dissenting:
This is a complicated and difficult case. This action arose from a very unfortunate one-car accident which resulted in the tragic disfigurement of Julie Ann Kennon. Regrettably, it has taken the judicial system over six years from the filing of the complaint in this matter to reach an appellate decision. The litigants are entitled to know that the delay in this court has resulted in large part from the fact that the dissenting judge originally drafted what began as the majority opinion. After carefully reviewing the record and considering the multitude of errors raised by Volkswagen, this judge concluded that the judgment below should be affirmed. My colleagues have disagreed and I now must respectfully dissent from their decision.
The majority first concludes that the plaintiff failed to submit expert witness testimony concerning “battery system design standards of automobile manufacturers in 1957.” I agree with the majority that under the facts of this case negligence must be proven through expert witness testimony. I disagree with their conclusion that no evidence of negligence was presented. Viewing the evidence most favorably to sustain the verdict, Venerias v. Johnson, 127 Ariz. 496, 499, 622 P.2d 55, 58 (App.1980), I cannot conclude that “there is no evidence introduced that would justify a reasonable person returning a verdict” for the plaintiff. Rocky Mountain Fire & Casualty Co. v. Biddulph Oldsmobile, 131 Ariz. 289, 291, 640 P.2d 851, 853 (1982).
Preliminarily, the majority’s conclusion that plaintiff was required to present testimony concerning automobile industry standards is plainly incorrect. The majority offers no authority whatsoever for the proposition that the plaintiff in a negligent design case must establish as an essential element of her case the deviation by the defendant from the general standards of the class of manufacturers in question. In effect, the majority holds that the ordinary custom and practice of a business or industry is the sole criterion as to what the alleged tortfeasor should have done. “Such an arbitrary rule [has] proved in the long run impossible to justify.” W. Prosser, The Law of Torts § 33 at 167 (4th ed. 1971). Prosser has succinctly summarized the failures in the approach taken by the majority. See generally id. § 33. Although some industry practices are the result of “careful thought and decision ... others arise from the kind of inadvertence, carelessness, indifference, cost-paring and corner-cutting that normally is associated with negligence.” Id. § 33 at 167.
Even an entire industry, by adopting such careless methods to save time, effort or money, cannot be permitted to set its own uncontrolled standard.
Id. Thus, the plaintiff herein was not duty bound to present evidence of automobile industry practices in 1957.
This principle has been adopted in Arizona as exemplified by the flip-side of this issue. Our supreme court has held that the defendant’s testimony that it has met general industry standards is not alone sufficient to relieve it from liability. In Atchison, T. & S.F. Ry. Co. v. Parr, 96 Ariz. 13, 391 P.2d 575 (1964), an employee was injured while moving pipe by a crane from a railway car to a truck. The operator could not see out of the compartment while operating the crane. The railroad company argued that the testimony demonstrated that the visibility from the cab of the crane was “about as good” as that for most other cranes. Id. at 17, 391 P.2d at 578. The court expressly held that such testimony, although admissible, could not relieve the railroad from liability. The failing of the majority’s reasoning has been expressed concisely by Justice Holmes:
What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence,' whether it usually is complied with or not.
Texas & Pac. Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905, 906 (1903).
The proper way to frame the plaintiff’s burden in this negligent design case is whether the expert witness testimony of*184fered by the plaintiff established that the placement of the battery (or design of its tie-down system) in the passenger compartment created an unreasonable risk of injury in the event of an accident, in light of information known by automobile manufacturers in 1957. Stated another way, whether in 1957, in the exercise of ordinary care, a safer design was feasible. Viewed in this light, there was ample expert witness testimony from which the jury could have concluded that Volkswagen was negligent in the placement of the battery in the passenger compartment.
Plaintiffs expert Jon S. McKibben testified that in 1957 automobile manufacturers were aware of the composition of batteries and knew that battery acid could cause serious injuries. He testified that at the time this' particular Volkswagen was designed, an alternative design was feasible with regard to the placement of the battery. Indeed, he testified that in most vehicles driven in the United States the battery is located in the engine compartment or luggage compartment. He further testified that the placement of the battery in the passenger compartment posed safety hazards. Finally, he testified that Volkswagen knew in 1957 that most batteries have a life expectancy of two years and the plaintiff’s car “probably came with the battery size and battery size cover which was almost impossible to fit ... in the United States or into which it was almost impossible to fit an available battery size.” In my view, there is sufficient testimony from which the trier of fact could have concluded that Volkswagen was negligent in the placement of the battery inside the passenger compartment.
As its second basis for reversal, the majority concludes as a matter of law that Volkswagen owed no duty to the plaintiff because it was not foreseeable twelve years after the car’s manufacture, that a replacement battery of an improper size might be installed. It is only “where reasonable minds cannot differ” that a directed verdict on the issue of foreseeability is proper. Arizona Pub. Serv. Co. v. Brittain, 107 Ariz. 278, 281, 486 P.2d 176, 179 (1971). “[A] broad view must be taken of the class of risks and victims that are foreseeable.” McFarlin v. Hall, 127 Ariz. 220, 222, 619 P.2d 729, 731 (1980). “It is not necessary that the exact manner in which the accident occurred could not have been foreseen if the injured person is within the foreseeable range of the negligent conduct and the injury results from a recognizable risk.” Schnyder v. Empire Metals, Inc., 136 Ariz. 428, 430, 666 P.2d 528, 530 (App. 1983).
As the factual basis for its conclusion, the majority states that there was no evidence that in 1957 Volkswagen had any knowledge that 6-volt batteries which were too large to fit the design restraining system were even on the market. There was testimony, however, that Volkswagen replacement directives for the battery indicated one of a different size and configuration. The replacement battery called for was a battery which would not be held down properly by the restraining system. The majority further points out that there was no evidence showing that an oversized battery was used because the proper size battery was unavailable. The majority is correct that there was evidence that a proper-sized battery was available for purchase. But other testimony indicated the limited availability of the proper battery.
The majority’s application of foreseeability principles is much too rigid and mechanical. In my view, the essential facts demonstrate that the plaintiff was within the scope of danger created by Volkswagen’s conduct and that a reasonable person would be able to foresee a risk of harm to someone in the plaintiff’s position. Of course, “collisions with or without fault of the user are clearly foreseeable by the manufacturer and are statistically inevitable.” Larsen v. General Motors Corp., 391 F.2d 495, 502 (8th Cir.1968). Volkswagen placed the original battery in the passenger compartment with knowledge that its recommended replacement unit was too large to fit securely under the restraining system, and with the further knowl*185edge that batteries must be replaced periodically. I cannot conclude that a reasonable person would not be able to foresee a risk of harm to someone in Julie Kennon’s position.
Implicit in the majority’s analysis is the suggestion that the act of the mechanic in replacing the battery with one which was too large to fit under the restraining system was an intervening and superseding cause of the injuries. Indeed this was the argument expressly raised by Volkswagen. But only unforeseeable intervening acts rise to the level of a superseding cause of an injury. Hemet Dodge v. Gryder, 23 Ariz.App. 523, 528-29, 534 P.2d 454, 459-60 (1975). “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such act ... does not prevent the actor from being liable for harm caused thereby.” Parness v. City of Tempe, 123 Ariz. 460, 464, 600 P.2d 764, 768 (App.1979) (quoting from Restatement (Second) of Torts § 449 (1965)). For example, we have held that the installer of an incorrect radiator cap should have foreseen that the driver of the vehicle might try to remove the cap in the presence of others. Hemet Dodge v. Gryder. A burglar alarm company which left a key to the alarm system where an unauthorized person could obtain access to the controls and deactivate it, was held to be responsible for a burglary which was found to be foreseeable. Central Alarm of Tucson v. Ganem, 116 Ariz. 74, 567 P.2d 1203 (App.1977).
Thus, I conclude that the act of the garage mechanic substituting an oversize battery in the vehicle was not a superseding cause which should relieve Volkswagen from liability in this case. Because of the limited availability of properly-sized batteries and the necessity of periodic replacement of batteries, the mechanic's actions were foreseeable and therefore not a superseding cause of Julie Kennon’s injuries.
For the foregoing reasons, I respectfully dissent from the majority decision.