(concurring/dissenting) — The majority correctly holds Alpine Windows (Alpine) did not violate a duty to warn Daniel Soproni regarding the use of the window in this case. Pursuant to RCW 7.72.030(l)(b), there is no duty to warn of obvious hazards, such as falling out of a window. Baughn v. Honda Motor Co., 107 Wn.2d 127, 139, 727 P.2d 655 (1986) (“It is established law that a warning need not be given at all in instances where a danger is obvious or known.”).
I do, however, respectfully dissent because of the design defect issue. The majority’s approach to design defects under Washington’s product liability act of 1981 is simply erroneous, creating untold potential liability for manufacturers of products.
This case arrives before us in an unusual procedural posture. It is undisputed the window from which Daniel Soproni fell met all applicable government and industry standards for safety. In and of itself, the product was not a defective product. Moreover, the choice of this particular window was exclusively that of the architect and builder of the apartment project. Alpine had no particular input into the project design and made no specific recommendations on the choice of windows for these apartments. Nevertheless, the plaintiffs did not appeal from the trial court’s *332grant of summary judgment to the parties who decided to use the window—the architect and the developer—a judgment exonerating them from all liability for their choice of window, leaving Alpine as the only defendant in the case.
This exoneration of the architect and builder is troublesome precisely because of the facts in the case. Daniel So-proni was 20 months old at the time of the injury. He was jumping up and down on a bed his mother’s boyfriend had placed near the window at issue. The architect and builder chose to place this window behind a 16-72 inch recessed ledge. From the bed, Daniel was able to access the window ledge and the window.
There were two adults in the bedroom when Daniel fell. Daniel’s mother was seated at a computer desk next to the bed upon which Daniel was playing, and the other adult was seated at the end of the bed watching television. Both had warned him, not once but twice not to play with the window, which was just above the bed. Yet, despite the obvious dangers, and despite their proximity to him, both allowed their attention to wander, and Daniel, for a third time, began playing with the window. This time, he climbed onto the wide window ledge and leaned against the screen, which failed to support his weight. A 20-month-old is not likely to know window screens are flimsy, and must rely on adult caregivers for protection from such things.
A further troubling aspect of this case is that industry and government standards associated with windows suggest a major focus for window design is ease of opening to allow egress from a building. It is an industry and governmental imperative that people should be able to easily open windows to exit buildings, especially during emergencies. This runs directly contrary to the interest argued for by the plaintiffs here, that is, the placement of impediments to deter the opening of windows so children may not fall out of them from high levels.
*333Finally, the majority again applies the erroneous interpretation of RCW 7.72.030(l)(a) we first articulated in Falk v. Keene Corp., 113 Wn.2d 645, 782 P.2d 974 (1989). In that case, we discarded the specific language of RCW 7.72.030(1) and held strict liability applies to design defect cases notwithstanding the legislative determination negligence must be the analytical approach to design defect. Falk, 113 Wn.2d at 654. Moreover, in Falk we held the consumer expectations test was a separate means of demonstrating a design defect was present in a product. Id,.8 Thus, we elevated RCW 7.72.030(3), which was an interpretive tool for product liability cases generally, to the level of RCW 7.72.030(l)(a), which establishes the prima facie elements of a design defect case. Our approach in Falk was simply wrong.
The plain language of the statute indicates a design defect case under the 1981 legislation was intended to be analyzed under negligence principles. RCW 7.72.030(1) indicates:
A product manufacturer is subject to liability to a claimant if the claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed ....
(Emphasis added.) This was the specific intent of the *334Legislature because, unlike a case of strict liability, a design defect case necessarily involves assessment of the proper conduct of the manufacturer; that is, whether the design rendered the product unreasonably unsafe. See Philip A. Talmadge, Washington’s Product Liability Act, 5 U. Puget Sound L. Rev. 1, 8 (1981) (“[i]n a more substantial departure from existing law, a negligence standard is imposed for those cases involving a defective product design or inadequate warnings.”).
Additionally, the Legislature intended the prima facie elements of a design defect case must involve the risk-utility analysis traditionally employed in a negligence setting. RCW 7.72.030(l)(a) defines the prima facie elements of a design defect case:
A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product....
The expectations of the ordinary consumer were to be a factor in the risk-utility analysis. RCW 7.72.030(3) states:
In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.
The Falk court erroneously established two separate means of proving a design defect case—the risk-utility analysis of RCW 7.72.030(l)(a) and the consumer expectations test of RCW 7.72.030(3). The Legislature intended the single standard as set forth in RCW 7.72.030(l)(a) to apply.9
*335Applying the proper standard to the present facts requires us to determine if Alpine was negligent in designing the window at issue in this case. The Court of Appeals concluded a product is not unsafe merely because safer designs may exist for a product. Soproni v. Polygon Apartment Partners, 88 Wn. App. 416, 421-22, 941 P.2d 707 (1997) , review granted, 134 Wn.2d 1019, 958 P.2d 318 (1998) . The Court of Appeals is correct.10 The implication of the majority’s decision is that even though a product complies in all respects with all government and industry standards, if there is a possible safer design extant, a fact question on design defect liability is invariably present.11 *336While most manufacturers can conceivably build a product capable of avoiding practically all risks associated with its use, the decreased utility and excessive cost of such design would make the venture impractical.
In the present case—using the risk-utility methodology set forth in the statute—the plaintiffs have not met the burden of proof in establishing a prima facie case for design defect. They must show the likelihood the window here would cause Daniel Soproni’s harm or similar harms; and the seriousness of those harms outweighed the burden on Alpine to design a product that would have prevented the harm. If the plaintiffs contend an alternative design was appropriate, they must show the alternative design was practical and feasible and would not have had an adverse effect that would outweigh the usefulness of the window. But the essence of the plaintiffs’ case is: it is always a terrible tragedy for children to fall from windows, therefore *337window manufacturers must design safer windows. That is not enough to meet the test set forth in RCW 7.72.030(l)(a) for a prima facie case of design defect.
Furthermore, even under the majority’s formulation of RCW 7.72.030, applying alternatively the consumer contemplation test or risk-utility test, summary judgment for Alpine is appropriate. The majority chides the Court of Appeals for failing to engage in any risk-utility balancing upon concluding the window in question is not unsafe merely because safer designs exist for a given application. Majority op. at 330. Here, a Seventh Circuit case is instructive. In Todd v. Societe Bic, S.A., 21 F.3d 1402 (7th Cir. 1994), cert. denied, 513 U.S. 947, 115 S. Ct. 359, 130 L. Ed. 2d 312 (1994), the Seventh Circuit Court of Appeals, interpreting Illinois law which applied both risk-utility and consumer contemplation tests (cf. RCW 7.72.030(1) and (3)) as the majority would do here, affirmed summary judgment for a manufacturer of disposable cigarette lighters on a product liability claim. The father brought suit against the lighter manufacturer after a four-year-old girl caused the death of his 22-month-old daughter by setting the infant’s room on fire with a disposable lighter. Id. at 1404. The parent sued the lighter manufacturer on negligence and strict liability claims alleging the lighter was unreasonably dangerous because it did not include a child-resistant feature. Id. Bic never denied it was possible to manufacture a lighter with a child-resistant feature, but contended the lighter used was not unreasonably dangerous to consumers. The district court determined a cigarette lighter is not unreasonably dangerous and granted Bic’s motion for summary judgment, which the circuit court ultimately affirmed.
Applying first the consumer contemplation test, the circuit court noted such test assures products are not considered unreasonably dangerous simply because they have conceivable unsafe uses. Id. at 1407. Holding the proper standard to be the expectation of the ordinary adult consumer, not the expectation of a foreseeable child user of the product, the circuit court found the lighter was not unreasonably dangerous as a matter of law, opining:
*338Quite obviously, the consumer expects the lighter, when activated, to provide a flame. That is exactly how the lighter in this case performed. But the lighter was used to do more; the small flame it produced was used to ignite some papers, causing a deadly fire. The ordinary consumer expects that if a lighter’s flame is put to some other combustible object, a larger fire ensues. This makes a lighter dangerous. But it does not make a lighter unreasonably dangerous under the consumer contemplation test. . . . “ [virtually any product is capable of producing injury when put to certain uses or misuses. . . . Injuries are not compensable in products liability if they derive merely from those inherent properties of a product which are obvious to all who come in contact with the product. The injuries must derive from a distinct defect in the product, a defect which subjects those éxposed to the product to an unreasonable risk of harm.” The fact that a lighter starts a fire is one of its inherent properties. That fact does not breach consumer expectations; really it fulfills them. Therefore, a lighter which does nothing more than provide a small flame is not unreasonably dangerous under the consumer contemplation test.
Id. at 1407 (quoting Hunt v. Blasius, 74 Ill.2d 203, 384 N.E.2d 368, 372, 23 Ill. Dec. 574 (1978)). As with the lighter in Todd, the window in this case performs as the ordinary-consumer expects—it readily opens. Because the window does no more than fulfill the expectations of the ordinary consumer it cannot be unreasonably dangerous.
The Todd court also indicates that where a product is not unreasonably dangerous, application of the risk-utility test is inappropriate. The Todd court noted the absurdity of applying the risk-utility test to simple but obviously dangerous products like disposable lighters.12
Consider . . . the ordinary kitchen knife. Suppose someone cut by such a knife sued its manufacturer for failing to design *339a permanent retractable sheath for the knife. Should that person be able to avoid summary judgment simply by presenting statistics showing the feasibility of a permanent retractable sheath? The logical answer is no. . . . “[M]any manufactured products have potential to cause substantial injury and most can be made safer by different design.” For certain products, at least, the manufacturer should not be subject to liability just because it failed to choose the safest (and probably more expensive) alternative design.
Id. at 1411 (quoting Scoby v. Valcan-Hart Corp., 211 Ill. App. 3d 106, 569 N.E.2d 1147, 1151, 155 Ill. Dec. 536 (1991)). The Seventh Circuit held the district court was correct in finding the lighter was obviously dangerous but not unreasonably dangerous without reference to the risk-utility test. Id. at 1412. In affirming summary judgment for Bic, the Seventh Circuit concluded:
The district court was correct in its conclusion that, as a matter of law, an ordinary disposable cigarette lighter is not unreasonably dangerous. Because Bic did not produce an unreasonably dangerous product, it was neither strictly liable nor negligent.
Id. at 1413. Likewise, because the window designed and manufactured by Alpine is not unreasonably dangerous, Alpine cannot be liable under either a negligence or strict liability theory.
A recent Delaware case further supports summary judgment in this case. In Brower v. Metal Indus., Inc., 719 A.2d 941 (Del. 1998), an 8-year-old child opened a second floor window through which an 11-month-old infant fell when the window screen gave way under the infant’s weight. The Delaware Supreme Court upheld summary judgment for the window and screen manufacturer, holding such manufacturer had no duty as a matter of law to prevent the child’s fall through the open window. Id. at 943, 944, and 946. Likewise, as discussed above, summary judgment for Alpine is appropriate here.
The circumstances of this case are indeed tragic. The fall *340of a child from a window is a dire event which can result in serious injuries to the child. Appropriate attention to this issue from regulatory authorities, builders, window manufacturers, and parents certainly is in order.13 Moreover, the child and his family are not without recourse in our tort law; the developer and design professionals who built these apartments and chose the window should be subject to suit. But we cannot develop a law of product liability that makes manufacturers who comply with all applicable government and industry standards the insurers of every aspect of safety in the use of their products, or force such manufacturers to design alternative products which would guard against harm from any conceivable risk in the product’s use at a cost so great as to be impractical. I would affirm the Court of Appeals.
Guy, C.J., Durham, J., and Dolliver, J. Pro Tern., concur with Talmadge, J.
Reconsideration denied May 13, 1999.
See Falk, 113 Wn.2d at 654, stating:
Following RCW 7.72, a plaintiff seeking to establish manufacturer liability for defective product design will establish liability by proving that, at the time of manufacture, the likelihood that the product would cause plaintiffs harm or similar harms, and the seriousness of those harms, outweighs the manufacturer’s burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative design would have on the product’s usefulness. RCW 7.72.030(l)(a). If the plaintiff fails to establish this, the plaintiff may nevertheless establish manufacturer liability by showing the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer. RCW 7.72.030(3). If the product design results in a product which does not satisfy this consumer expectations standard, then the product is not reasonably safe.
(Emphasis added.)
See Philip A. Talmadge, Product Liability Act of 1981: Ten Years Later, 27 Gonz. L. Rev. 153, 159 (1991-92).
*335The Washington Supreme Court has substantially departed from the intention of the legislature in developing the standard for design defect cases. The state legislature did not intend for a strict liability standard to apply to design defect cases. The legislature was quite explicit in RCW 7.72.030(l)(a) in adopting a negligence-based standard for liability. The legislature wanted a weighing of the utility of product designs against the harm experienced by a plaintiff. A strict liability standard in this context could substantially discourage innovation in product design. Similarly, the legislature did not intend to establish a separate basis for liability in the consumer expectations test. This test was to be part of the balancing of interests involved in RCW 7.72.030.
(Footnote omitted.)
As discussed above, the Legislature intended negligence rather than strict liability to be the appropriate test for design defects under RCW 7.72.030(1). Thus, contrary to the majority’s assertion at pages 330-31, the Court of Appeals does not err in relying on cases such as: Ruff v. King County, 125 Wn.2d 697, 707, 887 P.2d 886 (1995) (no duty to make a safe road—or product—safer), and Drager v. Aluminum. Indus. Corp., 495 N.W.2d 879, 884 (Minn. Ct. App.), review denied (1993) (upholding summary judgment for a window screen manufacturer under similar facts as present here, applying a reasonable care standard, and holding failure of window screen to restrict child’s fall from window does not render window screen unreasonably dangerous for purposes of manufacturer liability for defective design).
In holding summary judgment inappropriate here, the majority relies on Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 588 P.2d 1346 (1979). Therein, an engineer’s affidavit compared escape hatch covers in DC-10 and Boeing 747 airplanes and opined the DC-10 hatch cover, lacking the safety features of its Boeing counterpart which facilitated hatch closure, created an unreasonably dangerous condition in light of the working procedures of the airplane’s crew (i.e., flight attendants’ duties often required them to walk backward down the aisle over the hatch). We held such affidavit created a genuine issue as to the material fact of whether the hatch cover, as designed and installed, was or was not reasonably safe. Id. at 351. The expert’s affidavit in Lamon was relevant because the manufacturer there (McDonnell Douglas) had full control over all matters concerning the relative safety of the escape hatch. McDonnell not only designed and installed the hatch cover, but also decided where to place the hatch in the *336airplane it built. The affidavit was relevant as to McDonnell’s role as the sole decision maker in designing and installing the hatch and hatch cover which created the dangerous condition. As only the plane’s builder participated in decisions which could potentially create a dangerous condition, the expert’s affidavit comparing how a different manufacturer had handled the particular situation was an appropriate inquiry. Thus, summary judgment in that case was not appropriate given the relevant fact question raised by the expert’s opinion.
Such is not the case here, however. Here, the expert opinions offered by appellants reflect only that safer window designs exist, not that the window in question is inherently unsafe. The appropriate inquiry in Lamon was “did the device as designed and installed (that is, as used) create a dangerous condition,” while the appropriate inquiry here is “did the device itself create the dangerous condition.” This distinction acknowledges that unlike in Lamon, the manufacturer here played no role in where and how the device it manufactured was to be used. In Lamon, the expert opinion was relevant because it addressed what created the dangerous condition in that case, the manufacturer’s decisions regarding the design and use of its product/device. Here, expert opinion regarding alternative safer designs is irrelevant because it addresses the wrong issue. What created the dangerous condition here was not Alpine’s decisions regarding the design of its window, which met all code requirements, but the developer’s decision to use such window, which met code requirements but had no childproof features, in an upper floor window seat.
Restated another way, where Alpine had no input on the installation or use of its window, the fact safer window designs exist for use in upper floor window seat configurations is irrelevant as to Alpine’s liability Soproni even admits Alpine made “safer” windows, but also notes the builder and designer made the choice to use this particular Alpine window based on cost considerations. Pet. for Review at 6-7. Therefore, the expert opinion on safer window design in this case does not address a material fact as to Alpine’s liability and thus the presence of such opinion should not preclude summary judgment.
Like the lighter, which by producing a small flame only becomes dangerous when brought in contact with combustibles, the window which readily opens only becomes dangerous when installed on the upper floors of buildings and access to it is facilitated by the careless placing of tables, chairs, beds, etc. under it. Only then does a window which functions as intended become potentially dangerous to children.
See Bryant Westchester Realty Corp. v. Board of Health, 91 Misc. 2d 56, 397 N.Y.S.2d 322 (N.Y. Sup. 1977) (denying landlord’s motion to enjoin enforcement of New York City Health Code section requiring installation of window guards in apartment and hallway windows of buildings where children under the age of 10 reside, noting the provision was passed after public hearings and study; and further holding such enactment, for the purpose of preventing children from falling from windows, was a proper exercise of the state’s police power).