Siddoway, C. J.

¶ 1 — Comments to § 23 of the Restatement (Third) of Torts, which deals with strict liability imposed on the owners of abnormally dangerous animals, observe that the common law has been satisfied overall with the generalization that livestock are not excessively dangerous, but *106“[i]n the future, courts might wish to give consideration to particular genders ... of a species that involve danger levels uncommon for the species itself.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 23 cmt. e (Am. Law Inst. 2010) (emphasis added). In this case, Jay Rhodes asks us to hold the owner of a ram (a male sheep) strictly liable for harm caused by the ram on account of the ram’s gender-based dangerousness, rather than any abnormal dangerousness of which the owner was aware.

¶2 Mr. Rhodes is a particularly sympathetic plaintiff and appellant, both in the circumstances he presents and the forthrightness of his argument on appeal. But we conclude that existing Washington common law strikes the appropriate balance in imposing limited strict liability on the owners of domestic animals and otherwise imposing a duty of care commensurate with the character of their animals. We affirm the summary judgment dismissal of Mr. Rhodes’s complaint.

FACTS AND PROCEDURAL BACKGROUND

¶3 Jay Rhodes and Rodney MacHugh are longtime friends and neighbors. Both men live in Richland and have farmed for decades. Mr. Rhodes has raised cows, horses, and occasionally pigs and goats, but he described the summer of 2012 as “my first excursion with sheep. And an unfortunate one.” Clerk’s Papers (CP) at 21. Mr. MacHugh has bred sheep for over 30 years. Because Mr. MacHugh’s land is prone to flooding, Mr. Rhodes has allowed Mr. MacHugh to keep some of his livestock on Mr. Rhodes’s property.

¶4 In the summer of 2012, Mr. MacHugh and Mr. Rhodes went to a livestock yard in Lewiston, Idaho, where Mr. MacHugh purchased a ram to replace his existing ram, which he described as “in really old shape.” CP at 26. The replacement ram was eight or nine months old1 and *107weighed in the neighborhood of 150 pounds. It showed no vicious tendencies. The men took it directly to Mr. Rhodes’s property where, for the following month, it caused no problems. In the weeks before Mr. MacHugh put the ram in with ewes, Mr. Rhodes described it as “real friendly. He’d come up to me several times when I was changing water, and I’d pet him.” CP at 22.

¶5 On August 20, 2012, Mr. Rhodes went into his yard to turn on his sprinklers. By that time, Mr. MacHugh had put several ewes in the pasture with the ram. Mr. Rhodes walked past them and toward the five-foot sprinklers in the pasture. Just as he touched the valve at the top of the sprinklers, the ram butted him from behind, knocking him to the ground. According to Mr. Rhodes, the ram continued to “jump up in the air and then he’d hit me with his head,” knocking him out “a couple of times,” for as much as 30 minutes. CP at 23. Fortunately, a neighbor who stopped by to bring Mr. Rhodes some cantaloupes saw what was going on. Although Mr. Rhodes told her not to come into the pasture, she began throwing her cantaloupes at the ram, which was sufficiently distracted that Mr. Rhodes was able to crawl to the gate. She helped him out and slammed the gate on the charging ram. Mr. Rhodes, then 82 years old, suffered a concussion, five broken ribs, and a broken sternum and shoulder. He was hospitalized for 16 days.

¶6 Mr. Rhodes filed this action in an effort to recover for his injuries. He did not contend that the ram was abnormally dangerous, and he refused to accuse his friend of negligence, testifying, “I don’t think Mr. MacHugh thought there was anything wrong” with the ram. CP at 23. For his part, Mr. MacHugh admitted that he had owned as many as three “mean” rams over the years, but that “on my place, if they’re the least bit mean, they go real quick.” CP at 27. He testified that he had selected this ram because it was the “friendliest” of three that the seller had raised on a bottle after their mother died. CP at 26.

¶7 Because Mr. Rhodes relied exclusively on a theory of strict liability that he asked the court to extend to the *108owners of all rams, not just those known to be abnormally dangerous, the parties presented the legal issue to the trial court on summary judgment. Mr. MacHugh’s motion for summary judgment dismissing the claim was granted. Mr. Rhodes appeals.

ANALYSIS

¶8 The sole issue on appeal is whether summary judgment in favor of Mr. MacHugh was proper because he is not strictly liable for harm caused by a ram he did not know to be abnormally dangerous. No material facts are in dispute, and we, like the trial court, are presented with a pure question of law that we review de novo. Triplett v. Dep’t of Soc. & Health Servs., 166 Wn. App. 423, 427, 268 P.3d 1027 (2012).

¶9 For more than a century, the rule in Washington regarding liability for harm caused by a domestic animal2 has been:

“The owner or keeper of a domestic animal not naturally inclined to commit mischief, while bound to exercise ordinary care to prevent injury being done by it to another, is not liable for such injury if the animal be rightfully in the place when the mischief is done, unless it is affirmatively shown, not only that the animal was vicious, but that the owner or keeper had knowledge of the fact. When such scienter exists, the owner or keeper is accountable for all the injury such animal may do, without proof of any negligence or fault in the keeping, and regardless of his endeavors to so keep the animal as to prevent the mischief.”

Lynch v. Kineth, 36 Wash. 368, 370-71, 78 P. 923 (1904) (emphasis omitted) (quoting 2 Cyc. Animals 368-69 (1901)). More recently, see Johnston v. Ohls, 76 Wn.2d 398, 400, 457 *109P.2d 194 (1969); and Sligar v. Odell, 156 Wn. App. 720, 732, 233 P.3d 914 (2010); and see also 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 3:6, at 133 (4th ed. 2013), noting that “[s]trict liability for injuries caused by individual animals known to be abnormally dangerous is still the general rule,” but “when the animal is not an abnormally dangerous specimen of its class, negligence in controlling the animal must be proven.”

¶10 Washington cases are consistent with the Restatement (Second) of Torts (Am. Law Inst. 1977). In Arnold v. Laird, 94 Wn.2d 867, 871, 621 P.2d 138 (1980), our Supreme Court noted that the Restatement (Second) “recognizes two separate causes of action” against the owner of a domestic animal that causes injury. Under § 509, strict liability applies where the animal “has known dangerous propensities abnormal to its class.” Arnold, 94 Wn.2d at 871. Section 518, on the other hand, “provides that if there are no known abnormally dangerous propensities, the owner is liable only if he is negligent in failing to prevent the harm. The amount of care required is commensurate with the character of the animal.” Id. (emphasis omitted) (citing Restatement (Second) § 518 cmt. f).

¶ 11 Mr. Rhodes concedes that rams have not historically been regarded as being inherently dangerous animals. Br. of Appellant at 1-2; Restatement (Second) § 509 cmt. e (“[T]he law has not regarded bulls, stallions and rams as being abnormally dangerous animals to be kept under the strict liability stated in this Section.”). Nevertheless, relying on a comment to § 23 of the most recent Restatement, he asks that we recognize that “[t] he dangerous propensities of rams are well-known and strict liability should attach, and this whether the animal is ‘domestic’ or otherwise.” Br. of Appellant at 3.

*110¶12 The language of § 23 of the Restatement (Third) is similar to that of Restatement (Second) § 509,3 yet the comments to § 23 propose a possible gender- or breed-based modification of the general rule treating domestic animals as not excessively dangerous. Comment e states, in part:

Overall, the common law has been satisfied with the generalization that livestock and dogs are not excessively dangerous and has applied this generalization to all livestock and dogs. In the future, courts might wish to give consideration to particular genders or breeds of a species that involve danger levels uncommon for the species itself If so, it might be appropriate to impose strict liability, without individualized, scienter, on the owner of such an animal.

Restatement (Third) § 23 cmt. e (emphasis added). Mr. Rhodes asks us to act on this acknowledgment and common knowledge that while ewes may be timid, rams are known to be dangerous.

¶13 Prior versions of the Restatement have not overlooked the different temperament of male domestic animals, pointing out that “[b]ulls are more dangerous than cows and steers; stallions are more dangerous than mares and geldings; rams are more dangerous than ewes and lambs.” Restatement (Second) § 509 cmt. e. But historically the framework of liability for negligence has been viewed as adequate to address gender differences, and refusing to broaden strict liability has also been justified by policy reasons.

¶14 The Restatement (Second) recognizes the relatively dangerous propensities of male domestic animals such as bulls, stallions, and rams but characterizes them as normal to their class. As the comments to § 509 observe, “[T]hese animals have been kept for stud purposes from time imme*111morial so that the particular danger involved in their dangerous tendencies has become a normal incident of civilized life.” Restatement (Second) § 509 cmt. e; see also id. § 509 cmt. d (noting that such animals “do not introduce any unusual danger, since the somewhat dangerous characteristics of these animals are a customary incident of farming”). In other words, a ram has not been considered “abnormally” dangerous for purposes of applying strict liability under § 509 because its dangerous propensities are “normal” for its species.

¶15 It is also for policy reasons that owners of male domestic animals have not been held to a standard of strict liability, because often it is the very characteristics that cause the males to be dangerous that make them useful to society. The comments to § 518 of the Restatement (Second) observe that “ [t] he high temper normal to stud animals is so inseparable from their usefulness for breeding purposes that they are not kept at the risk of the liability stated in § 509.” Restatement (Second) § 518 cmt. f. The comments explaining the rationale for § 509’s rule of strict liability similarly observe that

the virility which makes [bulls, stallions, and rams] dangerous is necessary for their usefulness in performing their function in the socially essential breeding of livestock, [and] justifies the risk involved in their keeping. Therefore, the law has not regarded bulls, stallions and rams as being abnormally dangerous animals to be kept under the strict liability stated in this Section.

Id. § 509 cmt. e; see also id. § 509 cmt. d (“[T]he slightly added risk due to their dangerous character is counterbalanced by the desirability of raising livestock.”).

¶16 The law is not oblivious to the greater risk posed by male livestock used for breeding in the context of liability for negligence, and greater precautions are typically required in light of their characteristics. Restatement (Second) § 509 cmt. e. “The amount of care required is commensurate with the character of the animal.” Arnold, 94 Wn.2d at 871. *112As the comments to § 518 explain, “the keeper of a bull or stallion is required to take greater precautions to confine it to the land on which it is kept and to keep it under effective control when it is taken from the land than would be required of the keeper of a cow or gelding.” Restatement (Second) § 518 cmt. g.

¶17 “Rules of law . . . should not be changed for light or transient causes; but, when time and events prove the need for a change, changed they must be.” State ex rel. Wash. State Fin. Comm. v. Martin, 62 Wn.2d 645, 666, 384 P.2d 833 (1963). Here, the utility of domestic animals remains undiminished. Those who raise them and face the greatest exposure to relatively more dangerous genders or breeds will be familiar with their characteristics. Third parties continue to have recourse for an owner’s negligence, and owners are required to take greater precautions to confine and control animals in light of their characteristics. Mr. Rhodes’s unfortunate excursion with Mr. MacHugh’s ram does not persuade us that the limited scope of strict liability that Washington has historically imposed on the owners of domestic animals should be enlarged.4

¶18 Affirmed.

Korsmo and Fearing, JJ., concur.

Review denied at 185 Wn.2d 1019 (2016).

Mr. Chief Justice CURETON

delivered the opinion of the court.

The primary question for determination here is whether or not the defendants in error, without negligence on their part, may be held liable in damages for the destruction or in*157jury to property occasioned by the escape of salt water from ponds constructed and used by them in the operation of their oil wells. The facts are stated in the opinion of the Court of Civil Appeals (62 S. W. (2d) 491), and will be but briefly noted in this opinion.

The defendants in error in the operation of certain oil wells in Reagan County constructed large artificial earthern ponds or pools into which they ran the polluted waters from the wells. On the occasion complained of, water escaped from one or more of these ponds, and, passing over the grass lands of the plaintiffs in error, injured the turf, and after entering Garrison draw flowed down the same into Centraba draw. In Garrison draw there were natural water holes, which supplied water for the' livestock of plaintiffs in error. The pond, or ponds, of water from which the salt water escaped were, we judge from the map, some six miles from the stock-water holes to which we refer. The plaintiffs in error brought suit, basing their action on alleged neglect on the part of the defendants in error in permitting the levees and dams, etc., of their artificial ponds to break and overflow the land of plaintiffs in error, and thereby pollute the waters to which we have above referred and injure the turf in the pasture of plaintiffs in error. The question was submitted to a jury on special issues, and the jury answered that the defendants in error did permit salt water to overflow from their salt ponds and lakes down Garrison draw and on to the land of the plaintiffs in error. However, the jury acquitted the defendants in error of negligence in the premises. The questions and answers are shown in the opinion of the Court of Civil Appeals, and will not be here repeated.

■ Various questions are raised in this Court, but we are well satisfied with the opinion of the Court of Civil Appeals, and will take occasion to discuss only two issues.

The plaintiffs in error in their application say that the Court of Civil Appeals in its opinion has held that in order for plaintiffs in error to recover because the defendants ip error permitted salt water to overflow their land, kill the vegetation, and pollute the water of their live stock, “they must allege and prove some specific act of neglect or must allege and prove that the water polluted was a water course.” In this conclusion we think the Court of Civil Appeals stated the correct rule. Gulf C. & S. F. Ry. Co. v. Oakes, 94 Texas, 155; 58 S. W., 999, 52 L. R. A., 293, 86 Am. St. Rep., 835; Galveston, H. & S. A. R. Co. *158v. Currie, 100 Texas, 136, 96 S. W., 1073, 10 L. R. A. (N. S.) 367; Cosden Oil Co. v. Sides, 35 S. W. (2d) 815; Missouri Pac. Ry. Co. v. Platzer, 73 Texas, 117, 11 S. W., 160, 3 L. R. A., 639; 15 Am. St. Rep., 771; Houston & T. C. Ry. Co. v. Anderson, 44 Texas Civ. App., 394, 98 S. W., 440; Rigdon v. Temple Waterworks Co., 11 Texas Civ. App., 542, 32 S. W., 828; 67 Corpus Juris, p. 915, sec. 356, p. 930, sec. 385; Farnham on Waters, Vol. 3, p. 2546, sec. 875; Thompson on Negligence, Vol. 1, secs. 696, 706, 707.

The Court of Civil Appeals quite correctly determined that the rules of law applicable to the pollution of streams and water courses or public waters were not applicable here, for reasons which that court stated. So the immediate question presented is whether or not defendants in error are to be held liable as insurers, or whether the cause of action against them must be predicated upon negligence. We believe the question is one of first impression in this Court, and so we shall endeavor to discuss it in a manner in keeping with its importance.

Upon both reason and authority we believe that the conclusion of the Court of Civil Appeals that negligence is a prerequisite to recovery in a case of this character is a correct one. There is some difference of opinion on the subject in American jurisprudence brought about by differing views as to the correctness or applicability of the decision of the English courts in Rylands v. Fletcher, L. R. 3 H. L. 330. The doctrine of this case is correctly stated in the notes to 15 L. R. A. (N. S.), p. 541, as follows:

“In Rylands v. Fletcher, L. R. 3 H. L. 330, Affirming L. R. 1 Exch. 265, which is the leading case, the plaintiff was the lessee of mining privileges which had passages communicating with abandoned mines under the land of a mill owner who built a reservoir over some shafts which had been filled in, and the pressure of the water forced the same through these shafts and injured plaintiff’s mines. The defendant did not know that the mines were being worked underneath the land. It was said that the failure on the part of the engineer or contractor to block up these abandoned shafts was an act of negligence for which the defendant would be liable. But it was held that the defendant was liable on the ground that he had brought on his premises, and stored, a dangerous substance without restraining it. Cranworth, J., said: ‘The defendants, in order to effect an object of their own, brought onto their land, or onto land which for this purpose may be treated as being theirs, a large accumulated mass of water, and stored it up in a reser*159voir. The consequence of this was damage to the plaintiff, and for that damage, however, skilfully and carefully the accumulation was made, the defendants, according to the principles and authorities to which I have adverted, were certainly responsible.’ ” (Italics ours.)

The italicized portion of the above quotation shows that in fact the case was one of negligence, and that the damages could have been placed upon that ground. The distinguished judge who wrote the opinion in truth went beyond and outside the facts of his case in holding that there could be liability without negligence. This dictum, however, with some modification, became the rule of decision, in England and in some of the American courts. (See Thompson on Negligence, Vol. 1, secs. 697 to 703, inclusive.) In a qualified sense, therefore, Rylands v. Fletcher may be regarded as a statement of the common law rule; not, however, of such universal acceptation as to be controlling on the American courts.

While the rule has been followed to some extent in this country, in general the American courts base liability, where dams have broken, on negligence, either in the original construction of the reservoir or in failing properly to provide against all such contingent damages as might reasonably be anticipated. 67 Corpus Juris, p. 916, sec. 356; Thompson on Negligence, Vol. 1, secs. 696, 706, 707; 15 L. R. A. (N. S.) Notes, pp. 541 to 546; Sedgwick on Damages (8th ed.), Vol. 1, p. 34, sec. 33.

This Court long since repudiated the general rule announced in Rylands v. Fletcher. Associate Justice Williams, in the case of Gulf C. & S. F. R. Co. v. Oakes, cited above, a case involving the planting and subsequent spreading of Bermuda grass, after stating the rule in Rylands v. Fletcher, declined to follow the same, and in part said:

“There have been subsequent decisions in England which some authorities regard as relaxing the rule in Fletcher v. Rylands, but it is unnecessary to refer especially to them. Cooley on Torts, 677-680. The rule laid down was largely deduced from prior rulings establishing absolute liability for damages caused by fires kindled on one’s premises and spreading to those of another; by injuries inflicted by one, in his lawful self-defense against another, upon an innocent bystander; and by animals straying from the lands of their owners upon those of others. The law has become settled, in this country at least, that there is no liability in the two first instances without negligence on the part of the person permitting the fire to *160spread or inflicting the injury; and in the case of animals, the law is entirely different in this and other States. Clarendon, etc., Co. v. McClelland Bros., 86 Texas, 179, same case, 89 Texas, 483.

“By making the liability absolute, the rule in Fletcher v. Rylands, taken literally, imposes an unqualified restriction upon the right of an owner of land to put it to a use lawful in itself, and this is the aspect in which it has the most direct bearing upon the question before us. It so applies the maxim, ‘sic utere tuo,’ etc., as to make the owner of the land liable, in all cases, for loss or damage suffered by another in consequence of the escape of anything brought by the owner upon his land, which, in escaping, is likely to do mischief. Of course, the broad proposition was laid down with reference to such things as the court had in mind and should not, even if accepted as generally correct, be applied indiscriminately to other facts which, in their nature, are essentially different. Even if the rule stated were a just one defining the duty of one storing so dangerous and destructive an element as water is when moving in large volume, it should be applied with careful discrimination to things which, like grass, spread slowly and are subject to more or less control. The fact that the proposition as abstractly stated can not be justly applied to all subjects which its terms embrace is enough to show that it is incorrect as a statement of a general principle of law. Accordingly, it has not met with general acceptance in this country, most of the authorities holding that liability for such injuries must be based upon negligence or other culpability on the part of -the person sought to be held responsible. The authorities are so numerous as to make a review or even the citation of them all impracticable. Cooley on Torts. 776, 777; Bishop on Non-Con. Law, 839, note 3; 1 Thomp. on Neg., 96; Coal Co. v. Sanderson, 113 Pa. St., 126; Loser v. Buchanan, 51 N. Y., 476; Brown v. Collins, 53 N. H., 442; Marshall v. Welwood, 38 N. J. L., 339.”

As noted by Associate Justice Funderburk in Cosden Oil Co. v. Sides, 35 S. W. (2d) 816, 818, this Court in Galveston, H. & S. A. R. Co. v. Currie, supra, in an opinion also by Associate Justice Williams, interpreted and applied its holding in the Oakes Case, saying in part:

“In the absence of some positive law forbidding or regulating the keeping or use of the thing, the fundamental question is one of negligence vel non, depending, as in other cases of negligence, upon the inquiry whether or not there has been *161a neglect or violation of the duty which the law imposes upon all persons to use due care in the use of their property or the conduct of their business to avoid injury to others. Some of the older cases in England seem to assert the absolute liability of an insurer, but it is settled in this state that the question is one of negligence (Gulf, C. & S. F. Ry. Co. v. Oakes, 94 Texas, 155); * * *”

In the Cosden Oil Co. Case, cited above, the Court of Civil Appeals had before it a case involving damage to land brought about by the flow of “oils, waste oil and products.” The court in an able opinion by Associate Justice Funderburk held, correctly we think, that no right of recovery was shown independently of the existence of negligence.

In the case of Rigdon v. Temple Waterworks, 11 Texas Civ. App., 542, 32 S. W., 829, involving damages due to the falling of a water tower and tank, the Court of Civil Appeals applied the rule of negligence as a predicate for damages, although the exact question here involved may have not been presented in that case.

In Houston & T. C. R. Co. v. Anderson, 44 Texas Civ. App., 394, 98 S. W., 440, the Court of Civil Appeals, in an opinion by Associate Justice Pleasants, held that in the absence of negligence, damages due to the flow of crude oil from a wrecked freight train could not be recovered.

As pointed out in the quotation above from Judge Williams’ opinion in the Oakes Case, our courts hold that one who uses fire, an agency as dangerous as water, is not an insurer of his neighbors’ safety, but is only liable for damages due to negligence. 19 Texas Jur., p. 660, sec. 2, and cases cited in the notes; Missouri Pac. Ry. Co. v. Platzer, 73 Texas, 117, 11 S. W., 160, 3 L. R. A., 639; Missouri, K. & T. Ry. Co. v. Carter, 95 Texas, 483, 68 S. W., 159; Pfeiffer v. Aue, 53 Texas Civ. App., 98, 115 S. W., 300 (writ refused).

As to liability for trespass by animals, we have likewise departed from the common law rule, because unsuited to our conditions. 2 Texas Jur., p. 751, sec. 15, p. 755, sec. 19; Clarendon Land etc. Co. v. McClelland Bros., 89 Texas, 483, 34 S. W., 98; Pace v. Potter, 85 Texas, 473, 22 S. W., 300.

We have also discarded the common law of liability for injuries to an innocent bystander by one in his lawful self-defense against another, and hold that civil liability in such instances can be predicated only upon negligence. Gulf, C. & S. F. Ry. Co. v. Oakes, 94 Texas, 155, 158, 58 S. W., 999; Koons v. Rook, 295 S. W., 592.

*162The storage and use of explosives is clearly within the rule of absolute liability laid down in Rylands v. Fletcher; but, as to these, we have also changed from the common law rule, and predicate liability upon negligence, in the absence of controlling statutes or facts so obvious as to constitute a nuisance as a matter of law. 19 Texas Jur., p. 458, sec. 4, p. 459, sec. 5, p. 461, sec. 7, p. 462, sec. 8, p. 464, sec. 9.

Associate Justice Williams in the opinion in the Oakes Case, supra, states that the rule of absolute liability announced in Rylands v. Fletcher was largely deduced from prior rulings establishing absolute liability for damages caused by; (1) fires kindled on qne’s premises and spreading to those of another; (2) by injuries inflicted by one in his lawful defense against another upon an innocent bystander; and (3) by animals straying from the lands of their owners upon those of others.

As shown above, in these three instances, as well as others where in England the same .rule was applied, we have departed from the common law, and only award damages when predicated upon negligence.

Since, we have repudiated the bases of the rule announced in Rylands v. Fletcher, it follows as a necessary corollary that we should not apply the rule in cases such as the one before us. It is true that the Oakes Case, in which Justice Williams announced in general terms our repudiation of the absolute liability doctrine, was not a water case; but the reasons for its repudiation there are equally cogent here. No good reason can be assigned for declining to follow the common law rule as applied to damages due to fires, to the destruction of property by animals, and to injuries to an innocent bystander by one engaged in his own defense, the basis of the rule applied to the water case of Rylands v. Fletcher, and then apply the repudiated rule in the type of case before us. In general, we believe, it may be said that the doctrine of absolute liability announced in Rylands v. Fletcher has been likewise generally repudiated in the United States, although some States in at least a modified form adhere to it. Authorities supra.

Thompson in his masterly work on Negligence, Vol. 1, sec. 694 et seq., reviews at length the English common law rule of absolute liability in the use and control of agencies, which from their nature have a tendency to escape control and get upon land of adjoining owners, and there produce injury, which he says make those who employ such agencies “liable as an inmrer.” He then states that the American rule is to the con*163trary; that here liability can only arise from negligence. He says:

“Sec. 706. But the American Doctrine Decisively Against that Case (Rylands v. Fletcher) in Respect of Liability for Escape of toaier. — Where water is collected in reservoirs, behind dams, in canals or in ditches, in the ordinary manner for the purpose of being used as a motive power, in navigation, in irrigation, in mining, or for any other convenient and lawful end, the rule, in reason and according to the decisive weight of American judicial opinion, is different. There is nothing unlawful in collecting water for such purposes; and hence, in case it escapes and does mischief, the person so collecting it can only be held liable on the ground of something unlawful in the manner in which he has built or maintained his structure, — that is, on the principle of negligence. * * * It follows, therefore, that if a dam breaks away, to the injury of property below, the owner will not be liable unless the person injured can show negligence; and if it appear in proof that the dam was well and properly built, upon a proper model, he will not be liable merely from the fact that it gave way; but otherwise, if it broke away in consequence of having been improperly' constructed, or maintained ’ in unsafe condition.” '

“Sec. 707. Rule of Diligence in Restraining Water is Ordinary Care. — The rule of diligence which the law puts upon an owned or occupier of land in restraining water artificially collected thereon is the rule described as ordinary or reasonable care; and here, as in other cases, this rule of care various in proportion to the danger likely to accrue to others from the escape of water. It may be discharged by slight attention in some cases, and' it may require the most exacting and unremitting attention, care and skill in others. The rule of diligence here exacted is, as in other cases, ordinary care which men employ where the risk is their own; *' * *”

Judge Thompson then says, and with this we concur:

“For this rule of ordinary care exacts here, as in' Other cases, a degree of vigilance, attention, and skill in' proportion to the probabilities of danger. In an action for damages' caused by the breaking away of a dam, it will not do for the owner to say that he built it strong enough to resist ordinary freshets; he' müst build it strong enough to resist those extraordinary-freshets which sometimes occur, and which are therefore reasonably to be anticipated.”

A review of the decisions made the basis of Judge Thompson’s text, as well as those subsequent, leads to the conclusion *164stated by him, that the American rule in cases of the character before us requires negligence as the basis of the recovery of damages; that the doctrine of Rylands v. Fletcher is not the common law rule as applied generally in this country to cases of the character before us. This conclusion is not only supported by Thompson and the various cases cited in Sedgwick" and the notes to 15 L. R. A. (N. S.), supra, but the editor of the notes in the latter declares:

“The weight of authority in this country is that the defendant maintaining a water ditch or tank, or operating and using water pipes, will not be liable for damages caused to others from the escape of the water from his premises in the absence of negligence.”

Likewise Corpus Juris (Yol. 67, p. 915, sec. 356) states:

“The English rule has been followed to some extent in this country: but in general the American courts base the liability on negligence, either in the original construction of the reservoir or other receptacle, in subsequently allowing it to become defective, or in failing properly to provide against all such contingent damages as might reasonably be anticipated.”

The American conception of the common law is the rule of decision with us, rather than the rule as understood and applied in England. 9 Texas Jur., p. 307, sec. 9; Dickson v. Strickland, 114 Texas, 176, 265 S. W., 1012. Applying the common law rule as deducible generally from the decisions of the American courts, we are compelled to say that negligence is a necessary basis for actions of the character before us.

Another rule with reference to the adoption of the English common law is that in adopting it as the rule of decision we have done so only in so far as consistent with the conditions which obtain in this State. 9 Texas Jur., p. 310, sec. 12; Motl v. Boyd, 116 Texas, 82, 115, 286 S. W., 458.

In Rylands v. Fletcher the Court predicated the absolute liability of the defendants on the proposition that the use of land for the artificial storage of water was not a natural use, and that, therefore, the land owner was bound at his peril to keep the waters on his own land. Rylands v. Fletcher, L. R. 3, H. L., 330; City Water Power Co. v. Fergus Falls, Anno. Cas. 1912A, p. 110 (note); 27 R. C. L., p. 1206, sec. 124. This basis of the English rule is to be found in the meteorological conditions which obtain there. England is a pluvial country, where constant streams and abundant rains make the storage of water unnecessary for ordinary or general purposes. When the Court said in Rylands v. Fletcher that the use of land for *165storage of water was an unnatural use, it meant such use was not a general or an ordinary one; not one within the contemplation of the parties to the original grant of the land involved, nor of the grantor and grantees of adjacent lands, but was a special or extraordinary use, and for that reason applied the rule of absolute liability. This conclusion is supported by the fact that those jurisdictions which adhere to the rule in Rylands v. Fletcher do not apply that rule to dams or reservoirs constructed in rivers and streams, which they say is a natural use, but apply the principle of negligence. 27 R. C. L., p. 1207, sec. 125. In other words, the impounding of water in stream-ways, being an obvious and natural use, was necessarily within the contemplation of the parties to the original and adjacent grants, and damages must be predicated upon negligent use of a granted right and power; while things not within the contemplation of the parties to the original grants, such as unnatural uses of the land, the land owner may "do only at his peril. As to what use of land is or may be a natural use, one within the contemplation of the parties to the original grant of land, necessarily depends upon the attendant circumstances and conditions which obtain in the territory of the original grants, or the initial terms of those grants.

In Texas we have conditions very different from those which obtain in England. A large portion of Texas is an arid or semi-arid region. West of the 98th meridian of longitude, where the rainfall is approximately 30 inches, the rainfall decreases until finally, in the extreme western part of the State, it is only about 10 inches. This land of decreasing rainfall is the great ranch or live stock region of the State, water for which is stored in thousands of ponds, tanks, and lakes on the surface of the ground. The country is almost without streams; and without the storage of water from rainfall in basins constructed for the purpose, or to hold waters pumped from the earth, the great live stock industry of West Texas must perish. No such condition obtains in England. With us the storage of water is a natural or necessary and common use of the land, necessarily within the contemplation of the State and its grantees when grants were made, and obviously the rule announced in Rylands v. Fletcher, predicated upon different conditions, can have no application here.

Again, in England there are no oil wells, no necessity for using surface storage facilities for impounding and evaporating salt waters therefrom. In Texas the situation is different. Texas has many great oil fields, tens of thousands of wells in *166almost every part of the State. Producing oil is one of our major industries. One of the by-products of oil production is salt water, which must be disposed of without injury to property or the pollution of streams. The construction of basins or pounds to hold this salt water is a necessary part of the oil business. In Texas much of our land was granted without mineral reservation to the State, and where minerals were reserved, provision has usually been made for leasing and operating. It follows, therefore, that as to these grants and leases the right to mine in the usual and appropriate way, as, for example, by the construction and maintenance of salt water pools such as here involved, incident to the production of oil, were contemplated by the State and all its grantees and mineral lessees, that being a use of the surface incident and necessary to the right to produce oil. 40 Corpus Juris, p. 752, sec. 74.

From the foregoing it is apparent that we decline to follow and apply in this case the rule of absolute liability laid down in Rylands v. Fletcher, because: (a) The rule has been generally repudiated by this Court in Gulf, C. & S. F. R. Co. v. Oakes, 94 Texas, 155, 58 S. W., 999; and Galveston, H. & S. A. R. Co. v. Currie, 100 Texas, 136; 96 S. W., 1073; (b) the basis of the rule drawn from its application in England in cases of fire, damage by live stock, and injuries to an innocent bystander have been repudiated by us; (c) the conditions which obtain here are so different from those of England that the rule should not be applied here; (d) and because the rule of negligence, instead of absolute liability, while not obtaining universally in the United States, is of such general application as to constitute, as Thompson says, the “American Rule,” in effect the common law rule as applied in America, which is the common law which we follow rather than that declared by the English courts.

Against the adoption of the negligence rule in cases oí this character, we are cited to a number of cases which it is claimed conflict therewith. We do not find it necessary' to discuss all of them by name.

The pipe line cases can have no application here, for the reason that these cases generally have some form of contract as a basis, or else the facts show injury due to an obvious nuisance. Nor are we prepared to say that the conveyance of oil by pipe lines is an unnatural use of land, and that the rule of absolute liability should be applied to them. Pipe lines are but a means of transportation, and certainly it was within the contemplation of the State and the original grantees of all *167lands that the latter could be used to carry transportation agencies. Besides, it appears that the opinion of Associate Justice Sharp in Lone Star Gas Co. v. Hutton, 58 S. W. (2d) 20, strongly indicates that in that type of case the rule of negligence should be applied. Nor is it necessary for us to discuss cases of the pollution of public waters or riparian streams, as these are predicated upon statutes or riparian rights protected by law from invasion.

Other cases to which our attention has been directed are nuisance cases, where the undisputed facts showed an actionable nuisance. Nor need we discuss cases where injury was the necessary result of the operation of some business, regardless of care or a failure to use care. We do think, however, that the cases of Texas & P. R. Co. v. O’Mahoney, 50 S. W., 1049, 60 S. W., 902, and Texas & P. R. Co. v. Frazer, 182 S. W., 1161, deserve discussion because writs of error were refused by this Court.

In the last appeal of the O’Mahoney Case, 24 Texas Civ. App., 631, 60 S. W., 902, the Court of Civil Appeals held that where the railroad company constructed an artificial lake or pond on its own land, by means of a dam, and diverted a natural stream thereto through a ditch, and maintained the water therein so high that by reason of its pressure the water percolated through the dam and destroyed plaintiff’s land, and caused sickness, etc., the railroad company was liable for damages, regardless of the question of negligence in the construction of the dam. In making this holding the court used some language and cited some authorities which can be urged as an approval of the rule of absolute liability, announced in Rylands v. Fletcher, although the Rylands Case was not cited. We shall not quote the court’s statement of the facts, since the opinion is available.

It is obvious from the statement made by the Court that the railroad company had not only created a nuisance as a matter of undisputed fact, but had, in violation of the Constitution, substantially taken a portion of O’Mahoney’s property; and, of course, in such a case proof of negligence was not necessary. 31 Texas Jur., p. 421, sec. 11.

In its essential aspects the case of Texas & P. Ry. Co. v. Frazer, supra, was one of the diversion of surface waters from their place of natural flow in such manner as to injure the owner of the lower estate. In addition to the water diverted by the barrow pits of the railroad company, it had constructed a levee and ditch 1400 yards long, apparently around at least *168a part of the town of Toyah, which carried the water from its natural drainage way on the north side of the railway track to the company’s reservoir on the south side of the track. The case was not one where the company had merely erected a dam in a natural basin to impound waters which would naturally flow into it. This tortious act of the railway company in diverting surface water from its natural course, and concentrating it above the plaintiff’s land in this case, was the real basis of the action, and as to which there was no dispute. Had no reservoir been constructed and the diverted waters been thrown upon the plaintiff’s land to his damage, he would have had a cause of action without the necessity of alleging negligence. The diversion of the water and throwing it on the plaintiff’s land to his damage would have been an invasion of his rights, just as though his property had been bodily taken. Bunch v. Thomas, 121 Texas, 225, 229, 49 S. W. (2d) 421; 27 Ruling Case Law, p. 1151, sec. 79.

Nor do we believe that the facts that the diverted water was collected in a reservoir before being cast on the plaintiff’s land changes the rule. It was merely one of the instrumentalities of the wrongful diversion by which the diverted agency was concentrated and rendered more destructive. 67 Corpus Juris, p. 877, sec. 300.

That the Court of Civil Appeals considered the case as essentially one of the diversion of surface waters is shown by the fact that it sustained the action of the trial court in refusing a charge upon the defense of unprecedented rainfall, upon the ground that such a plea was no defense when surface waters had been diverted to the plaintiff’s injury, citing the case of Galveston, H. & S. A. R. Co. v. Riggs, 107 S. W., 589.

If the case had been one simply of impounding water, and the court thought that the principles of Rylands v. Fletcher should rule it, then an act of God, such as an unprecedented rainfall, would have been a defense. Thompson on Negligence, Vol. 1, sec. 700. But where the act of God combined with the negligence or actionable conduct of the defendant as a proximate cause to bring about the injury and damage, vis major is not a defense, and of course the holding of the Court of Civil . Appeals was correct. 1 Texas Jur., p. 700, sec. 5; 67 Corpus Juris, p. 931, sec. 385; Patterson v. Speer, 229 S. W., 275, 276 (Mo.).

We have heretofore stated that this Court refused to grant writs of error in both the O’Mahoney and Frazer Cases. At the time the Supreme Court refused these writs of error, it *169was compelled by its jurisdictional statutes to either grant or refuse the applications. Since the judgments were correct, it is obvious that it was the Court’s duty to refuse the writs. Such refusals are not to be construed as an approval of all the reasons assigned by the Courts of Civil Appeals for their legal conclusions. The refusals, however, were obviously correct on the grounds we have stated above.

The plaintiffs in error insist that the waters of Garrison Draw, if not the waters of a stream, the pollution of which is prohibited by law, are neverthless public waters under R. S., Art. 7467, to which the anti-pollution statutes apply. The statute in so far as here involved reads:

“Art. 7467. Property of the State. — The waters of the ordinary flow and underflow and tides of every flowing river or natural stream, of all lakes, bays or arms of the Gulf of Mexico, and the storm, flood or rain waters of every river or natural stream, canyon, ravine, depression or watershed, within the State of Texas, are hereby declared to be the property of the State, and the right to the use thereof may be acquired by appropriation in the manner and for the uses and purposes hereinafter provided, and may be taken or diverted from its natural channel for any of the purposes expressed in this chapter.” (Italics ours.)

The contention here is that this Article, particularly the italicized words, makes the water from rainfall while on the watershed, or in ravines and draws, and while it is still regarded in law and fact as surface water, and before it has reached a riparian or public stream, public waters, the pollution of which is prohibited by positive enactment.

The statute is capable of this construction if it alone were to be looked to for its meaning. It must be interpreted, however, in the light of the Constitution and of the common law and Mexican civil law under which lands have been granted in this State. Miller v. Letzerich, 121 Texas, 248.

Under both the common law and the Mexican civil law the owners of the soil on which rains may fall and surface waters gather are the proprietors of the water so long as it remains on their land, and prior to its passage into a natural watercourse to which riparian rights may attach. Farnham on Water Rights, Vol. 3, sec. 883, and cases cited in the note; Miller v. Letzerich, 121 Texas, 248, 254, 256, 49 S. W. (2d) 404; Hall’s Mexican Law (1885), p. 402, sec. 1372.

No citation of authority is necessary to demonstrate that *170the right of a land owner to the rain water which falls on his land is a property right which vested in him when the grant was made. Being a property right, the Legislature is without power to take it from him or to declare it public property and subject by appropriation or otherwise to the use of another. This is so regardless of the question as to whether the grant was made by Texas or Mexico. Miller v. Letzerich, 121 Texas, 248, 49 S. W. (2d) 404.

If Article 7467, quoted above, is to be construed so as to make surface water public waters and subject to appropriation, then it would be clearly void, because in violation of the State Constitution. Article 7469 declares that the provisions of Article 7467 and related provisions shall not prejudice vested rights. Interpreting Article 7467 we would, in order to sustain its validity, be compelled to say that it has no application to lands granted prior to the enactment of the statute, in so far as it attempts to take from the grantees their rights to surface waters and to make them public waters subject to appropriation. Whether or not the Article in this respect could be applied under our Constitution to grants made subsequent to the passage of the law is not before us in this case, and no opinion is expressed relative thereto. There is no contention here that the surface waters alleged to have been polluted were on lands granted by the State subsequent to the enactment of Article 7467.

Article 7467 has no application to the facts of this case, and the surface waters involved were not public waters, the pollution of which was prohibited by express statutory enactment.

Revised Statutes, article 7589a, relating to the diversion or impounding of surface waters, has no application to this case. We do not understand from the pleadings that the suit was brought for the wrongful diversion or impounding of surface waters to another’s injury.

The judgments of the Court of Civil Appeals and of the District Court are affirmed.

Opinion delivered July 15, 1936.

Rehearing overruled October 21, 1936.

Hale, J.

Seventeen-year-old Carol J. House died in the flames of a gasoline explosion when her car encountered a pool of thousands of gallons of spilled gasoline. She was driving home from her after-school job in the early evening of November 22, 1967, along Capitol Lake Drive in Olympia; it was dark but dry; her car’s headlamps were burning. There was a slight impact with some object, a muffled explosion, and then searing flames from gasoline pouring out of an overturned trailer tank engulfed her car. The result of the explosion is clear, but the real causes of what happened will remain something of an eternal mystery.

Aaron L. Kuhlman had been a truck driver for nearly 11 years after he completed the 10th grade in high school and after he had worked at other jobs for a few years. He had been driving for Pacific Intermountain Express for about 4 months, usually the night shift out of the Texaco bulk plant in Tumwater. That evening of November 22nd, he was scheduled to drive a gasoline truck and trailer unit, fully *450loaded with gasoline, from Tumwater to Port Angeles. Before leaving the Texaco plant, he inspected the trailer, checking the lights, hitch, air hoses and tires. Finding nothing wrong, he then set out, driving the fully loaded truck tank and trailer tank, stopping briefly at the Trail’s End Cafe for a cup of coffee. It was just a few minutes after 6 p.m., and dark, but the roads were dry when he started the drive to deliver his cargo—3,800 gallons of gasoline in the truck tank and 4,800 gallons of gasoline in the trailer tank. With all vehicle and trailer running lights on, he drove the truck and trailer onto Interstate Highway 5, proceeded north on that freeway at about 50 miles per hour, he said, and took the offramp about 1 mile later to enter Highway 101 at the Capitol Lake interchange. Running downgrade on the offramp, he felt a jerk, looked into his left-hand mirror and then his right-hand mirror to see that the trailer lights were not in place. The trailer was still moving but leaning over hard, he observed, onto its right side. The trailer then came loose. Realizing that the tank trailer had disengaged from his tank truck, he stopped the truck without skidding its tires. He got out and ran back to see that the tank trailer had crashed through a chain-link highway fence and had come to rest upside down on Capitol Lake Drive below. He heard a sound, he said, “like somebody kicking an empty fifty-gallon drum and that is when the fire started.” The fire spread, he thought, about 100 feet down the road.

The trailer was owned by defendant Pacific Intermountain Express. It had traveled about 329,000 miles prior to November 22, 1967, and had been driven by Mr. Kuhlman without incident down the particular underpass above Capitol Lake Drive about 50 times. When the trailer landed upside down on Capitol Lake Drive, its lights were out, and it was unilluminated when Carol House’s car in one way or another ignited the spilled gasoline.

Carol House was burned to death in the flames. There was no evidence of impact on the vehicle she had driven, *451Kuhlman said, except that the left front headlight was broken.

Why the tank trailer disengaged and catapulted off the freeway down through a chain-link fence to land upside down on Capitol Lake Drive below remains a mystery. What caused it to separate from the truck towing it, despite many theories offered in explanation, is still an enigma. Various theories as to the facts and cause were advanced in the trial. Plaintiff sought to prove both negligence on the part of the driver and owner of the vehicle and to bring the proven circumstances within the res ipsa loquitur doctrine. Defendants sought to obviate all inferences of negligence and the circumstances leading to the application of res ipsa loquitur by showing due care in inspection, maintenance and operation. Plaintiff argued negligence per se and requested a directed verdict on liability. On appeal, plaintiff relied in part on RCW 46.44.070 and RCW 46.61.655,1 relating to the drawbar connecting trailer to truck, and provisions prohibiting a load from dropping, shifting, leaking or escaping from the vehicle.

The jury apparently found that defendants had met and overcome the charges of negligence. Defendants presented proof that both the truck, manufactured by Peterbilt, a division of Pacific Car and Foundry Company, and the tank and trailer, built by Fruehauf Company, had been constructed by experienced companies, and that the fifth wheel, connecting the two units and built by Silver Eagle *452Company, was the type of connecting unit used by 95 percent of the truck-trailer units. Defendants presented evidence that a most careful inspection would1 not have revealed the defects or fatigue in the metal connections between truck and trailer; that the trailer would not collapse unless both main springs failed; there was evidence that, when fully loaded, the tank could not touch the wheels of the tank trailer without breaking the springs because the maximum flexion of the springs was less than 1 inch. Defendants presented evidence that the drawbar was secure and firmly attached; that the tanks were built of aluminum to prevent sparks; and that, when fully loaded with 4,800 gallons of cargo, there would be 2 or 3 inches of space between the cargo and top of the tank; that two safety cables connected the two units; that the truck and trailer were regularly serviced and repaired, and records of this preserved and put in evidence; that the unit had been subject to Interstate Commerce Commission spot checks and conformed to ICC standards; and that, at the time of the accident, the unit had traveled less than one-third of the average service life of that kind of unit. There was evidence obtained at the site of the fire that both of the mainsprings above the tank trailer’s front wheels bad broken as a result of stress, not fatigue—from a kind of stress that could not be predicted by inspection—and finally that there was no negligence on the driver’s part.

Defendants also presented some evidence of contributory negligence on the basis that Carol House, driving on a 35-mile-per-hour road, passed another vehicle at about 45 miles per hour and although she slacked speed somewhat before the explosion, she was traveling at the time of the impact in excess of the 35-mile-per-hour limit. The trial court submitted both contributory negligence and negligence to the jury, declared the maximum speed limit on Capitol Lake Drive to be 35 miles per hour, and told the jury that, although violation of a positive statute' is negligence as a matter of law, it would not engender liability unless the violation proximately contributed to the injury. *453From a judgment entered upon a verdict for defendants, plaintiff appealed to the Court of Appeals which affirmed. 3 Wn. App. 231, 473 P.2d 445 (1970). We granted review (78 Wn.2d 991 (1970)), and reverse.

In the Court of Appeals, the principal claim of error was directed to the trial court’s refusal to give an instruction on res ipsa loquitur, and we think that claim of error well taken. Our reasons for ruling that an instruction on res ipsa loquitur should have been given and that an inference of negligence could have been drawn from the event are found, we believe, in our statements on the subject: ZeBarth v. Swedish Hosp. Medical Center, 81 Wn.2d 12, 499 P.2d 1 (1972); Miles v. St. Regis Paper Co., 77 Wn.2d 828, 467 P.2d 307 (1970); Douglas v. Bussabarger, 73 Wn.2d 476, 438 P.2d 829 (1968); Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (1967). We think, therefore, that plaintiff was entitled to an instruction permitting the jury to infer negligence from the occurrence.

But there exists here an even more impelling basis for liability in this case than its derivation by allowable inference of fact under the res ipsa loquitur doctrine, and that is the proposition of strict liability arising as a matter of law from all of the circumstances of the event.

Strict liability is not a novel concept; it is at least as old as Fletcher v. Rylands, L.R. 1 Ex. 265, 278 (1866), aff'd, House of Lords, 3 H.L. 330 (1868). In that famous case, where water impounded in a reservoir on defendant’s property escaped and damaged neighboring coal mines, the landowner who had impounded the water was held liable without proof of fault or negligence. Acknowledging a distinction between the natural and nonnatural use of land, and holding the maintenance of a reservoir to be a nonnatural use, the Court of Exchequer Chamber imposed a rule of strict liability on the landowner. The ratio decidendi included adoption of what is now called strict liability, and at page 278 announced, we think, principles which should be applied in the instant case:

*454[T]he person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

All of the justices in Fletcher v. Rylands, supra, did not draw a distinction between the natural and nonnatural use of land, but such a distinction would, we think, be irrelevant to the transportation of gasoline. The basic principles supporting the Fletcher doctrine, we think, control the transportation of gasoline as freight along the public highways the same as it does the impounding of waters and for largely the same reasons. See Prosser, Torts § 78 (4th ed. 1971).

In many respects, hauling gasoline as freight is no more unusual, but more dangerous, than collecting water. When gasoline is carried as cargo—as distinguished from fuel for the carrier vehicle—it takes on uniquely hazardous characteristics, as does water impounded in large quantities. Dangerous in itself, gasoline develops even greater potential for harm when carried as freight—extraordinary dangers deriving from sheer quantity, bulk and weight, which enormously multiply its hazardous properties. And the very hazards inhering from the size of the load, its bulk or quantity and its movement along the highways presents another reason for application of the Fletcher v. Rylands, supra, rule not present in the impounding of large quantities of water—the likely destruction of cogent evidence from which negligence or want of it may be proved or disproved. It is quite probable that the most important ingredients of proof will be lost in a gasoline explosion and fire. Gasoline is always dangerous whether kept in large or small quantities because of its volatility, inflammability and explosiveness. But when several thousand gallons of it are allowed to spill across a public highway—that is, if, while in transit as freight, it is not kept impounded—the hazards to third persons are so great as to be almost beyond calculation. As a consequence of its escape from impoundment *455and subsequent explosion and ignition, the evidence in a very high percentage of instances will be destroyed, and the reasons for and causes contributing to its escape will quite likely be lost in the searing flames and explosions.

That this is a sound case for the imposition of a rule of strict liability finds strong support in Professor Cornelius J. Peck’s analysis in Negligence and Liability Without Fault in Tort Law, 46 Wash. L. Rev. 225 (1971). Pointing out that strict liability was imposed at common law prior to Fletcher v. Rylands, supra, that study shows the application of a rule of strict liability in a number of instances, i.e., for harm done by trespassing animals; on a bona fide purchaser of stolen goods to their true owner; on a bailee for the misdelivery of bailed property regardless of his good faith or negligence; and on innkeepers and hotels at common law. But there are other examples of strict liability: The Supreme Court of Minnesota, for example, imposed liability without fault for damage to a dock inflicted by a ship moored there during a storm. Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).

The rule of strict liability rests not only upon the ultimate idea of rectifying a wrong and putting the burden where it should belong as a matter of abstract justice, that is, upon the one of the two innocent parties whose acts instigated or made the harm possible, but it also rests on problems of proof:

One of these common features is that the person harmed would encounter a difficult problem of proof if some other standard of liability were applied. For example, the disasters caused by those who engage in abnormally dangerous or extra-hazardous activities frequently destroy all evidence of what in fact occurred, other than that the activity was being carried on. Certainly this is true with explosions of dynamite, large quantities of gasoline, or other explosives. It frequently is the case with falling aircraft. Tracing the course followed by gases or other poisons used by exterminators may be difficult if not impossible. The explosion of an atomic reactor may leave little evidence of the circumstances which caused it. Moreover, application of such a standard of liability to *456activities which are not matters of common experience is well-adapted to a jury’s limited ability to judge whether proper precautions were observed with such activities.

Problems of proof which might otherwise have been faced by shippers, bailors, or guests at hotels and inns certainly played a significant role in shaping the strict liabilities of carriers, bailees, and innkeepers. Problems of proof in suits against manufacturers for harm done by defective products became more severe as the composition and design of products and the techniques of manufacture became less and less matters of common experience; this was certainly a factor bringing about adoption of a strict liability standard.

(Footnote omitted.) C. Peck, Negligence and Liability Without Fault in Tort Law, 46 Wash. L. Rev. 225, 240 (1971).

See also, G. P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537 (1972), for an analysis of the judicial philosophy relating to .tort liability as affecting or affected by concepts of fault and negligence; and Comment, Liability Without Fault: Logic and Potential of a Developing Concept, 1970 Wis. L. Rev. 1201.

Thus, the reasons for applying a rule of strict liability obtain in this case. We have a situation where a highly flammable, volatile and explosive substance is being carried at a comparatively high rate of speed, in great and dangerous quantities as cargo upon the public highways, subject to all of the hazards of high-speed traffic, multiplied by the great dangers inherent in the volatile and explosive nature of the substance, and multiplied again by the quantity and size of the load. Then we have the added dangers of ignition and explosion generated when a load of this size, that is, about 5,000 gallons of gasoline, breaks its container and, cascading from it, spreads over the highway so as to release an invisible but highly volatile and explosive vapor above it.

Danger from great quantities of gasoline spilled upon the public highway is extreme and extraordinary, for any spark, flame or appreciable heat is likely to ignite it. The *457incandescent filaments from a broken automobile headlight, a spark from the heat of a tailpipe, a lighted cigarette in the hands of a driver or passenger, the hot coals from a smoker’s pipe or cigar, and the many hot and sparking spots and units of an automobile motor from exhaust to generator could readily ignite the vapor cloud gathered above a highway from 5,000 gallons of spilled gasoline. Any automobile passing through the vapors could readily have produced, the flames and explosions which killed the young woman in this case and without the provable intervening negligence of those who loaded and serviced the carrier and the driver who operated it. Even the most prudent and careful motorist, coming unexpectedly and without warning upon this gasoline pool and vapor, could have driven into it and ignited a holocaust without knowledge of the danger and without leaving a trace of what happened to set off the explosion and light the searing flames.

Stored in commercial quantities, gasoline has been recognized to be a substance of such dangerous characteristics that it invites a rule of strict liability—even where the hazard is contamination to underground water supply and not its more dangerous properties such as its explosiveness and flammability. See Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969). It is even more appropriate, therefore, to apply this principle to the more highly hazardous act of transporting it as freight upon the freeways and public thoroughfares.

Recently this court, while declining to apply strict liability in a particular case, did acknowledge the suitability of the rule in a proper case. In Pacific Northwest Bell Tel. Co. v. Port of Seattle, 80 Wn.2d 59, 491 P.2d 1037 (1971), we observed that strict liability had its beginning in Fletcher v. Rylands, supra, but said that it ought not be applied in a situation where a bursting water main, installed and maintained by the defendant Port of Seattle, damaged plaintiff telephone company’s underground wires. There the court divided—not on the basic justice of a rule of strict liability •in some cases—but in its application in a particular case to *458what on its face was a situation of comparatively minor hazards. Both majority and dissenting justices held, however, that the strict liability principles of Fletcher v. Rylands, supra, should be given effect in some cases; but the court divided on the question of whether underground water mains there constituted such a case.

The rule of strict liability, when applied to an abnormally dangerous activity, as stated in the Restatement (Second) of Torts § 519 (Tent. Draft No. 10, 1964), was adopted as the rule of decision in this state in Pacific Northwest Bell Tel. Co. v. Port of Seattle, supra at 64, as follows:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent such harm.

(2) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous.

As to what constitutes an abnormal activity, section 520 states:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others;-

(b) Whether the gravity of the harm which may result from it is likely to be great;

(c) Whether the risk cannot be eliminated by the exercise of reasonable care;

(d) Whether the activity is not a matter of common usage;

(e) Whether the activity is inappropriate to the place where it is carried on; and

(f) The value of the activity to the community.

Applying these factors to this system, we do not find the activity to be abnormally dangerous. There has never been a break in the system before, absent an earthquake, and the pipe could have been expected to last many more years. It is a system commonly used for fire protection, and its. placement underground is, of course, appropriate. We do not find section 519 of the Restatement (Tent. *459Draft No. 10, 1964), or Rylands v. Fletcher, supra, applicable.

It should be noted from the above language that we rejected the application of strict liability in Pacific Northwest Bell Tel. Co. v. Port of Seattle, supra, solely because the installation of underground water mains by a municipality was not, under the circumstances shown, an abnormally dangerous activity. Had the activity been found abnormally dangerous, this court would have applied in that case the rule of strict liability.

Contrast, however, the quiet, relatively safe, routine procedure of installing and maintaining and using underground water mains as described in Pacific Northwest Bell Tel. Co. v. Port of Seattle, supra, with the activity of carrying gasoline as freight in quantities of thousands of gallons at freeway speeds along the public highway 'and even at lawful lesser speeds through cities and towns and on secondary roads in rural districts. In comparing the quiescence and the passive job of maintaining underground water mains with the extremely heightened activity of carrying nearly 5,000 gallons of gasoline by truck, one cannot escape the conclusion that hauling gasoline as cargo is undeniably an abnormally dangerous activity and on its face possesses all of the factors necessary for imposition of strict liability as set forth in the Restatement (Second) of Torts § 519 (Tent. Draft No. 10,1964), above.

Transporting gasoline as freight by truck along the public highways and streets is obviously an activity involving a high degree of risk; it is a risk of great harm and injury; it creates dangers that cannot be eliminated by the exercise of reasonable care. That gasoline cannot be practicably transported except upon the public highways does not decrease the abnormally high risk arising from its transportation. Nor will the exercise of due and reasonable care assure protection to the public from the disastrous consequences of concealed or latent mechanical or metallurgical defects in the carrier’s equipment, from the negligence of third parties, from latent defects in the highways and *460streets, and from all of the other hazards not generally disclosed or guarded against by reasonable care, prudence and foresight. Hauling gasoline in great quantities as freight, we think, is an activity that calls for the application of principles of strict liability.

The case is therefore reversed and remanded to the trial court for trial to the jury on the sole issue of damages.

Hamilton, C.J., Finley, Rosellini, and Hunter, JJ., and Ryan, J. Pro Tem., concur.

Rosellini, J.

(concurring)—I agree with the majority that the transporting of highly volatile and flammable substances upon the public highways in commercial quantities and for commercial purposes is an activity which carries with it such a great risk of harm to defenseless users of the highway, if it is not kept contained, that the common-law principles of strict liability should apply. In my opinion, a good reason to apply these principles, which is not mentioned in the majority opinion, is that the commercial transporter can spread the loss among his customers—who benefit from this1 extrahazardous use of the highways. Also, if the defect which caused the substance to escape was one of manufacture, the owner is in the best position to hold the manufacturer to account.

I think the opinion should make clear, however, that the owner of the vehicle will be held strictly liable only for damages caused when the flammable or explosive substance is allowed to escape without the apparent intervention of any outside force beyond the control of the manufacturer, the owner, or the operator of the vehicle hauling it. I do not think the majority means to suggest that if another vehicle, negligently driven, collided with the truck in question, the truck owner would be held liable for the damage. But where, as here, there was no outside force which caused the trailer to become detached from the truck, the rule of strict liability should apply.

It also is my opinion that the legislature has expressed an intent that owners and operators of vehicles carrying trail*461ers should be required to keep them under control, and that intent can be found in the statutes cited in the majority opinion. Thus the application of the common-law principles of strict liability is in accord with the manifest legislative view of the matter.

It also should be remarked, I think, that there was in this case no evidence that the alleged negligence of the deceased, in driving faster than the posted speed, was in any sense a proximate cause of the tragedy which befell her. There was no showing that, had she been proceeding at the legal rate of speed, she could have stopped her vehicle in time to avoid being enveloped in the flames or that the gasoline would not have ignited. Thus we are not confronted in this case with a question whether contributory negligence might under some circumstances be a defense to an action of this kind. It should be understood that the court does not pass upon that question at this time.

Hamilton, C.J., Finley, J., and Ryan, J. Pro Tern., concur with Rosellini, J.

Neill, J.

(dissenting)—The application of the doctrine of strict liability to the facts of this case is warranted, at least as the applicability is qualified by the concurring opinion of Justice Rosellini. However, to decide this case on that theory violates our established rules of appellate review. National Indem. Co. v. Smith-Gandy, Inc., 50 Wn.2d 124, 309 P.2d 742 (1957); State v. McDonald, 74 Wn.2d 474, 445 P.2d 345 (1968).

Plaintiff seeks money redress for the death of an exemplary young woman whose life was horribly terminated in a tragic accident. A jury absolved the defendants from culpability. Irrespective of our sympathy, that jury verdict must stand unless error was committed at the trial. On appeal, the Court of Appeals affirmed the verdict and judgment. Siegler v. Kuhlman, 3 Wn. App. 231, 473 P.2d 445 (1970). We granted review. 78 Wn.2d 991 (1970).

The only issue brought to this court by the appeal is the procedural effect of res ipsa loquitur. Before discussing that *462issue, I will address other portions of the majority and concurring opinions with which I am in disagreement.

The injection of the issue of the applicability and construction of RCW 46.44.070 is improper. The issue was not raised at trial, nor in the Court of Appeals. Following the granting of a petition for review, this court, sua sponte, requested counsel to submit supplemental briefs as to the statute. This is an appellate procedure to which I have previously expressed my dissent. Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 625, 465 P.2d 657 (1970).2 My disagreement with such judicial usurpation of an adversary function is even stronger here, where the meaning ascribed to the statute in focus depends upon an interpretation which that statute has not heretofore received. The majority opinion assumes that the language of RCW 46.44.070 requiring the trailer “connection . . . [to] be of sufficient strength to hold the weight of the towed vehicle on any grade where operated” applies to situations where the trailer breaks away to the side of the towing vehicle. Whether or not that interpretation should be applied to the statute is a question that should await a case where the issue is timely and properly presented.

Further, RCW 46.44.070, even as read by the majority, cannot be applied here without first assuming as fact that the connection was not secure. In this case that assumption is an inappropriate trespass on the jury’s function. As the majority notes, the question of whether the connection came loose because improperly secured is raised by circumstantial evidence. In fact, much of the trial was directed to expert testimony as to whether the trailer connection first came loose or whether the breaking of a supporting spring caused the ultimate separation of the connection. Thus any answer to that question is properly the subject of the jury’s *463consideration from the evidence and reasonable inference from the circumstantial evidence. Unless we are prepared to hold that the statute makes the operator of a truck and tractor rig a guarantor of the security of the connection under all circumstances, we cannot state that the answer is a matter of certitude.

The jury was instructed on contributory negligence. No exception was taken nor has error been assigned to the instruction. Yet, the concurring opinion, sua sponte, questions the giving of the instruction. It has been my understanding that an instruction to which error is not assigned becomes the law of the case. E.g., Kindelspire v. Lawrence, 44 Wn.2d 722, 270 P.2d 477 (1954); Ralston v. Vessey, 43 Wn.2d 76, 260 P.2d 324 (1953). I think it beyond the proper scope of appellate review to “try the case” for the parties.

I turn to the sole and only assignment of error presented to us: that the jury should have been given one of two res ipsa loquitur instructions proposed by plaintiff. The applicability of that doctrine to the facts of this case is not contested and is not in issue here. The question is the procedural effect to be given that doctrine in the case at hand. I disagree with the treatment that the majority has given to this question and adhere to the lead opinion in Zukowsky v. Brown, 79 Wn.2d 586, 488 P.2d 269 (1971). First, the majority opinion chooses to ignore, rather than grapple with, the serious' and difficult problems associated with the question of the procedural effect to be given res ipsa loquitur. See Zukowsky v. Brown, supra, and authorities therein cited. Also see Siegler v. Kuhlman, 3 Wn. App. 231, 473 P.2d 445 (1970). In consequence, the majority decision, as to this point, contributes nothing to the body of law, and yields only a sui generis result. Having refused to meet the problem, the majority cannot be read as either enhancing, diminishing, or altering answers arrived at in cases where the issue has been met.3

*464In addition, plaintiff’s proposed instructions on res ipsa were defective. Each proposed instruction contains language criticized in Clark v. Icicle Irrigation Dist., 72 Wn.2d 201, 203, 432 P.2d 541 (1967):

We particularly disagree with the statement that “the happening of the accident alone affords reasonable evidence . . . that the accident arose from the want of reasonable care.” We have been at some pains to make it clear that the happening does not afford “reasonable evidence”; that it does no more than permit the jury to infer, •though it is not required to so infer, that the defendant or its agents were at some point negligent.

See recent discussion in Pederson v. Dumouchel, [72 Wn.2d 73], 431 P.2d 973 (1967).

Plaintiff’s first assignment of error is the trial court’s failure to give a requested instruction stating:

You are instructed that when a thing which causes an injury to another is shown to be under the management and control of the person charged with negligence in operation or maintenance of such thing, or in the failure to keep it in a reasonably safe condition, and if it is shown that an accident happened, which in the ordinary course of things, does not happen if those in charge of the management and maintenance of thing exercised reasonable care, then the happening of the accident alone affords reasonable evidence in the absence of explanation by the person charged with negligence that the accident arose from want of reasonable care on the part of such persons.

(Italics mine.)

Plaintiff’s second, and only other, assignment of error is the failure to give an instruction stating:

You are instructed that when an object which causes an injury to another is shown to be under the management and control of a person charged with negligence in the operation of such thing, or in the failure to keep it in a reasonably safe condition and if it is shown that the incident happened which in the ordinary course of things does not happen, if those in charge of this management and control exercise reasonable care, then the happening of said occurrence affords reasonable evidence, in the *465absence of an explanation by the person charged with negligence, that the occurrence arose from the want of reasonable care on the part of such person.

(Italics mine.)

Thus plaintiff’s proposed res ipsa instructions were defective by including the “affords reasonable evidence” language criticized in Clark 4 A trial court need not give an erroneous instruction. State v. Wilson, 26 Wn.2d 468, 174 P.2d 553 (1946).

I would affirm the trial court and the Court of Appeals.

Stafford, J., concurs with Neill, J.

Petition for rehearing denied January 4, 1973.

Hamley, J.

— Blasting operations conducted by Preston Mill Company frightened mother mink owned by B. W. Foster, and caused the mink to kill their kittens. Foster brought this action against the company to recover damages. His second amended complaint, upon which the case was tried, sets forth a cause of action on the theory of absolute liability, and, in the alternative, a cause of action on the theory of nuisance.

*441After a trial to the court without a jury, judgment was rendered for plaintiff in the sum of $1,953.68. The theory adopted by the court was that, after defendant received notice of the effect which its blasting operations were having upon the mink, it was absolutely liable for all damages of that nature thereafter sustained. The trial court concluded that defendant’s blasting did not constitute a public nuisance, but did not expressly rule on the question of private nuisance. Plaintiff concedes, however, that, in effect, the trial court decided in defendant’s favor on the question of nuisance. Defendant appeals.

Respondent’s mink ranch is located in a rural area one and one-half miles east of North Bend, in King county, Washington. The ranch occupies seven and one-half acres on which are located seven sheds for growing mink. The cages are of welded wire, but have wood roofs covered with composition roofing. The ranch is located about two blocks from U. S. highway No. 10, which is a main east-west thoroughfare across the state. Northern Pacific Railway Company tracks are located between the ranch and the highway, and Chicago, Milwaukee, St. Paul & Pacific Railroad Company tracks are located on the other side of the highway about fifteen hundred feet from the ranch.

The period of each year during which mink kittens are born, known as the whelping season, begins about May 1st. The kittens are born during a period of about two and one-half weeks, and are left with their mothers until they are six weeks old. During this period, the mothers are very excitable. If disturbed by noises, smoke, or dogs and cats, they run back and forth in their cages and frequently destroy their young. However, mink become accustomed to disturbances of this kind, if continued over a period of time. This explains why the mink in question were apparently not bothered, even during the whelping season, by the heavy traffic on U. S. highway No. 10, and by the noise and vibration caused by passing trains. There was testimony to the effect that mink would even becomé accustomed to the vibration and noise of blasting, if it were carried on in a regular and continuous manner.

*442Appellant and several: other companies have been engaged in logging in the adjacent area for more than fifty years. Early in May, 1951, appellant began the construction of a road to gain access to certain timber which it. desired to cut. The road was located about two: and one-quarter miles southwest of. the mink ranch, and about twenty-five hundred feet above the ranch, along the side. of what is known as Rattlesnake Ledge.

It was necessary to use explosives to build the road. The customary types of explosives were used, and the customary methods of blasting were followed. The most' powder used in one shooting was one hundred pounds, and usually the charge was limited to fifty pounds. The procedure used was to set off blasts twice a day — at noon and at the end of the work day.

Roy A. Peterson, the manager of the ranch in 1951, testified that the blasting resulted in “a tremendous vibration, is all. Boxes would rattle on the cages.” The mother mink would then run back and forth in their cages, and many of them would kill their kittens. Peterson also testified that on two occasions the blasts had broken windows.

Appellant’s expert, Professor Drury Augustus Pfeiffer, of the University of Washington, testified as to tests made with a pin seismometer, using blasts as large as those used by appellant. He reported that no effect on the delicate apparatus was shown at distances comparable to those involved in this case. He said that it would be impossible to break a window at two and one-fourth miles with a hundred-pound shot, but that it could cause vibration of a lightly-supported cage. It would also be audible. Charles E. Erickson, who had charge of the road construction for appellant in 1951, testified that there was no glass breakage in the portable storage and filing shed which the company kept within a thousand feet of where the blasting was done. There were windows on the roof as well as on the sides of this shed.

Before the 1951 whelping season had. far progressed, the mink mothers, according to Peterson’s estimate, had killed thirty-five or forty of their kittens. He then told the man*443ager of appellant company what had happened. He did not request that the blasting be stopped. After some discussion, however, appellant’s manager indicated that the shots would be made as light as possible. The amount of explosives used in a normal shot was then reduced from nineteen or twenty sticks to fourteen sticks.

Officials of appellant company testified that it would have been impractical to entirely cease road-building during the several weeks required for the mink to whelp and wean their young. Such a delay would have made it necessary to run the logging operation another season, with attendant expense. It would also have disrupted the company’s log production schedule and consequently the operation of its lumber, mill.

In this action, respondent sought and recovered judgment only for such damages as were claimed' to have been sustained as a result of blasting operations conducted after appellant received notice that its activity was causing loss of mink kittens. .

The primary question presented by appellant’s assignments of error is whether, on these facts, the judgment against appellant is sustainable on the theory of absolute liability.-

The modem doctrine of strict liability for dangerous substances and activities stems from Justice Blackburn’s decision in Rylands v. Fletcher, 1 Exch. 265, decided in 1866 and affirmed two years later in Fletcher v. Rylands, L.R. 3 H.L. 330. Prosser on Torts, 449, § 59. As applied to blasting operations, the doctrine has quite uniformly been held to establish liability, irrespective of negligence, for property damage sustained as a result of casting rocks or other debris on adjoining or neighboring premises. Patrick v. Smith, 75 Wash. 407, 134 Pac. 1076; Schade Brewing Co. v. Chicago, M. & P. S. R. Co., 79 Wash. 651, 140 Pac. 897; Bedell v. Goulter, 199 Ore. 344, 261 P. (2d) 842; Exner v. Sherman Power Constr. Co., 54 F. (2d) 510. But, see Klepsch v. Donald, 4 Wash. 436, 30 Pac. 991.

There is a division of judicial opinion as to whether the doctrine of absolute liability should apply where the dam*444age from blasting is caused, not by the casting of rocks and debris, but by concussion, vibration, or jarring. 92 A. L. R. 741, annotation. This court has adopted the view that the doctrine applies in such cases. Patrick v. Smith, supra. In the Patrick case, it was held that contractors who set off an exceedingly large blast of powder, causing the earth for a considerable distance to shake violently, were liable to an adjoining owner whose well was damaged and water supply lost, without regard to their negligence in setting off the blast, although there was no physical invasion of the property. For excellent expositions of this view, see Exner v. Sherman Power Constr. Co., supra; and Bedell v. Goulter, supra.

However the authorities may be divided on the point just discussed, they appear to be agreed that strict liability should be confined to consequences which lie within the extraordinary risk whose existence calls for such responsibility. Prosser on Torts, 458, § 60; Harper, Liability Without Fáult and Proximate Cause, 30 Mich. L. Rev. 1001, 1006; 3 Restatement of Torts, 41, § 519. This limitation on the doctrine is indicated in the italicized portion of the rule as set forth in Restatement of Torts, supra:

“Except as stated in §§ 521-4, one who carries on an ultra-hazardous activity is hable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra-hazardous, although the utmost care is exercised to prevent the harm.” (Italics ours.)

This restriction which has been placed upon the application of the doctrine of absolute liability is based upon considerations of policy. As Professor Prosser has said:

“It is one thing to say that a dangerous enterprise must pay its way within reasonable limits, and quite another to say that it must bear responsibility for every extreme of harm that it may cause. The same practical necessity for the restriction of liability within some reasonable bounds, which arises in connection with problems of ‘proximate cause’ in negligence cases, demands here that some limit be set . . . This limitation has been expressed by saying *445that the defendant’s duty to insure safety extends only to certain consequences. More commonly, it is said that the defendant’s conduct is not the ‘proximate cause’ of the damage. But ordinarily in such cases no question of causation is involved, and the limitation is one of the policy underlying liability.” Prosser on Torts, 457, § 60.

Applying this principle to the case before us, the question comes down to this: Is the risk that any unusual vibration or noise may cause wild animal's, which are being raised for commercial purposes, to kill their young, one of the things which make the activity of blasting ultra-hazardous?

We have found nothing in the decisional law which would support an affirmative answer to this question. The decided cases, as well as common experience, indicate that the thing which makes blasting ultrahazardous is the risk that property or persons may be damaged or injured by coming into direct contact with flying debris, or by being directly affected by vibrations of the earth or concussions of the air.

Where, as a result of blasting operations, a horse has become frightened and has trampled or otherwise injured a person, recovery of damages has been upheld on the theory of negligence. Klein v. Phelps Lbr. Co., 75 Wash. 500, 135 Pac. 226; Peterson v. General Geophysical Co., 185 P. (2d) (Cal. Dist. Ct.) 56; Bassett v. Moberly Paving Brick Co., 219 Mo. App. 81, 268 S. W. 645; Missouri Iron & Metal Co. v. Cartwright, 207 S. W. (Tex.) 397. Contra: Uvalde Constr. Co. v. Hill, 142 Tex. 19, 175 S. W. (2d) 247, where a milkmaid was injured by a frightened cow. But we have found no case where recovery of damages caused by a frightened farm animal has been sustained on the ground of absolute liability.

If, however, the possibility that a violent vibration, concussion, or noise might frighten domestic animals and lead to property damages or personal injuries be considered one of the harms which makes the activity of blasting ultra-hazardous, this would still not include the case we have here.

*446The relatively moderate vibration and noise which 'appellant’s blasting produced at a distance of two and a quarter miles was no more than a usual incident of the ordinary life of the community. See 3 Restatement of Torts, 48, § 522, comment a. The trial court specifically found that the blasting did not unreasonably interfere with the enjoyment of their property by nearby landowners, except in the case of respondent’s mink ranch.

It is the exceedingly nervous disposition of mink, rather than the normal risks inherent in blasting operations, which therefore must, as a matter of sound policy, bear the responsibility for the loss here sustained. We subscribe to the view expressed by Professor Harper (30 Mich. L. Rev. 1001, 1006, supra) that the policy of the law does not impose the rule of strict liability to protect against harms incident to the plaintiff’s extraordinary and unusual use of land. This is perhaps but an application of the principle that the extent to which one man in the lawful conduct of his business is liable for injuries to another involves an adjustment of conflicting interests. Exner v. Sherman Power Constr. Co., supra.

It may very well be that, under the facts of a particular case, recovery for damages of this kind may be sustained upon some theory other than that of absolute liability. In Hamilton v. King County, 195 Wash. 84, 79 P. (2d) 697, for example, recovery of such damages was sanctioned on the ground that defendant had trespassed upon plaintiff’s land in doing the blasting which caused the disturbance.

Likewise, if the facts warrant, it is possible that such damages may be predicated upon a violation of RCW 70.74.250 [cf. Rem. Supp. 1941, § 5440-25], requiring notice to be given at certain times of the year when blasting is to be undertaken within fifteen hundred feet of any fur farm or commercial hatchery, except in certain cases. In Mait-land v. Twin City Aviation Corp., 254 Wis. 541, 37 N. W. (2d) 74, where a low-flying airplane frightened mink and loss of kittens resulted, recovery was allowed upon a showing that the airplanes were flown at an unlawfully low elevation.

*447. In Madsen v. East Jordan Irr. Co., 101 Utah 552, 125 P. (2d) 794, recovery was denied under facts very similar to: those of the instant case, on the ground that the mother mink’s intervention broke the chain of causation. .

It is our conclusion that the risk of causing harm of the kind here experienced, as a result of the relatively minor vibration,, concussion, and noise from distant blasting, is not the kind of risk" which makes the activity of blasting ultrahazardous. The doctrine of absolute liability is therefore inapplicable under the facts of this case, and respondent is- not entitled to recover damages.

The judgment is reversed.

Grady, C. J., Mallery, Finley, and Olson, JJ., concur.

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.

WIEAND, Judge.

In this product liability action, the sole issue is the sufficiency of the circumstances surrounding a malfunction of an automobile to establish prima facie the existence of a manufacturing defect. The trial court determined the evidence to be insufficient and entered summary judgment in favor of the manufacturer. After careful review, we reverse.

*1205An order granting summary judgment is appropriate when a review of all the interrogatories, affidavits and depositions of record indicates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Buckno v. Penn Linen & Uniform Service, Inc., 428 Pa.Super. 563, 565, 681 A.2d 674, 675 (1998). However, “[a]n entry of summary judgment may be granted only in cases where the right is clear and free of doubt.” Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). When considering whether summary judgment is proper, the record must be examined in the light most favorable to the non-moving party, with all doubts resolved against the moving party. Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 170, 608 A.2d 1061, 1064 (1992).

On November 23, 1984, Wilma Ducko was driving a newly purchased, 1985 Chrysler Fifth Avenue southwardly on the Atlantic City Expressway, in New Jersey, when the vehicle suddenly jerked to the right. Although she tried with all her strength to straighten the course of her vehicle, she said, the steering felt as though it had locked. When she attempted to apply the brakes, they also failed to respond. The vehicle, which had been moving at a speed of 55 m.p.h., travelled across the highway, down an embankment and into a group of trees. Ducko received serious injuries, including a broken back, and the vehicle was totalled. Prior to the accident, the vehicle had been driven 1,655 miles; it had been purchased less than two months before. The road surface at the time of the accident was dry.

An expert employed by the plaintiffs found no specific defect in the vehicle. He opined that Mrs. Ducko’s accident had been caused by a transient malfunction of the system providing power to the steering and brakes. Chrysler’s expert, however, observed that both steering and brakes were operational, and he found no abnormalities in any of the car’s systems. He said that at a speed of 55 m.p.h. even a temporary power failure would not have rendered the steering uncontrollable. He expressed the opinion that the accident was a result of operator error.

When advancing a theory of strict product liability, a plaintiff has the burden of showing that the product was defective, that the defect was the proximate cause of his or her injuries and that the defect existed at the time the product left the manufacturer. Woodin v. J.C. Penney Co., Inc., 427 Pa.Super. 488, 490, 629 A.2d 974, 975 (1993); Vernon v. Stash, 367 Pa.Super. 36, 48, 532 A.2d 441, 447 (1987); Swartz v. General Elec. Co., 327 Pa.Super. 58, 66, 474 A.2d 1172, 1176 (1984). In certain cases of alleged manufacturing defects, however, the plaintiff need not present direct evidence of the defect. When proceeding on a malfunction theory, the plaintiff may “present a case-in-chief evidencing the occurrence of a malfunction and eliminating abnormal use or reasonable, secondary causes for the malfunction.” O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 435, 567 A.2d 680, 682 (1989). See also: Knight v. Otis Elevator Co., 596 F.2d 84, 89 (3d Cir.1979). From this circumstantial evidence, a jury may be permitted to infer that the product was defective at the time of sale. Vernon v. Stash, supra 367 Pa.Super. at 48, 532 A.2d at 448. This was summarized in Woodin v. J.C. Penney Co., Inc., supra, as follows:

Generally, a plaintiff will produce direct evidence of a product’s defective condition. In those cases where the plaintiff is unable to prove the precise nature of the product’s defect, however, he may, in some cases, rely on the “malfunction theory” of product liability. Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 182, 565 A.2d 751, 754 (1989). The malfunction theory allows the plaintiff to use circumstantial evidence to establish a defective product. In Rogers v. Johnson & Johnson Products, Inc., supra, the court stated:

[The malfunction theory] permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction. [The plaintiff is relieved] from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of the ab*1206sence of abnormal use and of the absence of reasonable, secondary causes.

Id. (citations omitted). Although proof of a specific defect is not essential to establish liability under this theory, the plaintiff cannot depend upon conjecture or guesswork. “The mere fact that an accident happens, even in this enlightened age, does not take the injured plaintiff to the jury.” Stein v. General Motors Corp., 58 D. & C.2d 193, 203 (Bucks 1972), aff'd, 222 Pa.Super. 751, 295 A.2d 111 (1972).

Id. at 492, 629 A.2d at 975-976. The malfunction theory, thus, does not relieve the burden of establishing a defect. Harkins v. Calumet Realty Co., 418 Pa.Super. 405, 418, 614 A.2d 699, 706 (1992). See also: Sochanski v. Sears, Roebuck & Co., 689 F.2d 45, 50 (3d Cir.1982). However, “[t]he malfunction itself is circumstantial evidence of a defective condition, ...” D’Antona v. Hampton Grinding Wheel Co., Inc., 225 Pa.Super. 120, 124, 310 A.2d 307, 309 (1973). When a party relies on the malfunction of a product to prove that it was defective, testimony identifying the exact nature of the alleged defect is not essential. “Although it is helpful for a plaintiff to have direct evidence of the defective condition which caused the injury or expert testimony to point to that specific defect, such evidence is not essential in a strict liability case based on § 402A [of the Restatements (Second) of Torts].” Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 136, 359 A.2d 822, 825 (1976) (emphasis in original). See also: Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 329, 319 A.2d 914, 920 (1974). Where the alleged malfunction occurs shortly after the product has been delivered to the user, the inference that the defect originated with the manufacturer is stronger. Cornell Drilling Co. v. Ford Motor Co., supra 241 Pa.Super. at 140, 359 A.2d at 827.

In MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969), the plaintiff had purchased her car a little more than a month before and had driven the vehicle only one hundred and forty-three (143) miles prior to the accident. According to the plaintiff’s testimony, while driving on the Pennsylvania Turnpike, at approximately fifty (50) or sixty (60) miles per hour, the steering on her vehicle failed to respond, and her car veered off the road and onto the berm. The plaintiff’s expert examined the vehicle and observed irregularities in the steering mechanism which, he said, might have been the cause of the problem described by the plaintiff. He was unable, however, to confirm positively that the irregularities had been the cause of the accident. After the close of all evidence, the jury returned a verdict in favor of the plaintiff. The defendant’s motion for judgment n.o.v. was denied by the trial court. On appeal, the defendant argued that the plaintiff had not shown any specific mechanical defect which had caused the accident. The Superior Court, concluding that the plaintiff had met her burden of proof through circumstantial evidence, said, “proof of the specific defect in construction or design causing a mechanical malfunction is not an essential element in establishing breach of warranty.” Id. at 389, 257 A.2d at 679. Therefore, the Court held that Mrs. MacDougall’s testimony of the bizarre steering action, prior to and at the time of the accident, “establishe[d] a mechanical malfunction in the absence of abnormal use which prevented her from maintaining control of the car.” Id. at 391, 257 A.2d at 680. As to the significance of her expert’s opinion, the Court said, “[Although proof of specific steering defects was not a prerequisite to establishing liability, we note that [plaintiffs expert’s] testimony ... lends definite additional support to this inference.” Id. at 391-392, 257 A.2d at 680 (emphasis added).

Later, in Agostino v. Rockwell Mfg. Co., 236 Pa.Super. 434, 345 A.2d 735 (1975), the Superior Court again considered the burden of proof required under the malfunction theory. In that ease, the plaintiff had purchased a power saw equipped with a blade guard less than a month before his injury and had used it only ten times. On the day of the accident he successfully cut three boards and was attempting to rest the saw on a work bench when the saw blade caught his trousers and cut his thigh. The plaintiff testified that the blade guard had appeared to be jammed. At trial, the court granted a compulsory non-suit in favor of the defendant, holding that there was no evidence to estab*1207lish that the saw had malfunctioned. The Superior Court reversed and remanded for a new trial. Because the plaintiff had said that the blade guard appeared to have been jammed, the Court held that “[t]he jury could have properly inferred from [the plaintiffs] testimony that the [blade] guard did not function properly.” Id. at 444, 345 A.2d at 740.

In Brill v. Systems Resources, Inc., 405 Pa.Super. 603, 592 A.2d 1377 (1991), the Superior Court again considered a plaintiffs evidentiary burden under the malfunction theory. There the plaintiff had been injured when the chair in which he had been sitting suddenly collapsed. At trial the plaintiff offered his own testimony concerning the events of his fall and the testimony of an eyewitness. The defendant, on the other hand, presented an expert who had examined the chair and opined that it was not defective. He concluded that the accident must have been the result of abnormal use by the plaintiff. The trial court refused to instruct the jury on the malfunction theory, and the jury returned a verdict for the defendant. On appeal, the Superior Court reversed and remanded for a new trial. Because the jury could have inferred a defect from the plaintiffs testimony, the Court held that a jury instruction on the malfunction theory was required. It said:

Thus, the record contains conflicting evidence regarding abnormal use. The determination of which version of events to credit, of course, was for the jury. See Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973) (credibility determinations within exclusive province of finder of fact). If the jury chose to credit appellant’s testimony, it could have found that there was no abnormal use or other reasonable secondary cause for the chair to collapse.... We therefore conclude that appellant was entitled to have the jury instructed that if it found no abnormal use, it could find that the chair malfunctioned.

Id. 405 Pa.Super. at 607-608, 592 A.2d at 1379.

In granting appellee’s motion for summary judgment in the instant case, the trial court relied upon the deposition testimony and reports submitted by Chrysler’s expert. This was error. Mrs. Ducko’s testimony of the erratic performance of the vehicle’s steering and braking systems, under the circumstances of this case, was sufficient to make out a prima facie case of a manufacturing defect in the vehicle. The issue of strict liability, therefore, was a disputed issue for the jury. Although a jury, after considering the testimony of appellee’s expert witnesses, may find that the vehicle was not defective and that the accident was caused by operator error, it was improper for the trial court to make such a determination summarily and as a matter of law.

Our decision, as we have attempted to demonstrate, is compelled by prior decisions of the Superior Court. It is also consistent with decisions in other jurisdictions which have adopted the malfunction theory and allow proof of a defectively manufactured product by circumstantial evidence. See, e.g.: Sochanski v. Sears, Roebuck & Co., 621 F.2d 67 (3d Cir.1980); Stewart v. Ford Motor Co., 553 F.2d 130 (D.C.Cir.1977); Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985); Wakabayashi v. Hertz Corp., 66 Haw. 265, 660 P.2d 1309 (1983); Gillespie v. R.D. Werner Co., Inc., 71 Ill.2d 318, 17 Ill. Dec. 10, 375 N.E.2d 1294 (1978); Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 686 P.2d 925 (1984); Moraca v. Ford Motor Co., 66 N.J. 454, 332 A.2d 599 (1975); Brownell v. White Motor Corp., 260 Or. 251, 490 P.2d 184 (1971).

The order of the trial court is reversed and the ease is remanded for further proceedings consistent with this opinion. Jurisdiction is not retained meanwhile.

Donovan, Judge.

{¶ 1} Plaintiff-appellants, Donegal Mutual Insurance Company, David Nearon, and Susan Nearon (“plaintiffs”), appeal from a decision of the Darke County Court of Common Pleas that partially sustained a motion for judgment notwithstanding the verdict (“JNOV”) filed by defendant-appellee, White Consolidated Industries, Inc. (“White”) after a jury trial held on September 13, 14, and 15, 2004. Plaintiffs also appeal from the trial court’s decision to reduce the amount of damages awarded them by the jury as a result of its partial grant of JNOV. Lastly, plaintiffs argue that the trial court erred when it overruled their motion for prejudgment interest.

{¶ 2} In its cross-appeal, White argues that the trial court erred when it refused to strike the testimony of plaintiffs’ expert, Bernard Doran. Additionally, White asserts that the trial court erred when it denied its motion for directed verdict and its motion for JNOV with respect to plaintiffs’ manufacturing-defect claim, because plaintiffs failed to present sufficient evidence on that cause of action. In its final cross-assignment, White contends that the trial court erred by overruling its motion for new trial.

I

{¶ 3} Initially, it should be noted that this is the third occasion in which the instant matter has appeared before us.

{¶ 4} On May 11, 1995, a fire destroyed the residence of David and Susan Nearon. After an investigation concerning the cause of the fire, Donegal Mutual Insurance, the insurer of the home, paid the Nearons $130,712.48 for the damages that they had suffered.

*575{¶ 5} In May 1997, the Nearons filed a lawsuit against White, in which they claimed that a Frigidaire electric stove had caused the fire that destroyed their home. After the trial court ordered that Donegal be joined as a party to assert any existing subrogation interests, the Nearons voluntarily dismissed the cause without prejudice on May 11,1999.

{¶ 6} The Nearons refiled the action on May 11, 2000. After determining that they had failed to abide by the terms of a pretrial scheduling order, the trial court sanctioned plaintiffs by dismissing their cause of action. In Donegal Mut. Ins. Co. v. White Consol. Industries (Oct. 26, 2001), Darke County App. No.2001 CA 1549, 2001 WL 1295362, we reversed that dismissal and remanded the cause for trial.

{¶ 7} In early September 2002, the first trial was held, and the jury found in favor of White with respect to plaintiffs’ product-liability claims. Plaintiffs moved for a new trial, arguing that White’s expert witnesses were not qualified to testify in the state of Ohio. The trial court denied the motion, and plaintiffs appealed the matter to this court. We reversed the decision of the trial court and remanded the cause for a new trial. See Donegal Mut. Ins. Co. v. White Consol. Industries (2003), 153 Ohio App.3d 619, 2003-Ohio-4202, 795 N.E.2d 133.

{¶ 8} The cause proceeded to trial a second time on September 13, 2005. At the close of the trial, the jury found in favor of plaintiffs on both a design-defect and a manufacturing-defect theory of product liability with respect to the allegedly malfunctioning electric stove built by White. On the design-defect claim, the Nearons were awarded $15,000, and Donegal was awarded $37,000. The jurors separately awarded the Nearons $15,000 and awarded Donegal $37,000 on the manufacturing-defect claim, for a grand total of $104,000 in damages.

{¶ 9} White subsequently moved for a new trial and for a JNOV, while the Nearons requested prejudgment interest. As mentioned above, the trial court overruled White’s motion for a new trial but sustained its motion for JNOV with respect to the Nearons’ design-defect claim. Pursuant to this ruling, the trial court reduced the monetary award to appellants by $15,000 for the Nearons and $37,000 for Donegal. Further, the trial court denied the Nearons’ motion for prejudgment interest. Accordingly, the trial court entered judgment for the Nearons for a total of $15,000 and in favor of Donegal for a total of $37,000.

{¶ 10} It is from this judgment that the Nearons and Donegal appeal. It is from the same judgment that White cross-appeals.

Plaintiffs’ Appeal

II

{¶ 11} Plaintiffs’ first assignment of error is as follows:

*576{¶ 12} “The trial court erred in granting defendant’s motion for judgment notwithstanding the verdict as to the jury’s finding of a design defect in that the court failed to consider all of the evidence most favorable to the non-moving party.”

{¶ 13} In their first assignment, plaintiffs contend that the trial court abused its discretion when it sustained White’s motion for JNOV with respect to the claim for design defect. Specifically, plaintiffs assert that in light of the evidence presented at trial on the issue, the jury reasonably found the existence of a design defect in the control switch on the electric stove. Thus, it was error for the trial court to set aside the jury’s finding that the electric stove suffered from a design defect that caused the fire that destroyed the Nearons’ residence. We agree.

{¶ 14} The standard for reviewing a trial court’s decision concerning a JNOV is the same as that applicable to a motion for directed verdict. Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, 137, 17 OBR 281, 477 N.E.2d 1145. In ruling upon a motion for JNOV, “the court must construe the evidence most strongly in favor of the party against whom the motion is made. Where the evidence is such that reasonable minds may derive differing conclusions therefrom, the motion must be denied. The court shall not consider the weight of the evidence or the credibility of the witnesses in determining its ruling on the motion. In short, every effort must be made to uphold the verdict if reasonably possible.” Motorists Mut. Ins. Co. v. Hamilton Twp. Trustees (1986), 28 Ohio St.3d 13, 15, 28 OBR 77, 502 N.E.2d 204. The nonmovant is also given the benefit of all reasonable inferences from the evidence. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 68, 23 O.O.3d 115, 430 N.E.2d 935. Appellate review of a motion for JNOV is de novo.

{¶ 15} In order to establish the elements of a products-liability design-defect claim, a plaintiff must show that (1) there was a defect in the product manufactured and sold by the defendant, (2) the defect existed at the time the product left the defendant’s control, and (3) the defect was the direct and proximate cause of the plaintiffs injuries or losses. State Farm Fire & Cas. Co. v. Chrysler Corp. (1988), 37 Ohio St.3d 1, 5-6, 523 N.E.2d 489.

{¶ 16} At the close of trial, the court instructed the jury to apply the “consumer-expectation test” pertaining to design defect. Under the consumer-expectation test, a product is defective in design or formulation when it is “more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” Former R.C. 2307.75(A)(2), Sub.S.B. No. 108, 149 Ohio Laws, Part I, 382, 438. Moreover, the question of what an ordinary consumer expects in terms of the risks posed by the product is generally one for *577the trier of fact. Welch Sand & Gravel, Inc. v. O & K Trojan, Inc. (1995), 107 Ohio App.Bd 218, 225, 668 N.E.2d 529, 533-534.

{¶ 17} Plaintiffs presented evidence of unsafe, unexpected product performance when they alleged that Susan Nearon merely set the electric stove to self-clean mode before it acted defectively and caused the fire that destroyed the Nearons’ residence. This is sufficient evidence from which a trier of fact may infer the existence of a product defect. However, satisfaction of the consumer-expectation test is not all a plaintiff must prove in a product-liability action premised on a design defect. As we' previously stated, a plaintiff must also present evidence that the defect was the direct and proximate cause of his injuries or losses.

{¶ 18} White argues that plaintiffs were unable to establish the element of proximate cause at trial because the court found that their expert, Bernard Doran, was not qualified to opine as to whether the electric stove was designed improperly and precluded him from testifying that the proximate cause of the fire was a design defect in the switch on the stove. Thus, White asserts that without expert testimony to that effect, plaintiffs failed to produce sufficient evidence demonstrating causation, and the trial court was correct in granting the JNOV with respect to the design-defect claim.

{¶ 19} In order to establish the third element of a design-defect claim, proximate causation, the plaintiff must prove by a preponderance of the evidence that some aspect of the challenged design rendered the product’s performance less safe than the ordinary consumer would expect, resulting in injury. Atkins v. Gen. Motors Corp. (1999), 132 Ohio App.3d 556, 725 N.E.2d 727, citing State Farm Fire & Cas. Co., 37 Ohio St.3d 1, 523 N.E.2d 489. Proof of causation must be by probability. Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 369, 28 OBB, 429, 504 N.E.2d 44. Thus, a plaintiff must offer proof that the allegedly defective condition was the most probable cause of his injuries or losses. Fogle v. Cessna Aircraft Co. (Jan. 16,1992), Franklin County App. No. 90AP-977, 1992 WL 10272. The proof necessary to adequately demonstrate that the defect was the proximate cause of the plaintiffs injuries may be either direct or circumstantial. State Farm Fire & Cas. Co., supra.

{¶ 20} Although Doran was ultimately not allowed to testify as to the exact nature of the design defect that was the proximate cause of the fire, plaintiffs presented abundant circumstantial evidence from which a trier of fact could readily infer that an electrical fault within the switch on the stove had caused the fire that destroyed the Nearons’ residence. In particular, the trial court allowed Doran to testify in detail that an electrical fault within the switch caused the fire. The fact that he was not allowed to testify as to the exact nature of the design *578defect that caused the electrical fault that led to the fire is irrelevant. Insofar as the evidence suggests that an electrical fault within the switch on the Nearons’ stove caused the fire, a jury could properly conclude that the switch had been defectively designed.

{¶ 21} Construing the evidence most strongly in favor of the nonmoving party, the plaintiffs in this case, we find that the JNOV was improvidently granted. When plaintiffs are afforded the benefit of all reasonable inferences from the evidence, it is clear that the trial court erred, and the jury’s verdict should be reinstated with respect to the claim for design defect.

{¶ 22} Plaintiffs’ first assignment of error is sustained.

III

{¶ 23} Plaintiffs’ second assignment of error is as follows:

{¶ 24} “The trial court erred in reducing the jury’s verdict to $52,000.00 as a result of the court’s decision to partially grant defendant’s motion for JNOV, because even if there was insufficient evidence to support a design defect the jury’s finding of manufacturing defect independently supports the jury’s total verdict of $104,000.00.”

{¶ 25} In light of our holding with respect to plaintiffs’ first assignment, we find it unnecessary to address the merits of their second assignment, which is rendered moot. Having reversed the trial court’s decision granting White’s JNOV with respect to plaintiffs’ design-defect claim, we hold that the original monetary award totaling $104,000 is reinstated, and the trial court’s decision reducing that amount is hereby set aside.

IV

{¶ 26} Plaintiffs’ third assignment of error is as follows:

{¶ 27} “The trial court erred in denying plaintiffs’ motion for prejudgment interest because the court’s ruling is contrary to law.”

{¶ 28} In their third and final assignment, plaintiffs contend that the trial court abused its discretion when it denied a motion for prejudgment interest on the damages award. Specifically, plaintiffs argue that when it denied the motion, the trial court applied the incorrect test when determining whether to award prejudgment interest. Plaintiffs assert that an award of prejudgment interest is mandatory in the present case. We disagree.

{¶ 29} Decisions on the grant or denial of prejudgment interest are within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Wagner v. Midwestern Indemn. Co. (1998), 83 Ohio St.3d 287, *579292, 699 N.E.2d 507. An abuse of discretion is “more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. Moreover, an abuse of discretion is a “perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. Under this standard, an appellate court may not merely substitute its judgment for that of the trial court. Id.

{¶ 30} In support of their position, plaintiffs cite this court’s decision in Heinz v. Steffen (1996), 112 Ohio App.3d 174, 678 N.E.2d 264, for the proposition that the trial court has no discretion to disallow an award of prejudgment interest when that award is necessary to make the aggrieved party whole. While this statement is certainly true, plaintiffs argue that this interpretation applies in both contract and tort cases. Heinz dealt with prejudgment interest in a contract action filed by a judgment debtor to collect a judgment pursuant to R.C. 1343.03(A).

{¶ 31} The holding in Heinz, however, does not extend to the grant or denial of prejudgment interest in tort cases. The trial court determines whether to award prejudgment interest in a tort case pursuant to R.C. 1343.03(C), which states:

{¶ 32} “Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which money is paid if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case.”

{¶ 33} This statute was enacted to promote settlement efforts, prevent parties who engage in tortious conduct from frivolously delaying the ultimate resolution of cases, and encourage good faith efforts to settle controversies outside a trial setting. Kalain v. Smith (1986), 25 Ohio St.3d 157, 159, 25 OBR 201, 495 N.E.2d 572. A party has not “failed to make a good faith effort to settle” under R.C. 1343.03(C) if it has (1) fully cooperated in discovery proceedings, (2) rationally evaluated its risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement or responded in good faith to an offer from the other party. Id. If a party has a good faith, objectively reasonable belief that it has no liability, it need not make a monetary settlement offer. Id. The decision as to whether a party’s settlement efforts indicate good faith is generally within the sound discretion of the trial court. Id., citing Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d *58083, 19 OBR 123, 482 N.E.2d 1248. The burden of proof is on a party seeking prejudgment interest to establish the lack of good faith of the nonmoving party. Kalain, supra, at syllabus.

{¶ 34} After a thorough review of the record, we hold that the trial court followed the proper standard pursuant to R.C. 1343.03(C) and did not abuse its discretion when it denied plaintiffs’ motion for prejudgment interest. As previously mentioned, this is the third occasion on which this action has come before us on appeal. In the first trial in this matter in 2002, the jury rendered a verdict in favor of the defendants. Thus, it was reasonable for White to possess a good faith, objectively reasonable belief that it had no liability. Plaintiffs merely requested that White make a settlement offer to them. Additionally, plaintiffs never made an offer to settle with White. Lastly, plaintiffs have utterly failed to establish any facts that demonstrate bad faith on the part of White. Plaintiffs have not met their burden of proof pursuant to R.C. 1343.03(C). Accordingly, the trial court did not abuse its discretion when it overruled plaintiffs’ motion for prejudgment interest.

{¶ 35} Plaintiffs’ final assignment of error is overruled.

White’s Cross-Appeal

V

{¶ 36} White’s first assignment of error is as follows:

{¶ 37} “The trial court erred in denying the motion to strike the testimony of expert Bernard Doran.”

{¶ 38} In its first assignment of error, White contends that the trial court erred when it overruled the motion to strike the testimony of plaintiffs’ expert, Bernard Doran. Initially, White asserts that Doran’s opinions were unreliable because he was not competent to testify as an expert in manufacturing defects. White further asserts that Doran’s testimony should have been stricken because he had failed to test his hypothesis. Lastly, White argues that Doran’s opinions were unreliable because he did not offer them within a reasonable degree of scientific certainty.

{¶ 39} The trial court has broad discretion in determining the admissibility of expert testimony, and we may reverse only if the trial court abused its discretion. See Kumho Tire Co. v. Carmichael (1999), 526 U.S. 137, 152-153, 119 S.Ct. 1167, 143 L.Ed.2d 238. In general, courts should admit expert testimony whenever it is relevant and satisfies Evid.R. 702. State v. Nemeth (1998), 82 Ohio St.3d 202, 207, 694 N.E.2d 1332. Thus, the trial court must perform a “gatekeeping” role to insure that expert testimony is sufficiently (a) relevant and (b) reliable to justify its submission to the jury. Daubert v. Merrell Dow Pharma *581 ceuticals, Inc. (1993), 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469. In performing this role, the trial court must follow Evid.R. 702, which states:

{¶ 40} “A witness may testify as an expert if all of the following apply:

{¶ 41} “(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;

{¶ 42} “(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

{¶ 43} “(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is rehable only if all of the following apply:

{¶ 44} “(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;

{¶ 45} “(2) The design of the procedure, test, or experiment reliably implements the theory;

{¶ 46} “(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.”

{¶ 47} In order to qualify as an expert, the witness need not be the best witness on the subject. Scott v. Yates (1994), 71 Ohio St.3d 219, 221, 643 N.E.2d 105. The expert must demonstrate some knowledge on a particular subject that is superior to that an ordinary juror possesses. Id., citing State Auto Mut. Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151, 160, 65 O.O.2d 374, 304 N.E.2d 891.

{¶ 48} The first issue in White’s motion to strike concerns whether Doran was qualified to present expert testimony on the manufacturing-defect claim. Doran’s testimony clearly established his qualifications in the field of fire investigation and forensic engineering. Doran also earned a bachelor’s degree in physics and has been a licensed professional engineer in Ohio since 1969. Doran further testified that he has an associate’s degree in electronic engineering. Moreover, his testimony dealt with a complex area of expertise of which a lay person would commonly have no knowledge. Thus, the requirements of Evid.R. 702(A) and (B) have been satisfied, and our review is focused solely upon the reliability of Doran’s testimony pursuant to Evid.R. 702(C).

{¶ 49} From Doran’s qualifications and testimony, it is clear that Doran was competent to provide reliable testimony with respect to plaintiffs’ manufacturing-*582defect claim. Although Doran conceded that he was not an expert in the manufacture of electrical stoves, his background in electrical and forensic engineering provided him with the requisite expertise necessary to opine concerning the cause and origin of the fire in the stove, which he unequivocally stated was an electrical fault in the switch.

{¶ 50} Next, White argues that the motion to strike Doran’s testimony should have been granted because he had failed to test his hypothesis that the fire had originated in the switch as a result of an electrical fault that ignited contaminants that entered the switch through holes in the back of the switch itself. White contends that Doran’s- failure to perform any physical testing utilizing exemplar switches in order to approximate the alleged cause of the fire in the stove should have disqualified him as an expert in the case. We disagree.

{¶ 51} When questioned concerning his failure to perform physical testing, Doran stated:

{¶ 52} “Q: Okay. And what you’re telling us is that the NFPA 921, the current condition of the guide put forth by an organization to which you are a member recommends that fire cause and origin investigators utilize the scientific method. Is that what you are telling us?

{¶ 53} “A: Wait a minute. Scientific method is different than empirical testing. Testing, as they define it, can simply be a thought process, a thinking through of the evidence presented and evaluated mentally in arriving at a conclusion. It doesn’t necessarily mean buy a hundred stoves or switches or other items and testing them for years on end.”

{¶ 54} With respect to the procedure he followed, Doran testified that he took the subject stove apart and compared the failed switch with an exemplar switch that he also dismantled. Based on his knowledge and experience as a fire investigator and forensic engineer, Doran concluded that the fire had begun in the switch. After listening to arguments from both parties, the trial court found that Doran’s failure to test, while going to the weight of his testimony, was not determinative on the issue of its admissibility. Even White concedes in its brief that Doran’s failure to perform that testing was not determinative with respect to the admissibility of his testimony. Thus, the jury was left to decide how reliable Doran’s testimony was, in light of his failure to perform physical testing with exemplar switches like the one in the subject stove. Accordingly, the trial court did not abuse its discretion in this regard.

{¶ 55} Lastly, White argues that Doran’s testimony should be stricken because it was not offered within a reasonable degree of scientific certainty. White asserts that Doran “established nothing more than that his theory was merely a possibility.” We disagree.

*583{¶ 56} During the direct examination of Doran, the following exchange occurred:

{¶ 57} “Q: Mr. Doran, I would like to ask you a couple of questions. Any time in this testimony that you’re asked to express an opinion, I’d like you to express that opinion to a reasonable degree of engineering probability as the standard. Can we agree to that?

{¶ 58} “A: Yes, of course.”

{¶ 59} White points out that Doran testified that contaminants entering through holes in the back of the switch were the probable cause of the electrical fault that, in turn, caused the fire in the stove. White argues that the trial court should have excluded that testimony because Doran could not explain the exact nature of the alleged electrical fault to any degree of certainty. However, Doran testified that absent a manufacturing defect in the switch, the fire would not have occurred. This is evident in the following exchange:

{¶ 60} “Q: We’ll get to that in a minute. I want to ask you if you have an opinion as to whether or not that switch had an electrical defect there?

{¶ 61} “Q: (Defense Counsel) Objection. Lack of foundation.

{¶ 62} “The Court: Overruled. Go ahead.

{¶ 63} “A: One would infer that the switch was defective in manufacture as it failed.

{¶ 64} “ * * *

{¶ 65} “Q: Is there any question in your mind that there was an electrical failure in that switch?

{¶ 66} “A: No. None whatsoever.

{¶ 67} “Q: No question.

{¶ 68} “A: No.

{¶ 69} “Q: And did the electrical failure in the switch cause the fire at the Nearon house?

{¶ 70} “A: Yes, sir.”

{¶ 71} In light of the foregoing testimony, it is clear that Doran expressed his opinions concerning the origin and cause of the fire within a reasonable degree of scientific certainty. Thus, it was not an abuse of discretion for the trial court to overrule White’s motion to strike the testimony of plaintiffs’ expert, Bernard Doran.

{¶ 72} White’s first assignment of error is overruled.

*584VI

{¶ 73} White’s second assignment of error is as follows:

{¶ 74} “The trial court erred in denying the motion for directed verdict and motion for judgment notwithstanding the verdict on the manufacturing defect claim.”

{¶ 75} In its second assignment, White contends that the trial court erred when it denied its motions for directed verdict and JNOV with respect to plaintiffs’ manufacturing-defect claim. Specifically, White argues that plaintiffs presented no evidence that the range had been manufactured defectively. White also asserts that plaintiffs presented no evidence that the alleged defect was present when the stove left White’s control. Lastly, White argues that plaintiffs presented insufficient evidence that the alleged defect was the cause of the damage.

{¶ 76} A product is defective in manufacture or construction if, when it leaves the control of its manufacturer, it deviates in a material way from the design specifications, formula, or performance standards of the manufacturer, or from otherwise identical units manufactured to the same design specifications, formula, or performance standards. R.C. 2307.74. A product may be defective in manufacture or construction even if its manufacturer has exercised all possible care in its manufacture or construction. Id.

{¶ 77} In manufacturing-defect cases, evidence of unsafe, unexpected performance of a product is sufficient to infer existence of defect. State Farm Fire & Cas. Co. v. Chrysler Corp. (1988), 37 Ohio St.3d 1, 523 N.E.2d 489. However, that evidence must be accompanied by proof that the alleged defect was present when the product left the hands of the manufacturer and that it proximately caused the plaintiffs injuries. Id.

{¶ 78} In the instant case, plaintiffs presented evidence through the testimony of their expert, Doran, that the electric stove manufactured by White was the source of the fire that had burned down the Nearons’ residence. As previously stated, Doran testified at length that the origin of the fire was the left-hand control switch on the stove and that an electrical failure inside the switch caused the fire. Doran also testified that one could infer the existence of a manufacturing defect in the switch because it had failed.

{¶ 79} With respect to the element of proximate causation, Doran provided unequivocal testimony that the failure of the switch had caused the fire. He testified that heat from the failed switch had ignited the insulation on wires near the switch and that the fire had then spread to wood paneling behind the stove. That the fire was caused by the switch in the stove is further evidenced by the *585testimony of White’s expert, John Heltman, who agreed that fire patterns on the back panel of the range indicated that hot gas trapped inside the panel left the rear of the panel through vents on the back of the stove. Plaintiffs argued at trial that this demonstrates that the fire had originated in the back of the stove where the failed switch was located. Thus, sufficient evidence was adduced at trial to demonstrate that the faulty switch in the stove was the proximate cause of the fire.

{¶ 80} Lastly, plaintiffs provided sufficient evidence that the defect in the switch was present when the product left the hands of the manufacturer, White. Absent substantial change in the condition in which the product was sold, it may be inferred that the defect was present when it left the hands of the manufacturer. State Farm Fire & Cas. Co., 37 Ohio St.3d 1, 523 N.E.2d 489. This can be established by demonstrating that the product was not tampered with. Atkins v. Gen. Motors Corp. (1999), 132 Ohio App.3d 556, 725 N.E.2d 727, citing McDonald v. Ford Motor Co. (1975), 42 Ohio St.2d 8, 11, 71 O.O.2d 4, 326 N.E.2d 252, 254.

{¶ 81} At trial, Susan Nearon testified that in the 18 months after she had purchased the electric stove, no repairs were made to the product, nor had anyone tampered with the switch that was ultimately found to have caused the fire. Additionally, Doran testified that the stove had been manufactured in such a way that the faulty switch was obscured by the back panel of the stove. Mrs. Nearon testified that to her knowledge, the back panel of the stove had never been removed. Clearly, plaintiffs presented sufficient circumstantial evidence from which it could be inferred that the range was in the same condition as when it was first assembled. Thus, the trial court did not err when it denied White’s motion for directed verdict and JNOV with respect to plaintiffs’ manufacturing defect claim.

{¶ 82} White’s second assignment of error is overruled.

VII

{¶ 83} White’s final assignment of error is as follows:

{¶ 84} “The trial court erred in denying the motion for a new trial.”

{¶ 85} In its final assignment, White contends that the trial court abused its discretion when it overruled the motion for new trial. Specifically, White argues that the jury verdict in favor of Donegal, the Nearons’ insurer, is contrary to law because Donegal failed to bring suit in its own name as the real party in interest before the two-year statute of limitations had expired. We disagree.

{¶ 86} As previously mentioned, the Nearons commenced the initial action against White in May 1997. On May 11, 1999, the Nearons voluntarily dismissed *586their claims against White. On May 11, 2000, the Nearons refiled their action, with Donegal joined as a coplaintiff. It is undisputed that Donegal had paid the Nearons approximately $141,193.22 to repair their home and replace its contents.

{¶ 87} White argues that pursuant to R.C. 2305.10(A), Donegal is barred by the statute of limitations from litigating the instant matter because, as the real party in interest, Donegal should have asserted its claims in the first filing of this case or within two years after the cause of action arose. In support of this contention, White cites the Ohio Supreme Court case Shealy v. Campbell (1985), 20 Ohio St.3d 23, 20 OBR 210, 485 N.E.2d 701, which held that when an insurer has paid all damages on behalf of its insured, the insurer becomes the real party in interest and must bring suit in its own name.

{¶ 88} Because Donegal did not enter the litigation until May 11, 2000, well after the statute of limitations had expired, White contends that it is barred from doing so now. White argues that the jury’s verdict in favor of Donegal was contrary to law and that the trial court should have granted White a new trial based on the claims of the Nearons. We disagree.

{¶ 89} In Holibaugh v. Cox (1958), 167 Ohio St. 340, 4 O.O.2d 461, 148 N.E.2d 677, the Ohio Supreme Court held that when part, but not all, of an insured’s claim has been paid by the insurer, the insurer may be properly joined as a party if the insured’s action was timely with respect to the statute of limitations. We have a similar situation in the case before us. The Nearons assert, and White does not dispute, that although Donegal paid them approximately $141,193.22, their claims were not fully paid. Consequently, the Nearons remained the real party in interest. We agree with the trial court that the claims of Donegal were derivative claims that could be pursued on behalf of the Nearons but only to the extent of its subrogation interest. Because the Nearons voluntarily dismissed their action on May 11, 1999, they were required to refile by May 11, 2000. When the Nearons refiled on that date within the statute of limitations, Donegal was properly joined as a coplaintiff in the action. Thus, the trial court did not abuse its discretion when it denied White’s motion for new trial.

{¶ 90} White’s final assignment of error is overruled.

VIII

{¶ 91} Plaintiffs’ first assignment of error having been sustained, the judgment of the trial court granting White’s JNOV with respect to plaintiffs’ claim for design defect is reversed, and the jury’s verdict finding for plaintiffs in that regard is hereby reinstated. Additionally, plaintiffs’ second assignment of error is rendered moot, and the jury’s original verdict awarding a total of $104,000 to plaintiffs is reinstated. Plaintiffs’ third and final assignment of error, as well as *587each of White’s assignments in its cross-appeal, are hereby overruled in their entirety, and the judgment of the trial court is affirmed in those respects.

Judgment reversed in part and affirmed in part.

Wolff and Fain, JJ., concur.

STEPHENS, Justice.*

This is a products liability case. Four-year-old Richard Nichols was badly burned while playing with matches when his T-shirt caught fire. Through his father, as next friend, he sued Union Underwear Company, Inc., the manufacturer and seller of the shirt. The basis of the suit was strict liability for design defect. Following a jury trial in the Franklin Circuit Court, a verdict was returned for Union Underwear and judgment was entered on the verdict.

Nichols appealed to the Court of Appeals, which affirmed the judgment. Because of the importance of the question presented, we granted discretionary review. The sole issue to be determined is whether the trial court erred in instructing the jury on the definition of “unreasonably dangerous” which appears in comment i of section 402A of the second Restatement of Torts.

Because we are concerned with the instruction given, we need not burden this opinion with an extensive description of the evidence presented to the jury. Nichols concedes that the evidence was of such a nature that the jury had a right to believe that presented by Union Underwear. However, it is relevant here that the proof presented concerned itself with the following major areas: (1) the flammability of the fabric of the shirt; (2) the risk of clothing-inflicted burns to children; (3) the availability of commercially feasible, alternative designs and fabrics for this particular article of clothing; (4) the extent of *431consumer awareness of the danger inherent in flammable children’s clothing; (5) the alleged lack of such awareness of danger by this child and his mother; and (6) the significance of the fact that the fabric complies with applicable federal statutory standards for flammability. It is clear that the jury was given ample evidence on which to base its decision.

The doctrine of strict liability was adopted in this state in the case of Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441 (1966). While the court recognized that strict liability had obtained “substantial acceptance” throughout the country, it hung its judicial hat on the American Law Institute’s revised restatement of the law of torts. The court adopted section 402A, which provides:

(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.

Restatement, Second, Torts § 402A (1965) (emphasis added).

Since the Dealers Transport case, there have been a substantial number of products liability cases before us. In Jones v. Hutchinson Manufacturing, Inc., Ky., 502 S.W.2d 66 (1973), we specifically applied the rule to liability for defective product design. In every case, however, the golden thread that holds the rule together is the Restatement, Second, Torts § 402A, quoted above.

A careful reading of section 402A reveals that, as a condition precedent to strict liability becoming operative in a particular case, the product sold must be “unreasonably dangerous” to the user or consumer or to his property. This court has never specifically addressed the question of how that concept should be presented in the instructions to the jury in a defective desjgn case. Because the trial judge chose to present it in the form of a definition in the instructions in this case and because Nichols claims prejudicial error resulted, we are now faced with that problem.

The instructions given were based on section 402A of the Restatement, as follows:

Instruction # 1

If you believe from the evidence that an ordinarily prudent manufacturer of children’s T-shirts should have foreseen that a child wearing its T-shirts substantially in the manner it was being worn at the time of the accident and that a child, while wearing one of its T-shirts might expose it to fire and in that event suffer injury from the shirt burning, either because of the composition of the shirt and/or because of his manner of wearing it, then the Court instructs you that the defendant had these duties:

A. Not to manufacture and sell a product that was unreasonably dangerous for children, including Ricky Nichols; and

B. To exercise that degree of care as would be expected of an ordinarily prudent manufacturer to manufacture and sell a product that would be reasonably safe for children including Ricky Nichols.

Instruction # 2

If you believe the defendant failed to perform either of the duties set out in Instruction # 1 hereof, and such failure or failures was a substantial factor in bringing about the injury to the Plaintiff, then you will find for the plaintiff; but unless you so believe, you will find for the defendant.

No objection was raised by Nichols to these instructions which simply set out the doctrine of strict liability provided in sec*432 tion 402A as applied to the facts developed in the present case. Then, over the strenuous and continuing objection of Nichols, the court gave an instruction defining “unreasonably dangerous.”

Instruction # 4

A product is ‘unreasonably dangerous’ only if it is dangerous to an extent beyond that which would be contemplated by an ordinary adult purchaser thereof, with ordinary knowledge as to its inherent characteristics.

Nichols contends that this instruction was erroneous and prejudicial. He claims that danger beyond an ordinary purchaser’s contemplation is only one of several factors to be considered in determining if a product is, in fact, unreasonably dangerous. Further, he argues that a product's danger does not become reasonable simply because it is within the contemplation or actual awareness of the average consumer. Finally, he contends that no definition of the term “unreasonably dangerous” should have been given, but, as one was given, it should not have singled out one factor (consumer awareness) but, instead, should have brought all factors relevant to that determination to the attention of the jury.

The issue of what constitutes unreasonable dangerousness has been the subject of growing controversy. Much has been written by courts and legal scholars. See, e.g., Darling, The Patent Danger Rule: An Analysis and A Survey of its Vitality, 29 Mercer L.Rev. 583 (1978); Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825 (1973); W. Prosser, Handbook of the Law of Torts ch. 17 (4th ed. 1971); and cases cited therein.

The instruction given was based on comment i to section 402A of the Restatement, which provides, in pertinent part: “The article sold must be 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.”

It is clear that instruction four limited the jury to finding the product unreasonably if, and only if, it was more dangerous than an ordinary adult would expect it to be. In effect, the product cannot be unreasonably dangerous if the omnipresent and elusive “reasonable man” — ordinary adult— knows about the danger. Under this instruction, the obviousness of the danger becomes the sole determinant of the reasonableness of a danger, rather than simply being one of many factors.

The effect of this instruction is to insulate a product from liability simply because it is patently dangerous, or because it is no more dangerous than would be anticipated by the ordinary person. Some seventeen jurisdictions adhere to this rule, eighteen have repudiated it, and sixteen, including Kentucky, have not addressed the issue. See Darling, supra, at 604-09. We now join those which have considered and rejected “patent danger” or “consumer expectation” as an absolute defense to strict liability for defective design. As Dean Wade, Reporter for the Restatement, Second, Torts, put it:

In many situations, particularly involving design matters, the consumer would not know what to expect, because he would have no idea how safe the product could be made.

Wade, supra, at 829.

We are immediately met with the difficult problem 1 of describing the standard to which the fact finder should compare the *433product to decide whether it was in a “defective condition unreasonably dangerous” when sold. In Ulrich v. Kasco Abrasives Company, Ky., 532 S.W.2d 197, 200 (1976), we pointed out that the inquiry is to be made from the perspective of a “prudent manufacturer of similar products fully apprised of the condition and tendencies of the product when he put it into the stream of commerce . . . .” This is because strict liability makes unnecessary proof by the plaintiff of what a prudent manufacturer exercising ordinary care actually should have discovered and foreseen as in a negligence action. This idea is inherent in the concept of defectiveness.

Dean John Wade and Dean Page Keeton have provided the most widely adopted definition of defectiveness as it applies to strict products liability. The strict liability standard is no different from that of negligence, they say, except that the seller is presumed to have knowledge of the actual condition of the product when it leaves his hands. In other words, as long as the product is shown to be in a defective condition when sold, the plaintiff need not go further and prove that the seller either knew or should have known of the defect.

Phillips, The Standard for Determining Defectiveness in Products Liability, 46 U.Cin. L.Rev. 101, 103 (1977).

We note, however, that this “knowledge” characteristic is not as significant in design defect cases as in manufacturing defect cases. In design defect cases liability is founded upon the premise that the design itself selected by the manufacturer amounted to a defective condition which was unreasonably dangerous; actual knowledge of the design is not the question. “Probably the main difference between design defects and construction flaws is that with respect to design defects the feasibility of making a safer product is usually in issue, while feasibility is not generally an issue for construction flaws.” Phillips, supra, at 104-05. This observation was central to our reasoning in Jones v. Hutchinson Manufacturing, Inc., Ky., 502 S.W.2d 66, 69-70 (1973), when we stated, “We think it apparent that when the claim asserted is against a manufacturer for deficient design of its product the distinction between the so-called strict liability principle and negligence is of no practical significance so far as the standard of conduct required of the defendant is concerned. In either event the standard required is reasonable care.” Thus, the fact finder in a design defect case must decide whether the manufacturer that placed in commerce the product made according to an intended design acted prudently, i.e., was the design a defective condition which was unreasonably dangerous.

We believe that consumer knowledge, the factor considered below, is only one of the factors that should be before the jury in determining whether a product is unreasonably dangerous. We will not set out an exclusive list of the factors which lead to this determination. In Jones, supra, we discussed deviation from industry standard as a factor; in Kasco Abrasives, supra, we recognized the obviousness of the danger and presence of a warning as relevant. Noted commentators have suggested many factors.2 But the facts of the individual case will determine what is relevant to each action.

In the event of another trial, the jury should be instructed as follows:

You will find for the plaintiff only if you are satisfied from the evidence that the material of which the T-shirt was made created such a risk of its being accidentally set on fire by a child wearing it that an ordinarily prudent company engaged in the manufacture of clothing, being fully aware of the risk, would not have put it on the market; otherwise, you will find for the defendant.

The decision of the Court of Appeals and the judgment of the Franklin Circuit Court are reversed and the cause is remanded for *434a new trial consistent with the views herein expressed.

All concur, except STEPHENSON, J., who dissents and files herewith a dissenting opinion.

LUKOWSKY, Justice,

concurring.

I agree with the opinion of the majority as far as it goes. However, the opinion leaves the law in products liability design defect cases amorphous. It fails to identify the gut issue.

I believe that whether a design is unreasonably dangerous must be determined by a social utility standard — risk versus benefit. If the benefits to be gained by the consuming public outweigh the risks of danger inherent in a particular design, such a product cannot be “unreasonably dangerous.” See Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 573 P.2d 443, 143 Cal.Rptr. 225 (1978); Bowman v. General Motors Corp., E.D.Pa., 427 F.Supp. 234 (1977). The bottom line is that the trier of fact is required to balance two pairs of factors existing at the time of manufacture: (1) the likelihood that the product would cause the claimants harm or similar harms, and the seriousness of those harms; against (2) the manufacturer’s burden of designing a product that would have prevented those harms, and the adverse effect that alternative design would have on the usefulness of the product. That is to say that the manufacturer is not liable unless at the time of manufacture the magnitude of the danger to the claimant outweighed the utility of the product to the public. 72 C.J.S. Supp. Products Liability § 13; W. Kimble and R. Lesher, Products Liability section 55 (1979). See also, Louisville & Jefferson Co. Bd. of Health v. Mulkins, Ky., 445 S.W.2d 849, 851-52 (1969). The ultimate inquiry is risk versus benefit.

In the event of another trial, I believe the jury should be instructed as follows:

You will find for the Plaintiff if you are satisfied from the evidence that at the time of the manufacture of the cotton and polyester T-shirt the risk of harm from its being accidentally set on fire while being worn by a child outweighed the benefit to the public from its availability in the marketplace. Otherwise, you will find for the defendant.

STEPHENSON, Justice,

dissenting.

In my opinion the only error on the part of the trial court was the failure to give a directed verdict to the respondent here.

Ordinarily in “products liability” cases, I think of design defects as failure to provide proper safety measures in design. For example: lawn mowers, farm machinery, etc. In the machinery cases it is the product itself that has the propensity to cause harm to the user.

Here the T-shirt was manufactured in conformity with applicable federal standards for flammability. In the circumstances of this case, it is absurd to have a jury decide whether the T-shirt is “unreasonably dangerous.” Had the manufacturer used highly flammable materials in the garment, I could understand submission of the case to the jury, but not in this situation.

*556Opinion

BAXTER, J.

—Plaintiff’s ankles were badly injured when her General Motors (GM) car collided with another vehicle. She sued GM, asserting that defects in her automobile allowed its left front wheel to break free, collapse rearward, and smash the floorboard into her feet. GM denied any defect and claimed that the force of the collision itself was the sole cause of the injuries. Expert witnesses debated the issues at length. Plaintiff prevailed at trial, and the Court of Appeal affirmed the judgment.

We granted review to resolve three questions. First, may a product’s design be found defective on grounds that the product’s performance fell below the safety expectations of the ordinary consumer (see Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 426-432 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1]) if the question of how safely the product should have performed cannot be answered by the common experience of its users? Second, in an action for enhanced collision injuries caused by an uncrashworthy vehicle, where a correct general instruction on legal cause is given, is it error to refuse a defense instruction that any defect cannot be a legal cause of injury if the accident would have produced the same injury even without the defect? Third, if the refusal is error, is it reversible per se? (See, e.g., Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 10-11 [116 Cal.Rptr. 575].)

We reach the following conclusions: The trial court erred by giving an “ordinary consumer expectations” instruction in this complex case. Moreover, the court should have granted GM’s request for a special instruction explaining its correct theory of legal cause. However, neither error warrants reversal unless it caused actual prejudice, and both errors were harmless on this record. We will therefore affirm the Court of Appeal’s judgment.

Facts

On the early afternoon of January 16,1984, plaintiff was driving her 1982 Camaro in the southbound center lane of Bolsa Chica Road, an arterial street in Westminster. There was a slight drizzle, the roadway was damp, and apparently plaintiff was not wearing her seat belt. A 1972 Datsun, approaching northbound, suddenly skidded into the path of plaintiff’s car. The Datsun’s left rear quarter struck plaintiff’s Camaro in an area near the left *557front wheel. Estimates of the vehicles’ combined closing speeds on impact vary from 30 to 70 miles per hour.1

The collision bent the Camaro’s frame adjacent to the wheel and tore loose the bracket that attached the wheel assembly (specifically, the lower control arm) to the frame. As a result, the wheel collapsed rearward and inward. The wheel hit the underside of the “toe pan”—the slanted floorboard area beneath the pedals—causing the toe pan to crumple, or “deform,” upward into the passenger compartment.

Plaintiff received a fractured rib and relatively minor scalp and knee injuries. Her most severe injuries were fractures of both ankles, and the more serious of these was the compound compression fracture of her left ankle. This injury never healed properly. In order to relieve plaintiff’s pain, an orthopedic surgeon fused the joint. As a permanent result, plaintiff cannot flex her left ankle. She walks with considerable difficulty, and her condition is expected to deteriorate.

After the accident, the Camaro was acquired by a salvage dealer, Noah Hipolito. Soon thereafter, plaintiff’s son, Jeffrey Bishop, and her original attorney, Richard Hawkins, each inspected and photographed the car and its damaged floorboard area. The failed bracket assembly was retrieved. However, Hipolito later discarded the damaged toe pan, repaired the Camaro, and resold it. Thus, except for the bracket assembly, no part of the vehicle was retained as evidence.

Plaintiff sued GM for her ankle injuries, asserting a theory of strict tort liability for a defective product. She claimed the severe trauma to her ankles was not a natural consequence of the accident, but occurred when the collapse of the Camaro’s wheel caused the toe pan to crush violently upward against her feet. Plaintiff attributed the wheel collapse to a manufacturing defect, the substandard quality of the weld attaching the lower control arm bracket to the frame. She also claimed that the placement of the bracket, and the configuration of the frame, were defective designs because they did not limit the wheel’s rearward travel in the event the bracket should fail.

The available physical and circumstantial evidence left room for debate about the exact angle and force of the impact and the extent to which the toe pan had actually deformed. The issues of defect and causation were addressed through numerous experts produced by both sides in such areas as *558biomechanics, metallurgy, orthopedics, design engineering, and crash-test simulation.

Plaintiff submitted the results of crash tests, and also asserted the similarity of another real-world collision involving a 1987 Camaro driven by Dana Carr. According to plaintiff’s experts, these examples indicated that Camaro accidents of similar direction and force do not generally produce wheel bracket assembly failure, extensive toe pan deformation, or severe ankle injuries such as those plaintiff had experienced. These experts opined that without the deformation of the toe pan in plaintiff’s car, her accident could, not have produced enough force to fracture her ankles.

A metallurgist testifying on plaintiff’s behalf examined the failed bracket from her car. He concluded that its weld was particularly weak because of excess “porosity” caused by improper welding techniques. Plaintiff’s experts also emphasized the alternative frame and bracket design used by the Ford Mustang of comparable model years. They asserted that the Mustang’s design, unlike the Camaro’s, provided protection against unlimited rearward travel of the wheel should a bracket assembly give way.

GM’s metallurgist disputed the claims of excessive weakness or porosity in the bracket weld. Expert witnesses for GM also countered the assertions of defective design. GM asserted that the Camaro’s bracket was overdesigned to withstand forces in excess of all expected uses. According to expert testimony adduced by GM, the Mustang’s alternative frame and bracket configuration did not fit the Camaro’s overall design goals and was not distinctly safer for all collision stresses to which the vehicle might be subjected. Indeed, one witness noted, at least one more recent Ford product had adopted the Camaro’s design.

A second major thrust of GM’s defense was that the force of the collision, rather than any product defect, was the sole cause of plaintiff’s ankle injuries. Using the results of accident reconstruction, computer simulations, and actual crash tests, GM sought to prove that the probable collision force concentrated on the left front wheel of plaintiff’s Camaro exceeded the “yield strength” of any feasible weld or design.

By similar means, GM also sought to show that plaintiff’s ankle injuries were not caused by the upward movement of the toe pan, but by the inertial forward and downward motion of plaintiff’s unrestrained body and legs against the toe pan at the instant of impact. From plaintiff’s other injuries, and from photographs showing the general pattern of damage to the Camaro’s interior, GM’s experts inferred that plaintiff was not wearing her seat belt and had locked or braced her legs in reaction to the imminent collision.

*559Hence, they concluded, her rigid ankles had absorbed the Ml force of her inertial forward movement, which was sufficient to cause the fractures. Based on their test results, GM’s witnesses opined that plaintiff’s ankles had probably moved forward, struck the toe pan, and broken before significant deformation of the toe pan occurred.

The court instructed the jury that a manufacturer is liable for “enhanced” injuries caused by a manufacturing or design defect in its product while the product is being used in a foreseeable way. Over GM’s objection, the court gave the standard design defect instruction without modification. (See BAJI No. 9.00.5 (7th ed. 1986).) This instruction advised that a product is defective in design “if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if there is a risk of danger inherent in the design which outweighs the benefit of the design.” (Italics added.)

The jury was also told that in order to establish liability for a design defect under the “ordinary consumer expectations” standard, plaintiff must show (1) the manufacturer’s product failed to perform as safely as an ordinary consumer would expect, (2) the defect existed when the product left the manufacturer’s possession, (3) the defect was a “legal cause” of plaintiff’s “enhanced injury,” and (4) the product was used in a reasonably foreseeable manner.

With respect to all theories of liability, the instructions indicated that “[a] legal cause of injury is a cause which is a substantial factor in bringing about the injury.” (See BAJI No. 3.76 (7th ed. 1986).) However, the trial court refused the following instruction proffered by GM: “If you find that the subject Camaro . . . was improperly designed, but you also find that [plaintiff] would have received enhanced injuries even if the design had been proper, then you must find that the design was not a substantial factor in bringing about her injuries and therefore was not a contributing cause thereto.”

In a series of special findings, the jury determined that the Camaro contained a defect (of unspecified nature) which was a “legal cause” of plaintiff’s “enhanced injury.” The jury further concluded that although plaintiff was guilty of comparative fault, her conduct was not a legal cause of her enhanced injuries. Plaintiff received an award of $1.65 million.

GM appealed. Among other things, it argued that the trial court erred by instructing on ordinary consumer expectations in a complex design-defect case, and by failing to give GM’s special instruction on causation.

*560Following one line of authority, the Court of Appeal concluded that a jury may rely on expert assistance to determine what level of safe performance an ordinary consumer would expect under particular circumstances. Hence, the Court of Appeal ruled, there was no error in use of the ordinary consumer expectations standard for design defect in this case.

The Court of Appeal agreed with GM that its specific instruction on causation should not have been refused. However, the court rejected precedent suggesting that an error of this kind is reversible per se. Here, the Court of Appeal ruled, the error was harmless. After dismissing GM’s remaining appellate claims, the Court of Appeal affirmed the judgment. We granted review.

Discussion

1. Test for design defect.

A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way. (Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 126-130 [104 Cal.Rptr. 433, 501 P.2d 1153] (Cronin); Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049] (Greenman).) Because traffic accidents are foreseeable, vehicle manufacturers must consider collision safety when they design and build their products. Thus, whatever the cause of an accident, a vehicle’s producer is liable for specific collision injuries that would not have occurred but for a manufacturing or design defect in the vehicle. (Cronin, supra, at p. 126.)

In Cronin, supra, a bread van driver was hurt when the hasp retaining the bread trays broke during a collision, causing the trays to shift forward and propel him through the windshield. He sued the van’s producer, alleging that the hasp had failed because of the defective metal used in its manufacture. The court instructed that the driver could recover if he proved a defect, unknown to him, which caused injury while the van was being used as intended or designed. The manufacturer appealed the subsequent damage award. It urged the court should have instructed that liability could not be imposed unless the defect rendered the product “unreasonably dangerous.”

We rejected this contention, holding that the “unreasonably dangerous” test derived from the Restatement (see Rest.2d Torts, § 402A) is inapplicable in California. As we observed, the Restatement defines “unreasonably dangerous” as “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.” (Id., com. i, p. 352, *561italics added.) The original purpose of this formula, we explained, was to make clear that common products such as sugar, butter, and liquor are not defective simply because they pose inherent health risks well known to the general public. However, Cronin indicated, the formula had been applied so as to force injured persons to prove both an actual defect and “unreasonable” danger. (8 Cal.3d at pp. 132-133.)

This “double burden,” Cronin reasoned, ran contrary to the purpose of Greenman, supra, to relieve persons injured by defective products from proof of elements that ring of negligence. Instead, Cronin concluded, an injured plaintiff should recover so long as he proves that the product was defective, and that the defect caused injury in reasonably foreseeable use. (Cronin, supra, 8 Cal.3d at pp. 133-134.)

In Barker v. Lull Engineering Co., supra, 20 Cal.3d 413 (Barker), the operator of a high-lift loader sued its manufacturer for injuries he received when the loader toppled during a lift on sloping ground. The operator alleged various design defects which made the loader unsafe to use on a slope. In a pre-Cronin trial, the court instructed that the operator could recover only if a defect in the loader’s design made the machine “ ‘unreasonably dangerous for its intended use.’ ” (Id., at p. 417.) The operator appealed the defense verdict, citing the “unreasonably dangerous” instruction as prejudicial error.

The manufacturer responded that even if the “unreasonably dangerous” test was inappropriate for manufacturing defects, such as the substandard fastener material in Cronin, it should be retained for design defects. This rule would not produce the undue double burden that concerned us in Cronin, the manufacturer insisted, because unreasonable danger is part of the definition of design defect, not an additional element of strict product liability. Without this limitation, the manufacturer contended, juries would lack guidance when determining if a defect had sprung not from a mistake in supply or assembly, but from a flaw in the product’s specifications.

The Barker court disagreed. It reasoned as follows: Our concerns in Cronin extended beyond double-burden problems. There we also sought to avoid the danger that a jury would deny recovery, as the Restatement had intended, “so long as the product did not fall below the ordinary consumer’s expectations as to [its] safety. . . .” (Barker, supra, 20 Cal.3d at p. 425, fn. omitted.) This danger was particularly acute in design defect cases, where a manufacturer might argue that because the item which caused injury was identical to others of the same product line, it must necessarily have satisfied ordinary consumer expectations. (Id., at p. 426.)

*562Despite these difficulties, Barker explained, it is possible to define a design defect, and the expectations of the ordinary consumer are relevant to that issue. At a minimum, said Barker, a product is defective in design if it does fail to perform as safely as an ordinary consumer would expect. This principle, Barker asserted, acknowledges the relationship between strict tort liability for a defective product and the common law doctrine of warranty, which holds that a product’s presence on the market includes an implied representation “ ‘that it [will] safely do the jobs for which it was built.’ ” (20 Cal.3d at p. 430, quoting Greenman, supra, 59 Cal.2d at p. 64.) “Under this [minimum] standard," Barker observed, “an injured plaintiff will frequently be able to demonstrate the defectiveness of the product by resort to circumstantial evidence, even when the accident itself precludes identification of the specific defect at fault. [Citations.]” (20 Cal.3d at p. 430, italics added.)

However, Barker asserted, the Restatement had erred in proposing that a violation of ordinary consumer expectations was necessary for recovery on this ground. “As Professor Wade has pointed out, ... the expectations of the ordinary consumer cannot be viewed as the exclusive yardstick for evaluating design defectiveness because ‘[i]n many situations ... the consumer would not know what to expect, because he would have no idea how safe the product could be made.’ ” (20 Cal.3d at p. 430, quoting Wade, On the Nature of Strict Tort Liability for Products (1973) 44 Miss. L.J. 825, 829, italics added.)

Thus, Barker concluded, “a product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product’s design embodies ‘excessive preventable danger,’ or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design. [Citations.]” (20 Cal.3d at p. 430, fn. omitted.) Barker held that under this latter standard, “a jury may consider, among other relevant factors, the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design. [Citations.]” (Id., at p. 431.)

Barker also made clear that when the ultimate issue of design defect calls for a careful assessment of feasibility, practicality, risk, and benefit, the case should not be resolved simply on the basis of ordinary consumer expectations. As Barker observed, “past design defect decisions demonstrate that, as a practical matter, in many instances it is simply impossible to eliminate the *563balancing or weighing of competing considerations in determining whether a product is defectively designed or not. . . .” (20 Cal.3d at p. 433.)

An example, Barker noted, was the “crashworthiness” issue presented in Self v. General Motors Corp., supra, 42 Cal.App.3d 1. The debate there was whether the explosion of a vehicle’s fuel tank in an accident was due to a defect in design. This, in turn, entailed concerns about whether placement of the tank in a position less vulnerable to rear end collisions, even if technically feasible, “would have created a greater risk of injury in other, more common situations.” (Barker, supra, 20 Cal.3d at p. 433.) Because this complex weighing of risks, benefits, and practical alternatives is “implicit” in so many design-defect determinations, Barker concluded, “an instruction which appears to preclude such a weighing process under all circumstances may mislead the jury.” (Id., at p. 434.)

Campbell v. General Motors Corp. (1982) 32 Cal.3d 112 [184 Cal.Rptr. 891, 649 P.2d 224] (Campbell) provided additional strong hints about the proper use of the ordinary consumer expectations prong of Barker. Plaintiff Campbell, a bus passenger, was thrown from her seat and injured during a sharp turn. She sued GM, the manufacturer of the bus, alleging that the vehicle was defectively designed because there was no “grab bar” within easy reach of her seat. Campbell presented no expert testimony, but she submitted photographs of the interior of the bus, showing where safety bars and handles were located in relation to the seat she had occupied. At the conclusion of her case in chief, GM moved for nonsuit, arguing that her evidence of design defect and proximate cause was not sufficient. The trial court granted the motion, but we reversed.

We emphasized that in order to establish a design defect under Barker's ordinary consumer expectations test, it was enough for Campbell to show “the objective conditions of the product” so that the jurors could employ “[their] own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence. [Fn. omitted.] Since public transportation is a matter of common experience, no expert testimony was required to enable the jury to reach a decision on this part of the Barker inquiry." (Campbell, supra, 32 Cal.3d at p. 126.)

“Indeed, it is difficult to conceive what testimony an ‘expert’ could provide. The thrust of the first Barker test is that the product must meet the safety expectations of the general public as represented by the ordinary consumer, not the industry or a government agency. ‘[0]ne can hardly imagine what credentials a witness must possess before he can be certified as an expert on the issue of ordinary consumer expectations.’ ” (Campbell, *564 supra, 32 Cal.3d at pp. 126-127, quoting Schwartz, Foreword: Understanding Products Liability (1979) 67 Cal.L.Rev. 435, 480, italics added.)

Had we ended our discussion at this point, it would have been clear that a product violates ordinary consumer expectations only when the circumstances arouse such reasonable expectations based on common experience of the product’s users. However, dictum in the next paragraph of Campbell injected ambiguity. We said, “The quantum of proof necessary to establish a prima facie case . . . under the first [i.e., ordinary consumer expectations] prong of Barker cannot be reduced to an easy formula. However, if the product is one within the common experience of ordinary consumers” (italics added), it will generally be enough for the injured plaintiff to show the circumstances of the accident and “the objective features of the product which are relevant to an evaluation of its safety. . . .” (32 Cal.3d at p. 127.) One might infer from this passage that the ordinary consumer expectations prong of Barker is not limited to product performance “within the common experience” of the product’s ordinary consumers.

Several subsequent Court of Appeal cases considered the point. In Bates v. John Deere Co. (1983) 148 Cal.App.3d 40 [195 Cal.Rptr. 637], plaintiff caught his leg in a commercial cotton picker while clearing debris from the moving machinery. He claimed the machine should have included an emergency shutoff switch within reach of the remote position from which its sole operator periodically had to undertake this debris-clearing task. Defense experts suggested that such a feature might induce a false sense of security and make the machine even more dangerous.

The trial court properly found a design defect under the risk-benefit test, but defendant challenged the court’s additional use of the ordinary consumer expectations test. Although it saw no need to decide the issue, the Court of Appeal agreed that “[w]e, too, find it difficult to apply the . . . [consumer expectations] test to these facts, in part because it is difficult to conceive that an ordinary consumer would know what to expect concerning the safety design of a commercial cotton picker. [Citing Barker.]” (148 Cal.App.3d at p. 52.)

In Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485 [200 Cal.Rptr. 387], the Court of Appeal upheld the trial court’s refusal to instruct on reasonable consumer expectations because unassisted lay jurors “would not know what to expect” about the safety design of a Bobcat model 440 loader, and no experts had testified on the issue. However, the Court of Appeal remarked that on retrial, “appellants are free to present evidence in the form of expert opinions on the reasonable expectations of consumers of the product involved here. . . .” (Id., at p. 496.)

*565In Akers v. Kelly Co. (1985) 173 Cal.App.3d 633 [219 Cal.Rptr. 513] (Akers), there was an accident involving a “dockboard,” a spring-loaded plate which attaches to a loading dock and adjusts to form a bridge between the dock and truck beds of different elevations. Several hours after the prongs of a forklift struck the dockboard, it suddenly flew apart, injuring a nearby worker. Experts debated at length whether the dockboard’s components should have been designed to withstand forklift impacts, and whether a failure in design was a cause of the accident. Over defendant’s objection, the trial court instructed only on the consumer expectations test for design defect.

The Court of Appeal affirmed. It declined to read Campbell as limiting the consumer expectations test to products or accidents of common experience. (Akers, supra, 173 Cal.App.3d at p. 650.) That test, said Akers, “is entirely appropriate in a case such as this one. There are certain kinds of accidents— even where fairly complex machinery is involved—which are so bizarre that the average juror, upon hearing the particulars, might reasonably think: ‘Whatever the user may have expected from that contraption, it certainly wasn’t that.’ Here, a dockboard flew apart and injured [plaintiff]. A reasonable juror with no previous experience of dockboards could conclude that the dockboard in question failed to meet ‘consumer expectations’ as to its safety. . . .” (Id., at p. 651.) This was so, the Court of Appeal concluded, even though expert testimony might be necessary to establish that the manufacturer was responsible for the flaw which caused the product to fail. (Ibid.)

To similar effect is West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831 [220 Cal.Rptr. 437, 59 A.L.R.4th 1] (West). The plaintiff in West became seriously ill in February 1980, during her menstrual period. At this time, there were increasing indications that tampon use sometimes causes toxic shock syndrome (TSS). After reading medical reports, plaintiff’s physicians belatedly concluded that she had suffered TSS caused by tampons which defendant had designed and produced. At trial, experts debated the nature of plaintiff’s illness, and they also disputed whether the tampon design and materials used by defendant encouraged TSS. The trial court instructed only on the consumer expectations prong of Barker.

On appeal, defendant argued that the risk-benefit test alone was proper. However, West agreed with Akers that Campbell does not preclude the consumer expectations test in complex cases involving expert testimony. In a time before general awareness and warnings about TSS, the court reasoned, plaintiff “had every right to expect” that use of this seemingly innocuous product “would not lead to a serious (or perhaps fatal) illness. . . .” Hence, the consumer expectations instruction was appropriate. (West, supra, 174 Cal.App.3d at p. 867.)

*566Finally, in Rosburg v. Minnesota Mining & Mfg. Co. (1986) 181 Cal..App.3d 726 [226 Cal.Rptr. 299], plaintiff claimed she was entitled to judgment under the consumer expectations test because her own testimony that she believed her breast implants would last a lifetime without leaking was the only lay evidence of what consumers expected. However, the Court of Appeal ruled that breast implant performance is beyond common experience, and that expert testimony on what the consumer should expect was therefore relevant and admissible. Here, the court observed, both plaintiff’s surgeon and another defense expert had insisted that failures were expectable and patients were not advised otherwise. Hence, there was substantial evidence to support the finding below that no defect was proven under the consumer expectations test. (Id., at pp. 7S2-733.)2

In Barker, we offered two alternative ways to prove a design defect, each appropriate to its own circumstances. The purposes, behaviors, and dangers of certain products are commonly understood by those who ordinarily use them. By the same token, the ordinary users or consumers of a product may have reasonable, widely accepted minimum expectations about the circumstances under which it should perform safely. Consumers govern their own conduct by these expectations, and products on the market should conform to them.

In some cases, therefore, “ordinary knowledge . . . as to . . . [the product’s] characteristics” (Rest.2d Torts, supra, § 402A, com. L, p. 352) may permit an inference that the product did not perform as safely as it should. If the facts permit such a conclusion, and if the failure resulted from the product’s design, a finding of defect is warranted without any further proof. The manufacturer may not defend a claim that a product’s design failed to perform as safely as its ordinary consumers would expect by presenting expert evidence of the design’s relative risks and benefits.3

However, as we noted in Barker, a complex product, even when it is being used as intended, may often cause injury in a way that does not engage its *567ordinary consumers’ reasonable minimum assumptions about safe performance. For example, the ordinary consumer of an automobile simply has “no idea” how it should perform in all foreseeable situations, or how safe it should be made against all foreseeable hazards. (Barker, supra, 20 Cal.3d at p. 430.)

An injured person is not foreclosed from proving a defect in the product’s design simply because he cannot show that the reasonable minimum safety expectations of its ordinary consumers were violated. Under Barker’s alternative test, a product is still defective if its design embodies “excessive preventable danger” (20 Cal.3d at p. 430), that is, unless “the benefits of the . . . design outweigh the risk of danger inherent in such design” (id., at p. 432). But this determination involves technical issues of feasibility, cost, practicality, risk, and benefit (id., at p. 431) which are “impossible” to avoid (id., at p. 433). In such cases, the jury must consider the manufacturer’s evidence of competing design considerations (id., at pp. 433-434), and the issue of design defect cannot fairly be resolved by standardless reference to the “expectations” of an “ordinary consumer.”

As we have seen, the consumer expectations test is reserved for cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design. It follows that where the minimum safety of a product is within the common knowledge of lay jurors, expert witnesses may not be used to demonstrate what an ordinary consumer would or should expect. Use of expert testimony for that purpose would invade the jury’s function (see Evid. Code, § 801, subd. (a)), and would invite circumvention of the rule that the risks and benefits of a challenged design must be carefully balanced whenever the issue of design defect goes beyond the common experience of the product’s users.4

*568By the same token, the jury may not be left free to find a violation of ordinary consumer expectations whenever it chooses. Unless the facts actually permit an inference that the product’s performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in the balancing of risks and benefits required by the second prong of Barker.

Accordingly, as Barker indicated, instructions are misleading and incorrect if they allow a jury to avoid this risk-benefit analysis in a case where it is required. (20 Cal.3d at p. 434.). Instructions based on the ordinary consumer expectations prong of Barker are not appropriate where, as a matter of law, the evidence would not support a jury verdict on that theory. Whenever that is so, the jury must be instructed solely on the alternative risk-benefit theory of design defect announced in Barker. 5

GM suggests that the consumer expectations test is improper whenever “crashworthiness,” a complex product, or technical questions of causation are at issue. Because the variety of potential product injuries is infinite, the line cannot be drawn as clearly as GM proposes. But the fundamental distinction is not impossible to define. The crucial question in each individual case is whether the circumstances of the product’s failure permit an *569inference that the product’s design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.6

GM argues at length that the consumer expectations test is an “unworkable, amorphic, fleeting standard” which should be entirely abolished as a basis for design defect. In GM’s view, the test is deficient and unfair in several respects. First, it defies definition. Second, it focuses not on the objective condition of products, but on the subjective, unstable, and often unreasonable opinions of consumers. Third, it ignores the reality that ordinary consumers know little about how safe the complex products they use can or should be made. Fourth, it invites the jury to isolate the particular consumer, component, accident, and injury before it instead of considering whether the whole product fairly accommodates the competing expectations of all consumers in all situations (see Daly v. General Motors Corp., supra, 20 Cal.3d 725, 746-747). Fifth, it eliminates the careful balancing of risks and benefits which is essential to any design issue.

In its amicus curiae brief, the Product Liability Advisory Council, Inc. (Council) makes similar arguments. The Council proposes that all design defect claims be resolved under a single risk-benefit analysis geared to “reasonable safety.”

We fully understand the dangers of improper use of the consumer expectations test. However, we cannot accept GM’s insinuation that ordinary consumers lack any legitimate expectations about the minimum safety of the products they use. In particular circumstances, a product’s design may perform so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers. In such cases, a lay jury is competent to make that determination.

Nor are we persuaded by the Council’s proposal. In essence, it would reinvest product liability claims with the requirement of “unreasonable danger” that we rejected in Cronin and Barker.

When use of the consumer expectations test is limited as Barker intended, the principal concerns raised by GM and the Council are met. Within these limits, the test remains a workable means of determining the existence of *570design defect. We therefore find no compelling reason to overrule the consumer expectations prong of Barker at this late date, and we decline to do so.7

Applying our conclusions to the facts of this case, however, we agree that the instant jury should not have been instructed on ordinary consumer expectations. Plaintiff’s theory of design defect was one of technical and mechanical detail. It sought to examine the precise behavior of several obscure components of her car under the complex circumstances of a particular accident. The collision’s exact speed, angle, and point of impact were disputed. It seems settled, however, that plaintiff’s Camaro received a substantial oblique blow near the left front wheel, and that the adjacent frame members and bracket assembly absorbed considerable inertial force.

An ordinary consumer of automobiles cannot reasonably expect that a car’s frame, suspension, or interior will be designed to remain intact in any and all accidents. Nor would ordinary experience and understanding inform such a consumer how safely an automobile’s design should perform under the esoteric circumstances of the collision at issue here. Indeed, both parties assumed that quite complicated design considerations were at issue, and that expert testimony was necessary to illuminate these matters. Therefore, injection of ordinary consumer expectations into the design defect equation was improper.

We are equally persuaded, however, that the error was harmless, because it is not reasonably probable defendant would have obtained a more favorable result in its absence. (E.g., Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 [232 Cal.Rptr. 528, 728 P.2d 1163]; see Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) In assessing prejudice from an erroneous instruction, we consider, insofar as relevant, “(1) the degree of conflict in the evidence on critical issues [citations]; (2) whether respondent’s argument to the jury may have contributed to the instruction’s misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation]; (4) the *571closeness of the jury’s verdict [citation]; and (5) the effect of other instructions in remedying the error [citations].” (Pool, supra, 42 Cal.3d at pp. 1069-1070, quoting LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876 [148 Cal.Rptr. 355, 582 P.2d 946].)

Here there were no instructions which specifically remedied the erroneous placement of the consumer expectations alternative before the jury. Moreover, plaintiff’s counsel briefly reminded the jury that the instructions allowed it to find a design defect under either the consumer expectations or risk-benefit tests. However, the consumer expectations theory was never emphasized at any point. As previously noted, the case was tried on the assumption that the alleged design defect was a matter of technical debate. Virtually all the evidence and argument on design defect focused on expert evaluation of the strengths, shortcomings, risks, and benefits of the challenged design, as compared with a competitor’s approach.

Neither plaintiff’s counsel nor any expert witness on her behalf told the jury that the Camaro’s design violated the safety expectations of the ordinary consumer. Nor did they suggest the jury should find such a violation regardless of its assessment of such competing design considerations as risk, benefit, feasibility, and cost. The jury never made any requests which hinted it was inclined to apply the consumer expectations test without regard to a weighing of risks and benefits.

Under these circumstances, we find it highly unlikely that a reasonable jury took that path. We see no reasonable probability that the jury disregarded the voluminous evidence on the risks and benefits of the Camaro’s design, and instead rested its verdict on its independent assessment of what an ordinary consumer would expect. Accordingly, we conclude, the error in presenting that theory to the jury provides no basis for disturbing the trial judgment.8

*5722. Causation instructions.

GM next claims the trial court committed prejudicial error by refusing to instruct that any design defect was not a “substantial” or “contributing” cause of plaintiff’s “enhanced” injuries if those same injuries would have occurred even with a nondefective design. This proffered instruction conformed to GM’s trial theories that given the angle and force of the collision, the wheel would have collapsed regardless of any defect, and, in any event, that the wheel’s collapse played no part in the ankle injuries plaintiff received.

A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. (E.g., Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 543 [138 Cal.Rptr. 705, 564 P.2d 857, 99 A.L.R.3d 158]; Borenkrautw. Whitten (1961) 56 Cal.2d 538, 545-546 [15 Cal.Rptr. 635, 364 P.2d 467]; Phillips v. G. L. Truman Excavation Co. (1961) 55 Cal.2d 801, 806 [13 Cal.Rptr. 401, 362 P.2d 33]; Selfw. General Motors Corp., supra, 42 Cal.App.3d 1, 10 (Self).)

GM’s proposed instruction was correct in form and substance. A manufacturer is liable only when a defect in its product was a legal cause of injury. (Cronin, supra, 8 Cal.3d at pp. 133-134.) A tort is a legal cause of injury only when it is a substantial factor in producing the injury. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1048-1054 [1 Cal.Rptr.2d 913, 819 P.2d 872].) If the external force of a vehicle accident was so severe that it would have caused identical injuries notwithstanding an abstract “defect” in the vehicle’s collision safety, the defect cannot be considered a substantial factor in bringing them about. (E.g., Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 862-864 [275 Cal.Rptr. 715]; Endicott v. Nissan Motor *573 Corp. (1977) 73 Cal.App.3d 917, 926 [141 Cal.Rptr. 95, 9 A.L.R.4th 481]; Self, supra, 42 Cal.App.3d at p. 10.)9

The general causation instruction given by the trial court correctly advised that plaintiff could not recover for a design defect unless it was a “substantial factor” in producing plaintiff’s “enhanced” injuries. However, this instruction dealt only by “negative implication” (Self supra, 42 Cal.App.3d at p. 10) with GM’s theory that any such defect was not a “substantial factor” in this case because this particular accident would have broken plaintiff’s ankles in any event. As we have seen, GM presented substantial evidence to that effect. GM was therefore entitled to its special instruction, and the trial court’s refusal to give it was error.10

GM argues vigorously that the error is reversible per se. GM claims a California rule that the erroneous denial of instructions explaining a “central theory” of a party’s case is prejudicial as a matter of law.

Substantial authority supports GM’s view. However, GM’s contention is out of step with the usual rules governing instructional error. More significantly, it overlooks the proper application of California’s constitutional requirement that a judgment not be reversed unless error caused actual prejudice in light of the whole record. Hence, we conclude, the error at issue *574must be subjected to an examination whether actual prejudice occurred under the particular circumstances.

A judgment may not be reversed on appeal, even for error involving “misdirection of the jury,” unless “after an examination of the entire cause, including the evidence,” it appears the error caused a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 835 [299 P.2d 243].)

Thus, when the jury receives an improper instruction in a civil case, prejudice will generally be found only “ ‘[w]here it seems probable that the jury’s verdict may have been based on the erroneous instruction . . . .’” (LeMons v. Regents of University of California, supra, 21 Cal.3d 869, 875, quoting Robinson v. Cable (1961) 55 Cal.2d 425, 428 [11 Cal.Rptr. 377, 359 P.2d 929].) That assessment, in turn, requires evaluation of several factors, including the evidence, counsel’s arguments, the effect of other instructions, and any indication by the jury itself that it was misled. (Pool v. City of Oakland, supra, 42 Cal.3d 1051, 1069-1070.)

However, a substantial body of California decisions recites that the erroneous denial of correct specific instructions covering a civil litigant’s supportable “theory of the case” is “inherently” prejudicial. Decades old, this principle has been stated, or at least implicitly applied, in a wide variety of situations, ranging from the complete preclusion of a claim or defense (e.g., Hasson v. Ford Motor Co., supra, 19 Cal.3d 530, 548 [contributory negligence]; Phillips v. G. L. Truman Excavation Co., supra, 55 Cal.2d 801, 806 [same]; Bernal v. Richard Wolf Medical Instruments Corp. (1990) 221 Cal.App.3d 1326, 1337-1338 [272 Cal.Rptr. 41] [warranty theories in product liability action]; Paverud v. Niagara Machine & Tool Works (1987) 189 Cal.App.3d 858, 862-864 [234 Cal.Rptr. 585] [superseding cause]; White v. Uniroyal, Inc. (1984) 155 Cal.App.3d 1, 29-33 [202 Cal.Rptr. 141] [peculiar risk doctrine]) to mere lack of specificity in relating correct general principles to the particular facts (e.g., Borenkraut v. Whitten, supra, 56 Cal.2d 538, 544-546 [specific duty of care when priming automobile carburetor]; Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d 479, 489-490 [227 Cal.Rptr. 465] [affirmative duty to eliminate known dangerous condition in restaurant]; Ng. v. Hudson (1977) 75 Cal.App.3d 250, 261-262 [142 Cal.Rptr. 69] [“proximate cause” as including aggravation of dormant preexisting condition]; Self, supra, 42 Cal.App.3d 1, 10 [defect not “substantial factor” if same injury would have occurred regardless of defect]; see also, *575e.g., Lopez v. Ormonde (1968) 258 Cal.App.2d 176, 180 [65 Cal.Rptr. 513] [refusal of imminent peril instructions; prejudice assumed]; Edelman v. Zeigler (1965) 233 Cal.App.2d 871, 883-884 [44 Cal.Rptr. 114] [refusal of res ipsa loquitur instructions; prejudice assumed]).

The rationale generally given is that an error of this nature prevents jury consideration of the omitted “theory” and thus denies, to that extent, the right to a jury trial. We once declared that “[s]uch an error cannot be cured by the beneficent provisions of article VI, section [13 of the California Constitution]” (Phillips v. G. L. Truman Excavation Co., supra, 55 Cal.2d at p. 808), and this reasoning has been followed with little elaboration in more recent cases. (E.g., White v. Uniroyal, Inc., supra, 155 Cal.App.3d at p. 33; Ng v. Hudson, supra, 75 Cal.App.3d at pp. 261-262; Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 641 [128 Cal.Rptr. 807, 91 A.L.R.3d 1].)

The “inherent prejudice” line of authority is not unbroken. A number of decisions, when addressing erroneous denials of specific “theory” instructions, have assessed the actual effect of the error on the judgment. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 951-952 [160 Cal.Rptr. 141, 603 P.2d 58] [court instructed generally on respondeat superior liability, but failed to instruct sua sponte on limits of vicarious liability for punitive damages; any error deemed harmless under Cal. Const., art. VI, § 13]; Hildebrand v. Los Angeles Junction Ry. Co. (1960) 53 Cal.2d 826, 831, 832 [3 Cal.Rptr. 313, 350 P.2d 65] [court instructed generally that “party who asserts the affirmative of an issue” has burden of proof, but refused plaintiff’s specific instruction that defendant has burden of proving contributory negligence; error deemed harmless after “review [of] entire record” under art. VI, former § WA (now § 13)]; Walbrook Ins. Co. v. Liberty Mutual Ins. Co. (1992) 5 Cal.App.4th 1445, 1461-1462 [7 Cal.Rptr.2d 513] [refusal in insurance bad faith action to instruct that amount of underlying personal injury verdict furnishes inference of value of claim; error deemed harmless under “all the circumstances” where other instructions invited jury to consider “strength and weaknesses” of third party’s claim]; Sesler v. Ghumman (1990) 219 Cal.App.3d 218, 226 [268 Cal.Rptr. 70] [refusal to instruct in detail on duty of care when turning left against multiple lanes of traffic; LeMons factors applied to assess prejudice; misleading argument of plaintiff’s counsel emphasized]; Montez v. Ford Motor Co. (1980) 101 Cal.App.3d 315, 322 [161 Cal.Rptr. 578] [refusal to give plaintiff’s proffered instruction defining manufacturing defect deemed harmless under art. VI, § 13]; Wechlo v. Winyard (1973) 33 Cal.App.3d 990, 996 [109 Cal.Rptr. 462] [refusal of last clear chance instruction deemed prejudicial because of evidence that jury focused closely on issues of negligence and contributory negligence]; *576see Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 404-408 [264 Cal.Rptr. 779] [error to omit elements of fraud by nondisclosure, but judgment may be upheld where missing elements necessarily found in connection with other theories].)

In deciding what standard of reversibility should apply to the erroneous omission of instructions explaining the theory of a claim or defense, we take guidance from a recent decision of this court, People v. Cahill (1993) 5 Cal.4th 478 [20 Cal.Rptr.2d 582, 853 P.2d 1037] (Cahill). There we abrogated California’s traditional rule that admission of an involuntary confession as evidence in a criminal case was reversible per se. In so doing, we examined at length the purpose and application of the California Constitution’s reversible error provision, article VI, section 13.

As we explained, the predecessor of article VI, section 13 (art. VI, § 4 1/2) was added to the California Constitution in 1911. Its purpose was to counteract prior assumptions that a reviewing court could not consider the trial evidence in deciding whether an error had caused prejudice. (Cahill, supra, 5 Cal.4th at pp. 489-490.) People v. O’Bryan (1913) 165 Cal. 55 [130 P. 1042] soon made clear that “[under] the new constitutional provision the appellate courts are empowered to examine ‘the entire cause, including the evidence’ and are required to affirm the judgment ... if error has not resulted ‘in a miscarriage of justice.’ [Citation.]” (Cahill, supra, 5 Cal.4th at p. 490, quoting O’Bryan, supra, at p. 64, italics in original.)

Confusion arose after O’Bryan because California courts developed a “variety of differently worded tests” to determine whether a miscarriage of justice had occurred. (Cahill, supra, 5 Cal.4th at p. 492.) People v. Watson, supra, 46 Cal.2d 818 resolved this confusion by articulating a “generally applicable” standard. For most errors, this test permits reversal “ ‘only when the [reviewing] court after an examination of the entire cause, including the evidence, is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Cahill, supra, 5 Cal.4th at p. 492, quoting Watson, supra, 46 Cal.2d at p. 836.) Of course, the Watson test has since been applied equally in civil and criminal cases.

Both O’Bryan and Watson recognized that certain limited forms of error would constitute a miscarriage of justice without regard to the state of the evidence. O’Bryan spoke particularly of criminal law errors which, under Anglo-American standards of justice, deny the accused a determination of guilt or innocence “ ‘by an orderly legal procedure in which the substantial rights belonging to defendants shall be respected.’ ” (Cahill, supra, 5 Cal.4th at p. 501, quoting O’Bryan, supra, 165 Cal. at p. 65, italics added by Cahill.)

*577In Cahill, supra, we sought to give meaning to the distinction articulated by O’Bryan. As we observed, “the kinds of errors that, regardless of the evidence, may result in a ‘miscarriage of justice’ because they operate to deny a criminal defendant the constitutionally required ‘orderly legal procedure’ (or, in other words, a fair trial)—for example, the denial of the defendant’s right to a jury trial or to an impartial trial judge [citation]—all involve fundamental ‘structural defects’ in the judicial proceedings . . . rather than the improper admission of a particular item of evidence.” (Cahill, supra, 5 Cal.4th at pp. 501-502.)

Cahill noted that by their nature, “ ‘structural defects in the constitution of the trial mechanism,’ ” such as those automatically reversible in criminal cases under federal constitutional law (see Arizona v. Fulminante (1991) 499 U.S. 279, 309-310 [113 L.Ed.2d 302, 330-332, 111 S.Ct. 1246]), are not susceptible to conventional harmless-error analysis. (Cahill, supra, 5 Cal.4th at p. 493.) Additional examples from California criminal law, as cited by Cahill, include improper denial of the right to separate counsel (see, e.g., People v. Douglas (1964) 61 Cal.2d 430, 436-439 [38 Cal.Rptr. 884, 392 P.2d 964]), conflict of interest on the part of counsel (see, e.g., People v. Mroczko (1983) 35 Cal.3d 86, 104-105 [197 Cal.Rptr. 52, 672 P.2d 835]), ineffectual waiver of right to jury trial (see, e.g., People v. Holmes (1960) 54 Cal.2d 442 [5 Cal.Rptr. 871, 353 P.2d 583]), and discrimination in jury selection (see, e.g., People v. Wheeler (1978) 22 Cal.3d 258, 283 [148 Cal.Rptr. 890, 583 P.2d 748]). (Cahill, supra, 5 Cal.4th at p. 493.)

By contrast, Cahill observed, admission of an involuntary confession is mere “trial error,” that is, “ ‘error which occurred during the presentation of the case to the jury. . . .’” This category of error, said Cahill, “ ‘may . . . be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was [prejudicial or harmless].’ ” (5 Cal.4th at p. 502, quoting Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308 [113 L.Ed.2d at pp. 329-330].) Indeed, Cahill noted, the “admission or rejection of evidence” is among those specific forms of error for which article VI, section 13, “by its terms, directs that. . . prejudicial [effect] . . . be determined ‘after an examination of the entire cause, including the evidence.’ ” (Cahill, supra, 5 Cal.4th at p. 502.)

Earlier California authorities justified an exception for involuntary confessions on grounds that a confession is such persuasive evidence of guilt. The cases reasoned that it would be extremely difficult to determine whether improper admission of this “evidentiary bombshell” was harmless in a particular case. (See, e.g., People v. Jacobson (1965) 63 Cal.2d 319, 330 [46 Cal.Rptr. 515, 405 P.2d 555]; People v. Schader (1965) 62 Cal.2d 716, 731 *578[44 Cal.Rptr. 193, 401 P.2d 665]; People v. Parham (1963) 60 Cal.2d 378, 385 [33 Cal.Rptr. 497, 384 P.2d 1001].)

Cahill explained, however, that “[i]n relying upon this rationale . . . , the California decisions . . . lost sight of the principal purpose and significance of . . . California’s constitutional provision explicitly addressing the matter of reversible error. The recognition that confessions, ‘as a class,’ ‘[a]lmost invariably’ will provide persuasive evidence of a defendant’s guilt [citation] . . . simply means that the improper admission of a confession is much more likely to affect the outcome of a trial than are other categories of evidence, and thus is much more likely to be prejudicial under the traditional harmless-error standard. But . . . that consequence does not, in our view, justify the judicial adoption of a state-law rule that automatically and monolithically treats all improperly admitted confessions as requiring reversal of the defendant’s conviction; the California constitutional reversible-error provision was adopted for the specific purpose of eliminating just such a prophylactic approach to reversible error. [Fn. omitted.]” (5 Cal.4th at p. 503, italics in original.)

Cahill next rejected contentions that a reversible-per-se rule should be retained in order to deter the extraction of involuntary confessions, a particularly “egregious” form of official misconduct, and to guard against the unreliability of such confessions. (5 Cal.4th at pp. 505-507.) Finally, for several reasons, Cahill declined to retain the rule as a matter of stare decisis.

In particular, Cahill noted that “retention of a reversible-per-se rule, solely on the basis of stare decisis, would fail to give proper recognition to the important public policies underlying the reversible error provision set forth in California’s Constitution—policies that remain of vital significance today. . . .” (5 Cal.4th at p. 508.) Among other things, Cahill explained that when a defendant has received a fair and accurate trial despite some error, “reversal of the judgment will result either in a superfluous retrial in which the outcome is a foregone conclusion or, even more unfortunately, in a new trial whose result is altered by the loss of essential witnesses or testimony through the passage of time. In either event, public confidence in the operation of the criminal justice system is diminished.” (Id., at p. 509.)

These principles, properly adapted, apply with equal or even greater force to the issue before us. Of course, we are here concerned with a civil, not a criminal trial. But the constitutional requirement of actual prejudice cannot apply any less stringently to a civil judgment than to a criminal conviction, in which the rights of an accused threatened with deprivation of liberty are at stake.

*579Indeed, as in Cahill, the express terms of article VI, section 13 of the California Constitution weigh against automatic reversal for the kind of error we consider here. The constitutional provision explicitly mentions “misdirection of the jury” as error which warrants reversal only if, “after an examination of the entire cause, including the evidence, the court [concludes] . . . that the error . . . resulted in a miscarriage of justice.” The word “misdirection” logically includes every kind of instructional error. It seems manifest that incorrect, ambiguous, conflicting, or wrongly omitted instructions may equally “misdirect” the jury’s deliberations. Nothing in the language or history of article VI, section 13 suggests that its requirement of actual prejudice, determined by reference to “the entire cause, including the evidence,” applies to some forms of “misdirection,” but not others.

Moreover, erroneous refusal of a proffered civil instruction clearly is not a fundamental denial of the orderly legal procedure due a criminal accused. Nor is it a “ ‘structural [defect] in the . . . trial mechanism’ ” that defies evaluation for harmlessness. Instead, like the improper admission of evidence at issue in Cahill, it is trial error, a mistake that occurred in presentation of the case to the jury. By its nature, error of this kind “ ‘may ... be quantitatively assessed in . . . context... in order to determine whether its [commission] was [prejudicial or harmless].’ ” (Cahill, supra, 5 Cal.4th at p. 502, quoting Arizona v. Fulminante, supra, 499 U.S. 279, 307-308 [113 L.Ed.2d 302, 329-330].)

We are not persuaded otherwise by earlier pronouncements that certain kinds of erroneous instructional omissions in civil cases are automatically reversible because they violate a litigant’s right to jury trial. In our view, if a civil litigant was permitted to introduce evidence, cross-examine witnesses, and present argument before a fairly selected jury that rendered its honest verdict on the trial record, there has been no “structural [defect] in the constitution of the trial mechanism” that might call for automatic reversal of a civil judgment without consideration of actual prejudice. Obviously, any substantial “error which occurred during the presentation of the case to the jury” distorts or impairs the jury function to some degree. That fact cannot turn every such civil trial error into a fundamental, structural denial of the right to a jury.

Nor can we accept the traditional rationale that certain forms of instructional omission in civil cases are “inherently” prejudicial. Cases that automatically applied that theory without reference to the actual record “lost sight of the principal purpose and significance of . . . California’s constitutional provision explicitly addressing the matter of reversible error. . . .” (Cahill, supra, 5 Cal.4th at p. 503.)

*580Erroneous civil instructional omissions, like the criminal evidentiary error at issue in Cahill, may be more or less likely to cause actual prejudice, depending on their nature and context. Particularly serious forms of error might “almost invariably” prove prejudicial in fact. But it does not follow that courts may “automatically and monolithically” treat a particular category of civil instructional error as reversible per se. Article VI, section 13 of the California Constitution requires examination of each individual case to determine whether prejudice actually occurred in light of the entire record. (See Cahill, supra, 5 Cal.4th at p. 503.)

Finally, we may not blindly endorse traditional rules of automatic reversal or “inherent” prejudice in order to preserve doctrinal stability. As in Cahill, our adherence to such principles would undermine the important and still-vital requirements and policies of article VI, section 13 of the California Constitution. No form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party.

We therefore conclude that there is no rule of automatic reversal or “inherent” prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, §13.) Contrary implications in prior decisions such as Self, supra, 42 Cal.App.3d 1, are disapproved and overruled.

Instructional error in a civil case is prejudicial “where it seems probable” that the error “prejudicially affected the verdict.” (See Pool v. City of Oakland, supra, 42 Cal.3d 1051, 1069; LeMons v. Regents of University of California, supra, 21 Cal.3d 869, 875; People v. Watson, supra, 46 Cal.2d 818, 836.) Of course, that determination depends heavily on the particular nature of the error, including its natural and probable effect on a party’s ability to place his full case before the jury.

But the analysis cannot stop there. Actual prejudice must be assessed in the context of the individual trial record. For this purpose, the multifactor test set forth in such cases as LeMons and Pool, both supra, is as pertinent in cases of instructional omission as in cases where instructions were erroneously given. Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of *581the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.11

Here, GM does not even suggest that the refusal of its causation instruction caused it actual, as opposed to “inherent,” prejudice. Nonetheless, we examine the error by the standards we have set forth above. Our evaluation convinces us that the error was harmless.

At the outset, we note that the omission of GM’s proposed language did not cause an entire absence of instructional support for GM’s causation defense. (Cf., e.g., Hasson v. Ford Motor Co., supra, 19 Cal.3d 530, 548 [contributory negligence instruction refused].) The trial court instructed that plaintiff could not recover for a design defect unless the defect was a “substantial” factor in producing her “enhanced” injuries. In general terms, the instructions thus encompassed GM’s causation theory, and they did not foreclose a defense verdict on that theory.

What GM failed to obtain was a further explanation of how general principles of causation related to GM’s specific claim that plaintiff’s ankle injuries were caused by the force of the accident, not by any design defect in the Camaro. In essence, the omitted language was thus similar in function and purpose to “pinpoint” instructions. It is well settled that the erroneous refusal of “pinpoint” instructions may be deemed harmless in appropriate cases. (See, e.g., People v. Wright (1988) 45 Cal.3d 1126, 1144-1152 [248 Cal.Rptr. 600, 755 P.2d 1049].)

The fact that no other instructions covered GM’s well-supported theory with the required specificity may weigh in favor of a finding that prejudice *582occurred in this case. However, other factors show there is no reasonable probability the jury was misled or the verdict affected.

It was obvious at trial that GM’s theory of causation was a major aspect of its case. Without objection, GM produced voluminous expert evidence in support of its hypothesis that even if plaintiff’s Camaro was defective, the force of the collision was the sole “substantial” cause of plaintiff’s ankle injuries.

Again without objection, GM’s counsel devoted significant argument to this theory, and counsel articulated it very clearly. At length, counsel urged the evidence showed that the toe pan’s deformation could not have broken plaintiff’s ankles and that the actual cause of injury was plaintiff’s own inertial impact against the floorboard. Moreover, counsel emphasized, “[i]f the crash is so severe that you think [plaintiff’s] ankles would have broken anyway,” then any defect was not a cause of plaintiff’s injuries.12

In turn, plaintiff also devoted substantial attention to the causation issue raised by GM. Plaintiff’s counsel presented contrary evidence, cross-examined defense experts, and argued that GM’s theory was not persuasive on the facts. However, neither plaintiff’s counsel nor the court ever suggested that it was legally irrelevant.

Thus, the evidence and argument uniformly supported the reasonable inference that the general causation instruction allowed GM to escape liability if plaintiff’s injuries would have occurred regardless of any defect. Hence, there seems little chance the jury was actually misled. The jury itself gave no indication it was confused on the point, or that its deliberations were affected accordingly. We therefore find no reasonable probability that the *583error in refusing GM’s special instruction on causation affected the jury’s verdict. Accordingly, we conclude, the error was harmless.

Conclusion

The trial court erred when it instructed on the consumer expectations test for design defect, and when it refused GM’s special instruction on causation. However, neither error caused actual prejudice. Accordingly, the judgment of the Court of Appeal, upholding the trial court judgment in favor of plaintiff, is affirmed.

Kennard, J., George, J., Werdegar, J., and Boren, J.,* concurred.

MOSK, Acting C. J., Concurring.

While I agree with the conclusion of the majority in this case, I cannot approve an opinion that purports to “take guidance” (maj. opn., ante, p. 576) from People v. Cahill (1993) 5 Cal.4th 478 [20 Cal.Rptr.2d 582, 853 P.2d 1037].

Cahill, an opinion that deemed coerced confessions to be harmless, was and remains a cruel aberration in the law. It casts doubt on our devotion to justice and perpetuates a medieval concept that convictions can be obtained by any means and at any cost to integrity.

Unnecessarily citing Cahill for “guidance” reflects unfavorably on the otherwise satisfactory analysis of this opinion.

ARABIAN, J., Concurring and Dissenting.

I concur in the majority’s holding that the trial court committed instructional error in two respects, incorrectly charging the jury on the “consumer expectations” component of design defect liability, and improperly refusing defendant General Motors’ requested instruction on legal causation. I cannot agree, however, with the conclusion that the latter error was harmless.

“It is hornbook law that each party to a lawsuit is entitled to have the jury instructed on all of his theories of the case that are supported by the pleadings and the evidence. It is incumbent upon the trial court to instruct on all vital issues involved.” (Phillips v. G. L. Truman Excavation Co. (1961) 55 Cal.2d 801, 806 [13 Cal.Rptr. 401, 362 P.2d 33].) Furthermore, a trial court may not compel a litigant to rely on “abstract generalities in presenting its legal theory of the case to the jury, but should instruct the jury on vital issues in terms that relate to the particular case before it.” (Self v. General Motors *584 Corp. (1974) 42 Cal.App.3d 1, 10 [116 Cal.Rptr. 575]; see also Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 543 [138 Cal.Rptr. 705, 564 P.2d 857, 99 A.L.R.3d 158]; Borenkraut v. Whitten (1961) 56 Cal.2d 538, 545-546 [15 Cal.Rptr. 635, 364 P.2d 467]; Phillips v. G. L. Truman Excavation Co., supra, 55 Cal.2d at p. 806.)

The trial court here refused General Motors’ requested instruction on one of its two primary defense theories, to wit, that any design defect could not have been a “substantial” or “contributing” cause of plaintiff’s “enhanced” injuries if they would have occurred even with a nondefective design.1 The proposed instruction, as the majority concede, was correct in form and substance. If the force of the collision was so severe that plaintiff’s injuries would have occurred notwithstanding any abstract “defect” in the vehicle’s safety design, the defect cannot be considered a substantial factor or legal cause in bringing them about. (See Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 862-864 [275 Cal.Rptr. 715]; Self v. General Motors Corp., supra, 42 Cal.App.3d at p. 10.)

As the majority further acknowledge, the proposed instruction encapsulated a “major thrust” of the defense theory at trial. General Motors presented substantial evidence that the force of the collision was the sole cause of plaintiff’s injuries, wholly apart from the existence of any defect. Its expert testified extensively in support of this theory, supporting his opinion with references to crash tests and voluminous documentation, and applying the data to the particular circumstances of the collision between plaintiff and the other driver. Thus, the proposed instruction set forth a correct statement of law and was amply supported by the evidence at trial. The trial court’s refusal to instruct the jury pursuant to its terms was plainly errroneous.

Was the error prejudicial? Viewed in the light of the relevant prejudicial-error standard and the pertinent analytical factors, I must conclude that it was. When the jury receives an improper instruction in a civil case, prejudice will be found “ ‘[w]here it seems probable that the jury’s verdict may have been based on the erroneous instruction . . . .’ ” (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875 [148 Cal.Rptr. 355, 582 P.2d 946], quoting Robinson v. Cable (1961) 55 Cal.2d 425, 428 [11 Cal.Rptr. 377, 359 P.2d 929].) In assessing that probability, we look to several factors, including the degree of conflict in the evidence, counsel’s *585arguments, the effect of other instructions, and any indication from the jury that it was confused or misled. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069-1070 [232 Cal.Rptr. 528, 728 P.2d 1163].)

With respect to the potentially mitigating effect of other instructions, the standard definition of “legal cause” which the trial court read the jury plainly did not represent an adequate substitute for the requested pinpoint instruction. As the majority concede, the general instruction dealt only by “negative implication” (Self v. General Motors Corp., supra, 42 Cal.App.3d 1, 10) with General Motors’ theory that any defect could not have been a substantial factor because the injuries would have occurred in any event. “A trial court should not require a party to rely on abstract generalities in presenting its legal theory of the case to the jury, but should instruct the jury on vital issues in terms that relate to the particular case before it.” (Self v. General Motors Corp., supra, 42 Cal.App.3d at p. 10, italics added; see also Borenkraut v. Whitten, supra, 56 Cal.2d at p. 545.) That is precisely what failed to occur here. The abstract definition of “legal cause”—“difficult conceptual problem for jurors—and for trial judges and appellate judges, too, for that matter” (Self v. General Motors Corp., supra, 42 Cal.App.3d at p. 10)—provided the jury no meaningful guidance in terms related to the particular case before it. Received in a factual vacuum and untethered to the specific causation theory proffered by General Motors, the general causation instruction failed to provide the tailored nexus between facts and law to which General Motors was entitled, and which the jury manifestly required. Hence, I am compelled to conclude that this factor weighs strongly in favor of a finding of prejudice.

The record evidence lends additional weight to this conclusion. The majority note that General Motors produced “voluminous evidence” to demonstrate that the force of the accident was so severe that plaintiff’s injuries would have occurred regardless of any defect. We are apparently to infer, therefore, that the jury was adequately apprised—based on the evidence—of the law and logic underlying General Motors’ theory of defense. I would suggest that the more reasonable inference is precisely the opposite. Given the voluminous documentary and testimonial evidence adduced at trial, the jury was all the more in need of a clear and unambigous instruction to integrate and make sense of the conflicting evidence. Therefore, I must conclude that this factor as well supports a finding of prejudice.

The majority note that counsel for General Motors explained its causation theory to the jury during closing argument. Contrary to the conclusion of the majority, however, I do not find that this represented an adequate substitute for a proper legal instruction. Juries are generally instructed, as they were *586here, that “the court’s instructions . . . instruct you as to the applicable law,” and that “statements of counsel are not evidence” but merely the statements of advocates. Thus, although pertinent to the prejudice calculation, the arguments of counsel “are not to be judged as having the same force as an instruction from the court.” (Boyde v. California (1990) 494 U.S. 370, 384-385 [108 L.Ed.2d 316, 331-332, 110 S.Ct. 1190].)

Counsel’s argument was merely that—argument—unless and until a ratifying instruction from the trial court dignified it with the force of law. As the United States Supreme Court has well observed, “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.” (Starr v. United States (1894) 153 U.S. 614, 626 [38 L.Ed. 841, 846, 14 S.Ct. 919], quoted with approval in Sanguinetti v. Moore Dry Dock Co. (1951) 36 Cal.2d 812, 819 [228 P.2d 55].) The omission of a critical charge may, of course, prove to be just as instrumental to the outcome. Thus, I am not prepared to say that the trial court’s refusal to instruct on a theory at the heart of the defense, in terms pertinent to the circumstances of the case, was rendered harmless as a result of counsel’s argument.

In view of these findings, it appears to me at the very least reasonably “probable” that the jury’s verdict may have been based on the erroneous refusal to instruct on a critical theory of the defense. (LeMons v. Regents of University of California, supra, 21 Cal.3d at p. 875.) Accordingly, I would reverse the judgment of the Court of Appeal.

HOLMAN, J.

Plaintiff was injured while feeding fiberboard into a sanding machine during his employment with Pope and Talbot, a wood products manufacturer. The sanding machine had been purchased by Pope and Talbot from defendant. Plaintiff brought this action on a products liability theory, contending the sanding machine was unreasonably dangerous by virtue of defective design. At the completion of the testimony, defendant’s motion for a directed verdict was granted and plaintiff appealed.

As is required in such a situation, the evidence is recounted in a manner most favorable to the plaintiff. The machine in question was a six-headed sander. Each sanding head was a rapidly moving belt which revolved in the direction opposite to that which the pieces of fiberboard moved through the machine. Three of the heads sanded the top of the fiberboard sheet and three sanded the bottom. The top half of the machine could be raised or lowered depending upon the thickness of the fiberboard to be sanded. The bottom half of the machine had powered rollers which moved the fiberboard through the machine as the fiberboard was being sanded. The top half of the machine had pinch rolls, not powered, which, when pressed down on the fiberboard by use of springs, kept the sanding heads from forcefully rejecting it from the machine.

*488On the day of the accident plaintiff was engaged in feeding the sheets of fiberboard into the sander. Because of the defective operation of a press, a large group of sheets of extra thickness was received for sanding. These sheets could not be inserted into the machine as it was set, so the top half of the sander was adjusted upwards to leave a greater space between the top and bottom halves to accommodate the extra thick fiberboard sheets. During the sanding of the extra thick sheets, a thin sheet of fiberboard, which had become mixed with the lot, was inserted into the machine. The pressure exerted by the pinch rolls in the top half of the machine was insufficient to counteract the pressure which the sanding belts were exerting upon the thin sheet of fiberboard and, as a result, the machine regurgitated the piece of fiberboard back at plaintiff, hitting him in the abdomen and causing him the injuries for which he now seeks compensation.

Plaintiff asserts in his complaint that the machine was defective in its design and unreasonably dangerous because (1) “it * * * could not be operated in the manner and for the purpose for which it was manufactured and sold without throwing back towards the operator panels of material being sanded * * and (2) # * it did not * * * contain # * * any guards, catches, shields, barricades or similar devices to protect the operator of said machine from being struck by panels of material thrown back out of the sanding machine * * The two allegations assert substantially the same thing, the first one in general terms, and the second one in particular terms. In effect, they allege the machine was defective and was unreasonably dangerous because there were no safety devices to *489protect the person feeding the machine from the regurgitation of sheets of fiberboard.

While we do not here attempt to recount all of the testimony presented by plaintiff concerning the defective design of the machine, there was evidence from which the jury could find that at a relatively small expense there could have been built into, or subsequently installed on, the machine a line of metal teeth which would point in the direction that the fiberboard progresses through the machine and which would press lightly against the sheet but which, in case of attempted regurgitation, would be jammed into it, thus stopping its backward motion. The evidence also showed that after the accident such teeth were installed upon the machine for that purpose by Pope and Talbot, whereupon subsequent regurgitations of thin fiberboard sheets were prevented while the efficiency of the machine was maintained. There was also evidence that defendant makes smaller sanders which usually are manually fed and on which there is such a safety device.

It was shown that the machine in question was built for use with an automatic feeder and that the one installed at Pope and Talbot is the only six-headed sander manufactured by defendant which is manually fed. There also was testimony that at the time of the purchase by Pope and Talbot, defendant had automatic feeders for sale but that Pope and Talbot did not purchase or show any interest in such a feeder. Pope and Talbot furnished a feeding device of their own manufacture for the machine which was partially automatic and partially manual but which, the jury could find, at times placed an employee in the way of regurgitated sheets.

*490There was testimony that at the time defendant’s employee inspected the installation of the machine purchased by Pope and Talbot, which inspection was required by their contract, the inspecting employee became aware that the machine was being manually fed. There was no testimony of any warning given by defendant of the danger concerning regurgitated sheets to a person manually feeding the machine. Neither was there any evidence that Pope and Talbot was told that the machine was built for use with a fully automatic feeder and that it was not to be fed manually, nor was the recommendation made to plaintiff’s employer that if the machine was to be used without a fully automatic feeder, some sort of safety device should be used for the protection of anyone who was manually feeding the machine. There was evidence that one of Pope and Talbot’s representatives was told that the top of the machine should not be raised while sanding was taking place, but there was no evidence of the danger from doing so ever being mentioned.

Defendant contends there is no proper assignment of error because, instead of being designated as an assignment of error, the claim that the trial court should not have granted a directed verdict is designated as an issue on appeal. Because plaintiff’s contention upon appeal is clearly evident, we choose in this case to overlook the formal defects in his opening brief which have somewhat been alleviated by his reply brief.

In defense of its judgment based upon a directed verdict, defendant contends there was no proof of a defect in the product, and therefore strict liability should not apply. This court and other courts continue to flounder while attempting to determine how one *491decides whether a product is “in a defective condition unreasonably dangerous to the user.”① It has been recognized that unreasonably dangerous defects in products come from two principal sources: (1) mismanufacture and (2) faulty design.② Mismanufacture is relatively simple to identify because the item in question is capable of being compared with similar articles made by the same manufacturer. However, whether the mismanufactured article is dangerously defective because of the flaw is sometimes difficult to ascertain because not every such flaw which causes injury makes the article dangerously defective.③

1. The problem with strict liability of products has been one of limitation.④ No one wants absolute liability where all the article has to do is to cause injury. To impose liability there has to be something about the *492article which makes it dangerously defective without regard to whether the manufacturer was or was not at fault for such condition. A test for unreasonable danger is therefore vital. A dangerously defective article would be one which a reasonable person would not put into the stream of commerce if he had knowledge of its harmful character. ⑤ The test, therefore, is whether the seller would be negligent if he sold the article knowing of the risk involved. ⑥ Strict liability imposes what amounts to constructive knowledge of the condition of the product.

On the surface such a test would seem to be different than the test of 2 Restatement (Second) of Torts § 402A, Comment i., of “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.” This court has used *493this test in the past.⑦ These are not necessarily different standards, however. As stated in Welch v. Outboard Marine Corp., ⑧ where the court affirmed an instruction containing both standards:

“We see no necessary inconsistency between a seller-oriented standard and a user-oriented standard when, as here, each turns on foreseeable risks. They are two sides of the same standard. A product is defective and unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risks involved or if the risks are greater than a reasonable buyer would expect.”

To elucidate this point further, we feel that the two standards are the same because a seller acting reasonably would be selling the same product which a reasonable consumer believes he is purchasing. That is to say, a manufacturer who would be negligent in marketing a given product, considering its risks, would necessarily be marketing a product which fell below the reasonable expectations of consumers who purchase it. The foreseeable uses to which a product could be put would be the same in the minds of both the seller and the buyer unless one of the parties was not acting reasonably. The advantage of describing a dangerous defect in the manner of Wade and Keeton is that it preserves the use of familiar terms and thought processes with which courts, lawyers, and jurors customarily deal.

While apparently judging the seller’s conduct, the test set out above would actually be a characterization of the product by a jury. If the manufacturer was not acting reasonably in selling the product, knowing of *494the risks involved, then the prodnct would he dangerously defective when sold and the manufacturer would he subject to liability.

In the cáse of a product which is claimed to be dangerously defective because of misdesign, the process is not so easy as in the case of mismanufacture. All the products made to that design are the same. The question of whether the design is unreasonably dangerous can be determined only by taking into consideration the surrounding circumstances and knowledge at the time the article was sold, and determining therefrom whether a reasonably prudent manufacturer would have so designed and sold the article in question had he known of the risk involved which injured plaintiff. The issue has been raised in some courts concerning whether, in this context, there is any distinction between strict liability and negligence.⑨ The evidence which proves the one will almost always, if not always, prove the other.⑩ We discussed this matter recently in the case of Roach v. Kononen/Ford Motor Co., 269 Or 457, 525 P2d 125 (1974), and pointed out that there is a difference between strict liability for misdesign and negligence. We said:

“However, be all this as it may, it is generally recognized that the basic difference between negligence on the one hand and strict liability for a design defect on the other is that in strict liability we are talking about the condition (dangerousness) of an article which is designed in a particular way, while in negligence we are talking about the reasonableness of the manufacturer’s actions in designing and selling the article as he did. The article can have *495a degree of dangerousness which, the law of strict liability will not tolerate even though the actions of the designer were entirely reasonable in view of what he knew at the time he planned and sold the manufactured article. As Professor Wade points out, a way of determining whether the condition of the article is of the requisite degree of dangerousness to be defective (unreasonably dangerous; greater degree of danger than a consumer has a right to expect; not duly safe) is to assume that the manufacturer knew of the product’s propensity to injure as it did, and then to ask whether, with such knowledge, something should have been done about the danger before it was sold. In other words, a greater burden is placed on the manufacturer than is the case in negligence because the law assumes he has knowledge of the article’s dangerous propensity which he may not reasonably be expected to have, had he been charged with negligence.” 269 Or at 465.

To some it may seem that absolute liability has been imposed upon the manufacturer since it might be argued that no manufacturer could reasonably put into the stream of commerce an article which he realized might result in injury to a user. This is not the case, however. The manner of injury may be so fortuitous and the chances of injury occurring so remote that it is reasonable to sell the product despite the danger. In design cases the utility of the article may be so great, and the change of design necessary to alleviate the danger in question may so impair such utility, that it is reasonable to market the product as it is, even though the possibility of injury exists and was realized at the time of the sale. Again, the cost of the change necessary to alleviate the danger in design may be so great that the article would be priced out of the market and no one would buy it even though it was of high *496utility. Such, an article is not dangerously defective despite its having inflicted injury.

In this case defendant contends it was Pope and Talbot’s choice to purchase and use the sander without an automatic feeder, even though it was manufactured to be used with one, and, therefore, it was Pope and Talbot’s business choice which resulted in plaintiff’s injury and not any misdesign by defendant. However, it is recognized that a failure to warn may make a product unreasonably dangerous.⑪ Comment j., Section 402A, 2 Bestatement (Second) of Torts, has the following to say:

“In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he had knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be required.”

Although the examples cited in the comment do not *497encompass machinery or such products, it has been recognized that a piece of machinery may or may not be dangerously defective, depending on the directions or warnings that may he given with it.⑫

It is our opinion that the evidence was sufficient for the jury to find that a reasonably prudent manufacturer, knowing that the machine would be fed manually and having the constructive knowledge of its propensity to regurgitate thin sheets when it was set for thick ones, which the courts via strict liability have imposed upon it, would have warned plaintiff’s employer either to feed it automatically or to use some safety device, and that, in the absence of such a warning, the machine was dangerously defective. It is therefore unnecessary for us to decide the questions that would arise had adequate warnings been given.

In Anderson v. Klix Chemical, 256 Or 199, 472 P2d 806 (1970), we came to the conclusion that there was no difference between negligence and strict liability for a product that was unreasonably dangerous because of failure to warn of certain characteristics. We have now come to the conclusion that we were in *498error. The reason we believe we were in error parallels the rationale that was expressed in the previously quoted material from Roach v. Kononen/Ford Motor Co., supra, where we discussed the difference between strict liability for misdesign and negligence. In a strict liability case we are talking about the condition (dangerousness) of an article which is sold without any warning, while in negligence we are talking about the reasonableness of the manufacturer’s actions in selling the article without a warning. The article can have a degree of dangerousness because of a lack of warning which the law of strict liability will not tolerate even though the actions of the seller were entirely reasonable in selling the article without a warning considering what he knew or should have known at the time he sold it. A way to determine the dangerousness of the article, as distinguished from the seller’s culpability, is to assume the seller knew of the product’s propensity to injure as it did, and then to ask whether, with such knowledge, he would have been negligent in selling it without a warning.

It is apparent that the language being used in the discussion of the above problems is largely that which is also used in negligence cases, i.e., “unreasonably dangerous,” “have reasonably anticipated,” “reasonably prudent manufacturer,” etc. It is necessary to remember that whether the doctrine of negligence, ultrahazardousness, or strict liability is being used to impose liability, the same process is going on in each instance, i.e., weighing the utility of the article against the risk of its use. Therefore, the same language and concepts of reasonableness are used by courts for the determination of unreasonable danger in products liability eases. For example, see the criteria set out in *499 Roach v. Kononen/Ford Motor Co., supra. ⑬ The difference between the three theories of recovery is in the manner in which the decisional functions are distributed between the court and the jury. The following language, we believe, is appropriate:

“In an action for negligence it is normally the function of the jury to determine whether the defendant was negligent, subject, of course, to the authority of the judge to direct a verdict for the defendant, if he finds that the jury could not reasonably find for the plaintiff. On the other hand, in an action based on strict liability of the Rylands [Ryland v. Fletcher] type, for an abnormally dangerous activity, the determination as to whether strict liability will be imposed for the activity is held to be one for the judge, not the jury—for the reason that the decision involves issues of general social policy. In the products cases the courts seem not to have approached the problem in this fashion. Instead, they seem to have assumed that strict products liability is like negligence in this respect, so that a plaintiff, in order to recover, must convince the jury that the product was ‘defective’ or *500‘unreasonably dangerous’ or ‘not duly safe,’ or whatever test is used. This generally works quite satisfactorily when the question is whether the product was unsafe because of an error in the manufacturing process so that it was not in the condition in which it was intended to be. The issue then seems more factual, of the kind the jury is accustomed to handling. The difficulty comes when it is not just the single article which is to be classed as unsafe because something went wrong in the making of it, but a whole group or class or type which may be unsafe because of the nature of the design. It is here that the policy issues become very important and the factors which were enumerated above must be collected and carefully weighed [as set out in Roach v. Kononen/Ford Motor Co., supra]. It is here that the court—whether trial or appellate—does consider these issues in deciding whether to submit the case to the jury. If a plaintiff sues the manufacturer of a butcher knife because he cut his finger, on the sole ground that the knife was so sharp that it was likely to cut human flesh, the court would probably take the case out of the hands of the jury and not give it the opportunity to find that the knife was unsafe. Similarly with an aspirin manufacturer, when an ordinary tablet stuck to the lining of the plaintiff’s stomach and caused a hemorrhage, or the manufacturer of the Pasteur treatment for rabies, when there were untoward reactions. The problem in these cases is likely to be called one of law and decided by the court. Court control of jury action is more extensive here than in the ordinary negligence action. And yet, of course, if the court decides that it would be reasonable to allow the jury to find for the plaintiff, the issue of lack of due safety will be submitted to the jury even in these cases.” (Footnotes omitted.)⑭

It is important to point out, as indicated in the above quotation, that while the decision is made by the *501court whether an activity is abnormally dangerous and strict liability of the Rylands v. Fletcher ⑮ type is to be applied, the determination of whether a product is dangerously defective and strict liability is to be applied has been treated as one primarily for the jury, similar to the manner in which negligence is determined. Therefore, the factors set forth by Wade and used in Roach v. Kononen/Ford Motor Co., supra, are not the bases for instructions to the jury but are for the use of the court in determining whether a case has been made out which is submissible to the jury. If such a case has been made out, then it is submitted to the jury for its determination under instructions as to what constitutes a “dangerously defective” product, much in the same manner as negligence is submitted to the jury under the “reasonable man” rule.⑯

Defendant contends that other and different instructions were given to plaintiff’s employer, Pope and Talbot, and the accident occurred because these instructions were not followed and, therefore, the sander was misused and defendant is not responsible for the accident. Defendant’s employee who inspected *502the installation of the sander testified that he told Pope and Talbot’s sander superintendent, as previously indicated, that the top half of the sander should not be raised while material was being run through it, and this evidence was not refuted. It is not clear from the testimony of the sander operator whether the top half of the machine was in the process of being raised at the time the accident occurred, as is contended by defendant. We believe the testimony is capable of being interpreted to the effect that when the thicker sheets caused by the press malfunction showed up, they all seemed to be of a uniform thickness, and the top of the machine was set to accommodate the extra thickness ; then a number of pieces were run through before the thin piece, which had been mixed in with the thick ones, came along and was regurgitated due to the insufficient pressure exerted by the pinch rolls to offset the backward pressure of the sanding heads. In any event, we believe the testimony would permit the jury to find that whether the top had been regulated for a specific thickness of material at the time of the accident or was in the process of being raised, the accident would have occurred in either circumstance.

Even if the testimony is capable of the sole construction which defendant puts on it, there is no testimony that the danger of raising the top of the sander while running material through it was ever explained to Pope and Talbot,⑰ and, in the absence of such an explanation, we believe the question of whether the accident occurred because the sander was dangerously defective or because it was misused was one for the *503jury and should not be decided as a matter of law, as contended by defendant.

Defendant calls to our attention that one of the principal rationales behind the imposition of strict liability upon the manufacturer for injuries caused by dangerously defective products is that the manufacturer is in the position of distributing the cost of such risks among all users of the product. Defendant then argues that in the present situation Pope and Talbot would normally bear the responsibility for the injury to its employee and that because Pope and Talbot is just as capable of spreading the cost of injury by the sale of its product as is defendant, there is no logic in imposing liability without fault upon defendant for the purpose <of distributing the risk.

Defendant thus confronts us with the problem we have already been faced with in Wights v. Staff Jennmgs, ⑱ where we noted the difficulty of limiting the applicability of the enterprise liability theory as a basis for recovery in tort. While the enterprise liability theory may be indifferent as to whether the defendant or plaintiff’s employer should bear this loss, there are other theories which allow us to make a choice.

Where a defendant’s product is adjudged by a jury to be dangerously defective, imposition of liability on the manufacturer will cause him to take some steps (or at least make calculations) to improve his product. Although such inducement may not be any greater under a system of strict liability than under a system of negligence recovery, it is certainly greater than if the liability was imposed on another party simply because that other party was a better risk distributor. *504We suspect that, in the final analysis, the imposition of liability has a beneficial effect on manufacturers of defective products both in the care they take and in the "warning they give.

The case is reversed and remanded for a new trial.

ORDER

CARNES, District Judge.

This case is presently before the Court on defendant’s Motion for Summary Judgment [23-1] and plaintiffs’ Motion for Reconsideration of the Court’s Order dated November 6, 2001 [34-4]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendant’s Motion for Summary Judgment [23-1] should be GRANTED in part and DENIED in part and plaintiffs’ Motion for Reconsideration of the Court’s Order dated November 6, 2001 [34-4] should be DENIED.

FACTUAL BACKGROUND

This is a product liability action. Plaintiff Robert Jones (“Mr. Jones”) and his wife Almarie Jones (“Mrs. Jones”) (collectively “plaintiffs”) filed suit alleging that a drain line clearer called “Liquid Fire” was defectively designed, manufactured, and marketed by defendant Amazing Products, Inc. (“Amazing Products” or “defendant”). Specifically, plaintiffs allege that Liquid Fire is unreasonably dangerous, improperly packaged, and accompanied with inadequate instructions under strict liability, negligence and gross negligence theories. Mr. Jones was severely injured when the product spilled on him.

Currently before the Court is defendant’s Motion for Summary Judgment [23] and plaintiffs’ Motion for Reconsideration of the Court’s Order dated October 6, 2000 [34-4]. Unless otherwise indicated, the Court draws the undisputed facts that underlie the allegations in the Complaint from “Defendant’s Statement of Undisputed Material Facts” (“SMF”) [23], If, however, plaintiffs have disputed a specific fact and pointed to evidence in the record supporting its version of events, the Court has viewed all evidence and factual inferences in the light most favorable to plaintiffs, as required on a defendant’s motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir.1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir.1993). Accordingly, the following facts are either not disputed or are viewed in the light most favorable to the plaintiffs.

On or about June 11, 1999, Mr. Jones purchased a container of Liquid Fire from an Ace Hardware store in Adel, Georgia in order to unclog his bathroom sink and bathtub drains. (R. Jones Dep. at 19-21.) He selected Liquid Fire based on the recommendation of his cousin, a licensed plumber. (SMF ¶ 1.)1 Mr. Jones specifi*1233cally requested from a store clerk a container of Liquid Fire. (R. Jones Dep. at 21.) The store clerk retrieved a pint-sized container from the shelf and presented it to Mr. Jones. (Id. at 22.) Mr. Jones testified that the clerk told him that it was the only size of the product that the store had in stock. Defendant sells Liquid Fire in pint and quart size containers without handles, and one-gallon containers with handles. (SMF ¶ 7.)2 Mr. Jones purchased the product and left the store.

On June 14, 1999, approximately three days later, Mr. Jones decided to use the Liquid Fire he purchased to unelog his bathroom sink and bathtub drains. (R. Jones Dep. at 23.) Prior to using the product, Mr. Jones states that he sat down to read the warning/instruction label affixed to the container of Liquid Fire. (Id. at 22.) Despite the fact he was able to read, Mr. Jones only read selective portions of the warning/instruction label, however. (SMF ¶ 2.) A 64 year-old retiree, Mr. Jones states that the reason he failed to read the entire label was because the typeface was too small for him to read, even while wearing his reading glasses. (Pis.’ Resp. to Def.’s Stmt, of Mat. Facts [35] (“PSMF”) ¶ 2.) Plaintiff did “read enough to know that [he] was scared” of the product and that the product was potentially dangerous. (R. Jones Dep. at 35.) He did not, however, ask someone else to read the warning/instruction label to him before using the product. (Id.) Despite having read only a sufficient amount of the warning/instruction label to understand he was dealing with a dangerous product, Mr. Jones elected to use the product. Mr. Jones states that he proceeded to use the product at that time because he was scheduled to leave on his honeymoon soon thereafter and wanted to leave the Liquid Fire in the drains while they were away on vacation. (R. Jones Dep. at 21-22.)

The label attached to the product indicates that it contains “concentrated sulfuric acid.”3 (PSMF ¶ 4.) The label specifically warns the consumer to read the label before using the product. (See Warning/Instruction Label attached as Ex. A to Def.’s Br. In Supp. Of Mot. For Summ. J. [23] (hereinafter “Warning Label.”).) It further warns the consumer to “never transfer to another container.” (PSMF ¶ 5.) In addition, the label includes the warning to “never add water to LIQUID FIRE while in bottle because of violent reaction.” (Id.)

In preparation for use of the Liquid Fire solution, Mr. Jones decided to transfer the product into a gallon sized plastic container with a handle that formerly held Clorox bleach. (Id. at 32, 35.) He chose to transfer the product into the Clorox container because it had a handle. (Id.) Because the product was dangerous, he was concerned that he would not be able to properly hold the Liquid Fire container without the help of a handle, due to a shoulder condition that hindered his ability to grip and hold items. (Id. at 32.) The plaintiff had previously been using the empty Clorox bottle to water his plants. (Id. at 29.) Before transferring the product to the Clorox container, he held the container upside down to ensure no water was inside. (Id. at 40.) As he sat on the back steps of his *1234house, Mr. Jones used a black plastic funnel to pour the entire Liquid Fire contents into the Clorox container. (Id. at 29.)

After transferring the “Liquid Fire” into the empty Clorox bottle, plaintiff immediately walked, with the Clorox bottle in hand, through his house towards the bathroom to use the product. (Id. at 43.) As he walked through the kitchen, he heard a “whoofh” noise, and the bottom fell out of the container. (Id. at 43.) The entire quart of concentrated sulfuric acid poured all over Mr. Jones’ right leg and foot. (Id. at 44, 45.) He cried out in pain, and his wife came to him and assisted him to the back yard, where she sprayed him down with a water hose. (Id. at 46.) Mrs. Jones then took Mr. Jones to the hospital. (Id. at 45.)

Mr. Jones suffered deep chemical burns. (Id. at 56.) His burns necessitated that he stay at various hospitals, including the South Georgia Medical Center, where a skin graft was performed, Memorial Hospital of Adel and Phoebe Putney Memorial Hospital. (Id. at 56-58.) In addition, he was treated by the Wound Care Center and Plastic Surgery Associates. (Id.)

Mr. Jones’ right foot is disfigured, and he continues to have pain related to the acid burns. (Id. at 61.) He has deep gashes in his leg and foot, and states that he cannot wear sandals or shorts anymore. (Id.) He notes that the injured leg is very tender and limits his ability to walk. (Id. at 62.)

On June 12, 2000, plaintiffs filed suit in the Superior Court of Fulton Country, Georgia. Subsequently, on July 5, 2000, defendant removed this case to the United States District Court for the Northern District of Georgia, Atlanta Division. Plaintiffs are both Georgia residents and defendant is a Kentucky corporation licensed to conduct business in the State of Georgia. Plaintiffs seek damages in excess of $75,000. (Notice of Removal [1] ¶ 4.) Accordingly, this Court has jurisdiction pursuant to 28 U.S.C. § 1332.

DISCUSSION

I. Standard for Summary Judgment Motion

Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ” FED. R. CIV. P. 56(c). A fact’s materiality is determined by the controlling substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. at 249-50, 106 S.Ct. 2505.

Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party’s case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. 2548 (quoting FED. R. CIV. P. 56(c)).

The movant bears the initial responsibility of asserting the basis for his motion. Id. at 323, 106 S.Ct. 2548. However, the movant is not required to negate his oppo*1235nent’s claim. The movant may discharge his burden by merely “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.” Id. at 325, 106 S.Ct. 2548. After the movant has carried his burden, the non-moving party is then required to “go beyond the pleading” and present competent evidence designating “specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. 2548. While the court is to view all evidence and factual inferences in a light most favorable to the non-moving party, Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988), “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (1986).

II. Legal Standards for Claims in This Complaint: Distinctions between Strict Liability Claim and Negligence Claims

Plaintiffs’ Complaint [1] alleges three claims4 of liability that are before this Court on the present motion for summary judgment.5 (Am. Compl. [7] ¶¶ 7-20.) In Count One, plaintiffs allege that defendant is strictly liable to plaintiff for placing into the stream of commerce a product that was unreasonably dangerous because of design, manufacturing, and marketing defects. (Id. ¶¶ 7-9.) The gist of this claim is that defendant is strictly liable because it manufactured a product that was unreasonably dangerous, regardless, of whether the design of the container or the express warnings found on the container were adequate. In effect, this part of the claim alleges that Liquid Fire should not be on the market and that defendant is strictly liable for allowing the product to be sold to the general public. This strict liability count also contends that, even if its product were lawfully on the market, the defendant improperly designed the container and failed to include, or “bundle,” necessary safety equipment with the product. Finally, as the last component of its strict liability claim, plaintiff contends that, as marketed, Liquid Fire contained inadequate labeling that failed to detail the dangers that could occur from the use of the product.

In Count Two, plaintiffs allege that defendant was negligent in the design, manufacturing, and marketing of its product. (Id. ¶¶ 10-14.) In Count Three, plaintiffs allege that defendant’s conduct amounted to gross negligence as it demonstrated an entire want of care and a conscious indifference to the safety of Mr. Jones. (Id. ¶¶ 15-16.) These negligence claims echo the same contentions that inhere in the strict liability claims: that Liquid Fire was unreasonably dangerous, that its container was improperly designed and the product should have included necessary safety equipment, and that the product was inadequately labeled.

*1236In short, plaintiffs have taken the same core facts and derived two legal claims out of these facts: strict liability and negligence. Indeed, for the most part, the parties collapse the two terms and construe the legal theories as being interchangeable.6 The Court will largely follow this same approach in resolving the motion for summary judgment. Before doing so, however, the Court will set out the elements of each type of claim.

A. Strict Liability Claims

In order to establish a claim based on strict liability, plaintiffs are required to demonstrate that, when sold, defendant’s product was “not merchantable and reasonably suited to the use intended, and its condition when sold [was] the proximate cause of the injury sustained.” O.C.G.A. § 51-1-11. A plaintiff can state a claim based on strict liability by showing that the product at issue was “not merchantable” due to one of three types of product defects: manufacturing defects, design defects, and marketing/packaging defects. See Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). Plaintiffs appear to allege that Liquid Fire is defective in all three regards. (See Amended Compl. [7] ¶ 5.)

A manufacturing defect is a defect that is “measurable against a built-in objective standard or norm of proper manufacture.” Banks, 264 Ga. at 734 n. 2, 450 S.E.2d at 673 n. 2. In manufacturing defect cases, “it is assumed that the design of the product is safe and had the product been manufactured in accordance with the design it would have been safe for consumer use.”7 Id. at 733, 450 S.E.2d at 673. Thus, by definition, a manufacturing defect will always be identifiable as a deviation from some objective standard or a departure from the manufacturer’s specifications established for the creation of the product. With regard to a claim of manufacturing defect, no showing of negligence would be necessary; instead, the deviation, accompanied by evidence that this deviation was the proximate cause of the injury, would satisfy the elements of the claim.

While a “manufacturing defect” is a fairly straightforward concept, a “design defect” is a far more diffuse proposition under Georgia Supreme Court precedent, as the latter calls for the finder of fact to employ a loose balancing test to determine whether the manufacturer properly designed the product. Specifically, in Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994), the Georgia Supreme Court promulgated a “risk-utility analysis, “whereby the risks inherent in a product are weighed against the utility or *1237benefit derived from the product.” The court explained that:

[t]his risk-utility analysis incorporates the concept of ‘reasonableness,’ i.e., whether the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk. When a jury decides that the risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be), it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have.

Id. at 734, 450 S.E.2d at 673. There is no objective test in a design defect claim; instead, the jury considers the costs of a certain enhanced design against the benefits that the design might produce and then, substituting its business judgment for that of the manufacturer, indicates, through its verdict, whether it would have made the same business decision. As the jury is given no guideline as to when a given cost might prove to be too much or when a given benefit might be deemed too cost-inefficient to warrant the use of the alternative design, its decision is necessarily quite subjective. Further, a “risk-utility” analysis, with its requirement of evaluating the “reasonableness” of the manufacturer’s decision, much more closely mimics a negligence analysis8 than a “pure” strict liability test, as the original meaning of the latter term implied an automatic liability, even without any negligence, when certain other prerequisites were shown.

Finally, the third species of defect — a marketing/packaging defect — does not appear to carry its own set of criteria, but instead appears to be a sub-set of a manufacturing defect or a design defect, depending on the particular facts. Thus, if a container is faulty because it deviates from the manufacturer’s specifications for a container or if a particular label is inadequate because it omits a line that is contained in the company’s prototypical label, *1238these flaws would be manufacturing defects. If a container, however, is deemed faulty because the jury disagrees with the manufacture’s decision as to its design, the container would represent a design defect. Similarly, if a jury deems a warning label inadequate because it did not fully or clearly enough communicate the dangers of the product and the precautions to be taken in its use, then this flaw would likewise be more akin to a design defect.

B. Negligence Claims

Count Two of plaintiffs’ Amended Complaint [7] sets forth a negligence claim against defendant, contending that defendant was negligent in the design, manufacture, and marketing of Liquid Fire. The Amended Complaint [7] further contends that defendant knew, or in the exercise of ordinary care, should have known, that the product and its container were defective and unreasonably dangerous to its likely consumers. Under Georgia law, to recover for negligence, a plaintiff must show “(1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty.” Bradley Ctr., Inc. v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693, 695 (1982).

As noted, Georgia case law has typically assumed that a strict liability “design defect” claim” carries the same elements as a negligence claim aimed at the same alleged shortcomings in the product. “In the subject product-design case, only semantics distinguishes the cause of action for negligence and a cause of action pursuant to O.C.G.A. § 51-1-11 [claiming strict liability for defective design].” Coast Catamaran Corp. v. Mann, 171 Ga.App. 844, 848, 321 S.E.2d 353, aff'd 254 Ga. 201, 202, 326 S.E.2d 436 (1985); see also Orkin Exterminating Co. v. Dawn Food Prod., 186 Ga.App. 201, 202, 366 S.E.2d 792 (1988) (stating that determination of whether a manufacturer is strictly liable for a defectively designed product requires an evaluation based on the negligence principles of the reasonableness of a manufacturer’s design decisions.) In both causes of action, the manufacturer’s conduct is judged by the traditional duty of reasonable care. Coast Catamaran, 171 Ga.App. at 848, 321 S.E.2d 353; Honda Motor Co., Ltd. v. Kimbrel, 189 Ga.App. 414, 418, 376 S.E.2d 379 (1988); Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44, 248 S.E.2d 15 (1978); Weatherby v. Honda Motor Co., Ltd., 195 Ga.App. 169, 171, 393 S.E.2d 64 (1990); Vax v. Albany Lawn & Garden Ctr., 209 Ga.App. 371, 433 S.E.2d 364 (1993). Indeed, as noted supra, in apparent recognition of the similarity between a strict liability and negligence action under Georgia law, plaintiffs have “incorporate[d] by reference all the arguments set forth in the section of [the] brief based on strict liability.” (Pis.’ Br. In Opp. To Def.’s Mot. For Summ. J. [35] at 17.) Defendant also acknowledges that the negligence standard mirrors the strict liability standard. (Def.’s Br. In Supp. Of Mot. For Summ. J. [23] at 21-22.)

This Court will deal with the overlap in legal concepts by first addressing that part of plaintiffs strict liability claim that alleges a manufacturing defect. Second, the Court will address, under both a strict liability theory and a negligence theory, plaintiffs complaint that Liquid Fire was improperly marketed as result of shortcomings in the design of its container and of defendant’s failure to “bundle” or attach other safety devices with the product. Third, the Court will address, under both a strict liability theory and a negligence theory, plaintiffs complaint that Liquid Fire’s label was inadequate and that it omitted *1239crucial warnings to the consumer. Finally, the Court will address plaintiffs claim that, regardless of any improvements in the container design or in the warnings provided, Liquid Fire was unreasonably dangerous and should not have been marketed to the public.

Upon analysis of each of these claims, the Court has concluded that defendant is entitled to summary judgment as to plaintiffs claim of manufacturing defects and as to plaintiffs claim that Liquid Fire is unreasonably dangerous, no matter what improvements defendant could conceivably make in its design or in the warnings it provides. The Court concludes, however, that plaintiff has proffered sufficient evidence to create a jury question as to plaintiffs claim that the container was inadequately designed and marketed and his claim that defendant’s warnings were insufficient to alert a consumer as to the great potential for danger created by this product.

III. Manufacturing Defect

Plaintiffs have alleged that defendant is strictly liable for manufacturing defects in selling a product that is unreasonably dangerous and that is in a container with an unreasonable risk of spillage and with an insufficient warning included with the package. (Am. Compl. [7] ¶ 7.) Defendant argues that it is entitled to summary judgment as to all claims based on strict liability for manufacturing defects. (Def.’s Br. in Supp. of its Mot. for Summ. J. [23] at 17.) The Court agrees with the defendant that plaintiffs fail to state a claim for strict liability based on manufacturing defects as a matter of law.

A manufacturing defect is a defect that is “measurable against a built-in objective standard or norm of proper manufacture.” Banks, 264 Ga. at 734 n. 2, 450 S.E.2d at 673 n. 2. In manufacturing defect cases, “it is assumed that the design of the product is safe and had the product been manufactured in accordance with the design it would have been safe for consumer use.”9 Id. at 733, 450 S.E.2d at 673. Thus, by definition, a manufacturing defect will always be identifiable as a deviation of some objective standard, the perfect product.

The record is devoid of any evidence demonstrating that the Liquid Fire product purchased by Mr. Jones was improperly manufactured. Specifically, even though plaintiffs allege that defendant’s product was unreasonably dangerous, they present no evidence to support the contention that the product had a manufacturing error specific only to the container of Liquid Fire purchased by Mr. Jones. In other words, they present no evidence that Mr. Jones’ product was not manufactured in accordance with its design. Furthermore, they present no evidence that indicates that the alleged inadequacy of the warning label was due to a manufacturing error. Simply alleging that a product is dangerous, absent evidence of a deviation from the “perfect” or prototypical bottle of Liquid Fire, is not sufficient to demonstrate the existence of a manufacturing defect. See Center Chemical Co. v. Parzini, 234 Ga. 868, 869, 218 S.E.2d 580, 582 (1975). Accordingly, defendant’s Motion for Summary Judgment is GRANTED as to all strict liability claims based on manufacturing defects.

IV. ALLEGED DEFECTS IN CONTAINER AND MARKETING OF PRODUCT

A. Defects in Design of Container

Plaintiff contends that the Liquid Fire container is defective in design because it creates an unreasonable risk of spillage and was not coupled with safety *1240items recommended on the bottle for proper product use. (Am. Compl. [1] ¶ 8.) Specifically, plaintiff identifies the following defects: the absence of a product dispensing system that would prevent acid splash backs from drain openings into one’s face, eyes, chest, groin, hands, and legs; the absence of a bottle or jug handle; the use of a squeezable plastic container; and the absence of pre-measured “dose” containers. Plaintiff also contends that defendant should have provided necessary safety equipment, such as chemical splash goggles, a face shield, impervious gloves, and an impervious apron. Plaintiff argues that an expectation that a user will purchase all these necessary safety items creates an unreasonably high “cost of compliance” for the consumer that render it unlikely that consumer will be able to comply with the necessary cautions necessary to follow in using the product. Id. at ¶¶ 5-6. Such bundling of the product purportedly increases the likelihood that a consumer will be able to follow all necessary safety precautions and serves to impress on the consumer the inherent dangerousness of the product that he is about to use.

1. Negligence Principles

The Court will first examine this claim of container defects under negligence principles. As noted, to recover for negligence, a plaintiff must show “(1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty.” Bradley Ctr., Inc. v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693, 695 (1982).

In a products liability case predicated on negligence, the duty imposed is the traditional one of reasonable care, and the manufacturer need not provide, from a design standpoint, a product incapable of producing injury. “Generally, if a manufacturer does everything necessary to make the [product] function properly for the purpose for which it is designed, if the [product] is without any latent defect> and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands.” Poppell v. Waters, 126 Ga.App. 385, 387, 190 S.E.2d 815 (1972) (citations and punctuation omitted) (emphasis added); see also Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44, 46, 248 S.E.2d 15 (stating same). “Actual knowledge by the user of the danger posed by a product is not necessary.... [in deciding] whether the peril from which an injury results is latent or patent, the decision is made on the basis of an objective view of the product, and whether the subjective perceptions of the user or injured party are irrelevant.” (Emphasis in original.) Weatherby v. Honda Motor Co., Ltd., 195 Ga.App. 169, 172, 393 S.E.2d 64 (1990), overruled on different grounds by Ogletree v. Navistar Int’l Transp. Corp., 269 Ga. 443, 500 S.E.2d 570 (1998).

The manufacturer is generally not liable for injury resulting from an abnormal use of the product, unless the particular unintended use was foreseeably probable. Mann v. Coast Catamaran Corp., 254 Ga. at 202, 326 S.E.2d 436. However,

if in the normal functioning of a product as designed such functioning creates a danger or peril that is not [objectively] known to the user or bystander, then the manufacturer is liable for injuries proximately caused by such danger... When the use to which the product was being put at the time of injury is not that originally intended by the manufacturer, the determination of whether ... *1241[negligence] may be asserted as a viable theory of recovery or whether the manufacturer is insulated from liability because the use of the product was ‘abnormal’ and intervening depends, initially, upon the foreseeability that the product would be put to that use.

ICI Americas, Inc. v. Banks, 211 Ga.App. 523, 525-26, 440 S.E.2d 38, 41-42 (1993) (citations omitted), rev’d. in part on other grounds, 264 Ga. 732, 450 S.E.2d 671 (1994).10 Foreseeability in this context means that which would be foreseeably probable or objectively reasonable to expect, not merely what might occur. Greenway v. Peabody Intl. Corp., 163 Ga.App. 698, 704, 294 S.E.2d 541 (1982); Ford Motor Co. v. Stubblefield, 171 Ga.App. 331, 335, 319 S.E.2d 470.

From the foregoing principles it may be inferred that where a product, in its normal functioning, creates a latent danger as designed, arising from a foreseeably probable unintended use, and the user or injured party could not from an objective point of view appreciate the latent danger, the manufacturer may be held liable on a claim of negligent design. Ford Motor Co., 171 Ga.App. at 335, 319 S.E.2d 470; Poppell, 126 Ga.App. at 387, 190 S.E.2d 815. In the present case, plaintiff suffered serious injury because the Liquid Fire, which is almost pure sulfuric acid, melted the empty Chlorox bottle to which plaintiff transferred the product, thereby spilling sulfuric acid onto plaintiffs body, severely burning and disfiguring the plaintiff.

It is unclear why this chemical reaction occurred.11 Plaintiff alleges that he had been using the Chlorox bottle to water plants and had emptied it before pouring the Liquid Fire into it. Defendant contends, however, that Liquid Fire can be stored safely in an ordinary plastic Clorox container, so long as that container is completely devoid of any water or residue of the Clorox product. (SMF ¶ 8.) To buttress this claim,- defendant offered the testimony of James Whitlock, the Vice President of Amazing Products, who conducted an experiment in which he poured Liquid Fire into an empty Clorox container, waited five minutes, and observed “no reaction.” (Whitlock Aff. ¶ 5.) When Whitlock placed four ounces of water into an empty Clorox container and then added four ounces of Liquid Fire to the same container, however, he states that the Liquid Fire underwent a chemical reaction with the water and “the bottom of the Clorox container became soft and warm.” (Id. ¶ 6.) This Court, however, must accept the facts in the light most favorable to the plaintiff and, in doing so, the Court concludes that there was no water residue in the bottle.

Accordingly, the more precise question becomes whether the defendant could have reasonably foreseen that a user might transfer the product into another container. The Court concludes that a jury question is presented as to whether the defendant should have foreseen such a possibility. At the outset, the Court notes that the president of Amazing Product, Jenny Duffy, testified in her deposition that the company assumes that the majority of Liquid Fire purchasers are untrained consumers. (Id. at 16, 21-23.) The Court therefore concludes that the *1242defendant could not assume that the average user would know that transferring the liquid to another container would be dangerous. Moreover, notwithstanding defendant’s contention that no chemical reaction would have occurred had the Chlorox bottle been completely emptied of any substance, defendant was nonetheless aware of the dangerous consequences that could result from a transfer.12 Indeed, Liquid Fire is comprised of 97% sulfuric acid.

The questions then are whether the defendant designed a container that might encourage such a transfer and whether the defendant adequately warned the user of such dangers. As to the first question,13 the Court concludes that a finder of fact might determine that the design of defendant’s container either implicitly encouraged a transfer of the liquid or failed to make such a transfer unnecessary. First, the warning label consisted of three columns of information, with one column in the “centér” of the bottle and the other two columns designated as side panels. See Court’s Exhibit 1, attached to this Order. Some information was in large red print, with other information in a smaller size bold black print, and with a great deal of additional information (approximately 24 lines) in very small black print. The largest red print indicated that the product was dangerous because it was poison and because it could cause severe burns. At the beginning of the side panel labeled “CAUTIONS,” the directions exhorted the user to avoid spillage and leakage.14 Also, on each of the three columns, language in red print warned of the danger of violent eruption.15 Thus, the average user should be concerned about spilling the product.

Further, although language in the middle of the small, fine print section of the cautionary side column indicated that the user should not transfer the product to another container, quantity usage language in much bolder print on the directions side panel seemed to direct such a transfer. That is, in larger red print, the panel stated “MAXIMUM QUANTITY USAGE,” followed a few lines below by bold, black print setting out the maximum amounts to be used for particular fixtures.16 The maximum quantity usage di*1243rections were followed by language in small black print that stated, “If any measuring device is used, empty thoroughly; rinse after use and before reusing and/or storing.”

Thus, the directions clearly envisioned and even directed the user to measure the product before using it. Measuring a product invariably requires one to transfer it to another container. Moreover, other parts of the directions arguably encouraged not only a transfer of the product into a measured container, but also could have encouraged a user to use a container that would give one more control, such as a container with a handle and/or a drip-proof spout. Specifically, in the middle of the small black print part of the directions, the latter provide: “Pour proper amount of acid SLOWLY at arm’s length while at same time with other hand have inverted pail or pan tilted down over same drain opening to protect against possible eruption of acid. DO NOT LOOK INTO DRAIN.” (emphasis added; capitalization in original). By insisting that the user pour only a small amount of the acid, that he do so slowly and at arm’s length, while the other hand is holding a pail near the drain, and while admonishing the user not to look at the product while he was pouring it’ the directions seem to invite use of a container over which one would have maximum control, a container that would not spill on one’s hand or arms, and a container into which one had pre-measured the precise quantity of product. Taking all these admonitions together, with the language earlier cited that suggested that a measuring device might need to be used, the directions appear, if not to direct a transfer of the product to another container, to at least suggest that the user should transfer the product.17

Thus, the Court concludes ■ that a jury could conclude that the defendant should have foreseen that a user might transfer the liquid into another container, which is exactly what occurred here. Having conceded that a transfer of the product could result in injury to a user, defendant should also have foreseen the consequences of such an action and should have taken measures to forestall this result. Leaving aside the inadequacy of the warnings,18 some of the measures that defendant could arguably have taken to prevent a need to transfer the product would have been to design a see-through bottle with measurement units or pre-measured “dose” con-*1244tamers. Given the requirement that the user pour at arm’s length and not look into the area that he was pouring, designing a container with a handle would have given the user more control over the product and may have lessened the need to transfer the product into either a smaller container or a container that possessed a handle and that thereby gave the user more control. Similarly, a drip-free container would also have alleviated some of these concerns. Accordingly, a finder of fact may well conclude that defendant was negligent in not adopting some of these measures.

Defendant has argued that because plaintiffs decision to transfer the Liquid Fire was not motivated by the above concerns, the foreseeability of any of these occurrences becomes insignificant, as defendant’s negligence would not have been the proximate cause of the injuries. Specifically, defendant notes that plaintiffs decision to transfer the Liquid Fire into a handled container was not motivated by a concern about spillage, but instead that plaintiff was concerned that he would not be able to properly hold the Liquid Fire container because he had undergone shoulder surgery in the past, which had reduced his ability to grip items tightly. (Def.’s Br. in Supp. of its Mot. for Summ. J. [23] at 14-15). The Court disagrees; it appears that spillage was precisely the plaintiffs concern. The fact that plaintiff had an intensified concern about spillage as a result of his shoulder condition does not negate the fact that any reasonable user should have been concerned about the dangers resulting from spillage.

Defendant also argues that plaintiff could have purchased Liquid Fire in a handled container. (Id. at 15.) Plaintiff testified that the dealer where he purchased the product indicated that he had only had a non-handled bottle. Indeed, defendant has acknowledged that it did not manufacture a handle for pint or quart size containers, and plaintiff purchased a pint size container. Finally, it is true that plaintiff did not transfer the product for purposes of measurement. Nevertheless, given all the admonitions discussed above, the defendant could have reasonably foreseen that, for a variety of reasons, a user might wish to transfer’the product.

In summary, while a manufacturer is generally not liable for injury resulting from an abnormal use of the product, unless the particular unintended use was foreseeably probable, a finder of fact could conclude that defendant could have foreseen that, in the normal use of Liquid Fire as a drain clearer, a user might transfer the product to another container and that the product could react violently when transferred into certain containers or when it comes into contact with water residue. Further, the finder of fact could conclude that the average consumer might not appreciate the above dangers. Compare Weatherby v. Honda Motor Co., Ltd., 195 Ga.App. 169, 173, 176, 393 S.E.2d 64 (1990) (discussing “open and obvious” versus latent danger as applied to the objective appreciation of such danger by an injured child); Greenway v. Peabody Int’l Corp., 163 Ga.App. 698, 704, 294 S.E.2d 541 (not reasonably foreseeable to manufacturer that child killed when trapped between dumpster doors would play inside dumpster).19 Moreover, the substance of the defendant’s warning labels tended to in*1245crease the likelihood of transfer by setting out quantity usage amounts. Accordingly, plaintiffs’ allegation that the defendant was negligent in selling the defective Liquid Fire solution, as packaged, should be decided by a trier of fact. See Taylor v. McClendon, 205 Ga.App. 390, 422 S.E.2d 440 (1992); Horney v. Lawrence, 189 Ga.App. 376, 377, 375 S.E.2d 629 (1988). Defendant’s Motion for Summary Judgment [23] is therefore DENIED as to plaintiffs’ allegation that the Liquid Fire container was negligent in design.

2. Strict Liability Claim Regarding Design of Container

As noted supra at 1238, like the parties, the Georgia courts tend to treat strict liability and negligence claims interchangeably in the context of alleged design defects. The Georgia Supreme Court in Banks recognized that the risk-utility analysis that it promulgated for strict liability claims “bespeaks negligence” and that pri- or Georgia appellate decisions indicate that the same analysis used in negligence claims will be used in design defect types of strict liability claims-. 264 Ga. 732 at 734 & 735 n. 3, 450 S.E.2d 671. Nevertheless, that court refused to concede that the analysis would always overlap between the two types of claims:

While we recognized that the determination of whether a product was defective (involving the reasonableness of a manufacturer’s design decisions), which is a basic inquiry for strict liability purposes, generally will overlap the determination of whether the manufacturer’s conduct was reasonable, which is a basic inquiry for negligence purposes, we cannot agree that the use of negligence principles to determine whether the design of a product was “defective” necessarily obliterates under every conceivable factual scenario the distinction Georgia law has long recognized between negligence and strict liability theories of liability.

264 Ga. at 735 n. 3, 450 S.E.2d 671 (emphasis added). Notwithstanding its reluctance to absolutely collapse the two concepts, the Banks court unfortunately did not offer any helpful examples that would help to illuminate any potential differences. Accordingly, the Court assumes that both approaches would result in identical results in this case.20

Moreover, even ignoring the negligence claim, the plaintiff has stated a claim under the risk-utility approach, for the same reasons discussed above in the negligence portion of this discussion. See discussion supra at 1240-44. Accordingly, the Court DENIES defendant’s Motion for Summary judgment as to plaintiffs strict liability claim based on a defective design of the container.

B. Defendant’s Failure to “Bundle” Other Safety Paraphernalia With the Product

Defendant further argues that it should be granted summary judgment as to plaintiffs’ claims that the Liquid Fire was defectively packaged because it failed to include additional safety items, such as face shields. Requiring the inclusion of additional safety products with the sale of every container of liquid fire would purportedly impose a burdensome duty on the defendant and would magnify its responsibility in such cases because the defendant *1246would be required to vouch for the reliability and workmanship of products it does not manufacture. (Def.’s Br. in Supp. of its Mot. for Summ. J. [23] at 19.) Defendant cites to Lotti v. Benjamin Sheridan Corp., 1996 U.S. Dist. LEXIS 12383 (N.D.Ga.1996) (Hull, J.), for the proposition that “to expand a manufacturer’s liability in this manner is unreasonable and contrary to the laws of this state.” (Def.’s Br. in Supp. of its Mot. for Summ. J. [23] at 19.) Accordingly, defendant reasons that as requiring additional safety products to eliminate the risk of injury is “impracticable, onerous, unreasonable and not required by law, the failure to do so cannot be viewed as a marketing/packaging defect.” (Id.) Plaintiffs failed to respond directly to defendant’s contentions in their Brief in Opposition to Defendant’s Motion for Summary Judgment. (See Pis.’ Br. In Opp. To Def.’s Mot. For Summ. J. [35].)

The Court agrees with defendant that liability cannot be based on its failure to provide additional safety equipment with the “Liquid Fire” product. Imposing such a duty on the defendant is contrary to Georgia law in that a manufacturer does not occupy the status of an insurer and is under no duty to make a product that is accident or fool proof. See Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44, 248 S.E.2d 15 (1978). Georgia law only requires that manufacturers warn of the risks associated with their product, and imposes no duty on manufacturers to specify what kind of safety or protective equipment should be used to guard against those risk. See Ream Tool Co. v. Newton, 209 Ga.App. 226, 230, 433 S.E.2d 67 (1993). To be sure, Georgia cases have held that a manufacturer cannot insure the reliability of a product it does not make. Hall v. Scott USA, Ltd., 198 Ga.App. 197, 200, 400 S.E.2d 700 (1990); Talley v. City Tank Corp., 158 Ga.App. 130, 279 S.E.2d 264. 134, 158 Ga.App. 130, 279 S.E.2d 264 (1981). Furthermore, it is not clear how the inclusion of items such as protective glasses, would, in this case, have impacted in any way on Mr. Jones’s decision to pour the product into a Clorox container or prevented the injuries he suffered to his leg. Accordingly, defendant’s Motion for Summary Judgment as to plaintiffs’ claims for strict liability based on design defects in Liquid Fire’s packaging is GRANTED.

V. Inadequate Warnings of Danger by Defendant

As a result of the above ruling, both the negligence and strict liability claims will be submitted to the jury with regard to the alleged design defect in defendant’s container. To clarify the issues to be presented at trial, the Court will also address the question whether defendant is entitled to summary judgment on plaintiffs strict liability and negligence claims arising out of defendant’s allegedly inadequate warnings of the danger presented by a transfer of the liquid to another container. There is some potential overlap in the Court’s resolution of the “container” claim, as that claim relates to plaintiffs “inadequate warnings” claim, although the Court concludes that a contributory negligence defense is potentially available for the latter, but not the former claim.

Plaintiffs claim that defendant provided “inadequate warning of the dangers of use of the product.” (Am. Compl. [7] ¶ 8.) The Court has previously discussed the warnings set out on the label. See discussion supra at 1242-43 and Court’s Exhibit 1, attached.21 The duty to *1247warn requires a manufacturer to warn of any non-obvious or non-known perils or dangers which the manufacturer has reason to anticipate may result from the use of the product. See Foskey v. Clark Equipment Co., 715 F.Supp. 1088, 1090-91 (M.D.Ga.1989). Defendant responds that to the extent that failure to provide adequate instructions can be considered a design defect or a packaging defect, plaintiffs are prohibited as a matter of law from recovering on this claim because of the uncontroverted evidence that Mr. Jones failed to read the warning label. This failure to read, according to defendant, renders plaintiff contributorily negligent and consequently bars relief. (Def.’s Br. in Supp. of its Mot. for Summ. J. [23] at 19.)

In a products liability case, whether or not grounded in a strict liability or negligence theory, a manufacturer’s duty to warn depends on the foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. See Wilson Foods Corp. v. Turner, 218 Ga.App. 74, 75, 460 S.E.2d 532 (1995). Where a duty to warn arises, the duty may be breached by (1) failing to adequately communicate the warning to the ultimate user or (2) faking to provide an adequate warning of the product’s potential risk. Id., citing Thornton v. E.I. Du Pont De Nemours & Co., 22 F.3d 284 (11th Cir.1994). A failure to read the warning will bar the plaintiff from recovering on the second prong of this test, which is based on the adequacy of the warning. Id. The reason for this result is that if the plaintiff failed to read the warning, the inadequacy of the warning can no longer be the cause of the injury; instead plaintiffs failure to read the warning becomes the cause of the injury. Henry v. General Motors Corp., 60 F.3d 1545, 1548 (11th Cir.1995).

A plaintiffs failure to read a warning will not, however, bar recovery as to the first prong of the test: namely, where the plaintiff is challenging the adequacy of the defendant’s efforts to communicate the dangers of the product to the user, not the substance of those warnings. Wilson Foods Corp., 218 Ga.App. at 75, 460 S.E.2d at 534 (citing to Thornton v. E.I. Du Pont De Nemours & Co., 22 F.3d 284, 290 (11th Cir.1994) Failure to communicate an adequate warning involves such questions as the location and presentation of the warning.22 “[W]here plaintiff alleges that a warning is inadequate because it was not effectively communicated—a presentation and location of the warnings case—the plaintiffs failure to read the warning may be [circumstantial] evidence of the inadequacy of the warning.” Wilson Foods, 218 Ga.App. at 75, 460 S.E.2d at 534 (citing to Rowson v. Kawasaki Heavy Indus., Ltd., 866 F.Supp. 1221, 1238-1239 (N.D.Iowa 1994).)

Despite the fact that plaintiffs fail to specifically articulate this argument, they do refer often to the fact that Mr. Jones attempted to read the label, but failed to read the entire label because the small print size prevented him from doing so.23 *1248(Pis.’ Br. In Opp. To Def.’s Mot. for Summ. J. [35] at 3, 15-16.) Moreover, it appears to this Court that, unlike that part of the directions that directed the user to measure the liquid (thereby implicitly suggesting that the user should transfer the liquid), the part of the cautionary instruction that directed the user not to transfer the product to another container was buried in the middle of a long paragraph, in a very small print size. Indeed, even though looking for this specific language, the undersigned had to read through the label twice to find this particular sentence. See Stapleton v. Kawasaki Heavy Indust., Ltd., 608 F.2d 571, 573 (5th Cir.1979) (where the manufacturer placed a warning concerning the danger of ignition from undetected gas leakage on page 13 of a motorcycle manual, a jury could conclude that the danger posed by this leakage was sufficiently great that the warning should have been presented in a way that was immediately obvious to even a casual reader).

Accordingly, the Court concludes that plaintiff has presented a jury question as to whether the defendant adequately communicated the prohibition against transferring the liquid and the Court therefore DENIES the defendant’s Motion for Summary judgment as to this part of the duty to warn claim.24

VI. Whether Liquid Fire Was So Unreasonably Dangerous That it Should Not have been Marketed in any Form

Plaintiffs also argue that, no matter how safe defendant made its containers or how adequate and prominent were its warnings, Liquid Fire is nonetheless too dangerous to be distributed to the public. According to plaintiff, this inherent dangerousness constitutes a design defect. Under this theory, defendant’s liability would arise merely by the fact that it chose to market this product.

As noted, design defect cases are analyzed under the standards set forth in Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). In Banks, the Georgia Supreme Court applied a balancing test, “whereby the risks inherent in a product are weighed against the utility or benefit derived from the product.” Id. at 734, 450 S.E.2d at 673. The Georgia Supreme Court explained that:

[t]his risk-utility analysis incorporates the concept of ‘reasonableness,’ i.e., whether the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk. When a jury decides that the risk of harm outweighs the utility of a particular design (that the *1249product is not as safe as it should be), it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have.

Id. at 734, 450 S.E.2d at 673. Both parties argue that Banks supports their respective positions as to whether a design defect exists. (Pis.’ Br. in Opp. to Def.’s Mot. for Summ. J. [35] at 8-9; Def.’s Br. in Supp. of Mot. for Summ. J. [23] at 9-14.)

Defendant first argues that because plaintiff has failed to show that an alternate “design” for the product existed, plaintiff can prove no design defect in the formulation of the product. Defendant correctly asserts that the evidence indicates that no alternative chemical formulation was feasible. To support this conclusion, defendant notes the concession of plaintiffs’ own expert,-Professor Wabeke, that an alternative design featuring a lower concentration of sulfuric acid is not a viable option because it would be ineffective in unclogging drains and yet still be hazardous in terms of potential injury. (Wabeke Dep. at 56, 59.) Because a safer solution design is not feasible, defendant argues, plaintiffs cannot establish that Liquid Fire’s current design is unreasonable despite its inherent dangerousness.

Plaintiffs do not respond directly to defendant’s argument. Nevertheless, the Court has read Banks and concludes that its holding does not necessarily require a plaintiff to show that a safer, feasible alternative existed, in order to avoid summary judgment. Admittedly, most of the discussion in that case deals precisely with the availability of alternative designs and the feasibility of those designs, in terms of a cost-benefit analysis. Banks, 264 Ga. at 735-36, 450 S.E.2d at 674-75. Nevertheless, the court obliquely hints, in dictum, at the possibility that a manufacturer could be liable under a design defect theory even if there were no alternative design possible. That is, in noting that the crux of the analysis is the reasonableness of the defendant’s design decision the court seemed to envision a possibility of liability, no matter the absence of an alternative design:

Indeed, the reasonableness of choosing from among various alternative product designs and adopting the safest one if it is feasible is considered the “heart” of design defect cases... since it is only at their most extreme that design defect cases reflect the position that a product is simply so dangerous that it should not have been made available at all. See O’Brien, supra, 463 A.2d at 306; Prosser and Keeton, the Law of Torts (5th ed.) ¶ 96, pp. 688-689.

264 Ga. at 736, 450 S.E.2d at 674 (emphasis added).

Thus, the court indicates that there might be an extreme case in which a defendant is liable, even where there was no alternative design, if the jury concluded that the product should simply not be marketed. Clearly, the above statement was gratuitous, as the Banks facts did not implicate the highlighted language and, in making the statement, the court appeared merely to be completing the quote from the cited authority. Indeed, Banks involved a case in which a child had eaten roach poison that had a candy like shape and color that would appeal to children. Beside the fact that the manufacturer could have arguably adopted a different design for the packaging of the product, the evidence also showed that the manufacturer could have added ingredients which would cause humans, but not rats, to reject the poison as bitter tasting or to vomit it after ingesting it. Banks v. ICI Americas, Inc., 266 Ga. 607, 608, 469 S.E.2d 171, 173 (1996), citing ICI Americas, Inc. v. Banks, 211 Ga.App. 523, 440 S.E.2d 38 (1993).

Thus, Banks was a case in which there were clearly alternative design options and *1250therefore the highlighted language is dictum. This Court would be more comfortable in concluding that the above statement in Banks was merely a stray comment made in the context of quoting another source, however, were it not for the dissent of Justice Fletcher, who states that “by suggesting that a safer feasible alternative is a mere factor to be considered, rather than an essential element, the majority endorses a standard that is inconsistent with the reality that although ‘[m]any products can not be made completely safe for use and some can not be made safe at all.. .such products may be useful and desirable.” ’ See Banks, 264 Ga. at 738, 450 S.E.2d at 676 (Fletcher, J. dissenting).

Nevertheless, given the significant ramifications that the majority’s dictum poses to long-standing tort law, this Court is uncertain what effect to give the dictum. The ramification of the holding, as interpreted by plaintiff, would mean that a jury could effectively decide to prohibit a potentially dangerous product for which all warnings had been given and for which the safest design possible had been chosen, even if the consumer explicitly' accepted the risk and wanted to purchase the product. Traditionally, legislatures and regulatory bodies, not juries, make policy decisions concerning whether a given product is too inherently dangerous to be marketed in any form.25

Further, even endeavoring to apply the language, this Court is uncertain how to gauge whether a particular case is or is not an “extreme” case, under the Georgia Supreme Court’s definition.26 Even attempting to intuit the meaning of the term “extreme case,” however, this Court concludes that the facts in this case do not trigger the requisite “extremeness” alluded to by the Georgia court. Central to this Court’s conclusion is the evidence that the Consumer Product Safety Commission (“CPSC”) conducted an extensive evaluation of sulfuric acid drain clearers and unanimously concluded that products like “Liquid Fire” were no more dangerous than any other type of drain clearer on the market. (SMF ¶ 9.) (See CPSC Report attached as Ex. C to Def.’s Br. In Supp. Of Mot. For Summ. J. [23].) Specifically, the CPSC found that the number of incidents involving sulfuric acid drain clearers were not proportionately greater than the number of incidents involving other non-sulfuric drain clearers. (Id.) To state it slightly differently, the CPSC asserts that incidence of sulfuric-acid drain clearer injuries appears proportional to the market share of sulfuric-acid drain clearers. The CPSC also found that the “severity of injuries from the other drain clearers equals or surpasses those of sulfuric acid.” (Id.)

The plaintiffs dispute the soundness of the CPSC’s decision,27 but the fact remains *1251that the finding of a national safety regulatory agency that a given product is not too hazardous for public use suggests to this court that, absent other circumstances, the product would not trigger the “extreme case” characterization that the Georgia Supreme Court articulated, whatever definition it may someday apply to that label.28 As to any other circumstances that might trigger some awareness on the part of the defendant that, contrary to the finding of the CPSC, its product was too dangerous to market, plaintiff offers no probative evidence.29

Finally, in addition to the merits of the matter, the Court concludes that summary judgment on this claim is also warranted on practical grounds. This Court has determined that plaintiff shall reach a jury as to his design defect claim concerning the container and as to his claim that the defendant did not adequately, communicate the necessary warning. If a jury .decides against plaintiff on both of those claims, as a logical matter, it would necessarily decide against plaintiff on his theory of inherent dangerousness, with the latter claim being a much more up-hill challenge for the plaintiff than the other two claims. Conversely, if the jury rules for plaintiff on either of these two claims, there will have been no need to present this very problematic claim concerning the inherent dangerousness of the product. Besides potentially endangering the validity of any verdict that the plaintiff might receive on these two claims, presentation of a theory of inherent dangerousness would pose significant challenges in the crafting of an instruction to make intelligible a concept that the Georgia Supreme Court has not fleshed out. Such an instruction would undoubtedly confuse the jury.

VII. Gross Negligence Claim

Count Three of plaintiffs’ Amended Complaint [7] sets forth a gross negligence claim against defendant, contending that the acts and omission of defendant described in the strict .liability and negligence sections showed more than momentary thoughtlessness, inadvertence, or error of judgment. Rather, plaintiffs claim that defendant showed actual conscious indifference to the rights, welfare, and safety of plaintiffs and others using its product. Failure to exercise slight care constitutes “gross negligence.” Werbell v. Walters, 93 Ga.App. 378, 91 S.E.2d 841 (1956). To buttress this claim, plaintiffs note that defendant has had between twenty-five and fifty lawsuits related to injury through use of its product since 1988, but has neglected to change its product design in any way. (Pis.’ Br. in Resp. to Def.’s Mot. for Summ. *1252J. [35] at 19-20.) Defendant responds that since it alleges that there is no evidence of negligence in this case, plaintiffs’ claim for gross negligence must likewise be dismissed. (Def.’s. Br. in Supp. of its Mot. for Summ. J. [23] at 24.)

As the Court has determined that two negligence claims — negligence relating to the design of the container and the failure to adequately communicate the necessary warning — survive defendant’s motion for summary judgment, the Court will likewise allow the claims of gross negligence with regard to these matters to survive, as well, for the moment. Prior to trial, however, plaintiff will need to explain how a gross negligence claim adds anything to his case. If the claim is nothing more than an additional way of casting plaintiffs existing negligence claims, the Court will be reluctant to confuse the jury by submitting these claims to them.

Accordingly, the Court GRANTS, in part, and DENIES, in part, summary judgment as to all gross negligence claims, consistent with the foregoing language.

VIII. Plaintiffs Motion for Reconsideration

Plaintiffs have moved this Court to reconsider its Order dated November 6, 2001[37] where the Court found no basis for plaintiffs’ Emergency Motion for Rule 37(b) Sanctions. In their Motion for Reconsideration [34-4], plaintiffs fail to present to the Court any new arguments in support of its previous Emergency Motion. Because this Motion for Reconsideration, like the Emergency Motion for Sanctions before it, is without basis and further wastes both this Court’s time and the time of the defense counsel, the Court DENIES plaintiffs’ Motion for Reconsideration [37]. The Court extends the November 6, 2001 Order to cover all defense attorney’s fees and expenses related to the cost of reviewing and responding to plaintiffs’ Motion for Reconsideration.

CONCLUSION

For the foregoing reasons, the Court finds that defendant’s Motion for Summary Judgment [23-1] should be GRANTED in part and DENIED in part and plaintiffs’ Motion for Reconsideration of the Court’s Order dated October 6, 2001 [34-4] should be DENIED.

*1253