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, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

“(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

As the Official Reporter’s Notes to this section indicate, the rule stated in § 402 A was based upon a developing body of case law expanding the liability of manufacturers for injury caused by defective products. Early cases in several jurisdictions created an exception to the general rule that a supplier of chattels was not liable to a third person in the absence of negligence or privity of contract where food products were involved. Liability was generally premised upon an “implied warranty” which arose from the seller’s representation in placing the food on the market that it was fit for human consumption. Although employing warranty language, the strict liability theory was essentially an action in tort dispensing with the traditional requirement of privity in contract actions. E.g., Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633 (1918); Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305 (1927). Strict liability without privity was slowly extended to products other than food for human consumption, such as animal food, McAfee v. Cargill, Inc., 121 F. Supp. 5 (S.D. Cal. 1954); Midwest *342 Game Company v. M.F.A. Milling Company, 320 S.W.2d 547 (Mo. 1959). Products involving intimate bodily use were brought within the strict liability rule, e.g., Graham v. Bottenfield’s Inc., 176 Kan. 68, 269 P. 2d 413 (1954) (hair dye); Markovich v. McKesson & Robbins, Inc., 106 Ohio App. 265, 149 N.E.2d 181 (1958) (permanent wave solution). Finally, strict liability for defective products other than food or those involving intimate bodily contact was imposed without privity or a showing of negligence beyond the defect in the product. Spence v. Three Rivers Builders & Masonry Supply, 353 Mich. 120, 90 N.W.2d 873 (1958) (cinder building blocks); Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358, 161 A. 2d 69, 75 A.L.R.2d 1 (1960) (automobile); Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P. 2d 897, 13 A.L.R.3d 1049 (1962) (combination power tool). Greenman was the leading case expressly recognizing that the basis for strict liability for defective products was tort rather than contract. Justice Traynor there stated for the Supreme Court of California (377 P. 2d at 901):

“Although in these cases strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract between them, the recognition that the liability is not assumed by agreement but imposed by law (see e.g., Graham v. Bottenfield’s, Inc., 176 Kan. 68, 269 P.2d 413, 418; ...), and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products (Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 84-96; . . .) make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort. Accordingly, rules defining and governing warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturer’s liability to those injured by their defective products *343unless those rales also serve the purposes for which such liability is imposed.”2

Various justifications for imposing strict liability in tort on manufacturers have been advanced by the courts. It has been said that the cost of injuries caused by defective products should in equity be “borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves” and that “warranties serve this purpose fitfully at best.” Greenman v. Yuba Power Products, Inc., supra, 377 P. 2d at 901. It has also been suggested that imposing strict liability on manufacturers for defective products is equitable because it shifts the risk of loss to those better able financially to bear the loss. Seely v. White Motor Company, 63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P. 2d 145, 151 (1965). Another reason advanced is that a consumer relies upon the seller in expecting that a product is safe for the uses for which it has been marketed, and that this expectation is better fulfilled by the theory of strict liability than traditional negligence or warranty theories. Markle v. Mulholland's, Inc., 265 Ore. 259, 509 P. 2d 529, 532-534 (1973). And still another reason advanced is that the requirement of proof of a defect rendering a product unreasonably dangerous is a sufficient showing of fault on the part of the seller to impose liability without placing an often impossible burden on the plaintiff of proving specific acts of negligence. McCormack v. Hankscraft Company, 278 Minn. 322, 154 N.W.2d 488, 500 (1967); Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55, 63 (1967).3

*344The essential elements of an action in strict liability are set forth in § 402 A. For recovery, it must be established that (1) the product was in a defective condition at the time that it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause of the injuries, and (4) that the product was expected to and did reach the consumer without substantial change in its condition. However, in an action founded on strict liability in tort, as opposed to a traditional negligence action, the plaintiff need not prove any specific act of negligence on the part of the seller. The relevant inquiry in a strict liability action focuses not on the conduct of the manufacturer but rather on the product itself. See Weinstein, Twerski, Piehler, Donaher, Product Liability: An Interaction of Law and Technology, 12 Duquesne L. Rev. 425, 429 (1974). Thus the standard to be applied in determining whether a product is defective becomes critical.

For a seller to be liable under § 402 A, the product must be both in a “defective condition” and “unreasonably dangerous” at the time that it is placed on the market by the seller. Both of these conditions are explained in the official comments in terms of consumer expectations. As Comment g explains, the requirement of a defective condition limits application of § 402 A 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 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.”

In those cases where the defect is a result of an error in the manufacturing process, that is where the product is in a condition not intended by the seller, there is less difficulty in applying the defectiveness test of § 402 A. See Frumer and Friedman, Products Liability § 16A[4] at pp. 3-318 — 3-320 (1976). Where, however, the alleged defect is the result of the design process so that the product causing injury was in a *345condition intended by the manufacturer, the test has proved more difficult to apply. This difficulty has caused some courts and commentators to suggest that the theory of strict liability in tort is not really applicable in cases involving design defects as opposed to construction or manufacturing defects but rather that, analytically, traditional negligence standards still apply. See Dorsey v. Yoder Company, 331 F. Supp. 753, 759-760 (E.D. Pa. 1971), aff'd, 474 F. 2d 1339 (3d Cir. 1973); Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal. Rptr. 890, 895 (1973); Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L. J. 825, 836-838 (1973). The reasoning of these authorities is that in a design defect case the standard of defectiveness under § 402 A, involving as it does the element of unreasonable danger, still requires a weighing of the utility of risk inherent in the design against the magnitude of the risk.4 Cf. Volkswagen of America v. Young, 272 Md. 201, 321 A. 2d 737 (1974). However, there are those kinds of conditions which, whether caused by design or manufacture, can never be said to involve a reasonable risk. For example, the steering mechanism of a new automobile should not cause the car to swerve off the road, Henningsen v. Bloomfield Motors, Inc., supra; the drive shaft of a new automobile should not separate from the vehicle when it is driven in a normal manner, Elmore v. American Motors Corporation, 70 Cal. 2d 578, 75 Cal. Rptr. 652, 451 P. 2d 84, 33 A.L.R.3d 406 (1969); the brakes of a new automobile should not suddenly fail, Sharp v. Chrysler Corporation, 432 S.W.2d 131 (Tex.Civ.App. 1968); and the accelerator of a new automobile *346should not stick without warning, causing the vehicle suddenly to accelerate. Conditions like these, even if resulting from the design of the products, are defective and unreasonably dangerous without the necessity of weighing and balancing the various factors involved.

Under § 402 A, various defenses are still available to the seller in an action based on strict liability in tort. These defenses are set forth and explained in the official comments following § 402 A. For example, the seller is not liable where injury results from abnormal handling or use of the product (Comment h), where mishandling or alteration after delivery of the product renders it unsafe (Comment g), or if warnings or instructions supplied with the product are disregarded by the consumer where, if used in accordance with these warnings, the product would be safe (Comment j). Additionally, where the plaintiff unreasonably proceeds to use a product despite a known risk or danger, the defense of assumption of the risk is still available (Comment n). As to defenses in strict liability actions generally, see Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 Vand. L. Rev. 93 (1972).

This Court has in prior cases, where the question was raised, declined to adopt the strict liability principles of § 402 A, finding that under the facts of those cases § 402 A was not applicable and would have afforded no additional basis of liability. It was therefore deemed inappropriate to adopt the theory of strict liability. A review of those cases, however, demonstrates that this Court has never rejected the strict liability theory of § 402 A as a basis of liability in an appropriate fact situation.

The first case in which this Court was urged to adopt the strict liability theory was Telak v. Maszczenski, 248 Md. 476, 237 A. 2d 434 (1968). There the plaintiff, a guest at a private swimming pool, was paralyzed when he dove into the pool from a diving board, installed by the owner, and struck his head on the bottom of the pool. In an action against the distributor of the pool, it was alleged that the pool was defective and unreasonably dangerous in that the maximum *347depth of the pool, seven feet, was insufficient for safe diving. The evidence revealed that the owner had inspected several pools sold by the distributor before purchasing his pool and that the condition of the pool as delivered was exactly as represented by the seller and as observed by the buyer before the purchase. Relying on Comment g of § 402 A, that the section is applicable only where the product is “in a condition not contemplated by the ultimate consumer,” the Court found that the strict liability theory was not applicable. 248 Md. at 488-489. It should also be noted that the plaintiff was an excellent swimmer, and was familiar with the depth and slope at the pool’s bottom. Id. at 481,484. Additionally, the diving board was not provided by either the manufacturer or the distributor of the pool, but was procured from another source and installed by the owners. Id. at 480. As previously discussed, § 402 A does not apply where subsequent mishandling or alteration render an otherwise safe product unsafe (Comment g), or where one proceeds in the face of a known danger (Comment n).

This Court was again urged to adopt strict liability in Myers v. Montgomery Ward & Co., 253 Md. 282, 252 A. 2d 855 (1969). In that case the plaintiff was injured while cutting grass with a power mower when he slipped on an incline and caught his foot under the mower. An action was brought against both the manufacturer and retailer of the mower, on the basis of negligence, breach of warranty, and strict liability for failing to provide protective guards on the mower. This Court upheld the action of the trial court in sustaining a demurrer to all three counts. As to the strict liability count, the Court noted that the absence of a safety guard was apparent to the plaintiff at the time of the purchase, that the mower had presumably functioned safely for more than a year, and that by the plaintiffs own allegations, the injury was caused by his fall and not an unknown defect in the mower. Relying on Comment g, the Court found that § 402 A was not applicable. 253 Md. at 297.

Another alleged design defect was involved in Volkswagen of America v. Young, supra, 272 Md. 201. In that case, the driver of an automobile was killed when, upon impact with *348another automobile, the seat in which he was sitting separated from the floor, propelling him into the rear portion of the car. The plaintiff alleged defective design in the seat mechanism and passenger compartment configuration, creating an unreasonable risk of injury. We again declined to adopt strict liability as a theory of liability, reasoning that under the particular facts of that case, strict liability would have “no special meaning.” As previously discussed, in some circumstances the question of whether a particular design is defective may depend upon a balancing of the utility of the design and other factors against the magnitude of that risk. Thus, the existence of a design defect in a case like Volkswagen is a question which itself depends upon the degree of care exercised by the manufacturer in view of the type, style, purpose, and cost of the vehicle. 272 Md. at 221. Similarly in Frericks v. General Motors Corp., 274 Md. 288, 336 A. 2d 118 (1975), a case also involving an alleged design defect where the existence of the defect itself depended in part upon the reasonableness of the seller’s conduct, we reiterated that “[t]his Court has not, as yet, either rejected or accepted the ‘strict liability’ theory ... in the type of case where that section might logically be applied.” 274 Md. at 298. The alleged defect in the instant case, however, whether resulting from a defective design or not, is clearly of a different character from the asserted design defects in Volkswagen and Frericks.

General Motors argues that we should not adopt the doctrine of strict liability for several reasons. It contends that the warranty provisions of the Maryland Uniform Commercial Code and the doctrine of strict liability in tort are substantially the same in protecting the interests of both consumers and sellers, and thus, in its view, there is no need to adopt the theory of strict liability. General Motors further contends that, even if we were to conclude that the differences between the two theories of liability were significant enough to adopt § 402 A of the Restatement, the Legislature in enacting the warranty provisions of the Uniform Commercial Code has “preempted the field of products liability law.” Finally, General Motors claims that *349the adoption of strict liability would substantially alter the rights of consumers and sellers as presently defined by the law of negligence and contract, and that the policy reasons advanced by the courts for altering those traditional rights are more properly a matter of legislative rather than judicial determination.

We do not agree with any of General Motors’ contentions. With respect to the differences between strict liability in tort and warranty actions, it is true that the requirement of privity, once an obstacle to recovery under a contract action, and a major reason for the adoption of § 402 A of the Restatement (Second), has been eliminated by the General Assembly of Maryland in actions where personal injuries result from a breach of warranty. Sections 2-318 and 2-314 of the Maryland Uniform Commercial Code. See Frericks v. General Motors Corp., 278 Md. 304, 363 A. 2d 460 (1976). But there still remain various other requirements and limitations imposed by contract law which may be encountered when pursuing an action for breach of warranty but not when seeking damages for injury caused by a defective product under the theory of strict liability in tort.

One of the more significant differences between the two theories is the right of the seller to disclaim or limit remedies for breach of warranty. Although the Maryland Legislature has eliminated the right of sellers to disclaim or limit warranties arising from the sale of consumer goods, §§ 2-316.1, 2-719 (3) of the Maryland Uniform Commercial Code, there is no similar limitation on the right to exclude warranties where the goods involved are not consumer goods as defined in § 9-109. Under § 402 A of the Restatement, a limitation or exclusion of warranties is irrelevant to the question of the seller’s liability for injury caused by defective goods regardless of the classification of the goods (Comment m). The notice requirement of § 2-607 of the Uniform Commercial Code may also prove to be an obstacle to recovery. Although we have recently held that a third party beneficiary of a seller’s warranties is not required to give notice of breach as a precondition to maintaining a *350breach of warranty action, Frericks v. General Motors, supra, 278 Md. at 315-316, an actual buyer is still required by § 2-607 (3) to give notice or be barred from any recovery for breach of warranty. There is no similar notice requirement for bringing an action based on strict liability in tort. Also, an action for breach of warranty is governed by the limitations period contained in § 2-725 of the Uniform Commercial Code, which provides that an action must be brought within four years of the time it accrues. A cause of action in a warranty case accrues “when tender of delivery is made.” An action under the theory of strict liability in tort, however, would be governed by the general tort limitations period, Maryland Code (1974), § 5-101 of the Courts and Judicial Proceedings Article, which is three years but may begin to run at a later time. These are examples of significant differences between actions based upon contract and strict liability in tort.

Additionally, we cannot agree with General Motors that the Legislature has preempted the field of product liability law, precluding our adoption of Restatement § 402 A. The only authority cited by General Motors in support of this contention is the concurring opinion in Markle v. Mulholland’s, Inc., supra, 509 P. 2d at 536-539. As the majority in that case noted in rejecting a similar contention and adopting strict liability, there is no indication that the Legislature, in enacting the Uniform Commercial Code, intended to prevent the further development of product liability law by the courts. In the absence of any expression of intent by the Legislature to limit the remedies available to those injured by defective goods exclusively to those provided by the Maryland Uniform Commercial Code, we believe that General Motors’ preemption contention is without merit.

Finally, we disagree with General Motors’ argument that adoption of strict liability would result in such a radical change of the rights of sellers and consumers that the matter should be left to the Legislature. As we have previously discussed, the major distinction between an action in strict liability in tort and one founded on *351traditional negligence theory relates to the proof which must be presented by the plaintiff. Although the plaintiff need not prove any specific act of negligence on the part of the seller, as in other product liability cases, proof of a defect existing in the product at the time it leaves the seller’s control must still be presented. As one commentator has observed, the doctrine of strict liability is really but another form of negligence per se, in that it is a judicial determination that placing a defective product on the market which is unreasonably dangerous to a user or consumer is itself a negligent act sufficient to impose liability on the seller (Wade, Strict Tort Liability of Manufacturers, 19 Sw. L. J. 5, 14(1965)):

“In essence, strict liability in this sense is not different from negligence per se. Selling a dangerously unsafe product is the equivalent of negligence regardless of the defendant’s conduct in letting it become unsafe. This is exactly the situation when a pure-food statute is construed to make its violation negligence per se; if the food is not wholesome, the statute is violated and the defendant is negligent. It has long been recognized that although the normal test for negligence is the general standard of what a reasonable man would do under similar circumstances and, although this test is ordinarily applied by the jury, the courts on appropriate occasions may lay down specific rules of conduct. They do this when they accept a criminal statute as setting forth a specific rule and then adopt that rule for a civil case. But they also do it from time to time even in the absence of a statute. Thus, a court which appears to be taking the radical step of changing from negligence to strict liability for products is really doing nothing more than adopting a rule that selling a dangerously unsafe chattel is negligence within itself.”

Thus, the theory of strict liability is not a radical departure from traditional tort concepts. Despite the use of the term *352“strict liability” the seller is not an insurer, as absolute liability is not imposed on the seller for any injury resulting from the use of his product. Dippel v. Sciano, supra, 155 N.W.2d at 63; Wade, supra, 19 Sw. L. J. at 13. Proof of a defect in the product at the time it leaves the control of the seller implies fault on the part of the seller sufficient to justify imposing liability for injuries caused by the product. Where the seller supplies a defective and unreasonably dangerous product, the seller or someone employed by him has been at fault in designing or constructing the product.

Almost all of the courts of our sister states have adopted the strict liability principles set forth in § 402 A of the Restatement (Second) of Torts. Several reasons for adopting strict liability are summarized in Comment c to § 402 A as follows:

“... the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who markét them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.”

We find the above reasons persuasive. In our view, there is no reason why a party injured by a defective and unreasonably dangerous product, which when placed on the market is impliedly represented as safe, should bear the loss of that injury when the seller of that product is in a better *353position to take precautions and protect against the defect. Yet this may be the result where injured parties are forced to comply with the proof requirements of negligence actions or are confronted with the procedural requirements and limitations of warranty actions. Therefore, we adopt the theory of strict liability as expressed in § 402 A of the Restatement (Second) of Torts.

For these reasons, we conclude that the third and sixth counts of the complaint state a cause of action under Maryland law. The first certified question is answered “Yes.”

(2)

The second certified question concerns the issue of whether a third party beneficiary of a seller’s warranty under § 2-318 of the Maryland Uniform Commercial Code may maintain an action for loss of consortium caused by breach of warranties.

Where there is an injury to a married person, recovery for damages to the marriage relationship in a breach of warranty action would clearly seem to be allowable as consequential damages under the principles of Hadley v. Baxendale, 9 Exch. 341 (1854). See §§ 2-714 and 2-715 of the Maryland Uniform Commercial Code; Addressograph-Multigraph v. Zink, 273 Md. 277, 286, 329 A. 2d 28 (1974). General Motors does not dispute this and, in fact, would appear to concede that if Evalyn Phipps had been the actual buyer of the automobile she could recover for loss of consortium. Rather, General Motors’ objection to the fifth count is premised upon the narrower grounds of the nature of an action for loss of consortium as delineated in Deems v. Western Maryland Ry., supra, 247 Md. 95. Relying on Deems, General Motors argues that this count does not state a cause of action because an action for loss of consortium is for injury to the marriage entity and not an action for personal injury. Thus, General Motors concludes, it is not within the contemplation of § 2-318 of the Maryland Uniform Commercial Code which extends a seller’s warranty “to any natural person ... who is injured *354in person by breach of the warranty.” In our view General Motors, in arguing that an action for loss of consortium is not for injury to a person, misconceives the holding in Deems v. Western Maryland By., supra.

In Maryland prior to Deems, a husband could bring an action for loss of consortium but a wife could not. In Deems, a wife attempted to bring a separate action for loss of consortium subsequent to the settlement of her husband’s personal injury suit. The trial court sustained a demurrer to the action. In this Court, the wife argued that the Maryland law, in allowing a husband to maintain a separate action for loss of consortium but not a wife, was a denial of equal protection of the laws in violation of the Fourteenth Amendment. Because of this contention, and also because of the possibility of double recovery when a loss of consortium action is brought separately from the underlying personal injury action, this Court held that either the husband or the wife could assert a claim for loss of consortium but that the claim must be brought in a joint action for injury to the marital relationship tried at the same time as the underlying personal injury action.

The reasoning of the Court in Deems clearly indicates that an action for loss of consortium is an action for injury to both spouses and not, as General Motors contends, an action for damages to a legal entity separate and apart from the persons who comprise that “entity.” In Deems, the Court was presented with the contention that the prior law allowing only one spouse to bring an action for loss of consortium was unconstitutional and that to rectify this situation no action for loss of consortium should be allowed by either spouse. The Court recognized, however, that loss of consortium represented a serious personal injury to both spouses and should continue to be compensable, stating (247 Md. at 108-109):

“That both spouses suffer when the marriage relationship is adversely affected by physical injury to either is a fact evidenced, if not by logic, by human experience since the institution of marriage became a basic part of our mores. If the husband is *355the one injured, it is not only the wife who is affected by reason of any resultant change of the husband’s personality or ability to engage in all the intangible associations which marriage brings; he too suffers the effect of the change, if only in reaction to his wife’s unhappiness. Today, at least, it is unquestioned that the desire to have children and the pleasures of sexual intercourse are mutually shared. If the husband’s potency is lost or impaired, it is both the man and woman who are affected. If the physical injury is to the wife, she sustains the same kind of loss in the marital relation as he does in the converse situation.

“It is because these marital interests are in reality so interdependent, because injury to these interests is so essentially incapable of separate evaluation as to the husband and wife, that the conception of the joint action seems to us a fair and practical juridical development. It takes into account, we believe, the weighty criticism of the old law which restricts the right of recovery to the husband as well as the substantial arguments against creating a new and separate cause of action for the wife.”

Thus, even though a loss of consortium action was referred to by the Court as an action "for injury to the marital relationship,” it is clear that the underlying purpose and rationale of the joint action is to compensate the individual persons who form that relationship for the personal injury which they both sustain.

In essence, General Motors’ contention is that a joint action for loss of consortium represents a separate cause of action accruing to the marriage entity and is therefore not an aspect of personal injury suffered by the persons who together form the marriage entity. That this is not the theory of Deems was made clear in Travelers Indem. Co. v. Cornelsen, 272 Md. 48, 50, 321 A. 2d 149 (1974), where the Court, discussing Deems, said:

“It is entirely clear to us that the decision in that *356case created a new substantive right, and as a concomitant, delineated a different procedural approach in actions for loss of consortium. Nevertheless, it gave rise to no new cause of action

It follows then, that a joint action for loss of consortium may be maintained when a breach of warranty is alleged under § 2-318 of the Commercial Code. Both spouses are obviously natural persons within the meaning of § 2-318. And whatever limitation on the measure of damages may have been intended when the Legislature required that a third party beneficiary be “injured in person,” we do not believe that it was intended to prevent recovery for such uniquely personal injuries as loss of consortium which traditionally were recoverable in a personal injury action. The second certified question is answered “Yes.”

Questions of law answered as herein set forth.

Appellee to pay costs.

WILLIAM E. DOYLE, Circuit Judge.

Plaintiff-appellee was awarded a verdict and judgment in the amount of $125,000 for personal injuries which were suffered by him when he slipped off the tailgate of a dump truck while trying to alight from it and fell into an open hopper into which the grain from the tilted truck was then being deposited for the purpose of being fed to a fan and blower which in turn propelled it sufficiently high so as to place it in the top of silos or storage areas. The essential parts of the offending machine are a hopper which receives the grain and which houses augers, three of which move the forage or grain to the back of the hopper and are propelled by a fourth one which is perpendicular to the other three and moves the material to the fan and pipe. Plaintiff-appellee slipped from the dump truck into the hopper and suffered injuries when his feet and legs became caught in the augers and the fan.1

Fox River Tractor Company, appellant herein, was shown to have manufactured this particular forage blower. The unit was manufactured in 1971 and was then sold to one Harold Smith, who was the brother of the plaintiff-appellee’s employer. The unit is not equipped with a motor. Its source of power is from a separate engine. There is a clutch handle over the top of the hopper capable of stopping the movement of the augers.

The center of the controversy in this-case is the fact that the hopper did* not have a screen on it to protect a person working as the plaintiff was working from coming into contact with the augers and incurring injury such as that which he suffered. The screen which covers the hopper has an outside frame three and one-half feet long and three feet wide. Metal dowels run lengthwise and widthwise, and the space within these dowels is approximately a square foot. Appellant defends the extensive spacing contending that this amount of space was needed in order for the large chunks of grain or forage to go through. The fact question at the trial was whether the machine could work efficiently with a screen having dimensions capable of preventing the feet and legs of workmen from coming into contact with the augers.

After having worked a very long day on October 17, 1972, and following his having had a short rest at home, plaintiff-appellee returned at 11:00 p. m. on the 17th and at approximately 5:30 — 6:00 a. m. on the morning of the 18th (while continuing to work) the injury occurred (as previously noted), while he tried to climb out of the truck bed. He slipped and fell into the moving augers. The working conditions were dangerous. The grain was wet, the bed of the dump truck was at a downward angle so as to bring about the movement of the grain and he was engaged in helping the grain or forage move and breaking up clumps of it so that the material placed in the hopper could be refined, whereby the augers and blower could deal with it. Plaintiff-appellee acknowledged that his shoes were wet and slippery and also acknowledged that possibly he had used the side of the machine to step on when exiting from the truck. Almost immediately after he fell into the hopper his companions turned off the power.

The trial court proceeded on the doctrine of products liability or, as the Oklahoma Supreme Court terms it, Manufacturers’ Products Liability based on the ALI Restatement of Torts 2d § 402A.

The expert testimony on behalf of plaintiff-appellee, given by a mechanical engineer, a professor at the University of Houston, was that the machine had been defectively designed in that it did *483not have a protective shield capable of protecting a man’s feet from coming into contact with the augers inside the hopper. Other evidence on behalf of plaintiff-appellee was to the effect that after the injury plaintiff-appellee’s employer borrowed a machine which was similar to that which injured the plaintiff-appellee. A grid was welded across the top which was so spaced as to prevent a man’s foot from entering into the dangerous area. The purpose of this was to refute the defendant-appellant’s contention that the machine could not perform the work which it was designed to perform if grids of this dimension covered it. It would have been impossible for the grain to penetrate these grids, according to defendant’s witnesses. But plaintiff-appellee’s evidence sought to demonstrate the contrary. Indeed, the employer was shown to have loaded more than a million pounds of grain into the silo with the use of the borrowed machine.

Defendant-appellant now seeks a reversal of the sizeable verdict on the following grounds:

1. Contending that the trial court erred in failing and refusing to rule that the evidence did not substantiate the tests provided in Restatement 2d § 402A.

2. That it was error for the court to rule that the expert on behalf of plaintiff-appellee was qualified.

3. That it was error for the court to receive testimony concerning collateral source payment.

We reject the above contentions and affirm the judgment.

I.

The trial court did not err in refusing to direct a verdict for the defendant. The argument of defendant is that the evidence failed to establish a case under the law of manufacturers’ products liability as it is applied in the State of Oklahoma. We must, however, on motion for directed verdict consider the evidence and the inferences to be drawn from the evidence in a light most favorable to the party against whom the motion is directed. If the evidence and the inferences are such that reasonably minded persons in the exercise of fair and impartial judgment are able to reach different conclusions on the issues of fact, the motion is to be denied and the question is properly to be submitted to the jury. Transcontinental Bus System, Inc. v. Taylor, 265 F.2d 913 (10th Cir. 1959). The Oklahoma eourts follow this identical principle. See Seay v. General Elevator Co., 522 P.2d 1022 (Okl.1974).

Turning to the elements of § 402A, supra, the question raised is whether the device which caused the injury is unreasonably dangerous within the meaning of § 402A, which provides that the seller of a product in a defective condition, unreasonably dangerous, to the user or consumer or to his property is subject to liability for harm caused to the ultimate user or consumer.2

The contention of plaintiff is that the source of the dangerousness was the machine’s defective design, and the question of law which we consider is whether the evidence satisfied this. Plaintiff-appellee’s expert testified that the defect was in the grid spacing and the protective shield. It is the width and breadth of this spacing, the extent of which renders it incapable of preventing a foot from penetrating it and going into the augers, which is the alleged defective design. The expert said that this defect could have been remedied without substantial expenditure and without diminishing efficiency.

*484The defendant’s expert, on the other hand, testified that if smaller grid spacings were used, the forage or grain would not go through to the hopper. Plaintiff’s showing that his employer had processed more than a million pounds of grain through a much smaller grid which had been welded to a borrowed machine contradicted this. This latter allowed the jury to determine that a more effective grid could have been installed without sacrificing efficiency.

Defendant’s expert also testified that no other machine had such a grid. Plaintiff’s expert countered that while no forage blowers had such protective devices, he was aware of standards of general applicability to the design of agricultural implements other than the forage blower and that these were in existence at the time that the subject machine was designed. Plaintiff introduced a specific safety standard which had been promulgated by the American Society of Agricultural Engineers for the safety of agricultural equipment. This called for shielding to a degree consistent with the function of the component. Defendant’s engineer did not quarrel with that standard.3 Defendant-appellant’s engineer finally testified that the defendant company acknowledged that the agricultural equipment standard required it to design a shield for the hopper if it were possible, whereby it could still function.

In the light of the above evidence, it cannot be said that the evidence is insufficient to support the applicable standards; it established the necessity for having a protective shield and it pointed up the necessity for the use of a shield which was shown to be capable of design consistent with proper functioning. The evidence that such a protective shield could be fashioned was cogent.

In determining whether a machine is defective in design, the jury is entitled to weigh the ease of construction of a safety device against the magnitude of threatened harm in not constructing it. If the latter is of great magnitude and the former is relatively inconsequential, the trier may determine that the machine was defectively designed. The jury so found.

II.

We are not, of course, suggesting that a manufacturer is an insurer. We merely say that the plaintiff has sustained his proof. Defendant-appellant further maintains that the machine was not unreasonably dangerous within the meaning given to the term by the decision of Kirkland v. General Motors Corp., supra. The question is, would the ordinary user having ordinary knowledge contemplate that the device was unreasonably dangerous? All that we can say on this is that the characteristics of this machine were described in minute detail to the jury. Further photographs such as those appended to this opinion were submitted. As a result, the jury had before it knowledge that the machine was dangerous.

Is the fact that these defects were obvious a factor which diminishes its legal dangerousness as the defendant-appellant contends?4 If a device is dan*485gerous to life and limb to the degree that no amount of care on the part of the user can overcome the defect so as to prevent injury, the obviousness does not alleviate the danger. We have difficulty seeing how the knowledge of the dangerousness can alleviate the dangerous condition inasmuch as the performance by plaintiff of his assigned tasks subjected him to injury regardless of the care exercised.5

We are of the opinion that the manufacturer cannot escape liability by contending that the defect was obvious where, as here, knowledge of the highly hazardous condition cannot serve to prevent the injury since the plaintiff-appellee must work.

III.

There is an authority in Oklahoma which is closely parallel to the present one. It is the decision of the Oklahoma Supreme Court in Royse v. Stine, 473 P.2d 923 (Okl.1970). There, as here, the plaintiff was injured while forcing cotton seed hulls into an auger blade which conveyed the hulls into a special wagon. His foot slipped into the auger blade.. This case predated the adoption by Oklahoma of § 402A and it was therefore tried on a negligence theory. But even judged under this more difficult theory the Oklahoma court upheld liability, concluding that it was open to the jury to find that the defendant was negligent and that plaintiff was not contributorily negligent. Although this decision is not a products liability ease like the case at bar, it successfully serves to dispose of the contributory fault issue which defendant-appellant has sought in one way or another to interpose.

IV.

We have considered the defendant’s contention that it was error to allow plaintiff’s expert to testify. The argument boils down to the fact that, the expert was a mechanical engineer rather than an agricultural one. . This is a very thin line to draw. Who can say that an agricultural engineer, whatever that is, would be better qualified? Such a matter is in the broad discretion of the trial court.6 The expert was a professor of mechanical engineering at the University of Houston. He testified that he was particularly interested in conveying substances like grain from one place to another. He was also shown to have examined the design of the blower in question in some detail.

It cannot be said that the witnesses were lacking in the necessary qualifications. The weight of the evidence is for the jury to determine.

V.

Finally, it is argued that it was error to allow plaintiff to admit evidence as to the blower plaintiff’s employer used to complete the job the plaintiff had been doing. Particular objection is made to the evidence that the employer welded the grid on before commencing. This in our view does not violate the rule against showing repairs or showing an example of successful performance. This was not repair evidence. Instead, it *486was responsive to testimony on behalf of the defendant that a grid would render the machine ineffective. The court did not err.

We have considered the other points raised, namely, that it was error to allow testimony as to collateral source payments, and the plaintiff’s counsel was guilty of misconduct. Neither point has merit.

The judgment of the district court is affirmed.

Appendix A

*487Appendix B

The Opinion of the Court was delivered by

PASHMAN, J.

The sole question here is whether defendants in a product liability case based on strict liability for failure to warn may raise a “state of the art” defense. Defendants assert that the danger of which they failed to warn was undiscovered at the time the product was marketed and that it was undiscoverable given the state of scientific knowledge at that time. The ease comes to us omappeal from the trial court’s denial of plaintiffs’ motion to strike the state-of-the-art defense. For the reasons stated below, we reverse the trial court judgment and strike the defense.

I

These six consolidated cases are personal injury and wrongful death actions brought against manufacturers and distributors of asbestos products. Plaintiffs are workers, or survivors of deceased workers, who claim to have been exposed to asbestos for varying periods of time. They allege that as a result of that exposure they contracted asbestosis (a non-malignant scarring of the lungs), mesothelioma (a rare cancer of the lining of the chest, the pleura, or the lining of the abdomen, the peritoneum)1 and other asbestos-related illnesses.

These cases involve asbestos exposure dating back perhaps as far as the 1930’s. The suits are first arising now because of the long latent period between exposure and the discernible symptoms of asbestosis and mesothelioma. See Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1083 (5th Cir. 1973). Plaintiffs have raised a variety of legal theories to support their *197claims for damages. The important claim, for purposes of this appeal, is strict liability for failure to warn. Prior to the 1960’s, defendants’ products allegedly contained no warning of their hazardous nature. Defendants respond by asserting the state-of-the-art defense. They allege that no one knew or could have known that asbestos was dangerous when it was marketed.

There is substantial factual dispute about what defendants knew and when they knew it. A trial judge in the Eastern District of Texas, the forum for numerous asbestos-related cases, has concluded that “[kjnowledge of the danger can be attributed to the industry as early as the mid-1930’s . . . .” Hardy v. Johns-Manville Sales Corp., 509 F.Supp. 1352, 1355 (E.D.Texas 1981) (footnote omitted). Defendants respond, however, that it was not until the 1960’s that the medical profession in the United States recognized that a potential health hazard arose from the use of insulation products containing asbestos. Before that time, according to defendants, the danger from asbestos was believed limited to workers in asbestos textile mills, who were exposed to much higher concentrations of asbestos dust than were the workers at other sites, such as shipyards. Defendants claim that it was not discovered until recently that the much smaller concentrations those workers faced were also hazardous.

We need not resolve the factual issues raised. For purposes of plaintiffs’ motion to strike the defense, we assume the defendants’ version of the facts. The issue is whether the medical community’s presumed unawareness of the dangers of asbestos is a defense to plaintiffs’ claims.

II

As noted, this case involves six consolidated cases. Jarusewicz, et a 1. v. Johns-Manville, et al. is a suit by eighteen workers who were employed by Jersey Central Power and Light Company for various periods between 1930 and 1981, all of whom allege that they used asbestos, asbestos products or asbestos *198materials in the course of their work. They allege that they were given no warning, handling instructions or safety equipment to protect them from the dangers of asbestos. Beshada, et al. v. Johns-Manville, et al. is a suit by twenty-one current or former pipefitters employed at Hercules, Inc. between 1935 and the present, who allege that they worked with and around insulation products containing asbestos. Blazewicz, et al. v. Johns-Manville, et al. and Hann, et al. v. Johns-Manville, et al. involve respectively twelve and six employees of Research Cottrell, Inc., between 1936 and 1979. Plaintiff in Beckwith, et al. v. Johns-Manville, et al. is the widow of an electrician, Earl Beckwith, who was exposed to finished asbestos products during his work. She alleges that her husband’s exposure to asbestos caused various illnesses which resulted in his death. Finally, Crilley v. Cork, et al. is a wrongful death action by the widow of James Crilley, who died allegedly as a result of occupational exposure to insulation products containing asbestos.

A single trial judge has been specially assigned to hear all asbestos-related litigation in Middlesex County. On September 9,1981, counsel for plaintiffs in four of the cases 2 filed a Motion for Partial Summary Judgment seeking to strike the state-of-the-art defense. Subsequently, plaintiffs in the other two cases joined the motion.

Plaintiffs based their motion on Freund v. Cellofilm Properties, Inc., 87 N.J. 229 (1981), our most recent case concerning product liability. In Freund, Justice Handler elaborated the difference between negligence and strict liability in a failure to warn case. He explained that in strict liability cases knowledge of the dangerousness of the product is imputed to defendants. Plaintiff need not prove that defendant knew or should have known of its dangerousness. The only issue is whether the product distributed by defendant was reasonably safe. Plain*199tiffs urge that Freund disposed of the state-of-the-art issue. Since defendant’s knowledge of the dangers of the product is presumed, it is irrelevant whether the existence of such dangers was scientifically discoverable. Defendants respond that Freund imputes to defendants only “existing knowledge, the technical knowledge available at the time of manufacture.”

The trial judge denied the motion to strike. Reading Freund in conjunction with prior cases, Suter v. San Angelo Foundry & Machine Company, 81 N.J. 150 (1979) and Torsiello v. Whitehall Laboratories, 165 N.J.Super. 311 (App.Div.1979), the judge concluded that Freund merely created a rebuttable presumption that defendants had knowledge of the dangers of their product. That presumption could be overcome by proof that the knowledge at issue was “unknowable” at the time of manufacture.

Plaintiffs sought leave from the Appellate Division to appeal the trial court’s interlocutory order and filed a motion with this Court for direct certification. The Appellate Division denied plaintiffs’ motion for leave to appeal. In all but the Crilley case, plaintiffs moved before this Court for leave to appeal the Appellate Division order. We granted their motion on February 25,1982, and subsequently granted plaintiff Crilley’s late motion for leave to appeal.

Ill

Our inquiry starts with the principles laid down in Freund v. Cellofilm Properties, Inc., supra, Suter v. San Angelo Foundry & Machine Company, supra, and Cepeda v. Cumberland Engineering Company, Inc., 76 N.J. 152 (1978). In Suter, we summarized the principle of strict liability as follows:

If at the time the seller distributes a product, it is not reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes so that users or others who may be expected to come in contact with the product are injured as a result thereof, then the seller shall be responsible for the ensuing damages. [Id. at 169 (footnote omitted) ]

The determination of whether a product is “reasonably fit, suitable and safe” depends on a comparison of its risks and its utility (risk-utility equation).

*200Central to this theory is the risk-utility equation for determining liability. The theory is that only safe products should be marketed—a safe product being one whose utility outweighs its inherent risk, provided that risk has been reduced to the greatest extent possible consistent with the product’s continued utility. [Freund, 87 N.J. at 238, n.1]

In Cepeda, we explained that in the context of design defect liability, strict liability is identical to liability for negligence, with one important caveat: “The only qualification is as to the requisite of foreseeability by the manufacturer of the dangerous propensity of the chattel manifested at the trial—this being imputed to the manufacturer.” Cepeda, 76 N.J. at 172. See Freund v. Cellofilm Properties, Inc., 87 N.J. at 239. In so holding, we adopted the explication of strict liability offered by Dean Wade:

The time has now come to be forthright in using a tort way of thinking and tort terminology [in cases of strict liability in tort]. There are several ways of doing it, and it is not difficult. The simplest and easiest way, it would seem, is to assume that the defendant knew of the dangerous condition of the product and ask whether he was then negligent in putting it on the market or supplying it to someone else. In other words, the scienter is supplied as a matter of law, and there is no need for the plaintiff to prove its existence as a matter of fact. Once given this notice of the dangerous condition of the chattel, the question then becomes whether the defendant was negligent to people who might be harmed by that condition if they came into contact with it or were in the vicinity of it. Another way of saying this is to ask whether the magnitude of the risk created by the dangerous condition of the product was outweighed by the social utility attained by putting it out in this fashion. [Wade, “On the Nature of Strict Tort Liability for Products,” 44 Miss.L.J. 825, 834-35 (1973), quoted in Cepeda, 76 N.J. at 172]

Stated differently, negligence is conduct-oriented, asking whether defendant’s actions were reasonable; strict liability is product-oriented, asking whether the product was reasonably safe for its foreseeable purposes. Freund, 87 N.J. at 238.3

*201“Warning” cases constitute one category of strict liability cases. Their relation to the strict liability principles set forth above can best be analyzed by focusing on the definition of safe products found in footnote 1 of Freund. See supra at 200. For purposes of analysis, we can distinguish two tests for determining whether a product is safe: (1) does its utility outweigh its risk? and (2) if so, has that risk been reduced to the greatest extent possible consistent with the product’s utility? Id. at 238, n. 1. The first question looks to the product as it was in fact marketed. If that product caused more harm than good, it was not reasonably fit for its intended purposes. We can therefore impose strict liability for the injuries it caused without having to determine whether it could have been rendered safer. The second aspect of strict liability, however, requires that the risk from the product be reduced to the greatest extent possible without hindering its utility. Whether or not the product passes the initial risk-utility test, it is not reasonably safe if the same product could have been made or marketed more safely.4

Warning cases are of this second type.5 When plaintiffs urge that a product is hazardous because it lacks a warning, they typically look to the second test, saying in effect that regardless *202of the overall cost-benefit calculation the product is unsafe because a warning could make it safer at virtually no added cost and without limiting its utility. Freund recognized this, noting that in cases alleging “an inadequate warning as to safe use, the utility of the product, as counter-balanced against the risks of its use, is rarely at issue.” Id. at 242.

Freund is our leading case on strict liability for failure to warn. In Freund, Justice Handler applied the principles set forth above, initially laid down in Suter and Cepeda, to warning cases. The issue there was whether there is any difference between negligence and strict liability in warning cases. We stated unequivocally that there is. That difference is the same difference that we noted in Suter and Cepeda concerning other design defect cases:

when a plaintiff sues under strict liability, there is no need to prove that the manufacturer knew or should have known of any dangerous propensities of its product—such knowledge is imputed to the manufacturer. [Freund v. Cellofilm Properties, Inc., 87 N.J. at 239]

Thus, we held in Freund that it was reversible error for the trial judge to instruct the jury only with a negligence charge.

With these basic principles of design defect strict liability in New Jersey as our framework for analysis, we turn now to a discussion of the state-of-the-art defense.

IV

As it relates to warning cases, the state-of-the-art defense asserts that distributors of products can be held liable only for injuries resulting from dangers that were scientifically discoverable at the time the product was distributed. Defendants argue that the question of whether the product can be made safer must be limited to consideration of the available technology at the time the product was distributed. Liability would be absolute, defendants argue, if it could be imposed on the basis of a subsequently discovered means to make the product safer since technology will always be developing new ways to make products safer. Such a rule, they assert, would make manufacturers *203liabile whenever their products cause harm, whether or not they are reasonably fit for their foreseeable purposes.

Defendants conceptualize the scientific unknowability of the dangerous propensities of a product as a technological barrier to making the product safer by providing warnings. Thus, a warning was not “possible” within the meaning of the Freund requirement that risk be reduced “to the greatest extent possible.”

In urging this position, defendants must somehow distinguish the Freund holding that knowledge of the dangers of the product is imputed to defendants as a matter of law. A state-of-the-art defense would contravene that by requiring plaintiffs to prove at least that knowledge of the dangers was scientifically available at the time of manufacture.

Defendants argue that Freund did not specify precisely what knowledge is imputed to defendants. They construe Freund to impute only that degree of knowledge of the product’s dangerousness that existed at the time of manufacture or distribution.6

*204While we agree that Freund did not explicitly address this question, the principles laid down in Freund and our prior eases contradict defendants’ position. Essentially, state-of-the-art is a negligence defense. It seeks to explain why defendants are not culpable for failing to provide a warning. They assert, in effect, that because they could not have known the product was dangerous, they acted reasonably in marketing it without a warning. But in strict liability cases, culpability is irrelevant. The product was unsafe. That it was unsafe because of the state of technology does not change the fact that it was unsafe. Strict liability focuses on the product, not the fault of the manufacturer. “If the conduct is unreasonably dangerous, then there should be strict liability without reference to what excuse defendant might give for being unaware of the danger.” Keeton, 48 Tex.L.Rev. at 408.

When the defendants argue that it is unreasonable to impose a duty on them to warn of the unknowable, they misconstrue both the purpose and effect of strict liability. By imposing strict liability, we are not requiring defendants to have done something that is impossible. In this sense, the phrase “duty to warn” is misleading. It implies negligence concepts with their attendant focus on the reasonableness of defendant’s behavior. However, a major concern of strict liability—ignored by defendants—is the conclusion that if a product was in fact defective, the distributor of the product should compensate its victims for the misfortune that it inflicted on them.

*205If we accepted defendants’ argument, we would create a distinction among fact situations that defies common sense. Under the defendants’ reading of Freund, defendant would be liable for failure to warn if the danger was knowable even if defendants were not negligent in failing to discover it. Defendants would suffer no liability, however, if the danger was undiscoverable. But, as Dean Keeton explains,

if a defendant is' to be held liable for a risk that is discoverable by some genius but beyond the defendant’s capacity to do so, why should he not also be liable for a risk that was just as great but was not discoverable by anyone? [Keeton, 48 Tex.L.Rev. at 409]

We are buttressed in our conclusion that the state-of-the-art defense is inconsistent with Freund by the recent decision of Judge Ackerman in Marcucci v. Johns-Manville Sales Corp., Nos. 76-414, 76-604 and 76-1510 (D.N.J. Feb. 19, 1982), in which he applied New Jersey law to strike defendants’ state-of-the-art-defense.

The most important inquiry, however, is whether imposition of liability for failure to warn of dangers which were undiscoverable at the time of manufacture will advance the goals and policies sought to be achieved by our strict liability rules. We believe that it will.

Risk Spreading. One of the most important arguments generally advanced for imposing strict liability is that the manufacturers and distributors of defective products can best allocate the costs of the injuries resulting from those products. The premise is that the price of a product should reflect all of its costs, including the cost of injuries caused by the product. This can best be accomplished by imposing liability on the manufacturer and distributors. Those persons can insure against liability and incorporate the cost of the insurance in the price of the product. In this way, the costs of the product will be borne by those who profit from it: the manufacturers and distributors who profit from its sale and the buyers who profit from its use. “It should be a cost of doing business that in the course of doing that business an unreasonable risk was created.” Keeton, 48 Tex.L.Rev. at 408. See Prosser, The Law of Torts, § 75, p. 495 (4th Ed. 1971).

*206Defendants argue that this policy is not forwarded by imposition of liability for unknowable hazards. Since such hazards by definition are not’predicted, the price of the hazardous product will not be adjusted to reflect the costs of the injuries it will produce. Rather, defendants state, the cost “will be borne by the public at large and reflected in a general, across the board increase in premiums to compensate for unanticipated risks.” There is spme truth in this assertipn, but it is nut a bad result.

First, the same argument can be made as te hazards which are deemed scientifically knewable but ef which the manufacturers are unaware. Yet it is well established under our tort law that strict liability is imposed even for defects which were unknown to the manufacturer. It is precisely the imputation of knowledge to the defendant that distinguishes strict liability from negligence. Freund, 87 N.J. at 240. Defendants advance no argument as to why risk spreading works better for unknown risks than for unknowable risks.

Second, spreading the costs of injuries among all those who produce, distribute and purchase manufactured products is far preferable to imposing it on the innocent victims who suffer illnesses and disability from defective products. This basic normative premise is at the center of our strict liability rules. It is unchanged by the state of scientific knowledge at the time of manufacture.

Finally, contrary to defendants’ assertion, this rule will not cause the price and production level of manufactured products to diverge from the so-called economically efficient level. Rather, the rule will force the price of any particular product to reflect the cost of insuring against the possibility that the product will turn out to be defective.

Accident Avoidance. In Suter, we stated:

Strict liability in a sense is but an attempt to minimize the costs of accidents and to consider who should bear those costs. See the discussion in Calabresi & Hirschoff, ‘Toward a Test for Strict Liability in Torts,’ 81 Yale L.J. 1055 (1972), in which the authors suggest that the strict liability issue is to decide which party is the ‘cheapest cost avoider’ or who is in the best position to make the *207cost-benefit analysis between accident costs and accident avoidance costs and to act on that decision once it is made. Id. at 1060. Using this approach, it is obvious that the manufacturer rather than the factory employee is ‘in the better position both to judge whether avoidance costs would exceed foreseeable accident costs and to act on that judgment.’ Id. [Suter v. San Angelo Foundry, 81 N.J. at 173-74]

Defendants urge that this argument has no force as to hazards which by definition were undiscoverable. Defendants have treated the level of technological knowledge at a given time as an independent variable not affected by defendants’ conduct. But this view ignores the important role of industry in product safety research. The “state-of-the-art” at a given time is partly determined by how much industry invests in safety research. By imposing on manufacturers the costs of failure to discover hazards, we create an incentive for them to invest more actively in safety research.

Fact finding process. The analysis thus far has assumed that it is possible to define what constitutes “undiscoverable” knowledge and that it will be reasonably possible to determine what knowledge was technologically discoverable at a given time. In fact, both assumptions are highly questionable. The vast confusion that is virtually certain to arise from any attempt to deal in a trial setting with the concept of scientific knowability constitutes a strong reason for avoiding the concept altogether by striking the state-of-the-art defense.

Scientific knowability, as we understand it, refers not to what in fact was known at the time, but to what could have been known at the time. In other words, even if no scientist had actually formed the belief that asbestos was dangerous, the hazards would be deemed “knowable” if a scientist could have formed that belief by applying research or performing tests that were available at the time. Proof of what could have been known will inevitably be complicated, costly, confusing and time-consuming. Each side will have to produce experts in the history of science and technology to speculate as to what knowledge was feasible in a given year. We doubt that juries will be capable of even understanding the concept of scientific know a*208bility, much less be able to resolve such a complex issue. Moreover, we should resist legal rules that will so greatly add to the costs both sides incur in trying a case.

The concept of knowability is complicated further by the fact, noted above, that the level of investment in safety research by manufacturers is one determinant of the state-of-the-art at any given time. Fairness suggests that manufacturers not be excused from liability because their prior inadequate investment in safety rendered the hazards of their product unknowable. Thus, a judgment will have to be made as to whether defendants’ investment in safety research in the years preceding distribution of the product was adequate. If hot, the experts in the history of technology will have to testify as to what would have been knowable at the time of distribution if manufacturers had spent the proper amount on safety in prior years. To state the issue is to fully understand the great difficulties it would engender in a courtroom.

In addition, discussion of state-of-the-art could easily confuse juries into believing that blameworthiness is at issue. Juries might mistakenly translate the confused concept of state-of-the-art into the simple question of whether it was defendants’ fault that they did not know of the hazards of asbestos. But that would be negligence, not strict liability.

For precisely this reason, Professor Keeton has urged that negligence concepts be carefully avoided in strict liability cases.

My principal thesis is and has been that theories of negligence should be avoided altogether in the products liability area in order to simplify the law, and that if the sale of a product is made under circumstances that would subject someone to an unreasonable risk in fact, liability for harm resulting from those risks should follow. [Keeton, 48 Tex.L.Rev. at 409 (footnote omitted)]

This Court has expressed the same concern in Freund, reversing the trial court’s jury charge because the “terminology employed by the trial judge was riddled with references to negligence, knowledge and reasonable care on the part of a manufacturer.” 87 N.J. at 243. “[W]e must be concerned with the effect of the trial judge’s articulation upon the jury’s deliberative processes.” Id. at 244.

*209V

For the reasons expressed above, we conclude that plaintiffs’ position is consistent with our holding in Freund and prior cases and will achieve the various policies underlying strict liability. The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large, which reaps the benefits of the various products our economy manufactures. That burden should not be imposed exclusively on the innocent victim. Although victims must in any case suffer the pain involved, they should be spared the burdensome financial consequences of unfit products. At the same time, we believe this position will serve the salutary goals of increasing product safety research and simplifying tort trials.

Defendants have argued that it is unreasonable to impose a duty on them to warn of the unknowable. Failure to warn of a risk which one could not have known existed is not unreasonable conduct. But this argument is based on negligence principles. We are not saying what defendants should have done. That is negligence. We are saying that defendants’ products were not reasonably safe because they did not have a warning. Without a warning, users of the product were unaware of its hazards and could not protect themselves from injury. We impose strict liability because it is unfair for the distributors of a defective product not to compensate its victims. As between those innocent victims and the distributors, it is the distributors—and the public which consumes their products—which should bear the unforeseen costs of the product.

The judgment of the trial court is reversed; the plaintiff’s motion to strike the state-of-the-art defense is granted.

For reversal—Justices PASHMAN, HANDLER, POLLOCK, O’HERN and SULLIVAN, and Judge MATTHEWS—6.

For affirmance —None.

ENOCH, Circuit Judge.

Plaintiff, Barbara F. Evans, personal representative of the Estate of Roy Evans, deceased, brought this action in the United States District Court to recover damages on behalf of the decedent’s widow and four dependent minor children, on the ground that his death was caused by the allegedly negligent design of the 1961 Chevrolet station wagon manufactured by the defendant, General Motors Corporation. Plaintiff’s amended complaint in three counts charges negligence, breach of implied warranty, and strict tort liability.

The amended complaint asserts that while decedent was driving across an intersection in the aforementioned station wagon, it was struck from the left side by another automobile, and that the left side of the station wagon collapsed in upon the decedent, inflicting fatal injuries because the station wagon was designed with an “X” frame which did not have side frame rails to protect a driver involved in side impact collisions. Plaintiff’s amended complaint incorporated a reprint of a publication in which a rival manufacturer advertises the alleged superiority of its perimeter frame over the “X” frame used by other automobile makers.

*824After pretrial conferences, oral argument, and submission of briefs, the District Court dismissed the amended complaint on the ground that each count failed to state a claim against the defendant upon which relief could be granted. This appeal followed.

Plaintiff’s theory is that the collision which occurred was a foreseeable emergency and that by omitting side frame rails, defendant created an unreasonable risk of harm to occupants of the automobile it manufactured.

Plaintiff asserts that defendant was negligent in designing and in failing to test the design of the automobile; that defendant breached implied warranties that the automobile was of merchantable quality and reasonably fit for use as an automobile; that defendant placed in the stream of commerce an automobile in a dangerous and defective condition in that it was equipped with an “X” frame lacking side frame protection, thus proximately causing the fatal injuries to the decedent when the automobile was involved in a broadside collision, for which the defendant is strictly liable to plaintiff.

The major question before us is the nature of the duty which an automobile manufacturer owes to users of its product. This presents an issue of law for the Court. Union Traction Co. of Indiana v. Berry, 1919, 188 Ind. 514, 520-521, 121 N.E. 655, 657, 124 N.E. 737; Kahn v. Chrysler Corporation, D.C., S.D., Tex. 1963, 221 F.Supp. 677, 678.

The defendant concedes that it had a duty to design its automobile to be reasonably fit for the purpose for which it was made, without hiding defects which would make it dangerous to persons so using it.

Plaintiff does not assert that defendant’s design could have functioned to avoid the collision. Plaintiff contends that in a trial plaintiff would prove, by expert opinion and subsequently adopted improvements in design by defendant and others, that the solid steel side rails of a perimeter frame provide added protection against impacts on the body sides. Plaintiff argues that the defendant’s “X” frame permitted the side of the automobile to collapse against the decedent when his station wagon was struck broadside by another vehicle. Plaintiff does not assert that the “X” frame caused the decedent’s automobile to be driven into the path of the striking car or prevented it from being driven out of that path. Nor does plaintiff contend that the decedent could not have been killed or injured in this same collision had the 1961 Chevrolet station wagon been designed with a perimeter frame.

A manufacturer is not under a duty to make his automobile accident-proof or fool-proof; nor must he render the vehicle “more” safe where the danger to be avoided is obvious to all. Campo v. Scofield, 1950, 301 N.Y. 468, 95 N.E. 2d 802, 804. Perhaps it would be desirable to require manufacturers to construct automobiles in which it would be safe to collide, but that would be a legislative function, not an aspect of judicial interpretation of existing law. Campo v. Scofield, supra, 805.

Plaintiff’s reliance on Elliott v. General Motors Corp., 7 Cir., 1961, 296 F.2d 125, and MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, is misplaced. Elliott concerned a sharp edged splash shield, hidden from view, but placed where a mechanic would have to put his hands to repair the automobile. While repairing the automobile, Loraine Elliott extended his hand and arm through the splash shield opening, which was designed to allow a mechanic to gain entrance to the engine and oil pan from beneath the automobile. The dangerously sharp and defective edge severed nerves, tendons, muscles, and arteries, permanently disabling his arm and hand, MacPherson involved a defective automobile wheel which had been made by another and sold to the manufacturer who failed to inspect it. While the plaintiff in MacPher-son was riding in the automobile, it collapsed because of the defective wheel.

*825The other cases on which plaintiff relies are also distinguishable on their facts. We note a few examples. In J. I. Case Co. v. Sandefur, Inc., Indiana, 1964, 197 N.E.2d 519, it was necessary for the plaintiff to step on the cover of an auger in a farm combine to clear the hopper. It collapsed under him because of hidden defects: there was no supporting brace or safety clip, and the lumber and screws used were of insufficient strength. In McCloud v. Leavitt Corp., D.C., E.D., Illinois, 1948, 79 F.Supp. 286, a spectator was injured when the defective grandstand in which he was watching a game collapsed under him. In Carpini v. Pittsburgh & Weirton Bus Co., 3 Cir., 1954, 216 F.2d 404, a petcock used to drain the air chamber of the brake system of a bus was located too close to the ground. It broke off on debris in the street. The brakes failed. The driver lost control of the bus. In Ford Motor Co. v. Zahn, 8 Cir., 1959, 265 F.2d 729, the ashtray on the dashboard had a defectively jagged edge which inflicted injuries on a passenger when the automobile brakes were suddenly applied. In Goullon v. Ford Motor Co., 6 Cir., 1930, 44 F.2d 310, the rim of the steering wheel on a tractor broke in the driver’s hand.

The products involved in all these cases were unfit for their intended use and in precisely that respect were the cause of accidental injuries.

The intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer’s ability to foresee the possibility that such collisions may occur. As defendant argues, the defendant also knows that its automobiles may be driven into bodies of water, but it is not suggested that defendant has a duty to equip them with pontoons.

We cannot agree with the plaintiff that the defendant had a duty to equip all its automobiles with side rail perimeter frames, or that such a duty can be inferred from the mere fact that some of the defendant’s, or some of its competitors’, automobiles are now made with side rails, or from the opinions of certain experts that perimeter frames are “safer” in a collision. Defendant had a duty to test its frame only to ensure that it was reasonably fit for its intended purpose.

Unlike- the defendants in Bird v. Ford Motor Co., D.C., W.D., N.Y., 1936, 15 F.Supp. 590; Baxter v. Ford Motor Co., 1932, 168 Wash. 456, 12 P.2d 409, 88 A.L.R. 521; Bahlman v. Hudson Motor Car Co., 1939, 290 Mich. 683, 288 N.W. 309, cited by the plaintiff, General Motors Corporation did not warrant its product to be free of the condition which actually caused the accident. In Bird and Baxter, the windshields which shattered and cut the plaintiffs in those cases, were expressly represented to be “shatterproof.” In Bahlman, the two-piece roof welded with a jagged seam that injured the plaintiff, was expressly represented to be a “seamless steel roof.”

It is not alleged that General Motors expressly warranted its automobile to have side rails or to be capable of protecting a driver in broadside collisions; nor can such warranty be implied from the allegations in plaintiff’s amended complaint.

Our study of all other points and authorities advanced in favor of plaintiff’s position discloses nothing that alters our conclusion that the judgment of the District Court must be affirmed.

Affirmed.

KILEY, Circuit Judge

(dissenting).

I respectfully dissent.

The opinion of the court decides that General Motors’ duty was, as it concedes, to design its automobile to be reasonably fit for the purpose for which it is made, and free from hidden defects; that notwithstanding General Motors’ foreseeability of possible broadside collisions, the “intended purpose” of the automobile does not include its participation in such collisions; that imposition of any requirements that automobiles be made “more” safe for collisions is a legislative function; and that the district *826court properly dismissed the complaint for failure to state a claim upon which relief could be granted.

The question before us is whether, assuming the truth of the well-pleaded allegations in the amended complaint, “it appears beyond all doubt” that the plaintiff can prove no set of facts which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The amended complaint was in three counts, charging: negligence in design and testing of the 1961 Chevrolet; breach of the implied warranties of merchantability and fitness for the purpose of its manufacture; and strict liability of the manufacturer for a defective and dangerous automobile.

This is a diversity case; consequently Indiana law controls. No Indiana case has precisely decided the issue before us. But a United States District Court in Greeno v. Clark Equipment Co., 237 F.Supp. 427 (N.D.Ind.1965), and this court in Dagley v. Armstrong Rubber Co., 344 F.2d 245 (7th Cir. 1965), as “Indiana courts” in diversity cases, participated in developing Indiana law in breach of warranty and products liability cases to meet changing conditions. In Greeno the court drew upon “available data” and cases from other jurisdictions for the statement of the rule eliminating the requirement of privity in product liability cases. In Dagley, 344 F.2d at 253, an action for breach of implied warranty, this court observed that the “historical concept of warranty,” which required privity of contract, was “outdated in view of the changing policies involved * * * and * * that the interests of society are best served by eliminating the requirement * * This court took this step as a sequel to its prior decision in Elliott v. General Motors Corporation, 296 F.2d 125 (7 Cir., 1961), cert. denied, 369 U.S. 860, 82 S.Ct. 949, 8 L.Ed.2d 18 (1962), eliminating the essential of privity in Indiana negligence actions, and that of J. I. Case Co. v. Sandefur, Inc., 197 N.E.2d 519 (1964), in which the Indiana Supreme Court did likewise.

The court in Greeno aptly stated, “The direction of the law is clear.” 237 F. Supp. at 432. The direction, in my opinion, leads to greater responsibility of manufacturers in designing, testing and manufacturing products, with a purpose of giving reasonable protection against harm to purchasers in the use of the products for their intended purposes. My view is that the Indiana courts would have the same opinion today on the same issue as that before us.

It is a matter of common knowledge that state and federal authorities, nongovernmental agencies, and legal and medical groups, as well as automotive producers, are currently engaged in research, discussion and hearings inspired by the appalling annual predictable rate of deaths, now more than 45,000 per year,1 and reported injuries in the hundreds of thousands, from accidents in automobile traffic. It is in the context of traffic realities that the issue before us, it seems to me, must be decided.

The opinion of the court does not state affirmatively what General Motors’ duty is. It rejects plaintiff’s theory that General Motors, foreseeing the possibility of broadside collisions, had the duty to include side rails in design of the Chevrolet frame, so as to provide reasonable protection against death or injury from broadside collisions; and it inferentially accepts General Motors’ theory that its duty was to design its automobile to be reasonably fit for the purpose for which it was made, without hidden defects rendering it dangerous to persons using it for its proper purpose, and that that purpose, as a matter of law, cannot contem*827plate that automobile’s participation in a collision.

In my view, General Motors’ duty was to use such care in designing its automobiles that reasonable protection is given purchasers against death and injury from accidents which are expected and foreseeable yet unavoidable by the purchaser despite careful use. See Restatement (Second), Torts § 395, especially comments 3 and k to this section, and § 398 (1965).

It follows that if plaintiff is able to prove that General Motors violated that duty in failing to include side frame rails in its design, and also proves the other elements entitling her to relief under any of the three counts, she would be entitled to recover unless General Motors can establish a defense to her claims. In any event, it is, in my view, error — once General Motors’ duty is recognized — to dismiss this complaint for failure to state a claim upon which relief can be granted. The trier of fact in each case, where prima facie showing is made, must decide whether the design protection is reasonable, depending on the character of the car involved and other relevant considerations.2

The court’s opinion notes that in the cases cited by plaintiff the actionable defect itself caused the injury. However, in Carpini v. Pittsburgh and Weirton Bus Co., 216 F.2d 404 (3rd Cir. 1954), an extraneous object cooperated with the faulty design of the petcock to cause the harm, and General Motors, a defendant there, did not dispute its duty of care to the user. And in Ford Motor Co. v. Zahn, 265 F.2d 729 (8th Cir. 1959), the Eighth Circuit Court of Appeals rejected Ford’s contention that it was not bound to foresee that another car would “suddenly dart” out of a side road in front of the Ford causing application of the brakes, which then propelled the plaintiff-passenger onto a defective ashtray, injuring his eye. Ford there conceded there was a duty of reasonable care in design and manufacture of its product.3

*828I recognize that safety standards for automobiles would normally be a legislative matter. The United States Senate is now considering the question of federal standards. The General Services Administration has itself set up standards for automobiles it will purchase. There is currently an abundance of books and magazine and newspaper articles, condemning, as well as defending, the record of manufacturers of automobiles in safety design and production. The particular issue before us is merely a reflection of the broad national issue being debated at this time. But the possibility of future adequate legislative standards does not remove the necessity of presently deciding whether plaintiff should or should not have an opportunity to prove the allegations made in the complaint.

I would reverse the judgment in favor of General Motors on its affirmative defenses to Counts I and II, and on its motion to dismiss Count III; and would remand for further proceedings.

FLOYD R. GIBSON, Circuit Judge.

The driver of an automobile claims injury as a result of an alleged negligent design of the steering assembly of the automobile. The alleged defect in design did not cause the accident, and the manufacturer asserts the law imposes no duty of care in the design of an automobile to make it more safe to occupy in the event of a collision. The trial court agreed, rendering summary judgment in favor of the manufacturer, reported at 274 F.Supp. 461 (D.C.Minn.1967). We reverse and remand.

The plaintiff-appellant,1 Erling David Larsen, received severe bodily injuries while driving, with the consent of the owner, a 1963 Chevrolet Corvair on February 18, 1964 in the state of Michigan. A head-on collision, with the impact oc*497curring on the left front corner of the Corvair, caused a severe rearward thrust of the steering mechansim into the plaintiff’s head. The Corvair was manufac^ tured by General Motors Corporation and liability is asserted against General Motors on an alleged design defect in the steering assembly and the placement or attachment of the component parts of the steering assembly to the structure of the Corvair.2 "

The plaintiff does not contend that the design caused the accident but that because of the design he received injuries he would not have otherwise received or, in the alternative, his injuries would not have been as severe. The rearward displacement of the steering shaft on the left frontal impact was much greater on the Corvair than it would be in other cars that were designed to protect against such a rearward displacement. The plaintiff’s complaint alleges (1) negligence in design of the steering assembly; (2) negligent failure to warn of the alleged latent or inherently dangerous condition to the user of the steering assembly placement; and (3) breach of express and implied warranties of merchantability of the vehicle’s intended use.

General Motors contends it “has no duty whatsoever to design and manufacture a vehicle * * * which is otherwise ‘safe’ or ‘safer’ to occupy during collision impacts,” and since there is no duty there can be no actionable negligence on its part to either design a safe or more safe car or to warn of any inherent or latent defects in design that might make its cars less safe than some other cars manufactured either by it or other manufacturers.

The District Court for the District of Minnesota rendered summary judgment in favor of General Motors on the basis that there was no common law duty on the manufacturer “to make a vehicle which would protect the plaintiff from injury in the event of a head-on collision” and dismissed the complaint. A timely appeal was filed. This is a diversity case in a requisite jurisdictional amount and the parties have stipulated that the law of Michigan applies.

Since a summary judgment was rendered on the pleadings and exhibits before the court under Rule 56, Fed.R.Civ.P., we will take the well pled allegations in the complaint at their face value and assume for purposes of discussion and decision that there was a defect in the design of the steering assembly of the Corvair. Then if there are no issues or any discernible theory on which the losing party could recover, a summary judgment is proper. However, a summary judgment proceeding does not provide a very satisfactory approach in tort cases. Williams v. Chick, 373 F.2d 330 (8 Cir. 1967).

The District Court found this case to be closely related to the factual situation of Evans v. General Motors Corporation, 359 F.2d 822 (7 Cir. 1966), cert. denied 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70 (1966), which held in a divided decision that a manufacturer is under no duty to make its automobile “accident-proof” or “fool-proof” nor to render its vehicle “more” safe where the danger to be avoided is obvious to all. The District Court discussed other cases, which will be set forth in this opinion, and concluded as follows:

“All of these factors when considered together lead to but one conclusion: The defendant G. M.’s duty toward the public is to design an automobile which is reasonably safe when driven and *498which contains no latent or hidden defects which could cause an accident and subsequent injury * * *. No contention is here made * * * that any design defect caused the accident which allegedly resulted in the plaintiff’s injuries. In view of this fact and because this Court believes that any standards in this area must be left to the Legislature, this court has no alternative but to find that the defendant was not negligent in its design and construction of the 1963 Corvair automobile in that it was under no duty to make a vehicle which would protect the plaintiff from injury in the event of a head-on collision.” 274 F.Supp. at p. 464.

The District Court also held that there was no duty to warn since the law only requires a warning when the defects would render the product unsafe for its intended use and that its intended purpose was transportation.

Both parties agree that the question of a manufacturer’s duty in the design of an automobile or of any chattel is a question of law for the court. The decisional law is in accord. Evans v. General Motors Corporation, supra; Schemel v. General Motors Corporation, 261 F.Supp. 134 (S.D.Ind.1966), aff’d 384 F.2d 802 (7 Cir. 1967); Kahn v. Chrysler Corporation, 221 F.Supp. 677 (S.D.Tex.1963).

General Motors contends that it has no duty to produce a vehicle in which it is safe to collide or which is accident-proof or incapable of injurious misuse. It views its duty as extending only to producing a vehicle that is reasonably fit for its intended use or for the purpose for which it was made and that is free from hidden defects; and that the intended use of a vehicle and the purpose for which it is manufactured do not include its participation in head-on collisions or any other type of impact, regardless of the manufacturer’s ability to foresee that such collisions may occur. General Motors cites as supporting its contention, Evans v. General Motors Corporation, supra; Willis v. Chrysler Corporation, 264 F.Supp. 1010 (S.D.Tex. 1967); Walz v. Erie-Lackawanna Railroad Company, CCH Prod.Liab.Rptr., ¶ 5722 (D.C.N.D.Ind.1967); Shumard v. General Motors Corporation, 270 F.Supp. 311 (S.D.Ohio 1967); Schemel v. General Motors Corporation, supra; Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950).

The plaintiff maintains that General Motors’ view of its duty is too narrow and restrictive and that an automobile manufacturer is under a duty to use reasonable care in the design of the automobile to make it safe to the user for its foreseeable use and that its intended use or purpose is for travel on the streets and highways, including the possibility of impact or collision with other vehicles or stationary objects. Plaintiff’s reliance is placed on Ford Motor Company v. Zahn, 265 F.2d 729 (8 Cir. 1959); Blitzstein v. Ford Motor Company, 288 F.2d 738 (5 Cir. 1961); Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4 Cir. 1962); Comstock v. General Motors Corporation, 358 Mich. 163, 99 N.W.2d 627, 78 A.L.R.2d 449 (Mich.1959).

There is a line of cases directly supporting General Motors’ contention that negligent design of an automobile is not actionable, where the alleged defective design is not a causative factor in the accident. The latest leading case on this point is Evans v. General Motors Corporation, 359 F.2d 822 (7 Cir. 1966), cert. denied, 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70 (1966). A divided court there held that General Motors in designing an “X” body frame without perimeter support, instead of an allegedly more safe perimeter body frame, was not liable for the death of a user allegedly caused by the designed defect because the defendant’s design could not have functioned to avoid the collision. The Court reasoned at pp. 824 and 825 of 359 F.2d:

“A manufacturer is not under a duty to make his automobile accident-proof or fool-proof; nor must he render the vehicle ‘more’ safe where the danger to be avoided is obvious to all. *499Campo v. Scofield, 1950, 301 N.Y. 468, 95 N.E.2d 802, 804. Perhaps it would be desirable to require manufacturers to construct automobiles in which it would be safe to collide, but that would be a legislative function, not an aspect of judicial interpretation of existing law. Campo v. Scofield, supra, 805.

******

“The intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer’s ability to foresee the possibility that such collisions may occur. * * * ”

A strong dissent was written by Judge Kiley in which he contended that General Motors had a duty in designing its automobile to use such care that reasonable protection would be given a user against death or injuries from foreseeable yet unavoidable accidents.

In General Motors Corporation v. Muncy, 367 F.2d 493 (5 Cir. 1966), cert. denied, 386 U.S. 1037, 87 S.Ct. 1476, 18 L.Ed.2d 600 (1967), the Court reversed the District Court judgment allowing recovery against General Motors for an allegedly negligent design of an ignition switch, which allowed the key to be removed when the motor was running. The Court held that under Texas law there was no liability for a defective design of the ignition switch and also found no actionable negligence in an alleged defective accelerator. No reasons are given for the decision on the ignition switch except that a state case involving the same parties had produced a similar ruling and a voluntary non-suit was taken before judgment was entered. The case was later refiled in the United States District Court. The Texas Court in Muncy v. General Motors Corp., 357 S.W.2d 430 (Tex.Civ.App.1962), held there was no showing of negligence as the parties had not shown “ * * * that the ear in question was dangerous if used properly and in the manner and for the purpose for which it was intended * * *». ancj further held that the car was not being lawfully used under Texas law, which provided that no person in charge of a vehicle shall permit it to stand unattended without first stopping the engine. The Court further noted that in the absence of evidence to the contrary it would not presume that General Motors designed the car for use in a manner violative of the law, or that it should have anticipated such illegal use as probable.

In Shumard v. General Motors Corporation, the United States District Court for the Southern District of Ohio, 270 F.Supp. 311 (1967), held there was no liability where the alleged design defects in a 1962 Corvair automobile caused it to erupt into flames on impact, killing the plaintiff’s decedent. That Court said: “ * * * No duty exists to make an automobile fireproof, nor does a manufacturer have to make a product which is ‘accident-proof’ or ‘fool-proof’. Campo v. Scofield, 301 N.Y. 468, 95 N.E. 2d 802 (1950) * * *” and relied upon the Evans case for its holding that:

“ * * * The duty of a manufacturer in the design of automobiles does not include designing a ‘fireproof’ automobile or an automobile in which passengers are guaranteed to be safe from fire. A manufacturer has no duty to design an automobile that will not catch fire under any circumstances. The manufacturer’s duty is to design an automobile which will not present a fire hazard during its normal intended operation.”

Another United States District Court for the Southern District of Texas in Kahn v. Chrysler Corporation, 221 F.Supp. 677 (1963) held that the manufacturer was under no duty to so design its automobiles so that it would be safe for a child to ride his bike into it while it was parked. The child there struck the protruding fins of a 1957 Dodge. Relying on the Texas case of Muncy v. General Motors Corp., supra, the Court stated the manufacturer’s duty of care «* * * -to be concomitant with normal use and for the ordinary purpose of the vehicle.” The United States District Court for the Southern District of *500Texas in Willis v. Chrysler Corporation, 264 F.Supp. 1010 (1967), in a Memorandum Opinion followed the rationale of the Evans and Kahn cases and held that Chrysler Corporation as an automobile manufacturer did not breach an implied warranty of fitness even though the design of the car allegedly allowed it to separate into two sections as a result of a high-speed collision. The predicate for its decision was that the design of the automobile was reasonably fit for the purpose for which it was intended, and the manufacturer’s duty did not extend to designing an accident-proof or fool-proof vehicle, nor was it under a duty to design an automobile that would maintain its structural integrity on severe impact, citing the Gossett and Evans cases among others.

Since General Motors concedes on the negligence count that its duty of care extends to designing and constructing an automobile that is reasonably safe for its intended use of being driven on the roads and highways and that contains no latent or hidden defects which could cause an accident and subsequent injuries, it would be superfluous to review the decisions holding manufacturers liable for negligent construction or design that were the proximate cause of an accident and subsequent injuries. Since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 (1916), the courts have consistently held a manufacturer liable for negligent construction of an automobile. Elliott v. General Motors Corporation, 296 F.2d 125 (7 Cir. 1961), cert. denied, 369 U.S. 860, 82 S.Ct. 949, 8 L.Ed.2d 18 (1962); Ford Motor Company v. Zahn, 265 F.2d 729 (8 Cir. 1959); Comstock v. General Motors Corporation, 358 Mich. 163, 99 N.W.2d 627, 78 A.L.R.2d 449 (1959); Parker v. Ford Motor Company, 296 S.W.2d 35 (Mo.1956); see 78 A.L.R.2d 473, Anno.: Products Liability—Vehicles or Parts. And also other manufacturers, Lovejoy v. Minneapolis-Moline Power Implement Company, 248 Minn. 319, 79 N.W.2d 688 (1956) (broken flywheel on a tractor).

The Courts, however have been somewhat reluctant to impose liability upon a manufacturer for negligent product design in the automotive field. In Gossett v. Chrysler Corporation, 359 F.2d 84 (6 Cir. 1966) the Court reversed a judgment based on an alleged defectively designed truck hood latch that allowed the hood to spring open while the vehicle was in motion causing an accident, but did recognize a duty in connection with design, stating:

“The general rule may be stated as follows: It is the duty of a manufacturer to use reasonable care under the circumstances to so design his product as to make it not accident or foolproof, but safe for the use for which it is intended. This duty includes a duty to design the product so that it will fairly meet any emer~ gency of use which can reasonably be anticipated. The manufacturer is not an insurer that his product is, from a design viewpoint, incapable of producing injury.” (Emphasis supplied.)

The above statement is in line with the Restatement (Second), Torts, § 398 (1965), which reads:

“A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.”

The early case of Davlin v. Henry Ford & Son, 20 F.2d 317, at p. 319 (6 Cir. 1927), though it did not permit recovery, did recognize the duty of care in design by stating:

“Its duty was to use reasonable care in employing designs, selecting materials, and making assemblies, in the construction of a tractor, which would fairly meet any emergency of use which could reasonably be anticipated.”

*501A pertinent case recognizing a duty of reasonable care in design is Carpini v. Pittsburgh and Weirton Bus Company, 216 F.2d 404 (3 Cir. 1954) where the Court permitted recovery for a defectively designed and placed pet cock in the undercarriage of a bus where the design and placement left the pet cock unprotected from debris on the road. The heavily overloaded bus in proceeding on a highway filled with rocks and debris, occasioned by a severe storm the night before, suffered a brake failure, causing an accident. The pet cock became disengaged by the debris, allowing the brakes to drain. In this case the defective design might be said to have caused the accident, though there was the questioned intervening cause of the improper use of the bus by overloading it. In any event this does not reach the plaintiff’s factual situation of where the alleged negligent design was not a causative factor in the accident, but is contended to have severely enhanced plaintiff’s injuries.

The Texas Court of Civil Appeals, in Railway Express Agency, Inc. v. Spain, 249 S.W.2d 644 (1952) sustained a judgment based on the negligent design of defendant’s trucks, which were so designed as not to permit the giving of hand signals when the door of the truck on the driver’s side was closed and noted that the concurring negligence of a third party which was required for defendant’s negligence to become operative did not relieve the defendant of liability for its own negligence in design.

A case closely bearing on this precise point is Ford Motor Company v. Zahn, 265 F.2d 729 (8 Cir. 1959) where the plaintiff lost sight of one eye on being thrown against a defectively designed ash tray having a jagged edge. The ash tray had nothing to do in a causative way of setting up an emergency braking situation, which in turn projected the plaintiff into the ash tray, but the Court recognized a duty to use reasonable care in design, recognized the foreseeability of injury resulting from a defective ash tray so placed, and also recognized the duty resting on the manufacturer to make reasonable inspections or tests to discover defects. Judge Matthes stated the rule at p. 731:

“By force of law there is imposed upon the manufacturer of an article for sale or use the duty to exercise reasonable care to prevent defective conditions caused by a miscarriage in the manufacturing process. This duty requires reasonable skill and care in the process of manufacture and for reasonable inspection or tests to discover defects.”

Generally, as noted in 76 A.L.R. 2d 93, Anno.: Products Liability—Duty As To .Design, the manufacturer has a duty to use reasonable care under the circumstances in the design of a product but is not an insurer that his product is incapable of producing injury, and this duty of design is met when the article is safe for its intended use and when it will fairly meet any “emergency of use” which is foreseeable. Davlin v. Henry Ford & Son, 20 F.2d 317 (6 Cir. 1927). This doctrine has even been extended to cover an unintended use where the injury resulting from that unintended use was foreseeable or should have been anticipated. Simpson Timber Co. v. Parks (9 Cir. 1965). (The original division’s opinion, reported in CCH Prod. Liab.Rptr. ¶ 5498 (1965), was reversed by the Court en Banc at 369 F.2d 324 (1966), which in turn was vacated by the Supreme Court and remanded to pass upon issues not covered in its prior opinion, 388 U.S. 459, 87 S.Ct. 2115, 18 L.Ed.2d 1319 (1966)).

Accepting, therefore, the principle that a manufacturer’s duty of design and construction extends to producing a product that is reasonably fit for its intended use and free of hidden defects that could render it unsafe for such use, the issue narrows on the proper interpretation of “intended use”. Automobiles are made for use on the roads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out *502without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types. The manufacturer should not be heard to say that it does not intend its product to be involved in any accident when it can easily foresee and when it knows that the probability over the life of its product is high, that it will be involved in some type of injury-producing accident. O’Connell in his article “Taming the Automobile,” 58 Nw.U.L.Rev. 299, 348 (1963) cites that between one-fourth to two-thirds of all automobiles during their use at some time are involved in an accident producing injury or death. Other statistics are available showing the frequency and certainty of fatal and injury-producing accidents. See footnote 4. It should be recognized that the environment in which a product is used must be taken into consideration by the manufacturer. Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4 Cir. 1962).

We think the “intended use” construction urged by General Motors is much too narrow and unrealistic. Where the manufacturer’s negligence in design causes an unreasonable risk to be imposed upon the user of its products, the manufacturer should be liable for the injury caused by its failure to exercise reasonable care in the design. These injuries are readily foreseeable as an incident to the normal and expected use of an automobile. While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called “second collision” of the passenger with the interior part of the automobile, all are foreseeable. Where the injuries or enhanced injuries are due to the manufacturer’s failure to use reasonable care to avoid subjecting the user of its products to an unreasonable risk of injury, general negligence principles should be applicable.3 The sole function of an. automobile is not just to provide a means of transportation, it is to provide a means of safe transportation or as safe as is reasonably possible under the present state of the art.

We do agree that under the present state of the art an automobile manufacturer is under no duty to design an accident-proof or fool-proof vehicle or even one that floats on water, but such manufacturer is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision. Collisions with or without fault of the user are clearly foreseeable by the manufacturer and are statistically inevitable.4

The intended use and purpose of an automobile is to travel on the streets and highways, which travel more often than not is in close proximity to other vehicles and at speeds that carry the possibility, probability, and potential of injury-producing impacts. The realities *503of the intended and actual use are well known to the manufacturer and to the public and these realities should be squarely faced by the manufacturer and the courts. We perceive of no sound reason, either in logic or experience, nor any command in precedent, why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents. The manufacturers are not insurers but should be held to a standard of reasonable care in design to provide a reasonably safe vehicle in which to travel. Ford Motor Company v. Zahn, supra. Our streets and highways are increasingly hazardous for the intended normal use of travel and transportation. While advances in highway engineering and non-access, dual highways have considerably increased the safety factor on a miles traveled ratio to accidents, the constant increasing number of vehicles gives impetus to the need of designing and constructing a vehicle that is reasonably safe for the purpose of such travel. }At least, the unreasonable risk should be eliminated and reasonable steps in design taken to minimize the injury-producing effect of

This duty of reasonable cilre in design rests on common law negligence 5 that a manufacturer of an article should use reasonable care in the design and manufacture of his product to eliminate any unreasonable risk of foreseeable injury. The duty of reasonable care in design should be viewed in light of the risk. While all risks cannot be eliminated nor can a crash-proof vehicle be designed under the present state of the art, there are many common-sense factors in design, which are or should be well known to the manufacturer that will minimize or lessen the injurious effects of a collision. The standard of reasonable care is applied in many other negligence situations and should be applied here.

The courts since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F., 696 (1916) have held that a manufacturer of automobiles is under a duty to construct a vehicle that is free of latent and hidden defects. We can perceive of no significant difference in imposing a common law duty of a reasonable standard of care in design the same as in construction. A defect in either can cause severe injury or death and a negligent design defect should be actionable. Any design defecF, not causing the accident would not subject the manufacturer to liability for the entire damage, but the manufacturer should be liable for that portion of the damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design. The manufacturer argues that this is difficult to assess. This is no persuasive answer and, even if difficult, there is no reason to abandon the injured party to his dismal fate as a traffic statistic, when the manufacturer owed, at least, a common law duty of reasonable care in the design and construction of its product. The obstacles of apportionment are not insurmountable. It is- done with regularity in those jurisdictions applying comparative negligence statutes and in other factual situations as condemnation cases, where in some jurisdictions the jury must assess the value of the land before and after a taking and then *504assess a special benefit accruing to the remaining property of the condemnee.

General Motors in arguing against what it views as an expanded duty of a care in design makes the statement that this duty “must be considered in its application to all products. Automobile manufacturers cannot be made a special class.” With this we quite agree. We think the duty of the use of reasonable care in design to protect against foreseeable injury to the user of a product and perhaps others injured as an incident of that use should be and is equally applicable to all manufacturers with the customary limitations now applied to protect the manufacturer in case of an unintended and unforeseeable use. The courts have imposed this duty, perhaps more readily against other manufacturers than against the automotive industry.6

We, therefore, do not think the automotive industry is being singled out for any special adverse treatment by applying to it general negligence principles in (1) imposing a duty on the manufacturer to use reasonable care in the design of its products to protect against an unreasonable risk of injury or enhancement of injury to a user of the product, and (2) holding that the intended use of an automotive product contemplates its travel on crowded and high speed roads and highways that inevitably subject it to the foreseeable hazards of collisions and impacts. Neither reason, logic, nor controlling precedents compel the courts to make a distinction between negligent design and negligent construction.

The manufacturer’s duty to use reasonable care in the design and manufacture of a product to minimize injuries to its users and not to subject its users to an unreasonable risk of injury in the event of a collision or impact should be recognized by the courts. The manufacturers themselves have, in various public utterances in discussing automotive safety, expressed their concern for making safer vehicles.7 And General Motors admits the foreseeability of accidents which are matters of public and common knowl*505edge over a long period of time.8 Legal acceptance or imposition of this duty would go far in protecting the user from., unreasonable risks. The normal risk of driving must be accepted by the user but there is no need to further penalize the user by subjecting him to an unreasonable risk of injury due to negligence in design.9

On the second count of plaintiff’s petition alleging negligence in failure to warn of an alleged dangerous condition in vehicle design the same principles would apply. We think a cause of action is alleged and that under the law the manufacturer has a duty to inspect and to test for designs that would cause an unreasonable risk of foreseeable injury. Ford Motor Company v. Zahn, supra. The failure to use reasonable care in design or knowledge of a defective design gives rise to the reasonable duty on the manufacturer to warn of this condition.

The duty of a manufacturer to test and to' warn of defects in its product needs little elaboration. The Restatement (Second), Torts, § 395, comment (f) (1965) reads:

“ * * * The particulars in which reasonable care is usually necessary for protection of those whose safety depends upon the character of chattels are * * * (4) the making of such inspections and tests during the course of manufacture and after the article is completed as the manufacturer should recognize as reasonably necessary to secure the production of a safe article. * * *»

See 2 Harper and James, “The Law of Torts,” § 28.4, p. 1541; 76 A.L.R.2d 15, Anno.: Products Liability — Duty to Warn. Almost any chattel or commodity is capable of inflicting injury; knives cut, axes split, dynamite explodes, food spoils, poison kills. Where the danger is obvious and known to the user, no warning is necessary and no liability attaches for an injury occurring from the reasonable hazards attached to the use of chattels or commodities; but where the dangerous condition is latent it should be disclosed to the user, and non-disclosure should subject the maker or supplier to liability for creating an unreasonable risk.

In Blitzstein v. Ford Motor Company, 288 F.2d 738, at p. 744 (5 Cir. 1961) the court held the evidence was sufficient to present a jury issue on whether the supplier Ford Motor Company was negligent in failing to exercise reasonable care to warn of a dangerous condition caused by^ designing a non-ventilated motor car trunk in which an undetectable leaky gas_ tank was located, stating:

“We think that a jury could reasonably have found that the American Ford Company was negligent in marketing a product which was inherently dangerous, of which danger it should have been aware from its long experience in the design and manufacture of automobiles, and that American Ford failed to exercise reasonable care to inform the buying public of this dangerous condition. * * * ”

If, because of the alleged undisclosed defect in design of the 1963 Corvair steering assembly, an extra hazard is created over and above the normal hazard, General Motors should be liable *506for this unreasonable hazard. Admittedly, it would not sell many cars of this particular model if its sale’s “pitch” included the cautionary statement that the user is subjected to an extra hazard or unreasonable risk in the event of a head-on collision. But the duty of reasonable care should command a warning of this latent defect that could under certain circumstances accentuate the possibility of severe injury. See 2 Harper and James, “The Law of Torts,” § 28.3-28.9.

On the issue of strict liability or implied warranty of merchantability for intended use, we make no comment as our holding of sufficiency of counts one and two are dispositive. The doctrine of strict liability is one of policy for the various states and the National Congress, and we do not think there has been a sufficient showing on the Michigan law as respects this point, particularly in the automotive field. The Piercefield case cited in footnote 5 relates to an inherently dangerous explosive, and we do not know whether the Michigan courts would extend this doctrine to automobiles, which the courts have at times viewed both as an inherently dangerous instrument and not an inherently dangerous instrument. See, Comstock v. General Motors Corporation, 358 Mich. 163, 99 N.W.2d 627, 78 A.L.R.2d 449 (Mich. 1959) (an automobile with defective brakes is a dangerous instrumentality), and Gossett v. Chrysler Corporation, 359 F.2d 84 (6 Cir. 1966) (an automobile is not a dangerous instrumentality under Ohio law.)

General Motors contends that any safety standards in design and equipment should be imposed as envisioned by the National Traffic and Motor Vehicle Safety Act of 1966 (Pub.L. 89-563), 80 Stat. 718, 15 U.S.C.A. § 1381 et seq. Recognizing the need to reduce traffic accidents and deaths and injuries resulting therefrom, Congress found it necessary to establish motor vehicle safety standards, and by this Act set up the machinery and administrative process to establish minimum safety standards. The purpose of this Act is manifest and the Congress recognizes in § 1391(1) that the public should be protected against unreasonable risks of accidents occurring as a result of the design, construction or performance of motor vehicles and also be protected against unreasonable risk of death or injury in the event accidents do occur. Section 108(c) of the Act, 15 U.S.C. § 1397(c), expressly negatives any intention of Congress to acquire exclusive jurisdiction in this field and leaves the common law liability intact. Subsection (c) reads: “(c) Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.”

It is apparent that the National Traffic Safety Act is intended to be supplementary of and in addition to the common law. of negligence and product liability. (The common law is not sterile or rigid and serves the best interests of society by adapting standards of conduct and responsibility that fairly meet the emerging and developing needs of our time?\ The common law standard of a duty to use reasonable care in light of all the circumstances can at least serve the needs of our society until the legislature imposes higher standards or the courts expand the doctrine of strict liability for tort. The Act is a salutary step in this direction and not an exemption from common law liability.

For the reasons set forth, we reverse and remand for proceedings not inconsistent with this opinion.

OPINION BY JUSTICE ELIZABETH A. McCLANAHAN

Holiday Motor Corporation, Mazda Motor Corporation, and Mazda Motor of America, Inc., (collectively "Mazda") appeal from a judgment entered on a $20 million jury verdict in favor of Shannon B. Walters, who sustained a serious cervical spine injury when her 1995 Mazda Miata convertible overturned while she was operating it with the soft top closed. Walters contends she was injured after the windshield header disconnected from the top and collapsed into the occupant compartment. She asserts that the design of the soft top's latching system was defective because the latches connecting the windshield header to the top were not designed to stay latched in a foreseeable rollover crash.

Mazda argues it had no duty to design or supply a soft top that provided occupant protection in a rollover crash and that, in any event, the opinion offered by Walters' expert that the soft top's latching system was defectively designed lacked a sufficient foundation. We agree and will reverse the judgment of the circuit court and enter final judgment for Mazda.

I. BACKGROUND

A. Facts Surrounding 2006 Rollover Crash

In June 2006, Walters was driving her 1995 Mazda Miata convertible along Virginia State Route 619, a two-lane highway in Bedford County. The Miata was equipped with a soft top that could be folded and stowed for open-air driving or unfolded and closed by connecting the top to the windshield header (the curved steel bar running across the top of the windshield) by latches located on each side of the vehicle.1 Walters was operating the Miata in the closed-top configuration with the latches engaged. Walters observed a large object that "basically covered [her] whole lane of travel" come toward her from the back of a pickup truck she was following. Seeing no traffic in the oncoming lane, Walters veered left across the road, off the highway, and up a slight grassy incline. The vehicle overturned and landed on its top with the driver's side pushed up against a tree. Walters testified that she did not lose consciousness during the accident and that her "first memory" of what happened was that her body was "light as a feather." She recalled having pain in her head, neck and right arm but could not feel or move her legs.

Michael Evans, who was also travelling on Route 619, came upon the same object in the road, hit his brakes, steered left, then pulled his vehicle onto the grass when he saw Walters' vehicle "up on the bank."2 According to Evans, Walters' vehicle was "inverted, on its top, up against the tree," which "was against the driver's side." Because the vehicle was "resting on a slope," the driver's side "was closer to the ground than the passenger side." Evans testified that the "back of the convertible bows," or the beams across the top, "appeared to be holding the vehicle up, but the front of the hood and windshield ... were flat on the ground."

*450Because Evans could not enter the vehicle through the driver's side, he broke the glass out of the passenger's side window, reached through the window, and opened the passenger's side door. He then crawled into the vehicle and turned off the ignition.3 At that time, he noticed that the windshield header was separated from the soft top such that the top "was actually underneath of the windshield." Evans cut Walters' seat belt and lowered her to "where she was flat on the top." He then cut out the vehicle's acrylic rear window and crawled into the vehicle. He observed that Walters "had a head injury and was bleeding from like the top of her forehead." Because Walters told Evans she could not feel her legs, he was reluctant to move her. Evans held Walters' head stable and remained with her until emergency medical personnel arrived on scene.

B. Allegations Against Mazda

In Walters' second amended complaint, she contends that Mazda Motor Corporation and Mazda Motor of America, Inc. were negligent because they designed, manufactured, and placed into the stream of commerce the Mazda Miata convertible model, which was unreasonably dangerous for its ordinary and/or foreseeable use "in that it would not provide reasonable occupant protection in a foreseeable rollover while being used in its closed top configuration" due to defects in the "design of the A-pillar, windshield header, and the roof latching system" and in failing to warn of such danger.4 Walters also contends that all defendants breached their warranties "that the subject vehicle was reasonably fit and safe for its ordinary and/or foreseeable purposes" and "was of merchantable quality throughout" for the same reasons. Walters claims that her injuries were proximately caused by these asserted acts of negligence and breaches of warranty.

C. Walters' Expert Testimony at Trial

James Mundo, an automotive engineer, was qualified as an expert witness in "automotive engineer crash management, safety management, including latches."5 Mundo testified that there are three primary "load paths" that make up the structure of a "closed-top vehicle, a sedan kind of vehicle." The first load path is the frame of the vehicle.6 The second load path is "the side of the vehicle" to "carry the load for components that would be on the sides of things for the car." The third load path is the "windshield area of the vehicle." These three load paths "carry the loads in the vehicle" and "if any part of this structure is disconnected, then it doesn't work as a system anymore." Mundo stated that when the load paths don't work together anymore, the results are "unpredictable" from an engineering point of view "if you get in a crash."

According to Mundo, a convertible vehicle (as distinguished from what Mundo described as a closed-top sedan type of vehicle) may be converted "from a three-load structure to a two-load structure." When a convertible is in a closed-top configuration, the latches are "the mechanism by which this roof is locked" so that the third load path is "continuous." When the "latches are connected, the design *451objective is [to] have a continuous load[,] three load path."

Mundo explained that automotive design engineers use a "right-hand rule" to guide their design of all automobile components.

[E]ngineers have a coordinate system that's established in the design of an automobile, and it's called a right-hand rule. And what this is[,] it's the coordinates for the vehicle. And the thumb here is the up and down, the index is front to back, and the middle finger here is cross car.

And so whenever we are talking about vibration,7 when we are talking about the vehicle moving around, we can go to any component, any part of the car, any beam, any latch, and we can put the right-hand rule, put that there and say, "Is this thing moving in three cardinal directions, or is this thing not tied down in three cardinal directions?"

Mundo testified that a design engineer wants to have all three cardinal directions protected on latches because "whatever you are latching, you want to keep it connected for all foreseeable crashes." Mundo cited as an example a door latch, which is "connected in all three cardinal directions."

Mundo first examined Walters' vehicle in November 2012, over six years after the accident. He came to the conclusion that "the connections failed" in the load three path, which "allowed the windshield to go do its own thing and the roof to go do its own thing." Mundo used a roof latch removed from another 1995 Mazda Miata to demonstrate to the jury how the latch operated and how it could come apart in his hand.8 By moving the latch parts in his hands, Mundo testified he could "show that it's not locked in the vertical direction." Mundo explained that automotive design engineers use a design process called "failure mode and effects analysis" in which they "have to think about how can [a component part] fail" and "if it does fail, what's the effect." In performing this analysis, "an engineer sitting at a desk getting component parts is going to look at it with respect to how does it fail" and "he is going to work with it" and "check three cardinal directions." Mundo stated that "if I could take it apart by hand, that is something that is troubling from a failure mode with respect to the real world vehicle."

According to Mundo, it has been "state of the art" in the automotive industry since 1972 that "[i]f it's going to be latched, it's latched in three cardinal directions." Mundo compared the Mazda Miata roof latch to a Ford Mustang roof latch in which there is a "big, long, solid steel bar, and it's not chamfered.9 It's a steel bar that goes into a hole. And when it's in there, it's not coming out." Mundo testified that "it is not reasonably prudent to not design into the latch mechanism all three cardinal directions with the top down just because it can be released and put back." "[W]ith the top up," stated Mundo, "we are trying to design a system that will *452get everybody to share in the way the loads are distributed throughout the vehicle."

Mundo testified that, in his opinion, the windshield header and soft top became disconnected in the crash because the latches came "undone." He further testified that the latches came undone because "the up and down is dependent on that tiny little nub that was in there, and it wasn't sufficient to hold it and it came apart." In Mundo's opinion, the latch was defectively designed because the pin and hole "are chamfered" so that "it's easy for [the pin] to move and pop right out of [the hole]." According to Mundo, if "the connection had remained connected, then the front end of the roof structure would have performed just like the back end of the roof structure," which did not collapse. In order to reach his opinion, Mundo stated it was unnecessary for him to do testing

[b]ecause the issue at hand is that the joints were not connected, and there was no damage to the devices that were doing the connecting. And the crash spoke for itself. There it is. It's not connected . And that's really ofttimes the way engineers like to look at it. That's a field crash test, if you will, a real world crash test out on the nation's highways. And that test speaks for itself. It came apart.

(Emphasis added.) Mundo also stated that based on a cost of 20 to 25 cents per pound of steel for components, it would have cost Mazda 10 cents per latch to manufacture a latch that would follow the "right-hand rule."10

Mundo testified that he did not apply any safety standards other than the "right-hand rule." Mundo confirmed that he did not rely on any automotive engineering papers, literature or written standards to support his opinion. He stated he did not perform a vibration analysis of the vehicle and did not attempt to calculate any of the vibrations that the vehicle underwent during the crash. Mundo also stated that he did not conduct any studies to determine under what circumstances vibration will cause the roof latches to part. He testified that he performed no testing of a Mazda Miata soft top or latch or testing of any kind in connection with this case except for his courtroom "demonstration that [the latch] comes apart ... by disengaging the latching mechanism."

Mundo acknowledged that he performed no testing or analysis of the Ford latching system that he compared to the latch on the Mazda Miata. He testified that he does not know how much weight the Ford latching system will support if the latches are connected. He also testified that he doesn't know how much weight the Mazda latching system will support when the latches are connected. Furthermore, he declined to say that the Ford Mustang latching system was a reasonably safe alternative, as indicated during the following colloquy:

Q Have you performed any tests of the Ford system?

A No.

Q Have you perform[ed] any analysis of the Ford system?

A No.

Q Do you know how much weight the Ford system will support if the latches are connected?

A I don't know the answer to that. I didn't-I wasn't asked to calculate the weights and the forces for the-

Q Don't know. Do you know how much weight the Mazda system will support when the latches are connected?

A If we are just talking static and putting a weight on the roof?

Q Have you done that calculation?

A No.

Q All right, thank you. Do you know how much-have you done any calculations to determine the weight bearing capacity of any aspect of the Mazda or the Ford?

A No.

Q How would you show that a system is reasonably safe? Wouldn't you have to run tests?

*453A Tests and/or-you mean physical tests? There is also computer analyses that can be done.

Q And you haven't done any tests or computer analyses of the Ford system, have you.

A No, I have not.

Q So you are not here to try to suggest to the jury that that system is reasonably safe, are you?

A That's correct.

Q Thank you.

A I am telling you that it has design features, not that it's the go-to design. It's just the features to point out the difference between the locking pins.

Q And how strong the pins and the latches are in the Ford system is not something you have undertaken to analyze, true?

A True. I wasn't asked to do that.

Mundo admitted that a roof system that remains connected, and even a roof system that has no latches, can be crushed. He agreed he had seen that many times with a variety of vehicles involved in rollover incidents.

Mazda moved to strike Mundo's testimony at trial, contending that "the upshot of Mr. Mundo's testimony is simply this: That ... he thinks the latches came undone, and latches ought not come undone in foreseeable rollover crashes." During argument, the circuit court questioned Walters' counsel regarding the basis for Mundo's opinion that the latch design was defective:

Q What is his testimony-the defect that he has established?

A The defect that he has established is that the knob that connected-

Q Knob that goes into the hole in the latch was, quote, too short. In comparison to what?

A In comparison to what is acceptable in the-

Q To the Ford latch, right?

A That's more an example.

Q But he compared it to the Ford latch, and he doesn't even know if the Ford latch will hold, according to his own testimony.

A No. What he said was that that was an example, an illustrative example of how-and I think he was pretty clear on this. They said, "Is this it?" He said, "No, I am using this as an example to show the design feature, not the design."

Q So what is the standard of the industry for the length of the insertion-

A The standard in the industry-

Q-as testified to?

A-for the length of insertion is sufficient so that when it is put in an ordinary-if it's put in the situation that it will stop the latch from coming apart in all three cardinal directions, and this will-

Q Under all circumstances.

A Of the latch, yeah. You know, without breaking. I mean, the-he said there is no breaking of this thing. In other words, we don't have any broken parts with the latch.

Q No, it was structurally sound as far as what the evidence is.

A Structurally sound. So I think the standard of the industry is that in the absence of-of being such a huge bad crash that would, you know, cause a structural problem, it just should not just come apart.

Walters called an osteopathic physician specializing in sports medicine, Dr. Per Gunnar Brolinson, to provide an expert opinion regarding the cause of her injury. Over Mazda's objection, Brolinson, was qualified as a medical expert "to provide medical and biomedical/biomechanical causation opinion testimony." Brolinson expressed an opinion that during the rollover crash, the windshield header "came down, after pressure, on the top of [Walters'] head." According to Brolinson, Walters then "went into extreme flexion" resulting in a "fracture-dislocation, tearing of the soft tissue, and movement of the cervical spine, C6 on C7, which put pressure on the spinal cord." As indicated by the following colloquy, Brolinson could not say at what point during the crash (whether before or after the latch disengagement) the injury occurred or how much intrusion into the occupant compartment needed to be avoided to prevent the injury:

Q It's true, isn't it, that you don't know how much space was between Ms. Walters' buttocks and her seat when the injury occurred?

*454A That's correct.

Q And you don't know how many degrees of roll when the injury occurred?

A That's correct.

Q And by that, I am talking about degrees of roll of the vehicle, correct?

A That's correct.

Q And it's true that you don't know how much movement of Ms. Walters' head was necessary to cause her injury even under your hyperflexion theory, correct?

A That's correct.

Q You can't quantify the amount of flexion that Ms. Walters sustained, even if we were to accept your theory, true?

A That's correct.

Q And it's true, isn't it, that you don't know how much head room compromise would need to have been avoided in order to prevent this injury, assuming we accept even your theory?

A That's correct.11

II. ANALYSIS

A. Duty to Provide Occupant Rollover Protection

Mazda argues that it owed no legal duty to design the soft top or the latches to provide occupant rollover protection because it is not the intended or foreseeable purpose of a convertible soft top, including the latching system, to provide such protection. Mazda points out that there was no evidence that Mazda or any car manufacturer designs soft tops or latches to provide occupant rollover protection, that consumers expect a soft top to provide occupant rollover protection, or that there exists any industry standard or custom to design soft tops or their latches to provide such protection.12

Walters contends that Mazda sold a dual-purpose product. According to Walters, when the top was in use, it was a foreseeable purpose of the top and latching mechanism to provide the same occupant rollover protection as a sedan with a permanent roof structure. Walters specifically asserts that it was "a fundamental and intended purpose" of the latches to "keep any part of the structure from intruding into the occupant compartment and creating a hazardous environment." Thus, she argues, "the latches failed their intended safety purpose of keeping the structures connected and thus away from the occupant."

The issue of whether a manufacturer of a soft top convertible owes a legally recognized duty to design or supply a soft top or its latching system to provide occupant rollover protection is a threshold question that we determine as a matter of law. See Jeld-Wen, Inc. v. Gamble , 256 Va. 144, 147, 501 S.E.2d 393, 396 (1998) (stating that the dispositive issue on appeal, which involves a determination as a matter of law, is whether a manufacturer of an ordinary window screen owes a duty to manufacture the screen to act as a body restraint); see also 1 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 164, at 526 (2d ed. 2011) ("Judges rather than juries determine whether the defendant was under a duty of care at all and if so what standard of care applied. That is to say that the standard of care and existence of a duty to use care are matters of law and are determined by legal rules.").

Walters does not claim that a defect in the Miata caused the rollover crash; rather, *455Walters seeks to hold Mazda liable for failing to design the soft top latching system to provide occupant protection during the rollover crash. In Virginia, there is no duty on the part of vehicle manufacturers to design or supply a crashworthy vehicle. See Slone v. General Motors Corp. , 249 Va. 520, 525-26, 457 S.E.2d 51, 53-54 (1995) (expressly rejecting the "crashworthiness" doctrine).13 Therefore, if a duty to design convertible soft tops to provide occupant rollover protection exists, it must be found within the scope of a vehicle manufacturer's duty to exercise reasonable care to design a product that is reasonably safe for the purpose for which it is intended. See id. (stating that instead of injecting the doctrine of "crashworthiness" into our well-settled jurisprudence, we will apply the product liability principles articulated in our precedent).

Our well-settled jurisprudence establishes that the manufacturer of a product is only under a duty "to exercise ordinary care to design a product that is reasonably safe for the purpose for which it is intended." Turner v. Manning, Maxwell & Moore, Inc. , 216 Va. 245, 251, 217 S.E.2d 863, 868 (1975). Similarly, "an implied warranty of general merchantability [arises] when the product is being used in the manner intended for it. The implied warranty does not apply when the product is being used in a manner or for a purpose for which it was not intended." Id. at 252, 217 S.E.2d at 869 ; see also Dorman v. State Indus., Inc. , 292 Va. 111, 123, 787 S.E.2d 132, 139 (2016). Thus, "the standard of safety of goods imposed on ... the manufacturer of a product is essentially the same whether the theory of liability is labeled warranty or negligence. The product must be fit for the ordinary purposes for which it is to be used." Logan v. Montgomery Ward & Co. , 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975).

The determination of whether a vehicle manufacturer owes a duty to design a convertible soft top to provide occupant rollover protection, therefore, requires that we consider whether such protection is the intended or reasonably foreseeable use given the inherent characteristics, market purposes, and utility of a convertible soft top. "After all, it is a commonplace that utility of design and attractiveness of the style of the car are elements which car manufacturers seek after and by which buyers are influenced in their selections." Dreisonstok v. Volkswagenwerk, A.G. , 489 F.2d 1066, 1072 (4th Cir. 1974). "Foreseeability [of harm], it has been many times repeated, is not to be equated with duty." Id. at 1070. Accordingly, while the possibility that a convertible may be involved in a rollover accident is undoubtedly foreseeable, "[c]ommon knowledge of a danger from the foreseeable misuse of a product does not alone give rise to a duty to safeguard against the danger of that misuse." Jeld-Wen, Inc. , 256 Va. at 149, 501 S.E.2d at 397. "To the contrary, the purpose of making the finding of a legal duty as a prerequisite to a finding of negligence, or breach of implied warranty, in products liability is to avoid the extension of liability for every conceivably foreseeable accident, without regard to common sense or good policy ." Id. (emphasis added) (internal quotation marks and citation omitted).14

*456In contrast to vehicles with a permanent roof structure, soft top convertibles provide the owner with a roof that can, with relative ease, be retracted and stowed for an open-air driving experience or closed to protect the occupants from the outside elements such as wind and rain. The absence of a permanent roof structure necessarily diminishes the level of occupant rollover protection. Not only is this characteristic of a convertible "readily discernible to any one using the vehicle," it is "the unique feature of the vehicle." Dreisonstok , 489 F.2d at 1074 (noting that the unique design of the Volkswagen microbus reduced the space between the front of the vehicle and driver's compartment so as to provide the maximum amount of cargo or passenger space). "If a person purchases a convertible ... he cannot expect-and the Court may not impose on the manufacturer the duty to provide him with-the exact kind of protection in a rollover accident as in the standard American passenger car." Id. at 1075 (internal quotation marks omitted) (comparing a microbus to a convertible and stating that "[t]he distance between the front and the passenger compartment is minified in order to provide additional cargo or passenger space just as the convertible is designed to provide openness").15

In connection with examining the duty of a vehicle manufacturer to design a convertible soft top to provide rollover protection, we note that when the Mazda Miata was manufactured in 1995, there were no government or automotive industry safety standards in existence requiring that convertible soft tops provide protection from intrusion of the roof system into the occupant compartment during a rollover crash. While the National Highway Transportation Safety Administration ("NHTSA") established "strength requirements for the passenger compartment roof" of specified vehicles, it expressly excluded convertibles from such requirements.16 See Federal Motor Vehicle Safety Standard ("FMVSS") No. 216, 49 C.F.R. § 571.216(S3)(c). The stated purpose of FMVSS No. 216 "is to reduce deaths and injuries due to the crushing of the roof into the occupant compartment in rollover crashes." Id. at (S2). The roof over the front seat area specifically includes the windshield header.17

In 2009, the NHTSA upgraded its safety standard on roof crush resistance "[a]s part of a comprehensive plan for reducing the risk of rollover crashes and the risk of death and serious injury in those crashes." 74 Fed. Reg. 22,348. The NHTSA continued to exclude convertibles, including retractable hard top convertibles, from the FMVSS No. 216 requirements. See id ; see also 49 C.F.R. § 571.216a (providing the upgraded standard on roof crush resistance). Explaining its reason for excluding convertibles from the roof crush resistance standard, the NHTSA stated:

We believe that to establish a roof crush requirement on vehicles that do not have a *457permanent roof structure would not be practical from a countermeasure perspective. A convertible roof would have to be strong enough to pass the quasi-static test, yet flexible enough to fold into the vehicle. Since we are not aware of any such designs, we do not agree with Advocates [who disagreed with excluding convertibles from FMVSS No. 216] on this point. We also note that new rollover and ejection requirements for convertibles are outside the scope of this rulemaking.

74 Fed. Reg. at 22,375. Even as to folding hardtops and removable hardtops, the NHTSA noted that "[t]hese roof systems are not intended as significant structural elements but are designed primarily to provide protection from inclement weather, improve theft protection and are generally offered as a luxury item." Id. Furthermore, the NHTSA expressed its belief that "consumers readily recognize that [these roof systems] will afford occupants limited protection in a rollover." Id.18 Accordingly, there continues to be no government or automotive industry safety standards requiring convertible soft tops to provide occupant rollover protection.

Although Walters attempted to establish a safety standard that would impose upon manufacturers of convertibles a duty to design soft tops to provide occupant rollover protection, her expert, Mundo, only testified as to a general engineering principle he referred to as a "right-hand rule" applicable to all automobile components, including latches. The "right-hand rule," however, does not specify any standard for rollover protection for occupants of soft top convertibles that is recognized in the automotive industry. Mundo did not testify as to any industry standard or custom to design the soft tops or latches to provide occupant rollover protection. He also did not identify any force requirements for a convertible soft top roof system in general or any required level of crush resistance promulgated by the automotive industry.19 Certainly, Walters did not present evidence through Mundo or otherwise that any automobile manufacturer designs or markets a soft top convertible to provide occupant rollover protection. In essence, Walters' assertion, unsupported by industry standards or custom, that the soft top should stay latched to the windshield header in all foreseeable rollovers seeks to impose upon manufacturers the duty to design a rollover-proof convertible when a soft top is in use. Yet, it is well-settled that "[t]he manufacturer is not an insurer and is not required to design and market an accident-proof product." Turner , 216 Va. at 251, 217 S.E.2d at 868 ; see also Dorman , 292 Va. at 123, 787 S.E.2d at 139.

In short, we believe that imposing a duty upon manufacturers of convertible soft tops to provide occupant rollover protection defies both "common sense" and "good policy." Jeld-Wen, Inc. , 256 Va. at 149, 501 S.E.2d at 397. There are no safety standards in existence, promulgated either by the government or the automotive industry, that require convertible soft tops, including their latching mechanisms, to provide occupant rollover protection. Indeed, the NHTSA has expressly excepted convertibles from the roof crush *458standard because it is unaware of any convertible top that could meet such a standard. There is certainly no evidence that Mazda or any other manufacturer of convertibles in fact designs or markets soft tops to provide occupant rollover protection or that consumers reasonably expect such protection. To the contrary, the marketable feature of the soft top convertible is the absence of a permanent roof structure. The absence of this structural component is not only obvious but chosen by consumers who desire the flexibility of a soft top that can be easily detached, folded, and stowed for an open-air driving experience or closed and latched to the windshield header for a quieter ride without exposure to the outside elements. The use of a convertible soft top, including its latches, for occupant rollover protection is neither its purpose nor an intended or reasonably foreseeable use.

For these reasons, we hold that no duty extended to Mazda to design the soft top, including its latches, so that it would provide occupant rollover protection. See Jeld-Wen, Inc. , 256 Va. at 150, 501 S.E.2d at 397 (holding, as a matter of law, no duty extended to defendant to manufacture ordinary window screen to act as childproof restraint). Therefore, we will reverse the judgment of the circuit court and enter final judgment in favor of Mazda.

B. Admission of Mundo's Opinion

Even if Mazda owed a duty to design the soft top to provide occupant rollover protection, which we hold it did not, we also conclude that Mundo's opinion that the soft top's latching system was defectively designed was inadmissible.

"Expert opinion may be admitted to assist the fact finder if such opinion satisfies certain requirements, 'including the requirement of an adequate factual foundation.' " Hyundai Motor Co. v. Duncan , 289 Va. 147, 154, 766 S.E.2d 893, 897 (2015) (quoting Forbes v. Rapp , 269 Va. 374, 381, 611 S.E.2d 592, 596 (2005) ); see Code §§ 8.01-401.1 and -401.3; Va. R. Evid. 2:702 and 2:703; Countryside Corp. v. Taylor , 263 Va. 549, 553, 561 S.E.2d 680, 682 (2002). We review the circuit court's decision to admit expert opinion using an abuse of discretion standard and, therefore, will reverse the circuit court's decision "only upon a finding of abuse of that discretion." Hyundai Motor Co. , 289 Va. at 155, 766 S.E.2d at 897. A circuit court, though, "has no discretion to admit clearly inadmissible evidence." Id. (quoting Harman v. Honeywell Int'l, Inc. , 288 Va. 84, 92, 758 S.E.2d 515, 520 (2014) ).

Expert opinion that is founded upon assumptions having no basis in fact is inadmissible. See Hyundai Motor Co. , 289 Va. at 155, 766 S.E.2d at 897 ; CNH America LLC v. Smith , 281 Va. 60, 67, 704 S.E.2d 372, 375 (2011) ; Vasquez v. Mabini , 269 Va. 155, 159-60, 606 S.E.2d 809, 811 (2005). Therefore, the "[f]ailure of the trial court to strike such testimony upon a motion timely made is error subject to reversal on appeal." CNH America , 281 Va. at 67, 704 S.E.2d at 375.

Mundo's opinion that the Mazda Miata soft top latching mechanism was defective in design was premised on at least two unfounded assumptions. First, his opinion was based on an assumption that the latches would not have disconnected if they had been designed differently.20 There was no evidentiary foundation for any such assumption. Although Mundo testified that the latches came "undone" because they were not sufficiently designed to hold in vertical movement, he was not able to say under what circumstances vibration would cause the latches to part, and indeed, did not even calculate the vibrations the vehicle underwent during the crash or the forces and weight to which the vehicle was subjected. While Mundo described a "failure mode and effects analysis" in which an engineer will examine component parts to consider how they might fail, he performed no testing or analysis of the Mazda latching *459system.21 Furthermore, though Mundo compared the design of the Mazda latching system to that of the Ford Mustang, he performed no testing or analysis of the Ford latching system and could not say that the Ford latches would have remained connected in this crash. His declaration that "the crash spoke for itself" did not supply the necessary foundation for his opinion. In sum, Mundo's assumption that the latches would not have disengaged had they been designed according to the "right-hand rule" was pure speculation.

Mundo's opinion that the latching mechanism was defective was also premised on his unfounded assumption that the front end of the roof structure would not have collapsed if the latches had remained connected.22 Mundo testified that he did not know how much weight the Mazda latching system (to create the continuous third load path he described) would support when the latches were connected. He confirmed that he had done no calculations to determine the weight bearing capacity of any aspect of the Mazda Miata. Mundo agreed that while one would need to run physical tests or computer analyses to makes such determinations, he had not done so. Mundo conceded that the collapse of the roof system could occur in rollover crashes even when a convertible's latches stay connected. In fact, Mundo testified that permanent roof structure systems (those without latches) could be, and have been, crushed in rollover accidents. There was simply no basis for his assumption that the front end of the roof structure would not have collapsed during the rollover crash if the latches had remained connected.

Because Mundo's opinion that the Mazda Miata latching system was defectively designed lacked an adequate foundation, the circuit court abused its discretion in admitting it. Mundo's opinion supplied the only support for Walters' claim that the vehicle was unreasonably dangerous. Thus, the inadmissibility of Mundo's opinion was fatal to Walters' claims for negligence and breach of implied warranty of merchantability and provides a separate and independent basis for entering judgment as a matter of law for Mazda. See Hyundai Motor Co. , 289 Va. at 157, 766 S.E.2d at 898 ("Because [an expert's] opinion supplied the only support for the [plaintiffs'] claim that the vehicle was unreasonably dangerous, the inadmissibility of [his] opinion as a matter of law is fatal to the [plaintiffs'] claim and entitles [defendant] to judgment as a matter of law.").23

III. CONCLUSION

For the foregoing reasons, we will reverse the judgment of the circuit court and enter final judgment for Mazda.

Reversed and final judgment .

OPINION OF THE COURT

Titone, J.

Are the elements of New York’s causes of action for strict products liability and breach of implied warranty always coextensive? If not, can the latter be broader than the former? These are the core issues presented by the questions that the United States Court of Appeals for the Second Circuit has certified to us in this diversity action involving an allegedly defective vehicle. On the facts set forth by the Second Circuit, we hold that the causes of action are not identical and that, under the circumstances presented here, it is possible to be liable for breach of implied warranty even though a claim of strict products liability has not been satisfactorily established.

L

As stated by the Second Circuit, this action arises out of a June 9, 1986 accident in which plaintiff Nancy Denny was severely injured when the Ford Bronco II that she was driving rolled over. The rollover accident occurred when Denny slammed on her brakes in an effort to avoid a deer that had walked directly into her motor vehicle’s path. Denny and her spouse sued Ford Motor Co., the vehicle’s manufacturer, asserting claims for negligence, strict products liability and breach of implied warranty of merchantability (see, UCC 2-314 [2] [c]; 2-318). The case went to trial in the District Court for the Northern District of New York in October of 1992.

*252The trial evidence centered on the particular characteristics of utility vehicles, which are generally made for off-road use on unpaved and often rugged terrain. Such use sometimes necessitates climbing over obstacles such as fallen logs and rocks. While utility vehicles are traditionally considerably larger than passenger cars, some manufacturers have created a category of down-sized "small” utility vehicles, which are designed to be lighter, to achieve better fuel economy and, presumably, to appeal to a wider consumer market. The Bronco II in which Denny was injured falls into this category.

Plaintiffs introduced evidence at trial to show that small utility vehicles in general, and the Bronco II in particular, present a significantly higher risk of rollover accidents than do ordinary passenger automobiles. Plaintiffs’ evidence also showed that the Bronco II had a low stability index attributable to its high center of gravity and relatively narrow track width. The vehicle’s shorter wheel base and suspension system were additional factors contributing to its instability. Ford had made minor design changes in an effort to achieve a higher stability index, but, according to plaintiffs’ proof, none of the changes produced a significant improvement in the vehicle’s stability.

Ford argued at trial that the design features of which plaintiffs complained were necessary to the vehicle’s off-road capabilities. According to Ford, the vehicle had been intended to be used as an off-road vehicle and had not been designed to be sold as a conventional passenger automobile. Ford’s own engineer stated that he would not recommend the Bronco II to someone whose primary interest was to use it as a passenger car, since the features of a four-wheel-drive utility vehicle were not helpful for that purpose and the vehicle’s design made it inherently less stable.

Despite the engineer’s testimony, plaintiffs introduced a Ford marketing manual which predicted that many buyers would be attracted to the Bronco II because utility vehicles were "suitable to contemporary life styles” and were "considered fashionable” in some suburban areas. According to this manual, the sales presentation of the Bronco II should take into account the vehicle’s "suitability] for commuting and for suburban and city driving.” Additionally, the vehicle’s ability to switch between two-wheel and four-wheel drive would "be particularly appealing to women who may be concerned about driving in snow and ice with their children.” Plaintiffs both testified that *253the perceived safety benefits of its four-wheel-drive capacity were what attracted them to the Bronco II. They were not at all interested in its off-road use.

At the close of the evidence, the District Court Judge submitted both the strict products liability claim and the breach of implied warranty claim, despite Ford’s objection that the two causes of action were identical. With respect to the strict products liability claim the court told the jury that "[a] manufacturer who places a product on the market in a defective condition is liable for injury which results from use of the product when the product is used for its intended or reasonably foreseeable purpose.” Further, the court stated:

"A product is defective if it is not reasonably safe. * * * It is not necessary for the plaintiffs to prove that the defendant knew or should have known of the product[’]s potential for causing injury to establish that the product was not reasonably safe. Rather, the plaintiffs must prove by a preponderance of the evidence that a reasonable person * * * who knew of the product’s potential for causing injury and the existence of available alternative designs * * * would have concluded that such a product should not have been marketed in that condition. Such a conclusion should be reached after balancing the risks involved in using the product against the product[’]s usefulness and its costs against the risks, usefulness and costs of the alternative design as compared to the product defendant did market.”

With respect to the breach of implied warranty claim, the court told the jury:

"The law implies a warranty by a manufacturer which places its product on the market that the product is reasonably fit for the ordinary purpose for which it was intended. If it is, in fact, defective and not reasonably fit to be used for its intended purpose, the warranty is breached.

"The plaintiffs claim that the Bronco II was not fit for its ordinary purpose because of its alleged *254propensity to rollover and lack of warnings to the consumer of this propensity.”1

Neither party objected to the content of these charges.

In response to interrogatories, the jury found that the Bronco II was not "defective” and that defendant was therefore not liable under plaintiffs’ strict products liability cause of action. However, the jury also found that defendant had breached its implied warranty of merchantability and that the breach was the proximate cause of Nancy Denny’s injuries. Following apportionment of damages, plaintiff was awarded judgment in the amount of $1.2 million.

Ford subsequently moved for a new trial under rule 59 (a) of the Federal Rules of Civil Procedure, arguing that the jury’s finding on the breach of implied warranty cause of action was irreconcilable with its finding on the strict products liability claim. The trial court rejected this argument, holding that it had been waived and that, in any event, the verdict was not inconsistent.

On defendant’s appeal, a majority at the Second Circuit held that defendant’s trial conduct had not resulted in a waiver of the inconsistency issue. Reasoning that the outcome of the appeal depended upon the proper application of New York law, the court certified the following questions for consideration by this Court pursuant to article VI, § 3 (b) (9) of the State Constitution and rule 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17): (1) whether the strict products liability claim and the breach of implied warranty claim are identical; (2) whether, if the claims are different, the strict products liability claim is broader than the implied warranty claim and encompasses the latter; and (3) whether, if the claims are different and a strict liability claim may fail while an implied warranty claim succeeds, the jury’s finding of no product defect is reconcilable with its finding of a breach of warranty.

II

In this proceeding, Ford’s sole argument is that plaintiffs’ strict products liability and breach of implied warranty causes of action were identical and that, accordingly, a defendant’s verdict on the former cannot be reconciled with a plaintiff’s verdict on the latter. This argument is, in turn, premised on both the intertwined history of the two doctrines and the close *255similarity in their elements and legal functions. Although Ford recognizes that New York has previously permitted personal injury plaintiffs to simultaneously assert different products liability theories in support of their claims (see, Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 400), it contends that the breach of implied warranty cause of action, which sounds in contract, has been subsumed by the more recently adopted, and more highly evolved, strict products liability theory, which sounds in tort. Ford’s argument has much to commend it. However, in the final analysis, the argument is flawed because it overlooks the continued existence of a separate statutory predicate for the breach of warranty theory and the subtle but important distinction between the two theories that arises from their different historical and doctrinal root.

When products liability litigation was in its infancy, the courts relied upon contractual warranty theories as the only existing means of facilitating economic recovery for personal injuries arising from the use of defective goods (e.g., Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340, overruled on other grounds Victorson v Bock Laundry Mach. Co., supra; Blessington v McCrory Stores Corp., 305 NY 140; see, Heller v U. S. Suzuki Motor Corp., 64 NY2d 407, 410). Citing statutory authority (UCC 2-314, 2-715 [2] [b]; former Personal Property Law § 96 [1]), the courts posited the existence of an implied warranty arising as an incident of the product’s sale and premised a cause of action for consequential personal injuries based on breaches of that warranty (see, Heller v U. S. Suzuki Motor Corp., supra, at 410).

Eventually, the contractually based implied warranty theory came to be perceived as inadequate in an economic universe that was dominated by mass-produced products and an impersonal marketplace. Its primary weakness was, of course, its rigid requirement of a relationship of privity between the seller and the injured consumer — a requirement that often could not be satisfied (see, Martin v Dierck Equip. Co., 43 NY2d 583, 589-590). Some courts (including ours) recognized certain narrow exceptions to the privity requirement in an effort to avoid the doctrine’s harsher effects (e.g., Greenberg v Lorenz, 9 NY2d 195; see, Heller v U. S. Suzuki Motor Corp., supra, at 410; Prosser and Keeton, Torts § 96, at 682 [5th ed]). However, the warranty approach remained unsatisfactory, and the courts shifted their focus to the development of a new, more flexible tort cause of action: the doctrine of strict products liability (Martin v Dierck Equip. Co., supra, at 590; Micallef v Miehle Co., 39 NY2d 376; Victorson v Bock Laundry Mach. Co., supra, *256 at 402; see, Codling v Paglia, 32 NY2d 330; Goldberg v Kollsman Instrument Corp., 12 NY2d 432, 436; see also, MacPherson v Buick Motor Co., 217 NY 382).

The establishment of this tort remedy has, as this Court has recognized, significantly diminished the need to rely on the contractually based breach of implied warranty remedy as a means of compensating individuals injured because of defective products (see, Heller v U. S. Suzuki Motor Corp., supra, at 411; Martin v Dierck Equip. Co., supra, at 590). Further, although the available defenses and applicable limitations principles may differ, there is a high degree of overlap between the substantive aspects of the two causes of action (see, Victorson v Bock Laundry Mach. Co., supra, at 405). Indeed, on an earlier occasion, this Court observed, in dictum, that "strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action” (Mendel v Pittsburgh Plate Glass Co., supra, at 345; accord, Gumbs v International Harvester, 718 F2d 88 [3d Cir]; Sterno Aero AB v Page Airmotive, 499 F2d 709, 712 [10th Cir]; Larsen v Pacesetter Sys., 74 Haw 1, 837 P2d 1273; 1 Frumer and Friedman, Products Liability § 2.03, at 2-28; 2 Frumer, op. cit., § 9.04 [1], at 9-42, 9-44; Clark and Smith, Product Warranties Tí 12.03 [1], at 12-7).

Nonetheless, it would not be correct to infer that the tort cause of action has completely subsumed the older breach of implied warranty cause of action or that the two doctrines are now identical in every respect (see, Di Prospero v Brown & Sons, 110 AD2d 250, 251). The continued vitality of the warranty approach is evidenced by its retention and expansion in New York’s version of the Uniform Commercial Code (UCC 2-314 [2] [c]; 2-318). The existence of this statutory authority belies any argument that the breach of implied warranty remedy is a dead letter (see, Heller v U. S. Suzuki Motor Corp., supra, at 411-412).2

Although the products liability theory sounding in tort and the breach of implied warranty theory authorized by the UCC coexist and are often invoked in tandem, the core element of "defect” is subtly different in the two causes of action. Under *257New York law, a design defect may be actionable under a strict products liability theory if the product is not reasonably safe. Since this Court’s decision in Voss v Black & Decker Mfg. Co. (59 NY2d 102, 108), the New York standard for determining the existence of a design defect has required an assessment of whether "if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” (see also, Cover v Cohen, 61 NY2d 261, 270; Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479). This standard demands an inquiry into such factors as (1) the product’s utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product’s potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer’s ability to spread the cost of any safety-related design changes (Voss v Black & Decker Mfg. Co., supra, at 109). The above-described analysis is rooted in a recognition that there are both risks and benefits associated with many products and that there are instances in which a product’s inherent dangers cannot be eliminated without simultaneously compromising or completely nullifying its benefits (see, Prosser and Keeton, op. cit, § 99, at 699). In such circumstances, a weighing of the product’s benefits against its risks is an appropriate and necessary component of the liability assessment under the policy-based principles associated with tort law.

The adoption of this risk/utility balance as a component of the "defectiveness” element has brought the inquiry in design defect cases closer to that used in traditional negligence cases, where the reasonableness of an actor’s conduct is considered in light of a number of situational and policy-driven factors.3 While efforts have been made to steer away from the fault-*258oriented negligence principles by characterizing the design defect cause of action in terms of a product-based rather than a conduct-based analysis (see, e.g., Voss v Black & Decker Mfg. Co., supra, at 107; Barker v Lull Eng’g Co., 20 Cal 3d 413, 418, 573 P2d 443; Prosser and Keeton, op. cit., § 96, at 689), the reality is that the risk/utility balancing test is a "negligence-inspired” approach, since it invites the parties to adduce proof about the manufacturer’s choices and ultimately requires the fact finder to make "a judgment about [the manufacturer’s] judgment” (Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33 Vand L Rev 593, 610, 648; see, e.g., Sage v FairchildSwearingen Corp., 70 NY2d 579, 587; cf., Enright v Lilly & Co., 77 NY2d 377, 387 [failure to warn claim "though * * * couched in terms of strict liability, is indistinguishable from a negligence claim”]). In other words, an assessment of the manufacturer’s conduct is virtually inevitable, and, as one commentator observed, "[i]n general, * * * the strict liability concept of 'defective design’ [is] functionally synonymous with the earlier negligence concept of unreasonable designing” (Schwartz, New Products, Old Products, Evolving Law, Retroactive Law, 58 NYU L Rev 796, 803, citing United States v Carroll Towing Co., 159 F2d 169, 173 [Hand, J.]; see, e.g., Gauthier v AMF, Inc., 788 F2d 634, 637 [9th Cir] [Mont law]; Birchfield v International Harvester Co., 726 F2d 1131, 1139 [6th Cir] [Ohio law]; St. Germain v Husqvarna Corp., 544 A2d 1283, 1285 [Me]; 1 Frumer and Friedman, op. cit., § 2.02, at 2-14 — 2-16; § 2.04, at 2-35 — 2-36; Henderson and Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn, 65 NYU L Rev 265, 271-272).

It is this negligence-like risk/benefit component of the defect element that differentiates strict products liability claims from UCC-based breach of implied warranty claims in cases involving design defects. While the strict products concept of a product that is "not reasonably safe” requires a weighing of the product’s dangers against its over-all advantages, the UCC’s concept of a "defective” product requires an inquiry only into whether the product in question was "fit for the ordinary purposes for which such goods are used” (UCC 2-314 [2] [c]).4 The latter inquiry focuses on the expectations for the perfor*259manee of the product when used in the customary, usual and reasonably foreseeable manners. The cause of action is one involving true "strict” liability, since recovery may be had upon a showing that the product was not minimally safe for its expected purpose — without regard to the feasibility of alternative designs or the manufacturer’s "reasonableness” in marketing it in that unsafe condition.

This distinction between the "defect” analysis in breach of implied warranty actions and the "defect” analysis in strict products liability actions is explained by the differing etiology and doctrinal underpinnings of the two distinct theories. The former class of actions originates in contract law, which directs its attention to the purchaser’s disappointed expectations; the latter originates in tort law, which traditionally has concerned itself with social policy and risk allocation by means other than those dictated by the marketplace.

The dissent takes issue with the foregoing conclusion, arguing, in essence, that any residual distinction that exists between the two causes of action should be eliminated and that the analysis for "defect” in implied warranty claims should be deemed to encompass the risk/utility analysis that has previously been incorporated in tort causes of action. This argument is predicated on the dissent’s view that the common history of the two causes of action and the perceived advantages of risk/ utility analysis counsel in favor of the use of a unitary standard. The dissent has even gone so far as to suggest that the breach of implied warranty cause of action should be treated like a tort claim despite the fact that it is based on the provisions of the Uniform Commercial Code.

What the dissent overlooks is that, as long as that legislative source of authority exists, we are not free to merge the warranty cause of action with its tort-based sibling regardless of whether, as a matter of policy, the contract-based warranty claim may fairly be regarded as a historical relic that no longer has any independent substantive value. Rather, we must construe and apply this separate remedy in a manner that remains consistent with its current roots in contract law (see, Codling v Paglia, supra [recognizing a tort cause of action to avoid stretching the breach of implied warranty theory to the point where it no longer reflects its origin as part of the bargain between the consumer and seller]).

*260To the extent that the dissent advocates a merger of the common-law and statutory causes of action through the use of a single analytical standard, its argument is undermined by an examination of what other jurisdictions have done. In most of the cases where the courts have pronounced the merger of breach of warranty with the other products liability theories sounding in tort, they were relying on specific State statutory schemes that were enacted to govern products liability litigation, contain express preemptive language and also specifically define "product liability claim” as one encompassing breach of express or implied warranty as well as negligence and strict liability in tort (see, e.g., Philpott v Robbins Co., 710 F2d 1422 [applying Ore Rev Stat § 30.905]; Chamberlain v Schmutz Mfg. Co., 532 F Supp 588 [applying Kan Stat Ann § 60-3301]; Daily v New Britain Mach. Co., 200 Conn 562, 512 A2d 893 [applying Conn Gen Stat Ann § 52-572m]; Washington Water Power Co. v Graybar Elec. Co., 112 Wash 2d 847, 774 P2d 1199 [applying Wash Rev Code Ann § 7.72.010]; see also, McWilliams v Yamaha Motor Corp., 780 F Supp 251, revd on other grounds 987 F2d 200; but see, Grinnel v Pfizer & Co., 21A Cal App 2d 424, 432, 79 Cal Rptr 369). Indeed, the proposed Model Uniform Product Liability Act, which was issued by the Commerce Department in 1979 (reprinted in 3B Frumer and Friedman, op. cit., Appendix B; see, 44 Fed Reg 62721), embodies precisely the kind of doctrinal merger that the dissent advocates. New York, of course, has not adopted the Model Act or any other such unifying measures.5

Contrary to the dissent’s suggestion, the current version of UCC 2-318 is not the equivalent of these uniform product liability provisions, nor does it manifest an intention by our State’s Legislature to engraft a tort cause of action onto a UCC article that concerns itself principally with the contract-based obligations (see, dissenting opn, at 272). Indeed, the Law Revision Commission Staff Notes, which the dissent cites, clearly state that the proposed amendments to UCC 2-318 "would * * * allow recovery by the [strict products liability] plaintiffs on a different cause of action” (Bill Jacket, L 1975, ch 774, Mem of NY Law Rev Commn, Staff Notes relating to A-3070 [emphasis supplied]). Similarly, the Sponsoring Memorandum on which the dissent relies states that the bill’s purpose was to *261"extend more intelligently the warranty provided to a purchaser of goods under the UCC” (Mem of Assemblyman Silverman, reprinted in 1975 NY Legis Ann, at 110). In fact, it is evident from the legislative materials accompanying the bill’s passage that its purpose was to expand the class of plaintiffs who can avail themselves of the Code’s warranty remedies and not to transform those remedies into a new tort cause of action (see, 1A ULA 558 [Master ed], UCC 2-318, Official Comment).

Moreover, the dissent’s novel proposal that the contract-based consumer-expectation test should be abandoned for the tort-based risk/utility approach even for contract-based warranty claims has not been embraced or even suggested by any of the risk/utility advocates that the dissent cites. For example, although the drafters of the Third Restatement have endorsed risk/utility analysis for design defect cases sounding in tort, they also have made clear that claims based on warranty theories are "not within the scope” of the newly drafted section and are, in fact, "unaffected by it” (Restatement [Third] of Torts: Products Liability [Tent Draft No. 2, Mar. 13, 1995] § 2, comment m, at 42). Further, the drafters have noted that "[w]arranty law as a body of legal doctrine separate from tort may impose legal obligations that go beyond those set forth” in the Restatement of Torts (id., comment q, at 46).

Similarly, while the commentators on which the dissent relies criticize the consumer-expectation-based tests for product defect and argue instead for the use of a risk/utility approach, their arguments are addressed to tort causes of action alone. One of the cited commentators, for example, argues that the consumer expectation test is a "blunt instrument” "when it comes to recognizing and maximizing the * * * goals, objectives, interests and values important to modern tort law” (Kennedy, The Role of the Consumer Expectation Test under Louisiana’s Products Liability Tort Doctrine, 69 Tul L Rev 117, 152 [emphasis supplied]). The same commentator also acknowledges that different standards might be appropriate for different theories of recovery where other objectives and values are pertinent (id.). Another commentator cited by the dissent contends that the risk/utility analysis should be used in place of a consumer-expectation test, but the argument is, once again, premised on the assumption that the latter "is not a tort way of looking at the problem of product defect” (Birnbaum, op. cit., at 646 [emphasis supplied]). This commentator also affirmatively criticizes courts that have failed "to separate conceptually the notions of strict liability, negligence, warranty, and absolute liability” (id., at 601).

*262Significantly, the consumer-expectation test has its advocates as well as its critics. In fact, the proposed Model Uniform Products Liability Act has itself been criticized on the ground that it does what the dissent urges, i.e., it eliminates consumer expectation as a test for tort claims (Twerski and Weinstein, A Critique of the Uniform Products Liability Law — A Rush to Judgment, 28 Drake L Rev 221, 230-233; accord, 1 Frumer and Friedman, op. cit., § 1.08 [2] [c] [ii]). Such criticisms stem from recent expressions by "courts and commentators [of] considerable support for a threshold test which does not require that the complexities of risk-utility analysis be undertaken in every design defect case” (Twerski and Weinstein, op. cit., at 230-231). In view of the "rigors of the risk-utility test,” it has been suggested that it is "worthwhile” to retain the consumer-expectation test and "explor[e] solutions to [its] subjectivity problem” rather than simply abandoning it (id., at 232).6

In any event, while the critics and commentators may debate the relative merits of the consumer-expectation and risk/utility tests, there is no existing authority for the proposition that the risk/utility analysis is appropriate when the plaintiffs claim rests on a claimed breach of implied warranty under UCC 2-314 (2) (c) and 2-318. Further, the absence of authority for the dissent’s position is not surprising since the negligence-like risk/ utility approach is foreign to the realm of contract law.

As a practical matter, the distinction between the defect concepts in tort law and in implied warranty theory may have little or no effect in most cases. In this case, however, the nature of the proof and the way in which the fact issues were litigated demonstrates how the two causes of action can diverge. In the trial court, Ford took the position that the design features of which plaintiffs complain, i.e., the Bronco II’s high center of gravity, narrow track width, short wheel base and specially tailored suspension system, were important to preserving the vehicle’s ability to drive over the highly irregular terrain that typifies off-road travel. Ford’s proof in this regard was relevant to the strict products liability risk/utility equation, which required the fact finder to determine whether the Bronco II’s value as an off-road vehicle outweighed the risk of the rollover accidents that could occur when the vehicle was used for other driving tasks.

*263On the other hand, plaintiffs’ proof focused, in part, on the sale of the Bronco II for suburban driving and everyday road travel. Plaintiffs also adduced proof that the Bronco II’s design characteristics made it unusually susceptible to rollover accidents when used on paved roads. All of this evidence was useful in showing that routine highway and street driving was the "ordinary purpose” for which the Bronco II was sold and that it was not "fit” — or safe — for that purpose.

Thus, under the evidence in this case, a rational fact finder could have simultaneously concluded that the Bronco II’s utility as an off-road vehicle outweighed the risk of injury resulting from rollover accidents and that the vehicle was not safe for the "ordinary purpose” of daily driving for which it was marketed and sold. Under the law of this State such a set of factual judgments would lead to the concomitant legal conclusion that plaintiffs’ strict products liability cause of action was not viable but that defendant should nevertheless be held liable for breach of its implied promise that the Bronco II was "merchantable” or "fit” for its "ordinary purpose.” Importantly, what makes this case distinctive is that the "ordinary purpose” for which the product was marketed and sold to the plaintiff was not the same as the utility against which the risk was to be weighed. It is these unusual circumstances that give practical significance to the ordinarily theoretical difference between the defect concepts in tort and statutory breach of implied warranty causes of action (see, e.g., McLaughlin v Michelin Tire Corp., 778 P2d 59, 66-67 [Wyo]; accord, 1 Madden, Products Liability § 5.11, at 160 [2d ed]).

From the foregoing it is apparent that the causes of action for strict products liability and breach of implied warranty of merchantability are not identical in New York and that the latter is not necessarily subsumed by the former. It follows that, under the circumstances presented, a verdict such as the one occurring here — in which the manufacturer was found liable under an implied warranty cause of action and not liable under a strict products cause of action — is theoretically reconcilable under New York law. Whether the particular verdict produced by the jury in this case was reconcilable in light of the charge and in accordance with case law applying rule 59 (a) of the Federal Rules of Civil Procedure is a question of Federal procedure which we are not well positioned to *264resolve.7 Hence, we construe the third certified question as posing only the theoretical question of whether this jury’s verdict is hypothetically possible under New York’s governing legal principles.

Accordingly, certified question No. 1 should be answered in the negative, certified question No. 2 in the negative and certified question No. 3 in the affirmative.

Simons, J.

(dissenting). I agree with the majority that causes of action in strict products liability and breach of implied warranty are not identical. In my view, however, the strict products liability claim is substantively broader than and encompasses the implied warranty claim and, thus, the jury’s verdict of no defect in the products liability cause of action is not reconcilable with its finding of breach of implied warranty. Accordingly, I would answer the first two questions certified to the Court no and yes and find it unnecessary to answer the third question.

I

Liability without fault may be imposed against a manufacturer or supplier of a defective product and in favor of one injured by the product. The product may be defective because it is improperly made, because its design is defective or because the manufacturer’s warnings against foreseeable risks in using it are inadequate. The members of the Court agree that strict products liability and implied warranty are similar in the sense that both causes of action require that, before plaintiff may recover, the product be defective, i.e., there must be something wrong with it. We disagree, however, over how defectiveness is determined. The question does not appear to have been previously addressed by the Court in the context of personal injury litigation.

The majority concludes that the implied warranty and strict products liability causes of action are different because the existence of an actionable defect is determined by two different *265analyses. Viewing implied warranty from a contract perspective, it would define defectiveness by whether the product lived up to the consumer’s expectations whereas defectiveness, for strict products liability purposes, is determined by application of the risk/utility standard. In my judgment, the consumer expectation standard, appropriate to commercial sales transactions, has no place in personal injury litigation alleging a design defect and may result in imposing absolute liability on marketers of consumers’ products. Whether a product has been defectively designed should be determined in a personal injury action by a risk/utility analysis.

A

Logically, there is no substantive difference for testing liability in the two causes of action. Recovery in each depends upon establishing that the product was defective because improperly designed. But the word "defect” has no clear legal meaning. In this case, the court defined defect in its strict products liability charge but did not attempt to define it otherwise; in the warranty cause of action the meaning had to be found in the court’s instructions describing the nature of the cause of action. Nevertheless, the predicate for recovery in both claims was the same.

The court charged the jury that to recover in strict products liability the plaintiffs had to prove that the Bronco II was "defective” when it was placed on the market. A product is defective, the court said, if it is "not reasonably safe” when used for "its intended or reasonably foreseeable purpose.” That charge was consistent with settled New York law which holds that a manufacturer or supplier may be strictly liable for injuries sustained when a product is used for its intended purpose or for an unintended but reasonably foreseeable purpose (see, Lugo v LTN Toys, 75 NY2d 850, 852; Micallef v Miehle Co., 39 NY2d 376, 385-386; Biss v Tenneco, Inc., 64 AD2d 204, 206). The court charged the jury that to recover for breach of implied warranty the plaintiff was required to establish that the Bronco II was not "reasonably fit for the ordinary purpose for which it was intended.” That instruction is consistent with language found in UCC 2-314 (2) (c).

When these two definitions are compared, it is apparent that a defect for strict products liability purposes is broader than a defect for implied warranty purposes. The vehicle could not have been defective when used for its ordinary and intended purpose (warranty), but not defective and reasonably safe when *266used for its "intended or for an unintended but reasonably foreseeable purpose” (strict products liability). As the Court of Appeals observed, foreseeable use "certainly includes all uses that are 'ordinary’ [and] perhaps some that are not 'ordinary’ ” (see, Denny v Ford Motor Co., 42 F3d 106, 112). The jury having concluded that the Bronco II was not defective for strict products liability purposes, could not logically conclude that it was defective for warranty purposes.

B

Nor is there any legal reason to distinguish the two causes of action in this respect. Breach of implied warranty and strict liability in tort developed from separate legal doctrines but are not materially different when applied to personal injury claims involving design defects. While breach of implied warranty retains its contractual law characteristics when applied to commercial transactions, it has been consistently recognized that it is a tort when applied to personal injury litigation and that tort principles should apply. To introduce a new test of defectiveness into tort litigation — one based on contract principles — can only destabilize the well-settled law in this area. Both causes of action are torts and defectiveness for both should be determined by the same standard.

The law imposing liability without fault against those making and marketing consumer products evolved in stages, progressing from negligence to implied warranty and eventually to the adoption in New York of a new cause of action known as strict products liability. Implied warranty has been generally associated with the law of contracts (although the Restatement advises us warranty was originally a matter of tort liability), but if implied warranty ever was a contract doctrine, it is now something very different from the warranty cause of action used in commercial transactions (see, Restatement [Second] of Torts § 402 A, comment m; 5 Harper, James and Gray, Torts § 28.27, at 540 [2d ed]; Prosser and Keeton, Torts § 97, at 691 [5th ed]; 1 Weinberger, New York Products Liability § 15:03). Indeed, the idea that there could ever be a claim for breach of implied warranty without privity is a concept entirely foreign to contract law. Moreover, the liability currently imposed in the name of warranty goes far beyond any liability based upon conventional contract notions and encompasses such tort concepts as consequential damages and contributory fault. As Dean Prosser has said: "[T]his warranty, if that is the name for it * * * is something separate and *267distinct which sounds in tort exclusively, and not at all in contract; which exists apart from any contract between the parties; and which makes for strict liability in tort” (Prosser, Spectacular Change: Products Liability in General, 36 Cleveland Bar Assn J 149, 167-168).

Finally, there can be no doubt about how this Court has viewed the action. We have repeatedly recognized not only that breach of implied warranty when asserted to recover for personal injuries is a tortious wrong (see, Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 402; Velez v Craine & Clark Lbr. Corp., 33 NY2d 117, 124 [converting an action in implied warranty to one for strict products liability]; Codling v Paglia, 32 NY2d 330, 340, quoting Singer v Walker, 39 AD2d 90; Goldberg v Kollsman Instrument Corp., 12 NY2d 432, 436), but also "that strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action” (Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340, 345).

Nevertheless, the idea that contractual principles inhere in breach of implied warranty claims for personal injuries has persisted, producing conceptual difficulties and anomalies when the courts tried to apply the cause of action in a tort setting {see, Prosser and Keeton, Torts § 97, at 692 [5th ed]). In Codling v Paglia (32 NY2d 330, supra), we were confronted with a claim in implied warranty seeking to impose liability against a manufacturer in favor of a nonuser bystander injured by a defective automobile. We had long since abandoned the privity requirement in many personal injury claims based on implied warranty and incrementally extended the duty of manufacturers and suppliers not only to purchasers and users, but to users’ family members (see, Greenberg v Lorenz, 9 NY2d 195), to remote purchasers (Randy Knitwear v American Cyanamid Co., 11 NY2d 5), to an airline passenger suing the manufacturer of a defective component part of an airplane (Goldberg v Kollsman Instrument Corp., 12 NY2d 432, supra), and to rescuers suing the manufacturer of a defective oxygen mask (Guarino v Mine Safety Appliance Co., 25 NY2d 460). In Codling we recognized the difficulties in adopting implied warranty principles in personal injury claims and, abandoning privity entirely, recognized a new cause of action under the broad principle of strict products liability, as other courts before us had done, to hold the manufacturer liable to the bystander.

This new cause of action was not separate from implied warranty but an amalgam which had been constructed by the *268courts to establish a cause of action for liability without fault by merging warranty concepts (to avoid fault analysis) with negligence concepts (to avoid privity) (see, Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 401, supra; Restatement [Third] of Torts: Products Liability [Tent Draft No. 2] § 1). The new cause of action recognized products liability as a discrete area of tort law, which borrows from both negligence and warranty, and attempts to avoid the confusion spawned by trying to categorize the various claims and remedies under prior law (id.). It imposes strict liability as a matter of social policy predicated on the idea that defendants ought "to pay for the costs attributable to damaging events caused by defects of a kind that made the product more dangerous than it would otherwise be”, concerns that had little to do with conventional contract principles (see, Prosser and Keeton, Torts § 98, at 692 [5th ed]). A difficulty has arisen, however, because in recognizing a cause of action for strict products liability, the courts have not had "a clear notion about the 'meaning of defect’ ”, especially in the context of defective design cases (id.).

In sum, although procedural distinctions may remain because mandated by the Legislature’s enactment of various provisions of the Uniform Commercial Code (see, Heller v U. S. Suzuki Motor Corp., 64 NY2d 407, 411), strict products liability and breach of implied warranty causes of action are substantively similar and impose liability without fault (see, Martin v Dierck Equip. Co., 43 NY2d 583, 589-590; Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340, 345, supra; Ryion v Len-Co Lbr. Corp., 152 AD2d 978; Dickey v Lockport Prestress, 52 AD2d 1075, 1076). It makes little sense, therefore, to perpetuate a legal distinction between them based upon the method for determining defectiveness, particularly when the flaws in the consumer expectation standard for measuring defectiveness are recognized.

II

The majority has not attempted to define the consumer expectation standard, nor did the District Court use the phrase in its charge. Under one formulation, however, the standard provides that a product is defective, i.e., it is unreasonably dangerous, if it 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” (see, Restatement [Second] of Torts § 402 A, comment i; see also, Kennedy, The Role of the *269 Consumer Expectation Test under Louisiana’s Products Liability Tort Doctrine, 69 Tul L Rev 117, 120 [1994]). The consumer expectation standard originated from the sales notion that a seller could agree, expressly or impliedly, to indemnify a buyer if the purchased product did not satisfy the buyer’s purposes. The obligation to "indemnify” applied only to the parties to the sale, those in privity, and did not "run with the goods” (see, 5 Harper, James and Gray, op. cit., § 28.16, at 454). As evolving social policy sought to hold manufacturers and sellers liable for personal injuries caused by defective products, however, the requirement of privity was narrowed and then eliminated, and the courts extended liability as far as social policy required (id., at 455-456). With these developments, it made little sense to think in terms of the buyer’s bargain or expectations. In many, if not most, cases the buyer was not litigating.

By contrast, the standard usually employed to determine design defectiveness in strict products liability claims requires a balancing of the risks attendant on using the product with the utility of the product when used as intended. As we stated in Robinson v Reed-Prentice Div. of Package Mach. Co. (49 NY2d 471, 479): "Where a product presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to detailed plans and specifications, it is said to be defectively designed. This rule, however, is tempered by the realization that some products, for example knives, must by their very nature be dangerous in order to be functional. Thus, a defectively designed product is one which, at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce” (see also, Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107-108; Rainbow v Elia Bldg. Co., 79 AD2d 287, 291, affd 56 NY2d 550).

Although some jurisdictions have recognized the consumer expectation standard, or some variation of it, in tort litigation* New York has never done so and its utility for resolving claims of design defects has been widely criticized by commentators (see, Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33 *270Vand L Rev 593, 611-618 [1980]; Kennedy, The Role of the Consumer Expectation Test under Louisiana’s Products Liability Tort Doctrine, 69 Tul L Rev 117, 143-150; Fischer, Products Liability — The Meaning of Defect, 39 Mo L Rev 339, 348-350 [1974]; and see, authorities cited in 5 Harper, James and Gray, Torts § 28.32A, at 576). They contend that the test is ambiguous because it does not clearly refer to the expectations of the actual plaintiff or to those of ordinary consumers; in practice it has been applied inconsistently and, from a social policy standpoint, it produces bad results.

If the test is applied to determine the actual buyer’s expectations, as in contract law, it can result in imposing absolute liability upon manufacturers and sellers making them insurers of the product’s safety merely because the product did not live up to the consumer’s subjective expectations. If the test is used objectively, it is beyond the experience of most lay jurors to determine what an "ordinary consumer” expects or "how safe” a sophisticated modern product could or should be made to satisfy those expectations unless the jury is allowed to consider the cost or impracticality of alternative designs or, indeed whether any alternative design for the product was available.

The test can also produce bad results. For example, if the risk is one that is easily understood and appreciated by the average consumer, the manufacturer might not be liable even if the defect could be eliminated by available and inexpensive design changes. Conversely, if the defect was not apparent, liability might attach even if the product was in fact state of the art.

Moreover, the consumer expectation test is unworkable when applied in cases involving design defects. In claims involving manufacturing defects, a consumer may reasonably expect a product to be made in accordance with the manufacturer’s standards and expect to be compensated for injuries resulting from the manufacturer’s failure to meet them. The product is reasonably held defective because the manufacturer has not made the product as it intended. However, in design defect cases the plaintiff contends that the product has been made precisely as intended but is nevertheless defective because the design is defective. But unless some external standard, such as available alternative designs and risk/utility analysis is employed, how is the jury to measure the propriety of the design? The consumer cannot reasonably expect a design to be changed if the cost of doing so far outweighs the utility of the product or if there is no alternative design available. Some *271products are inherently dangerous, knives was the illustration we used in the Robinson case (supra), and when that is so, policy concerns mandate that the responsibility for risks that cannot reasonably be designed out of a product should be transferred to the consumer, the party who has the choice of using them or not. (Restatement [Third] of Torts: Products Liability [Tent Draft No. 2] § 2, comment a, at 16.) The method for determining just what products fall within that group is the risk/utility analysis.

Because of these and other shortcomings, one commentator has stated that, when it comes to measuring defectiveness, the consumer expectation test applied without a risk/utility analysis is "a blunt instrument” (Kennedy, op. cit., at 150). Few courts have relied solely on it as a measure of defectiveness (see, Birnbaum, op. cit, at 615).

No New York court has recognized the consumer expectation standard to determine defectiveness in personal injury actions grounded on implied warranty — at least the parties and the majority have not cited any decision doing so — and I can see no persuasive policy reasons why we should do so now. If the test is unworkable when applied in tort causes of action grounded on strict products liability, it is equally unworkable when applied in tort causes of action grounded on breach of implied warranty. The correct standard in strict liability claims, according to the Third Restatement, should include a balancing of the risk of danger against the utility of the product as designed. In its words, "consumer expectations do not constitute an independent standard for judging the defectiveness of product designs” (Restatement [Third] of Torts: Products Liability [Tent Draft No. 2] § 2, comment f, at 29). They are "not determinative of defectiveness” because they do not take into account "whether the proposed alternative design could be implemented at reasonable cost, or whether an alternative design would provide greater overall safety”, i.e., the test does not take into consideration risk/utility factors (id.). Consumer expectations only value is when used as a factor in determining the reasonableness of alternative designs or how the product is portrayed and perceived by the public, i.e., whether the risk was foreseeable. As we stated in Robinson v Reed-Prentice Div. of Package Mach. Co. (supra) the conditions contemplated by "the ultimate consumer” must be taken into account, but the risk/utility analysis remains a necessary part of the equation for determining defectiveness in products liability cases (Restatement [Third] of Torts, op. cit; see also, Birnbaum, op. cit, at 617).

*272Ill

The majority maintains, however, that the consumer expectation standard must be applied because breach of implied warranty is a statutory cause of action and the Court is not free to ignore the statute’s provisions or draw a distinction between its application to commercial claims and personal injury claims.

Implied warranties have been a part of our statutory law since at least 1911, long before any serious attempt was made to base tort liability on them {see, former Personal Property Law § 96, now UCC 2-314). Section 96, and its successor provisions in the Uniform Commercial Code, were enacted to address problems arising in commercial transactions. For many years they had no significant impact upon personal injury litigation because of the rules of privity. However, in 1975, shortly after Codling v Paglia (supra) was decided, section 2-318 of the Uniform Commercial Code was amended to harmonize it with existing case law by eliminating the requirement of privity in personal injury claims (see, 1975 NY Legis Ann, at 110; Heller v U. S. Suzuki Motor Corp., 64 NY2d 407, 411, supra). The amendment had no relevance to commercial claims; it was proposed by the Legislature, and widely supported, because it acknowledged and encouraged the judicial development of a separate category of warranty providing a tort remedy for personal injuries (see, 1975 NY Legis Ann, at 110; see also, Bill Jacket, L 1975, ch 774, Mem of State Consumer Protection Board, July 14, 1975; Mem of NY Law Rev Commn, Staff Notes Relating to A-3070; Mem of New York State Trial Lawyers Assn, May 12, 1975). The Legislature’s recognition of a distinction between the statutory cause of action for personal injury claims and commercial claims based on implied warranty is further manifested by the Legislature’s decision to adopt alternative B of the three formulations proposed by the National Conference of the Commissioners on Uniform State Laws, the alternative which removed the requirement of privity in personal injury claims based upon implied warranty, rather than alternative C which extends the rule (abolishing privity) to warranty claims other than those dealing with injuries to the person {see, 1A ULA 558 [Master ed], UCC 2-318, Official Comment 3).

Moreover, no words in the statute either before or after the amendment, provide that the defectiveness of the product in tort claims, or commercial claims for that matter, is to be measured by the consumer’s expectations. That standard has been *273developed by the courts. It may accurately assess the terms and conditions of the bargain between the parties to a sale but it can hardly extend beyond them to address defectiveness in the sense that something is "wrong” with the product. The thing "wrong” with the product in the consumer expectation test is that it has not lived up to the consumer’s expectations and this is so even if the design of the product is perfection itself. The standard may retain some vitality when applied to commercial transactions but its individualized concept of injury is entirely foreign to tort doctrine underlying this area of law which is based upon the broad concept of enterprise responsibility to protect the public at large from harm.

Moreover, the statutory formulation of implied warranty has never restricted us in developing the tort remedy before. Long before the statute eliminated the requirement of privity for recovery, the courts narrowed and then eliminated it altogether. We did not feel inhibited by the statute in doing so: policy, not language, controlled the interpretation and application of the statute. Nor have the courts been constrained by the statute’s provisions when eliminating the UCC’s requirement of notice in tort actions (see, Fischer v Mead Johnson Labs., 41 AD2d 737; Kennedy v Woolworth Co., 205 App Div 648) or when shaping the law of disclaimers to apply them neutrally to personal injury cases (see, Velez v Craine & Clark Lbr. Corp., supra; see also, Walsh v Ford Motor Co., 59 Misc 2d 241; see also, 5 Harper, James and Gray, Torts § 28.25 [2d ed]).

The warranty claim in this case was for tortious personal injury and rests on the underlying "social concern [for] the protection of human life and property, not regularity in commercial exchange” (see, Restatement [Third] of Torts, op. cit., § 2, comment q, at 46). As such, it should be governed by tort rules, not contract rules. Nothing has prevented us in the past from construing and applying the provisions of the Uniform Commercial Code to supplement and advance the policy concerns underlying strict products liability generally, and we should not construe the statute now to establish a standard for determining defectiveness which is inconsistent with the present law in this area (see generally, UCC 1-103).

Accordingly, I dissent.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine and Ciparick concur with Judge Titone; Judge Simons dissents in a separate opinion.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the *274questions by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and. after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question No. 1 answered in the negative, certified question No. 2 answered in the negative, and certified question No. 3 answered in the affirmative.

CHIEF JUSTICE RICE

delivered the Opinion of the Court.

¶1 In this products liability case, we consider whether the trial court erred when it gave a jury instruction that allowed the jury to apply either the consumer expectation test or the risk-benefit test to determine whether a driver’s- car seat was unreasonably dangerous due to -a design defect. The court of appeals concluded that'the trial court did err by instructing the jury separately on the consumer expectation test,’because the test already comprises an element of the risk-benefit test. Walker v. Ford Motor Co., 2015 COA 124, ¶¶ 26-28, — P.3d —, -.

¶2 We now affirm the court of appeals, albeit on different grounds. This court determined more than thirty years ago that the risk-benefit test is the appropriate test to assess whether a product is Unreasonably dangerous due to a design defect where the dangerousness of the design is “defined primarily by technical, scientific information.” Ortho Pharm. Corp. v. Heath, 722 P.2d 410, 414 (Colo. 1986), overruled on other grounds by Armentrout v. FMC Corp., 842 P.2d 176, 183 (Colo. 1992). We have found the consumer expectation- test, by contrast, “not suitable” in such a case. Id. at 416. Here, the jury was tasked -with determining whether a car seat was unreasonably dangerous due to a design - defect — a determination that, as evidenced by the extensive expert testimony at trial, required consideration of technical, scientific, information. Thus, the proper test under which to assess the design’s dangerousness was the risk-benefit test,1 not -the consumer expectation test. We therefore hold that the trial court erred by instructing the jury on both tests, thereby allowing it to base its verdict on the consumer expectation test alone. We hold further that the jury’s separate finding of negligence-did not render the instructional error harmless. Accordingly, we affirm the court of appeals on different grounds and remand the ease for further proceedings consistent with this opinion.

I.

¶3 Forrest Walker was rear-ended while driving his 1998 Ford Explorer in Boulder, Colorado. Upon impact, Walker’s car accelerated forward and his car seat yielded rearward. Walker asserts that he sustained head *848and neck injuries in the crash, and he sued the other driver and Ford Motor Company (“Ford”) to recover for those injuries. Walker settled with the other driver, but he proceeded to trial against Ford on theories of strict liability and negligence. He claimed that the seat was defective in its design, and that Ford was negligent for failing to take reasonable care in the design and manufacture of its product so as to prevent an unreasonable risk of harm.

¶4 Walker’s case was tried to a jury in 2013. During trial, Ford and Walker offered extensive testimony from biomechanical and seat-design experts on the design characteristics of the car seat. Ford’s experts explained the concept behind yielding seats, saying they absorb energy that would otherwise impact the driver in a crash, and testified to the benefits of such seats in collisions like Walker’s. Ford also presented data from testing that it claims proved the benefits of Ford’s seat design, showed that the seat performed better in rear-end collision testing than its 1998 competitors, and demonstrated that the crash forces Walker experienced did not exceed injury thresholds. Walker’s experts testified that, although car seats should have some yield, the seat in the 1998 Ford Explorer needed to be stronger, and that it was technologically and economically feasible in 1998 to build a stronger seat with a better head restraint. Walker’s experts also testified that the seat was not state-of-the-art in 1998 and gave examples of feasible design alternatives. During closing arguments, Walker’s attorney appealed to the jury to use “common sense” and suggested it could conclude the seat was unreasonably dangerous by “look[ing] at what happened” -to the seat, “without having to decide who’s right among the experts on the liability issues.”

¶5 At the end of trial, as relevant here, Ford asked that the jury be instructed to assess the dangerousness of the car seat using the risk-benefit test. Walker requested the consumer expectation test. The trial court gave the jury an instruction, based on the Colorado pattern jury instraction at the time, allowing it to apply either test. Specifically, the instruction stated:

A product is unreasonably dangerous because of a defect in its design if it creates a risk of harm to persons or property that would not ordinarily be expected or is not outweighed by the benefits to be achieved from such design.

A product is defective in its design, even if it is manufactured and performs exactly as intended, if any aspect of its design makes the product unreasonably dangerous.

Jury Instr. No. 18; see also CJI-Civ. 4th 14:3 (2016).2 The court also gave the jury a separate instruction listing seven non-exclusive factors it could consider in “weighing the risks versus the benefits of a product design.” Jury Instr. No. 19.3 Of these seven factors, “factor six” stated that the jury could consider “the user’s anticipated awareness of dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.” Id. The jury ultimately found for Walker on both his strict-liability and *849negligence claims-, and it awarded him nearly $3 million plus interest. After Ford’s motion for a new trial or judgment notwithstanding the verdict, was denied when the trial court did not rule on it during the allotted time, Ford appealed the verdict.

¶6 The court of appeals reversed the jury’s verdict. Walker, ¶ 3. The court held’that the trial court erred by instructing the jury separately on the consumer expectation test, because the test is included as an element of the risk-benefit test. Id. at ¶¶ 14, 26. Specifically, the court summarily concluded that factor six of the risk-benefit test “is merely a rephrasing of the consumer expectation test,” Id..at ¶ 19. The court went on to hold that the instructional error was not harmless, because it allowed the jury to consider the consumer expectation test twice and to find for Walker even if it failed to consider the other elements of the risk-benefit test. Id. at ¶¶ 30 -33. The court thus reversed the verdict and remanded the case for a new trial, with directions for the trial court to omit the separate consumer expectation test from the jury instructions. Id. at ¶ 34.

¶7 Walker petitioned this court for review and we granted certiorari.4 We now affirm the court of appeals, albeit on different grounds, and remand the case for further proceedings consistent with this opinion.

II.

¶8 First, we consider whether the trial court erred by instructing the jury on the consumer expectation test, and we conclude that it did. We then address whether the jury’s separate finding of negligence rendered the instructional error harmless, and we conclude that it did not.

A.

¶9 We review de novo whether a jury instruction states the law correctly, and we review the trial court’s decision to give a particular jury instruction for an- abuse of discretion. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).

¶10 This court has looked to the doctrine of strict products liability as set forth in section 402A of the Restatement (Second) of Torts. Camacho v. Honda Motor Co., 741 P.2d 1240, 1244 (Colo. 1987). Under section 402A, a manufacturer may be held strictly liable for harm caused by “any product in a defective condition unreasonably dangerous to the user or consumer.” Restatement (Second) of Torts. § 402A (Am. Law. Inst. 1965); see also Camacho, 741 P.2d at 1244. A product may be in such a condition due to a manufacturing defect, which causes the product to fail to conform to the manufacturer’s specifications, or due to a failure to warn or a design defect that renders the product unreasonably dangerous despite the fact that it was manufactured exactly as intended. Camacho, 741 P.2d at 1247. Additionally, a motor-vehicle manufacturer may be held liable for injuries sustained in a motor-vehicle accident “where a manufacturing or design defect, though not the cause of the accident, caused, or enhanced the injuries.” Id at 1242-13. The plaintiff must prove that a product is defective and unreasonably dangerous in order to establish liability under section 402A. See Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1175 (Colo. 1993) (citing Camacho, 741 P.2d at 1245).

¶11 In making the determination as to whether a product’s design is unreasonably dangerous, we have recognized two tests: the consumer expectation test and the risk-benefit analysis. Ortho, 722 P.2d at 413. The consumer expectation test asks whether a product performed as safely as an ordinary consumer would expect, and it derives largely from comment i to section 402A. Id Comment i states that a product must’ be “dangerous to an extent beyond that which would be contemplated by the ordinary consumer” and provides examples, including, whiskey containing fuel oil, and butter contaminated with poisonous fish oil. § 402A cmt. i.

*850¶12 The risk-benefit test asks a different question: whether the benefits of a particular design outweigh the risks of harm it presents to consumers. See Ortho, 722 P.2d at 413; Armentrout, 842 P.2d at 182-84 (stating the test and overruling Ortho' to the extent it placed the burden of proof on the manufacturer). This court first applied the risk-benefit test to assess whether a product’s design was defective in Ortho, 722 P.2d at 413-14, in which we also listed seven factors that may be considered in weighing the risks and benefits of a design, id. at 414 (citing John W. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 837-38 (1973)).5 We have since clarified that 'those seven factors, while illustrative of considerations that may be helpful in determining whether a design is defective; are riot exclusive and need not be strictly applied in every case. Armentrout, 842 P.2d at 184. For example, in Armentrout, we stated that the existence of a feasible design alternative may be a'factor in the analysis of the dangerousness of a product design,6 Id. at 185 & n.11. Noting that the Armentrouts had presented evidence of a feasible design alternative, we declared' in that case that such evidence would be considered on retrial. See id. at 185.

¶13 In this case, Walker arid Ford agree that Instruction 18 allowed the jury to use either the consumer expectation test or the risk-benefit test to determine whether the car seat was unreasonably dangerous. The consumer expectation test was encompassed in the phrase “creates a risk of harm to persons or property that would not ordinarily be expected,” and the risk-benefit test in the phrase “a risk of harm ,.. not outweighed by the benefits to be achieved from such design.” Jury Instr. No. 18. The trial court also instructed the jury that it could consider and weigh, "among other things,” the seven factors enumerated in Ortho. Jury Instr. No. 19; Ortho, 722 P.2d at 414. Walker claims that Instruction 18 stated Colorado law correctly, and the jury’s verdict sho.uld stand. We disagree.

¶14 This court has stated repeatedly that the risk-benefit test, not the consumer expectation test, is the proper test to use in assessing whether a product like the car seat at issue here is unreasonably dangerous due to a design defect, In Ortho, this court considered both tests in the context of a claim that a .prescription drug was unreasonably dangerous and defective, in design. .722 P.2d at 413-14. We concluded that the risk-benefit test was the. “appropriate standard” under which to. “measure the reasonableness of [the] danger” presented by the drug. Id. In reaching our conclusion, we noted that the dangerousness of the drug was “defined primarily by technical, scientific information,” Id. at 414. “The consumer expectation test,” we stated, “fails to address adequately [that] aspect of the problem,” id, and is “a test not suitable in prescription drug cases when the actionable product is alleged to be unsafe by design notwithstanding its production in precisely the manner intended,” id at 415. We found the risk-benefit test, by contrast, to properly “focus[ ] on the practical policy issues characteristic” of such a product. Id. at 414; Accordingly, we held that the trial court had erred by failing to instruct on the risk-benefit test. Id. at 416.

¶15 We reiterated our conclusions regarding the two tests in Camacho. There, the *851underlying issue was whether a motorcycle was defectively designed and unreasonably dangerous because it was not equipped with crash bars to protect a rider’s legs.. 741 P.2d at 1241-42.. We held that the lower .courts had erred, by using a consumer expectations standard to assess the motorcycle’s dangerousness, id. at 1242, reasoning that “the consumer contemplation concept embodied in comment i [to section 4Q2A] ... does not provide a satisfactory test for determining whether particular products are in a defective condition unreasonably dangerous to the user or consumer,” id.’at 1246.'We also pointed to this court’s recognition in Ortho that “exclusive reliance upon consumer expectations” is “particularly inappropriate” where both the dangerousness of the design and “the efficacy of alternative designs ... must be defined primarily by technical, scientific information.” Id. at 1246 — 47.-

¶16 Notably, we éxpoúnded upon the reasons for using the risk-benefit test, rather than the consumer expectation test, in design-defect cases involving technical,’ complex product designs.-We noted that products-liability law has developed in part to “encourage manufacturers to use .information gleaned from testing, inspection and-data analysis” to help avoid product accidents. Id. at 1247. Using the risk-benefit test to assess the dangerousness .of products-helps further' this objective, as it. directs fact-finders to consider the manufacturer’s ability- to minimize or eliminate risks and the effect such an alteration-would have on the product’s utility, other safety aspects, or affordability. See,' e.g., id. at 1247-48 (listing risk-benefit factors). Moreover, “manufacturers of such complex products as motor vehicles invariably have greater access than do ordinary- consumers to the- information necessary to' reach informed decisions concerning the efficacy of potential safety measures.” Id. at 1247.. Finding that, the motorcycle’s status required “interpretation of mechanical engineering data derived from research and testing — interpretation which necessarily:includes the application of scientific and technical principles,” id. at 1248, we remanded the- case for further proceedings using the proper risk-benefit standard, id. at 1242,1249.

¶17 Turning to the ease before us, we -conclude that the trial court erred by instructing the jury on the consumer expectation test. This case,, like those outlined above, concerns an alleged design defect, and the dangerousness of the car seat design is “defined primarily by technical, scientific information.” Ortho, 722 P.2d at 414. Indeed, like the motorcycle without crash bars in Camacho, the dangerousness of the car seat design required- the “interpretation ;of mechanical engineering data derived from research and testing.” Camacho, .741 P,2d at 1248. The parties provided the jury with extensive.expert testimony regarding testing data, seat rigidity, restraint systems, risks and benefits, and feasible design alternatives. Applying such evidence “necessarily includes the application of scientific and technical principles:” Id. Therefore, the proper test for the'jury to use in its determination of the dangerousness of the seat design was the risk-benefit test.

¶18. We are .not persuaded by Walker’s argument that.there is no inconsistency in applying and, instructing a jury on both tests, as was done here. As developed above, our precedent holds the consumer expectation test to be improper in design-defect .cases involving scientific, technical information. Here, Instruction 18 allowed the jury to apply either the consumer expectation test or the risk-benefit, test. Jury Instr. No. 18. (stating that.the jury could find the seat unreasonably. dangerous based on a risk that “would not ordinarily be expected or. is not outweighed, £>y the benefits” of the design (emphasis added)). Therefore, the instruction authorized; the jury to apply .the consumer expectation test alone. Counsel for Walker stressed this fact to the jury during closing arguments, urging the jury to use “common sense” and suggesting it could conclude that the seat was unreasonably dangerous by “looking] at what happened” to the seat, “without having to decide 'who’s right among the' experts on the liability issues.” Instruction 18 was contrary to our precedent, and the trial court erred by giving it.7

¶19. Because we find that Instruction 18 was inconsistent with our precedent, we need *852not reach the issue upon which the court of appeals rested its opinion, namely, whether the consumer expectation test is subsumed into factor six of the risk-benefit test. Instruction 19, which listed the seven factors from our Ortho decision, has not been challenged in this case, and may be used on remand.

B.

¶20 Walker argues that, even if Instruction 18 was erroneous, the jury’s separate finding of negligence renders the error harmless.

¶21 This court will deem an error harmless, and thus will not reverse a judgment, unless the error resulted in substantial prejudice to a party. See Armentrout, 842 P.2d at 186; accord C.A.R. 35(c) (“The appellate court may disregard any error or defect not affecting the substantial rights of the parties.”). With respect to jury instructions, “the giving of an erroneous instruction constitutes reversible error once prejudice is shown.” Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 204 (Colo. 1992).

¶22 Walker asserts that his negligence claim is an alternative basis for the jury’s verdict. Emphasizing that the jury found for him in both strict liability and negligence, he argues that the negligence finding renders harmless any error in the trial court’s strict liability instructions. Walker argues further that the jury was properly instructed on the elements of negligence and on the separate nature of his claims, and we must assume the jury followed instructions. He thus contends that the court of appeals erred in finding reversible error, and the jury’s verdict should stand. We disagree.

¶23 A manufacturer is not negligent for designing a reasonably safe product. Accordingly, regardless of whether a design-defect claim is based in strict liability or negligence, in order to properly return a verdict for the plaintiff, a fact-finder must determine that the product at issue is unreasonably dangerous. See, e.g., Camacho, 741 P.2d at 1245 (“[W]hen a product is not reasonably safe a products liability action may be maintained”); Mile Hi, 842 P.2d at 206 (“Regardless of whether a product liability action is grounded in negligence or strict liability, a plaintiff must prove that the product was defective.”). For all of the reasons laid out in this opinion, such a determination in this case should have been made using the risk-benefit test.

¶24 Moreover, in a design-defect case such as this, the risk-benefit test essentially subsumes the issue of negligence. See, e.g., Keller v. Koca, 111 P.3d 445, 447-48 (Colo. 2005) (explaining that a determination of negligence requires consideration of multiple factors, including “the risk involved, the foreseeability of the injury weighed against the social utility of the actor’s conduct,” and the burden of guarding against harm). Reasonableness is a negligence concept. See Camacho, 741 P.2d at 1245. Thus, as this court has recognized, the risk-benefit test “includes language which is rooted in negligence.” Fibreboard Corp., 845 P.2d at 1173.

¶25 Here, because of the instructional error, the jury was permitted to rely upon an improper standard in making its negligence determination. The trial court instructed the jury that, in order to find for Walker on his negligence claim, it must find that Ford “was negligent by failing to exercise reasonable care to prevent the driver seat and restraint system in the 1998 Ford Explorer from creating an unreasonable risk of harm.” Jury Instr. No. 23. “[U]nreasonable risk of harm,” however, was not separately defined. And when the jury asked the court what it meant by “reasonably dangerous,” the court referred the jury to Instruction 18 — the instruction containing both the risk-benefit and consumer expectation tests. Trial Tr. 2:14-25, March 21, 2013. Consequently, the jury was permitted to use a consumer expectation standard to assess the reasonableness of the risk presented by the seat design and find Ford negligent, even if — indeed, especially if — it followed the trial court’s instructions. Accordingly, we cannot conclude that the tidal court’s error in giving Instruction 18 was harmless.8

*853III.

¶26 For the reasons stated above, we affirm the court of appeals on different grounds, and remand the case for further proceedings consistent with this opinion.

DANNER, J.

*213*139Bethany and James Modisette, along with their daughter Isabella, sued Apple Inc. after they were seriously injured, and their daughter Moriah was killed, when a driver using the FaceTime application on his iPhone crashed into their car on a Texas highway. The trial court sustained Apple's demurrer to the Modisettes' first amended complaint and dismissed the action. The Modisettes appeal from the judgment.

We determine that the trial court properly sustained the demurrer without leave to amend. Regarding the Modisettes' negligence claims, we conclude that Apple did not owe the Modisettes a duty of care. We also determine that the Modisettes cannot establish that Apple's design of the iPhone constituted a proximate cause of the injuries they suffered, a necessary element of their remaining claims. Accordingly, we affirm the judgment.

*140I. FACTUAL AND PROCEDURAL BACKGROUND

On December 24, 2014, Bethany, James, Isabella, and Moriah Modisette were traveling in their family car on Interstate 35W in Denton County, Texas.1 Garrett Wilhelm was also driving on the interstate, and, while driving, was using the FaceTime application on his Apple iPhone 6 Plus. Traveling at highway speed, Wilhelm crashed into the Modisettes' car, which had stopped due to police activity. The accident caused severe physical and emotional injuries to each of the Modisettes, and Moriah, aged five, subsequently died at the hospital. Wilhelm told the police that he was using FaceTime at the time of the crash. Police found Wilhelm's iPhone at the scene with FaceTime still activated.

The Modisettes sued Apple Inc., which has its principal place of business in Santa Clara County. The first amended complaint alleged causes of action for general and gross negligence, negligent and strict products liability, negligent and intentional infliction of emotional distress, loss of consortium, and public nuisance. The Modisettes alleged that the car accident "occurred ... when a driver, distracted while using the 'FaceTime' application on an Apple iPhone 6 Plus during operation of his motor vehicle, collided at highway speed with [their] stationary motor vehicle and caused severe physical and emotional injuries to [them]," and that Apple's failure to design the iPhone "to 'lock out' the ability of drivers to utilize the 'FaceTime' application on the Apple iPhone while driving a motor vehicle, ... resulted in the[ir] injuries." The complaint incorporated by reference the "body of studies and data that demonstrate the compulsive/addictive nature of smartphone use."

The Modisettes alleged that Apple had wrongfully failed to implement in the iPhone 6 Plus a safer alternative design that would have automatically prevented drivers from utilizing FaceTime while driving at highway speed (lockout technology). The Modisettes also alleged that Apple had failed to warn users that the iPhone "was likely to be dangerous when used or *214misused in a reasonably foreseeable manner." The Modisettes alleged that Apple "had a legal duty to ... use due care in the design, manufacture, and sale of its iPhone 6 Plus" and that Apple had "breached that duty by failing to use reasonable care to design and manufacture [the phone] with the safer, alternative 'lock-out' technology it had already developed to prevent the use of its pre-installed 'FaceTime' application during a driver's operation of a motor vehicle."

According to the first amended complaint, Apple applied for a patent for its lockout technology in December 2008. The patent application stated that the *141technology was designed to " 'disable the ability of a handheld computing device to perform certain functions, such as texting, while one is driving.' " (Italics omitted.) The patent for the lockout technology was issued to Apple in April 2014. Apple released the iPhone 6 Plus on September 9, 2014. FaceTime was a "factory-installed, non-optional application[ ] on the iPhone 6 Plus."

The Modisettes alleged that Apple knew or should have known of the risks caused by the use of the iPhone while driving and quoted portions of Apple's 2008 patent application for the lockout technology. For example, the first amended complaint alleged that Apple stated in the application that " '[t]exting while driving has become a major concern .... An April 2006 study found that 80 percent of auto accidents are caused by distractions such as applying makeup, eating, and text messaging on handheld computing devices.' " Attached as an exhibit to the first amended complaint was a notice of proposed federal guidelines by the National Highway Traffic Safety Administration issued on November 21, 2016. The proposed federal guidelines stated that driver "distractions can come from electronic devices, such as navigation systems and cell/smartphones, and from more conventional activities, such as viewing sights or events external to the vehicle, interacting with passengers, and/or eating." The proposed federal guidelines included statistics on the prevalence of accidents in the United States involving distracted drivers from 2007-2014. For example, in 2013, there were 71,000 "distraction-affected non-fatal crashes involving the use of a cell phone," which constituted 8 percent of all distraction-affected non-fatal crashes and resulted in 34,000 people injured. That same year, there were 411 "distraction-affected fatal crashes involving the use of a cell phone," which constituted 14 percent of fatal "distraction-affected crashes" and resulted in 455 fatalities. The proposed federal guidelines made recommendations to "reduce the potential for unsafe driver distraction" from electronic devices, but acknowledged that "it remains the driver's responsibility to ensure the safe operation of the vehicle and to comply with all state traffic laws. This includes, but is not limited to laws that ban texting and/or use of hand-held devices while driving."

The trial court sustained Apple's demurrer to the first amended complaint without leave to amend and dismissed the action on May 8, 2017. The court found that "each cause of action ... fails, as a matter of law, to establish either the element of duty or of causation." The Modisettes timely appealed.

II. DISCUSSION

The Modisettes contend that the trial court erroneously found Apple did not owe them a duty of care, asserting that the risk created by Apple's failure to implement the lockout technology was foreseeable and unreasonable. The *142Modisettes also argue that the trial court inappropriately decided causation on demurrer, asserting that Apple's conduct and the resulting defect in *215Wilhelm's phone combined with Wilhelm's conduct to cause the collision. The Modisettes seek to amend their complaint by adding allegations that Apple recently implemented a design change that allows iPhone users to block notifications while driving.

We conclude that the Modisettes' claims for general and gross negligence, negligent products liability, negligent infliction of emotional distress, and public nuisance fail because Apple did not owe the Modisettes a duty of care. We base this determination on two considerations: first, the tenuous connection between the Modisettes' injuries and Apple's design of the iPhone 6 Plus without lockout technology; and, second, the burden to Apple and corresponding consequences to the community that would flow from such a duty. We also determine that the Modisettes' claims for strict products liability, intentional infliction of emotional distress, and loss of consortium fail for lack of proximate cause.2 Accordingly, we affirm the judgment.

A. Standard of Review

"We review an order sustaining a demurrer de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law." ( Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1190, 218 Cal.Rptr.3d 501 ( Thompson ).) "Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action. Accordingly, we assume that the complaint's properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context. We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law."3 ( Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479 ( Moore ), internal citations omitted.) "We do not review the validity of the trial court's reasoning, and therefore will affirm its ruling if it was correct on any theory." ( Thompson , supra , at p. 1190, 218 Cal.Rptr.3d 501, internal citation and quotation marks omitted; see also Carman v. Alvord (1982) 31 Cal.3d 318, 324, 182 Cal.Rptr. 506, 644 P.2d 192.)

*143B. Duty of Care

"A plaintiff in any negligence suit must demonstrate a legal duty to use due care, a breach of such legal duty, and [that] the breach [is] the proximate or legal cause of the resulting injury." ( Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142, 210 Cal.Rptr.3d 283, 384 P.3d 283 ( Kesner ), internal quotation marks omitted.) Duty is an essential element of the Modisettes' claims against Apple for general and gross negligence, negligent products liability, negligent infliction of emotional distress, and public nuisance. (See Ibid. [negligence]; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640, 189 Cal.Rptr.3d 449 [gross negligence *216]; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477-479, 110 Cal.Rptr.2d 370, 28 P.3d 116 ( Merrill ) [negligent products liability]; Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009, 116 Cal.Rptr.2d 218 [negligent infliction of emotional distress]; In re Firearm Cases (2005) 126 Cal.App.4th 959, 988, 24 Cal.Rptr.3d 659 [public nuisance].) "[T]he existence of duty is a pure question of law." ( O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 363, 135 Cal.Rptr.3d 288, 266 P.3d 987 ( O'Neil ).)

"California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. ( Civ. Code, § 1714, subd. (a).)"4 ( Kesner , supra , 1 Cal.5th at p. 1142, 210 Cal.Rptr.3d 283, 384 P.3d 283, internal quotation marks omitted.) However, "[c]ourts ... invoke[ ] the concept of duty to limit generally the otherwise potentially infinite liability which would follow from every negligent act .... The conclusion that a defendant did not have a duty constitutes a determination by the court that public policy concerns outweigh, for a particular category of cases, the broad principle enacted by the Legislature that one's failure to exercise ordinary care incurs liability for all the harms that result." ( Kesner , supra , at p. 1143, 210 Cal.Rptr.3d 283, 384 P.3d 283, internal citations and quotation marks omitted.) "[I]n the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where clearly supported by public policy." ( Ibid. , internal quotation marks omitted.) Court-crafted exceptions to the duty rule are appropriate "when a court can promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases." ( Id . at pp. 1143-1144, 210 Cal.Rptr.3d 283, 384 P.3d 283, internal quotation marks omitted.) Whether a duty exists does not depend on the facts of a particular case; instead, "analysis of duty occurs at a higher level of generality." ( Id. at p. 1144, 210 Cal.Rptr.3d 283, 384 P.3d 283.)

In Rowland v. Christian , the California Supreme Court articulated the factors to be considered when determining whether public policy supports the *144creation of an exception to the statutory presumption of duty set forth in Civil Code section 1714.5 ( Rowland v. Christian (1968) 69 Cal.2d 108, 112-113, 70 Cal.Rptr. 97, 443 P.2d 561 ( Rowland ).) The central factors identified by Rowland are "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." ( Id. at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

The Modisettes alleged that Apple knew or should have known of the risk of harm created by the use of an iPhone while driving and supported that allegation by quoting portions of Apple's 2008 patent application for its lockout technology. The *217patent application stated that " '[t]exting while driving has become a major concern,' " and noted that " '[a]n April 2006 study found that 80 percent of auto accidents are caused by distractions such as applying makeup, eating, and text messaging on handheld computing devices.' " The proposed federal guidelines attached as an exhibit to the first amended complaint included statistics about the prevalence of "distraction-affected crashes" involving the use of a cell phone that occurred in the United States from 2007-2014.

Accepting the Modisettes' non-conclusory allegations as true, we determine that Rowland 's foreseeability factor weighs in favor of imposing a duty of care on Apple because "the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced ...." ( Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.) However, even if it were foreseeable that cell-phone use by drivers would result in accidents, "foreseeability is not synonymous with duty; nor is it a substitute." ( O'Neil , supra , 53 Cal.4th at p. 364, 135 Cal.Rptr.3d 288, 266 P.3d 987.) "[T]here are numerous circumstances ... in which a given injury may be 'foreseeable' in the fact-specific sense in which we allow juries to consider that question, but ... the 'foreseeability' examination called for under a duty analysis pursuant to [ Rowland ] is a very different normative inquiry." ( Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 476, 63 Cal.Rptr.2d 291, 936 P.2d 70 ( Parsons ).) As explained further below, we ultimately conclude that this normative inquiry supports finding an exception to the default duty of care set out in section 1714.

*145We agree with the Modisettes that some of the other Rowland factors also weigh in favor of finding a duty on the part of Apple,6 including the certainty that the Modisettes suffered injury,7 the policy of preventing future harm, and "moral blame."8

Nevertheless, the remaining Rowland factors weigh more strongly against a finding of duty. In particular, we conclude, first, that there was not a "close" connection between Apple's conduct and the Modisettes' injuries and, second, that "the extent of the burden to [Apple] and consequences to the community of imposing a duty to exercise care with resulting liability for breach" would be too great if a duty were recognized. ( Rowland , supra , 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

Turning to the Rowland factor examining "the closeness of the connection between the defendant's conduct and the injury suffered" ( Kesner , supra , 1 Cal.5th at p. 1148, 210 Cal.Rptr.3d 283, 384 P.3d 283, internal quotation marks omitted), we agree with the Modisettes that the involvement *218of a third party (the driver Wilhelm) in the accident does not, standing alone, preclude a duty of care on the part of Apple. "[O]ne's general duty to exercise due care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct (including the reasonably foreseeable negligent conduct) of a third person." ( Ibid ., internal quotation marks omitted) However, we find unpersuasive the Modisettes' contention that case law examining third-party conduct supports such a duty here given the tenuous connection between Apple's design of the iPhone and the Modisettes' injuries.

In cases where courts have found a sufficiently close connection to warrant the recognition of a duty of care notwithstanding the involvement of a third party, the relationship between the defendant's actions and the resulting harm was much more direct. For example, in Kesner , supra , 1 Cal.5th at page 1141, 210 Cal.Rptr.3d 283, 384 P.3d 283, the plaintiffs were family members and current or former cohabitants of workers exposed to asbestos at defendants' workplaces. The plaintiffs contracted cancer from their exposure to asbestos particles that were carried home on the workers' clothing and other possessions. ( Ibid. ) The court found *146that the defendants' "failure to control the movement of asbestos fibers" and to "mitigate known risks associated with the use of asbestos" created a foreseeable risk of harm to plaintiffs and that there was a close connection between the defendants' conduct and the harm. ( Id. at pp. 1145-1146, 1148-1149, 210 Cal.Rptr.3d 283, 384 P.3d 283.) "An employee's role as a vector in bringing asbestos fibers into his or her home is derived from the employer's or property owner's failure to control or limit exposure in the workplace." ( Id. at p. 1148, 210 Cal.Rptr.3d 283, 384 P.3d 283.) However, the court recognized the limits of the duty owed. The court held that the employers' duty extended "only to members of a worker's household, i.e., persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time." ( Id. at p. 1154, 210 Cal.Rptr.3d 283, 384 P.3d 283.) The court, by contrast, found no duty by the employers toward others who may have come into contact with employees carrying asbestos fibers on their person. ( Id. at p. 1155, 210 Cal.Rptr.3d 283, 384 P.3d 283.)

In Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 708, 110 Cal.Rptr.2d 528, 28 P.3d 249, a police officer motioned a speeding motorist to stop in the center median of a highway. The passengers in the stopped car were then seriously injured when the vehicle was hit by a third party. ( Id. at p. 709, 110 Cal.Rptr.2d 528, 28 P.3d 249.) The court held that "a law enforcement officer, in directing a traffic violator to stop in a particular location, has a legal duty to use reasonable care for the safety of the persons in the stopped vehicle and to exercise his or her authority in a manner that does not expose such persons to an unreasonable risk of harm." ( Id. at p. 707, 110 Cal.Rptr.2d 528, 28 P.3d 249.) The court emphasized that the negligence claim was based on the particular conduct of the officer: "[The officer's] affirmative conduct itself, in directing [the driver] to stop the Camry in the center median of the freeway, placed plaintiffs in a dangerous position and created a serious risk of harm to which they otherwise would not have been exposed." ( Id. at pp. 716-717, 110 Cal.Rptr.2d 528, 28 P.3d 249.)

In both of those cases, the defendants' conduct, whether it was the unsafe use of asbestos in Kesner or the stopping of a motorist in the center median in Lugtu , directly put the plaintiffs in danger; the *219plaintiffs' harm was closely tied to the defendants' actions. Apple's design of the iPhone, in contrast, simply made Wilhelm's use of the phone while driving possible, as does the creator of any product (such as a map, a radio, a hot cup of coffee, or makeup) that could foreseeably distract a driver using the product while driving.

Unlike the conduct in Kesner and Lugtu , Apple's design of the iPhone did not put the danger in play. The Modisettes' assertion in their opening brief that "Wilhelm's role and conduct as a distracted driver is derivative of, and thus closely connected to, Apple's failure to take appropriate steps to at least limit the ability of its iPhone to create and enable such distractions" only *147highlights the attenuation between Apple's design of the iPhone and the Modisettes' injuries. This attenuation significantly weakens their claim of duty on the part of Apple. (See Wawanesa Mut. Ins. Co. v. Matlock (1997) 60 Cal.App.4th 583, 588-589, 70 Cal.Rptr.2d 512 ( Matlock ) ["the concatenation between [defendant's] initial act of giving [minor] a packet of cigarettes and the later fire is simply too attenuated to show the fire was reasonably within the scope of the risk created by the initial act"].)

For the Modisettes to be injured, they had to stop on a highway due to police activity; Wilhelm had to choose to use his iPhone while driving in a manner that caused him to fail to see that the Modisettes had stopped; and Wilhelm had to hit the Modisettes' car with his car, an object heavy enough to cause the Modisettes' severe injuries. It was Wilhelm's conduct of utilizing FaceTime while driving at highway speed that directly placed the Modisettes in danger. Nothing that Apple did induced Wilhelm's reckless driving.9

The Modisettes employ the principles articulated in Kesner to try to demonstrate a sufficiently close connection between Apple's conduct and their harm, arguing that "[i]t is of no legal consequence that it was [a third party] who collided with [them]." The Modisettes highlight Kesner 's characterization of "the gravamen of plaintiffs' claims" there as the "defendants['] fail[ure] to mitigate known risks associated with the use of asbestos," and quote the court's determinations that "[i]ncreased risk of mesothelioma is a characteristic harm that makes the use of asbestos-containing materials unreasonably dangerous in the absence of protective measures" and that "[a]n employee's return home at the end of the workday is not an unusual occurrence, but rather a baseline assumption that can be made about employees' behavior" ( Kesner , supra , 1 Cal.5th at p. 1149, 210 Cal.Rptr.3d 283, 384 P.3d 283 ), to draw an analogy here. However, it was the defendants' own use of asbestos in Kesner that created the risk of harm ( id. at p. 1140, 210 Cal.Rptr.3d 283, 384 P.3d 283 ), which is necessarily a closer connection between conduct and harm than Apple's design of the iPhone and the Modisettes' injuries (see Bailey v. Estate of Carroll Jett (W.D.N.C., Jan. 31, 2011, Civ. No. 1:110cv144) 2011 WL 336133, *4 ["simply placing a product in the stream of commerce, without more, is insufficient to create a legal duty on the part of a seller"

*220] ).10 Nor are we willing to make "a baseline *148assumption" that iPhone owners will ordinarily use their phones in a dangerous manner while driving. ( Kesner , supra , at p. 1149, 210 Cal.Rptr.3d 283, 384 P.3d 283 ; see Estate of Doyle v. Sprint/Nextel Corporation (Okla.Civ.App.Div.2010) 248 P.3d 947, 951 ["It is not reasonable to anticipate injury every time a person uses a cellular phone while driving."].)

Lompoc Unified School Dist. v. Superior Court (1993) 20 Cal.App.4th 1688, 26 Cal.Rptr.2d 122 ( Lompoc Unified ) is instructive. There, the plaintiff bicycle rider was injured by a motorist who struck him when she became distracted by athletic events occurring on property bordering the roadway, and the plaintiff sued the landowner. ( Id. at p. 1691, 26 Cal.Rptr.2d 122.) The court disagreed with the plaintiff's contention that an occupier of real property owed a duty of care not to conduct activities that would distract passing motorists. ( Id. at p. 1694, 26 Cal.Rptr.2d 122.) "[T]he occupier has no liability for injuries caused by the motorist who is not paying attention to where he or she is going. Rather, it is the motorist who has the duty to exercise reasonable care at all times, to be alert to potential dangers, and to not permit his or her attention to be so distracted by an interesting sight that such would interfere with the safe operation of a motor vehicle." ( Ibid. )

The Modisettes argue that Lompoc Unified is distinguishable because it was based on a limitation to a property occupier's "duty to exercise ordinary care in the use and management of his or her land," which does not "[n]ormally ... extend to persons outside the land, e.g., on adjacent land or on the highway." ( Lompoc Unified , supra , 20 Cal.App.4th at p. 1693, 26 Cal.Rptr.2d 122.) While we agree that Lompoc Unified recognized that limitation, its holding was premised on case law from other jurisdictions determining that "an occupier has no legal duty to provide a distraction barrier to prevent passing motorists from seeing or hearing what is occurring upon the land" because it is the motorist's "duty to exercise reasonable care at all times ...." ( Id. at p. 1694.) Lompoc Unified "adopt[ed] these holdings as the rule in California." ( Ibid. )

In addition to concluding that the connection between the Modisettes' injuries and Apple's design of the iPhone weighs against a duty of care on the part of Apple, we determine that the burden a contrary conclusion would place upon cell-phone manufacturers and the consequences to the community strongly militate toward finding that Apple had no duty to the Modisettes even if their injuries were foreseeable. "A duty of care will not be held to exist even as to foreseeable injuries ... where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability." ( Kesner , supra , 1 Cal.5th at p. 1150, 210 Cal.Rptr.3d 283, 384 P.3d 283, internal quotation marks omitted.) A foreseeable harm does not " 'standing alone'[ ] impose ... a duty to guard against injuries to [a]

*149plaintiff." ( Parsons , supra , 15 Cal.4th at p. 476, 63 Cal.Rptr.2d 291, 936 P.2d 70.) "As we have observed, social policy must at some point intervene to delimit liability even for foreseeable injury." ( Ibid. , internal quotation marks omitted.)

*221A court will craft an exception to the duty of care even for foreseeable harms if "allowing the possibility of liability would result in such significant social burdens that the law should not recognize such claims." ( Kesner , supra , 1 Cal.5th at p. 1144, 210 Cal.Rptr.3d 283, 384 P.3d 283.) "[A]ny duty rule will necessarily exclude some individuals who, as a causal matter, were harmed by the conduct of potential defendants." ( Id. at p. 1155, 210 Cal.Rptr.3d 283, 384 P.3d 283.) Although we determine based on the allegations in the first amended complaint that it was foreseeable that Apple's design of the iPhone 6 Plus without the lockout technology could result in a car accident, we conclude that strong public policy considerations dictate against recognizing a duty of care.

Whether cell-phone manufacturers have a duty to design cell phones in a manner that applications like FaceTime cannot be accessed while users are driving appears to be an issue of first impression in California, but courts in other jurisdictions facing similar issues have determined there to be no duty of care. For example, in Williams v. Cingular Wireless (2004) 809 N.E.2d 473, 475, 478, which involved a negligence suit against a company that furnished a cell phone to a driver who was using the phone when a collision occurred, the court determined that it would "not make sound public policy to impose a duty" even though cell-phone use by a driver has "some degree of foreseeability ...." The court explained that although "[i]t is foreseeable to some extent that there will be drivers who eat, apply make up, or look at a map while driving and that some of those drivers will be involved in car accidents because of the resulting distraction ..., it would be unreasonable to find it sound public policy to impose a duty on the restaurant or cosmetic manufacturer or map designer to prevent such accidents. It is the driver's responsibility to drive with due care." ( Id. at p. 478.) The court observed that "[t]o place a duty on [the seller] to stop selling cellular phones because they might be involved in a car accident would be akin to making a car manufacturer stop selling otherwise safe cars because the car might be negligently used in such a way that it causes an accident." ( Ibid. ; see also Durkee v. C.H. Robinson Worldwide, Inc. (2011) 765 F.Supp.2d 742, 749 [declining to find in-truck texting-system manufacturer had duty to design system to block texts unless truck was stopped, in part because "no product that would potentially distract a driver could be marketed"].)

In addition to cases from other jurisdictions, we look to public policy in California, as articulated in legislation and similar statements of public policy. While courts have reasoned that "internalizing the cost of injuries caused by a *150particular behavior will induce changes in that behavior to make it safer," they have also recognized "[t]hat [such a] consideration may be outweighed, for a category of negligent conduct, by laws or mores indicating approval of the conduct ...." ( Kesner , supra , 1 Cal.5th at p. 1150, 210 Cal.Rptr.3d 283, 384 P.3d 283.) In Kesner , the Supreme Court's finding of duty on the part of employers to cohabitants of individuals who had suffered longtime, repeated exposure to asbestos relied in part upon "a strong public policy limiting or forbidding the use of asbestos." ( Id. at p. 1151, 210 Cal.Rptr.3d 283, 384 P.3d 283.)

The legal landscape with respect to the use of cell phones is distinctly different. "There are 396 million cell phone service accounts in the United States-for a Nation of 326 million people." ( Carpenter v. U.S. (2018) --- U.S. ----, 138 S.Ct. 2206, 2211, 201 L.Ed.2d 507 ( Carpenter ).) The United States Supreme Court has described cell phones as "such a pervasive *222and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." ( Riley v. California (2014) --- U.S. ----, 134 S.Ct. 2473, 2484, 189 L.Ed.2d 430.) It is not only foreseeable that millions of people will have their cell phones in their cars-it is almost a certainty. "[N]early three-quarters of smart phone users report being within five feet of their phones most of the time"; "[i]ndividuals ... compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor's offices, political headquarters, and other potentially revealing locales." ( Carpenter , supra , 138 S.Ct. at p. 2218, internal citation and quotation marks omitted.)

With respect to the use of cell phones while driving, the Legislature has elected not to ban all cell-phone use by drivers in California, choosing to allow cell-phone use while driving that is "voice-operated" and "hands-free." ( Veh. Code, §§ 23123, subd. (a), 23123.5, subd. (a).) It has also permitted drivers to use non-voice-operated, non-hands-free cell phones "for emergency purposes" ( Veh. Code, § 23123, subd. (c) ), and to use them when the phone "is mounted on a vehicle's windshield ... or ... a vehicle's dashboard" and the driver can "activate or deactivate a feature or function" of the phone "with the motion of a single swipe or tap of the driver's finger" ( Veh. Code, § 23123.5, subd. (c)(1)-(2) ; see also id. at subd. (b) [exempting "manufacturer-installed systems ... embedded in the vehicle"] ).11 California statutes, therefore, indicate the Legislature's approval of certain cell-phone use by drivers and its seeming recognition that "[c]ellular phones are safely used in many different contexts every day. Indeed, many drivers use cellular phones safely for personal and business calls, as well as to report traffic emergencies. Encouraging drivers to report accidents, dangerous road conditions, or other similar threats to authorities on their cellular phones is in the public's interest." ( Williams , supra , 809 N.E.2d at p. 479.)

*151These expressions of public policy are significant because the proper focus for "duty analysis is forward-looking, and the most relevant burden is the cost to the defendants of upholding, not violating, the duty of ordinary care." ( Kesner , supra , 1 Cal.5th at p. 1152, 210 Cal.Rptr.3d 283, 384 P.3d 283.) "[W]hen addressing conduct on the part of a defendant that is 'deliberative, and ... undertaken to promote a chosen goal, ... [c]hief among the factors which must be considered is the social value of the interest which the actor is seeking to advance.' " ( Parsons , supra , 15 Cal.4th at p. 473, 63 Cal.Rptr.2d 291, 936 P.2d 70, italics omitted.) The Modisettes' complaint alleges a duty that, at its core, may preclude cellular-phone manufacturers from allowing the use of phones while driving, notwithstanding California law that expressly permits such uses under certain circumstances.

The Modisettes urge us to distinguish smartphones like the iPhone from other products that motorists may use while driving based upon the "body of studies and data that demonstrative the compulsive/addictive nature of smartphone use." Even accepting this contention as true, it does not persuade us.12 All of the studies *223cited by the Modisettes in their complaint were published prior to or in 2016. In 2016, the California Legislature added a provision to the Vehicle Code that allows a driver to "activate or deactivate a feature or function of the handheld wireless telephone or wireless communications device with the motion of a single swipe or tap of the driver's finger" while the "driver is operating the vehicle." ( Vehicle Code, § 23123.5, subd. (c)(2), added by Stats. 2016, ch. 660, § 2.) By referencing a "swipe or tap" (ibid. ), the statute implicitly approves accessing smartphones while driving under some circumstances.13 The Modisettes' complaint does not allege that Apple designed the iPhone to be particularly addictive to drivers compared to other smartphones, and the Legislature has rejected the Modisettes' implicit argument that smartphones may never be used safely by drivers.

The facts and documents cited by the Modisettes about "distracted driving" confirm how broadly they construe the scope of the duty owed to them by Apple. Essentially, the Modisettes argue that cell-phone manufacturers owe a duty to all individuals injured by drivers who were distracted by using the *152phones while driving if the cell-phone manufacturer had available the technology to disable use of the phone while the user is driving. Notwithstanding the broad brush of section 1714, we are not persuaded that California law imposes a duty on the manufacturer of a cell phone to design it in such a manner that a user is incapable of using it while driving. Given the complex public policy considerations involved in such a calculus, and the potentially sweeping implications of finding a duty by Apple here, we conclude that policy considerations dictate finding as a matter of law an exception to the general duty of care. We also observe that our conclusion constitutes a clear, bright-line rule applicable to a general class of cases that the Supreme Court has described as appropriate for a court-created exception to the general duty of care. ( Kesner , supra , 1 Cal.5th at p. 1144, 210 Cal.Rptr.3d 283, 384 P.3d 283.)

The facts in this case are tragic. We have great sympathy for the Modisettes, who suffered severe injuries through no apparent fault of their own. Nevertheless, for the reasons stated above, we conclude that Apple owed no duty of care to the Modisettes to design the iPhone 6 Plus with lockout technology. The trial court properly sustained Apple's demurrer to the negligence-based claims for the injuries the Modisettes suffered in the car accident with Wilhelm.

C. Proximate Causation

The Modisettes' claims against Apple for strict products liability, intentional infliction of emotional distress, and loss of consortium do not require a showing that Apple owed the Modisettes a duty of care, but they do contain the necessary element of causation. (See Merrill , supra , 26 Cal.4th at p. 479, 110 Cal.Rptr.2d 370, 28 P.3d 116 [strict products liability];

*224Hughes v. Pair (2009) 46 Cal.4th 1035, 1050, 95 Cal.Rptr.3d 636, 209 P.3d 963 [intentional infliction of emotional distress]; LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284-285, 145 Cal.Rptr.3d 543, 282 P.3d 1242 [loss of consortium].) We conclude that the tenuous connection between Apple's conduct and the Modisettes' injuries bars a finding of proximate causation.

"Traditionally, the law has asked whether defendant's conduct was the 'proximate' cause of injury." ( Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1847, 20 Cal.Rptr.2d 913.) "Ordinarily, proximate cause is a question of fact which cannot be decided as a matter of law from the allegations of a complaint. ... Nevertheless, where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact." ( State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 353, 188 Cal.Rptr.3d 309, 349 P.3d 1013 ( State Hospitals ), internal quotation marks omitted.)

*153"[P]roximate cause has two aspects. One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an event. This is sometimes referred to as but-for causation." ( State Hospitals , supra , 61 Cal.4th at p. 352, 188 Cal.Rptr.3d 309, 349 P.3d 1013, citation and internal quotation marks omitted.) To establish but-for causation, the plaintiff must "introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of [plaintiff's harm]."14 ( Viner v. Sweet (2003) 30 Cal.4th 1232, 1243, 135 Cal.Rptr.2d 629, 70 P.3d 1046 ( Viner ), internal quotation marks omitted.)

The first amended complaint alleged that the accident "occurred ... when a driver, distracted while using the 'FaceTime' application on an Apple iPhone 6 Plus during operation of his motor vehicle, collided at highway speed with [the Modisettes'] stationary motor vehicle and caused severe physical and emotional injuries to [them]," and that Apple's failure to design the iPhone "to 'lock out' the ability of drivers to utilize the 'FaceTime' application ... while driving a motor vehicle, ... resulted in the[ir] injuries." Taking the Modisettes' properly pleaded allegations as true, it appears to us that the first amended complaint pleaded facts sufficient to establish that Apple's design of the iPhone 6 Plus without its patented lockout technology was a cause in fact of the Modisettes' injuries because it was "a necessary antecedent" of the accident. ( State Hospitals , supra , 61 Cal.4th at p. 352, 188 Cal.Rptr.3d 309, 349 P.3d 1013.)

"To simply say, however, that the defendant's conduct was a necessary antecedent of the injury does not resolve the question of whether the defendant should be liable." ( PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 315, 84 Cal.Rptr.2d 455, 975 P.2d 652 *225( PPG Industries ).) As with the test for duty in negligence actions, "[t]he second aspect of proximate cause focuses on public policy considerations. Because the purported [factual] causes of an event may be traced back to the dawn of humanity, the law has imposed additional limitations on liability other than simple causality. These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy. Thus, proximate cause is ordinarily concerned, not with the fact *154of causation, but with the various considerations of policy that limit an actor's responsibility for the consequences of his conduct." ( State Hospitals , supra , 61 Cal.4th at p. 353, 188 Cal.Rptr.3d 309, 349 P.3d 1013, internal citations and quotation marks omitted; see also Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59, 69-70, 44 Cal.Rptr.2d 834.) Both Witkin and the Restatement of Torts frame this aspect of proximate cause as "scope of liability." ( 6 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, §§ 1331, 1336 ; Rest.3d Torts, § 29.) The extent or scope of a defendant's liability is a question of law. ( Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 222, 157 P.2d 372 ( Mosley ) (conc. opn. of Traynor, J.); see also PPG Industries , supra , at pp. 315-316, 84 Cal.Rptr.2d 455, 975 P.2d 652.)

"As a matter of practical necessity, legal responsibility must be limited to those causes which are so close to the result, or of such significance as causes, that the law is justified in making the defendant pay." ( Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 68, 187 Cal.Rptr.3d 583 ( Kumaraperu ), internal quotation marks omitted.) Although Apple's manufacture of the iPhone 6 Plus without the lockout technology was a necessary antecedent of the Modisettes' injuries (as was the police activity that slowed traffic on the interstate that day), those injuries were not a result of Apple's conduct. Rather, Wilhelm caused the Modisettes' injuries when he crashed into their car while he willingly diverted his attention from the highway. (See Durkee , supra , 765 F.Supp.2d at p. 750 ["[t]he alleged accident in this case was caused by the driver's inattention, not any element of the design or manufacture of the [in-truck texting] system that has been alleged"].) In a similar case in Texas, the trial court concluded that "a real risk of injury did not materialize until [the driver] neglected her duty to safely operate her vehicle by diverting her attention from the roadway. In that sense, Apple's failure to configure the iPhone to automatically disable did nothing more than create the condition that made Plaintiffs' injuries possible. Because the circumstances here are not 'such that reasonable jurors would identify [the iPhone or Apple's conduct] as being actually responsible for the ultimate harm' to Plaintiffs, the iPhone and Apple's conduct are too remotely connected with Plaintiffs' injuries to constitute their legal cause." ( Meador v. Apple, Inc. (E.D.Tex., Aug. 16, 2016, No. 6:15-CV-715) 2016 WL 7665863, *4.)15

Disputing this analysis, the Modisettes assert that their "allegations are more than sufficient for a reasonable person to consider Apple a cause of the injury," and argue that the trial court's determination that the connection between Apple's conduct *226and their injuries was too " 'attenuated' " to state a *155cause of action "disregard[ed] the principles of comparative fault and usurp[ed] the jury's role in determining causation and comparative liability." We disagree that a reasonable person would consider Apple a cause of the accident here (see, e.g., Durkee , supra , 765 F.Supp.2d at p. 750 ), and the Modisettes do not point us to a single case involving similar facts suggesting otherwise. Moreover, while we acknowledge that but-for causation has been sufficiently alleged, the scope of Apple's liability is question of law. ( Mosley , supra , 26 Cal.2d at p. 222, 157 P.2d 372 (conc. opn. of Traynor, J.).) That juries determine comparative liability in cases involving more than one tortfeasor does not foreclose this court's role in deciding whether it is just to hold a defendant liable for an injury in the first instance. (See State Hosp. , supra , 61 Cal.4th at p. 353, 188 Cal.Rptr.3d 309, 349 P.3d 1013 ; PPG Industries , supra , 20 Cal.4th at pp. 315-316, 84 Cal.Rptr.2d 455, 975 P.2d 652 ; 6 Witkin, Summary of Cal. Law, supra , § 1331.)

The Modisettes also contend that product misuse "is an affirmative defense for which Apple bears the burden of proof." Although we agree that product misuse is an affirmative defense, it bears on whether a third party's misuse of a product was the "superseding cause of injury that absolves a tortfeasor of his or her own wrongful conduct [because] the misuse was so highly extraordinary as to be unforeseeable." ( Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1308, 144 Cal.Rptr.3d 326.) We do not conclude here that Wilhelm's use of the iPhone while driving was unforeseeable. Rather, we determine that the gap between Apple's design of the iPhone and the Modisettes' injuries is too great for the tort system to hold Apple responsible. (See State Hospitals , supra , 61 Cal.4th at pp. 355-357, 188 Cal.Rptr.3d 309, 349 P.3d 1013.)

D. Leave to Amend

When a trial court sustains a demurrer without leave to amend, "we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. The plaintiff has the burden of proving that an amendment would cure the defect." ( Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569, internal citations omitted.) The "order sustaining a demurrer without leave to amend is reviewable for abuse of discretion 'even though no request to amend [the] pleading was made.' ( Code Civ. Proc., § 472c, subd. (a).)"16 ( Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 667-668, 63 Cal.Rptr.3d 537.)

*156The Modisettes argue that "Apple's recent implementation of its 'Do Not Disturb While Driving' technology" on iPhones further establishes "a causative relationship between [their] harm, Apple's conduct, and the alleged defects in Apple's iPhone [6 Plus]," and that they should be allowed to amend their complaint to allege facts related to that recent implementation. According to the Modisettes, the "Do Not Disturb While Driving" feature allows iPhone users "to limit the capability of drivers to text or receive FaceTime requests."

*22717 The Modisettes ask us to take judicial notice of this recent design change to the iPhone, which occurred "in or around June 2017."

This court may take judicial notice of any matter specified in Evidence Code section 452, including "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." ( Evid. Code, §§ 452, subd. (h), 459.) In addition, on review of a demurrer, this court "may consider other relevant matters of which the trial court could have taken judicial notice and we may treat such matters as having been pleaded." ( Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 538, 260 Cal.Rptr. 713.)

We do not agree that an amendment to the complaint alleging that Apple recently implemented "Do Not Disturb While Driving" technology in iPhones gives rise to a reasonable possibility that the Modisettes can establish either a duty of care or proximate cause. The Modisettes alleged in the first amended complaint that Apple had the technology to automatically prevent drivers from utilizing FaceTime while driving when it manufactured the iPhone 6 Plus, an allegation that we have accepted as true. (See Moore , supra , 51 Cal.3d at p. 125, 271 Cal.Rptr. 146, 793 P.2d 479.) The implementation of similar technology does not render the connection between Apple's conduct and the Modisettes' injuries less remote, nor does it alleviate any of the policy concerns addressed above. Therefore, we decline to take judicial notice of the recent design change because it is not relevant to our determination. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6, 76 Cal.Rptr.2d 749, 958 P.2d 1062.) We conclude that the trial did not abuse its discretion when it sustained the demurrer without leave to amend.

*157III. DISPOSITION

The judgment is affirmed. Apple is entitled to costs on appeal.

WE CONCUR:

GREENWOOD, P.J.

GROVER, J.