concurring and dissenting.
I concur with the majority that the district court properly granted the motion of Clark Equipment Company (“Clark”) for partial summary judgment since Clark had no duty to warn the plaintiff of the allegedly dangerous condition of the crane. However, because the continuity of enterprise theory should govern this case, and since the record can support Polius’s cause of action, I dissent from the majority’s *85holding that the district court erroneously-granted the plaintiff’s motion for partial summary judgment.
I.
Historically, the authorities uniformly agreed that the scope of a successor corporation’s liability for claims against its predecessor turned upon the form of the acquisition. If the entities merged, the successor thereby undertook the target’s liabilities.
When a corporation purchased another company’s assets, though, the transferee usually avoided its transferor’s liabilities. The purchaser remained liable, however, where: (1) it expressly or impliedly assumed liability; (2) the transaction amounted to a consolidation or merger; (3) the parties fraudulently intended to escape liability; or (4) the purchaser was a mere continuation of the transferee. See 15 Fletcher, Cyclopedia of the Law of Private Corporations, § 7122 (rev.perm.ed. 1983).
These exceptions originated in the tax assessment context without intending to circumscribe the accountability of successor corporations in tort. See Cyr v. B. Offen & Co., Inc., 501 F.2d 1145, 1152 & nn. 12-13 (1st Cir.1974). Nonetheless, most courts have rigidly applied the exceptions in strict liability suits like the present. In response to this “procrustean application of formalities,” Knapp v. North American Rockwell Corp., 506 F.2d 361, 369 (3d Cir.1974), cert. denied, 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 452 (1975), some jurisdictions have expanded the exceptions to successor corporation immunity. The continuity of enterprise doctrine represents one such rule. The district court rejected a second, the product line theory, and did not certify the issue to us. Polius v. Clark Equipment Co., 608 F.Supp. 1541, 1544-45 (D.V.I.1985).
The plaintiffs conceded before the district judge that none of the traditional exceptions describes Clark’s acquisition of the Construction Equipment Division (“CED”) of Baldwin-Lima-Hamilton Corporation (“BLH”) but proffered the continuity of enterprise doctrine under Virgin Islands law. Id. at 1544. The majority now holds, however, that the district court erred in accepting the continuity of enterprise rule as Virgin Islands law and that, in any event, the record could not support a verdict on that theory. I disagree on both counts.
II.
One best views the continuity of enterprise rule in light of the traditional exception's to successor corporation immunity and in juxtaposition to the product line theory.
Two of the original exceptions derive more from the express intentions of the entities involved before their transaction than from its structure. Where a purchasing corporation assumes its transferor’s liabilities or fraudulently aims by its acquisition to dodge them, it thereby waives its immunity. Neither circumstance exists here. When, however, the transferee merely continues or de facto merges with its predecessor, the law transports the transferor’s liabilities with its assets.
The de facto merger doctrine subsumes the mere continuation theory. A de facto merger requires:
(1) There is a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations.
(2) There is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation.
(3) The seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible.
(4) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the *86uninterrupted continuation of normal business of operations of the seller corporation.
Shannon v. Samuel Langston Co., 379 F.Supp. 797, 801 (W.D.Mich.1974), citing McKee v. Harris Seybold Co., 109 NJ.Super. 555, 264 A.2d 98 (1970), aff'd, 118 NJ.Super. 480, 288 A.2d 585 (1972), quoted in Turner v. Bituminous Casualty Co., 397 Mich. 406, 244 N.W.2d 873, 879 (1976). See Knapp, 506 F.2d at 365-66.
In a mere continuation, however; “the test is not the continuation of the business operation but the continuation of the corporate entity.” Travis v. Harris Corp., 565 F.2d 443, 447 (7th Cir.1977), quoting National Dairy Products Corp. v. Borden Co., 363 F.Supp. 978 (E.D.Wis.1973). Accord Bud Antle, Inc. v. Eastern Foods, Inc., 758 F.2d 1451, 1458, reh’g denied, 765 F.2d 154 (11th Cir.1985). A continuation demánds “a common identity of stock, directors, and stockholders and the existence of only one corporation at the completion of the transfer.” Travis, 565 F.2d at 447. Accord Bud Antle, Inc., 758 F.2d at 1459; Tucker v. Paxson Machine Co., 645 F.2d 620, 625-26 (8th Cir.1981); Dayton v. Peck, Stow and Wilcox Co., 739 F.2d 690, 693 (1st Cir.1984). The doctrine, then, excepts the identity of personnel, physical location, and general business operations required in a de facto merger.
Against this background, the continuity of enterprise theory appears less radical than the product line rule of Ray v. Alad Corp., 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977). As the New Jersey Supreme Court has explained:
Ray completely abandons the traditional rule and its exceptions, utilizing instead the policies underlying strict liability in tort for injuries caused by defective products____ [T]he Ray test is concerned not with the continuation of the corporate entity as such but rather with the successor’s undertaking to manufacture essentially the same line of products as the predecessor.
Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 431 A.2d 811, 819 (1981).
The Michigan Supreme Court in Turner, by comparison, expressly adopted the first, third, and fourth of the de facto merger criteria to define the continuity of enterprise doctrine. Turner, 244 N.W.2d at 883. Turner drew four guidelines from these criteria:
1) the acquiring corporation retains the target’s key personnel, production facilities, and general business operations;
2) the transferor dissolves following the acquisition;
3) the purchaser assumes the seller’s liabilities and obligations necessary to continue its normal operations;
4) the transferee holds itself out to the world as the continuation of the transfer- or.
Id. at 883-84. See Mozingo v. Correct Manufacturing Corp., 752 F.2d 168, 175 & n. 10 (5th Cir.1985).
Yet despite their differences in approach, the continuity of enterprise and product line theories share a principled refusal to require shareholder continuity for successor corporation liability. The majority decries that position as exacerbating a supposed liability crisis. I address these concerns in light of the policies underlying the continuity of enterprise doctrine.
III.
A.
Virgin Islands law looks first to the Restatements of the Law absent a relevant statute. See V.I.Code Ann. tit. 1, § 4 (1967). The emerging exceptions to successor corporation immunity derive in part from the risk spreading aim implicit in the Restatement (Second) of Torts § 402A (1965).1 See id., comment c. Accordingly, *87the Court of Appeals for the First Circuit observed:
The very existence of strict liability for manufacturers implies a basic judgment that the hazards of predicting and insuring for risk from defective products are better borne by the manufacturer than by the consumer. The manufacturer’s successor, carrying over the experience and expertise of the manufacturer, is likewise in a better position than the consumer to gauge the risks and the costs of meeting them. The successor knows the product, is as able to calculate the risk of defects as the predecessor, is in position to insure therefor and reflect such cost in sale negotiations, and is the only entity capable of improving the quality of the product.
Cyr, 501 F.2d at 1154. See Turner, 244 N.W.2d at 881. Insofar as the Restatement controls the outcome here, this policy should guide our judgment.
Moreover, strict product liability properly attends the accumulated goodwill which the acquiring corporation exploits. See Cyr, 501 F.2d at 1154; Turner, 244 N.W.2d at 881; Ramirez, 431 A.2d at 817. Justice similarly estops an entity that maximizes profits by holding itself out as continuing another enterprise from denying its heritage to skirt tort liability. See Turner, 244 N.W.2d at 882; Trimper v. Bruno-Sherman Corp., 436 F.Supp. 349, 351 (E.D. Mich.1977); Salvati v. Blaw-Knox Food & Chemical Equipment, Inc., 130 Misc.2d 626, 497 N.Y.S.2d 242, 247 (1985). Cf. Restatement (Second) of Torts § 400 (1965) (“[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer”).
In addition, the absence of stock as consideration in a corporate acquisition should not flatly preclude the successor’s strict liability in tort for the transferor’s products. Several courts, concededly, have viewed the identity of shareholders as the “ultimate justification” for successor corporation liability. Manh Hung Nguyen v. Johnson Machine & Press Corp., 104 Ill.App.3d 1141, 60 Ill.Dec. 866, 872, 433 N.E.2d 1104, 1110 (1982). See Bud Antle, Inc., 758 F.2d at 1458-59; Dayton, 739 F.2d at 693; Tucker, 645 F.2d at 625-26 & n. 15; Travis, 565 F.2d at 447; Florum v. Elliot Manufacturing Co., 629 F.Supp. 1145 (D.Colo.1986); Parson v. Roper Whitney, Inc., 586 F.Supp. 1447 (W.D.Wis.1984); Armour-Dial, Inc. v. Alkar Engineering Corp., 469 F.Supp. 1198 (E.D.Wis.1979); Woody v. Combustion Engineering, Inc., 463 F.Supp. 817 (E.D.Tenn.1978); Fish v. Amsted Industries, Inc., 126 Wis.2d 293, 376 N.W.2d 820 (1985); Downtowner, Inc. v. Acrometal Products, Inc., 347 N.W.2d 118 (1984); Bernard v. Kee Manufacturing Co., Inc., 409 So.2d 1047 (1982). These decisions, however, lack support in both fact and policy.
The case for stockholder continuity rests on the premise that, since a corporation’s fortunes ultimately affect its shareholders, they should not continue to enjoy the profits of their enterprise following its merger into another company while escaping the predecessor’s pre-merger liabilities. See Manh Hung Nguyen, 60 Ill.Dec. at 872, 433 N.E.2d at 1110. As Turner observes, however:
[t]he proportionate number of shares paid out by the acquiring corporation may be very small in a corporate assets purchase, and usually is, so that the strength of commonality of ownership is quite minimal. The continuity of shareholders is apt to be a paper one, more symbolic than real. The actual owners of shares at the time of manufacture of the alleged defective product and the ac*88tual owners at the time of sale of the corporation assets may be entirely different individuals.
244 N.W.2d at 880.
B.
The majority attacks the continuity of enterprise doctrine on several grounds. First, my colleagues inexplicably question “whether the costs of piecemeal measures like § 402A exceed the societal benefits ____” At once, though, they brand the continuity of enterprise theory an example of “judicial fiat.” The majority’s comments appear incongruous since the Virgin Islands has adopted the Restatement as law. See V.I.Code Ann. tit. 1, § 4 (1967). Insofar as § 402A welcomes the continuity of enterprise theory, then, the majority assumes the role of the legislature in rejecting it.
Second, the majority contends that, “[e]ven accepting § 402A as sound,” § 402A requires a causal relationship between the defendant’s act and the plaintiff’s injury. This argument begs the question: should we deem Clark the continuation of BLH? See Turner, 244 N.W.2d at 881, citing Cyr, 501 F.2d at 1153. Nothing in § 402A insulates Clark from strict product liability if we answer affirmatively. See Bonee v. L & M Construction Chemicals, 518 F.Supp. 375, 382 (M.D.Tenn.1981).
My colleagues insist that § 402A presupposes the availability of liability coverage; an insurance “crisis,” they continue, has outstripped the benefits of § 402A and of its derivative doctrines. Yet, even assuming a liability crisis, the desirability vel non of § 402A remains a legislative matter. Moreover, parties to corporate acquisitions — small businesses, in particular — may address the risk of uninsurable product liability judgments in their sale negotiations by reducing purchase prices, creating escrow accounts, or entering into indemnification agreements. See Cyr, 501 F.2d at 1154; Turner, 244 N.W.2d at 883; Ray, 560 P.2d at 11; Ramirez, 431 A.2d at 817. Businesses might also form self-insurance cooperatives or seek group coverage to defray costs.
Here, in fact, BLH jointly and severally with its parent, Armour and Company (“Armour”), contracted to indemnify Clark for, inter alia, product liability claims. The district court noted the importance to its decision that BLH and Armour ultimately would bear an adverse judgment against Clark. Polius, 608 F.Supp. at 1546. Now the majority refuses to expand the traditional theories of successor enterprise liability on the “fortuity that Armour remains in business, apparently capable of satisfying the obligation.” The presence of an indemnity agreement, howver, ideally fits this case for the continuity of enterprise doctrine. On the one hand, any loss will fall upon the entity more responsible (as the majority sees it) for the allegedly defective crane. The parties apparently contemplated this result when they negotiated the acquisition. On the other hand, future litigants would suffer no surprise when subjected to the continuity of enterprise theory pursuant to Virgin Islands law.
In short, I find the continuity of enterprise doctrine tacitly extant in § 402A. To that extent the majority usurps the legislative role in declining to acknowledge the doctrine. Even conceding arguendo that its applicability remains an open question, I believe we should recognize the theory as the better common law rule. See Wells v. Rockefeller, 728 F.2d 209, 216-17 (3d Cir. 1984), cert. denied, 471 U.S. 1107, 105 S.Ct. 2343, 85 L.Ed.2d 858 (1985).
IV.
The majority finally notes that the application here of the continuity of enterprise theory could not produce a judgment for Polius in any event. On review of a summary judgment motion,
[inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion. The nonmovant’s allegations must be taken as true and, when these assertions conflict *89with those of the movant, the former must receive the benefit of the doubt.
Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976) (footnote omitted), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977), quoted in Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.), cert. denied, — U.S. -, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). Mindful of this standard, I must part with my colleagues.
The facts here evince Turner’s guidelines for determining the strict product liability of a successor corporation. See 244 N.W.2d at 883-84; supra page 79. Cases interpreting Turner, however, clarify that it merely requires that the totality of a transaction demonstrate basic enterprise continuity; every criterion need not be present. See, e.g., Korzetz v. Amsted Industries, Inc., 472 F.Supp. 136, 143-44 (E.D.Mich.1979) and Haney v. Bendix Corp., 88 Mich.App. 747, 279 N.W.2d 544, 546 (1979) (applying sliding scale analyses).
First, as the district court observed, Clark purchased the Construction Equipment Division of BLH, including “two manufacturing plants and all of the assets necessary to continue the BLH business.” 608 F.Supp. at 1546 (footnote omitted). Clark also retained BLH’s employees and supervisors. Second, although BLH formally dissolved some five years after Clark acquired the CED, Armour executed a plan to sell BLH in toto and carried the CED on its books as inactive following the sale to Clark. Clark may qualify as continuing the BLH enterprise even though Clark bought only the Construction Equipment Division. See Trimper, 436 F.Supp. at 350. Third, Clark immediately assumed the CED’s liabilities including trade accounts payable, payrolls, vacation pay, contractual obligations, leases, and certain taxes.
Finally, Clark acquired BLH’s trade names, patents, trademarks, and goodwill. BLH also agreed to refrain from competing with Clark for five years. Evidence exists, moreover, that Clark’s model 450 and 550 cranes bore the Lima name for some time following the transaction with BLH. Clark as well manufactured a model 900-TC crane similar to the model 900-T which allegedly injured Polius.
V.
The record, then, could support a finding that Clark continued the BLH enterprise and should on that basis bear the liability, if any, for the plaintiffs injuries. I disagree with the majority’s analogizing the continuity of enterprise doctrine to assessing liability against a motorist without fault merely because he carries insurance. Unlike the analogy, continuous enterprise liability demands a wrongful act in the first instance. The majority’s decision allows the alleged wrong here — the manufacture of an injurious product — to go unpunished. From that result I respectfully dissent.
. Section 402A 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
*87(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.