dissenting.
I do not agree with the majority’s conclusion that the trial court erred in refusing to submit appellant’s negligence claim to the jury in this case. Appellant’s negligence count was based primarily on Warnaco’s failure to warn the consumer or recall the tent when it allegedly knew there was an extreme flammability problem. Appellant argues, and the majority holds, that generally it would not be inconsistent for the jury to have found the defendant was negligent in failing to warn about the danger but that the product was nondefective for the purposes of strict liability, and that, therefore, the negligence theory should have been presented to the jury in this ease. See Wagner v. International Harvester Co., 611 F.2d 224, 229 (8th Cir. 1979) (applying Minnesota law); McIntyre v. Everest & Jennings, Inc., 575 F.2d 155 (8th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 *1235L.Ed.2d 173 (1978) (applying Missouri law); Bjerk v. Universal Engineering Corp., 552 F.2d 1314, 1317 (8th Cir. 1977) (applying Minnesota law); Sterner v. U.S. Plywood-Champion Paper, Inc., 519 F.2d 1352, 1355 (8th Cir. 1975) (applying Iowa law).
Although the issue remains controversial, there is general authority for the proposition that strict liability based on failure to warn of the dangers inherent in an otherwise nondefective product reverts to a negligence basis for liability. Therefore, in certain circumstances when an instruction is given on strict liability failure to warn theory, a negligence instruction is unnecessary and, in fact, giving both instructions may confuse the jury. See R. Hirsch & H. Bailey, American Law of Products Liability § 4:13, at 677 (1974). See, e.g., Gordon v. Niagara Mach. & Tool Works, 574 F.2d 1182, 1190 (5th Cir. 1978); Caplaco One, Inc. v. Amerex Corp., 435 F.Supp. 1116, 1120 (E.D.Mo.1977), aff’d, 572 F.2d 634 (8th Cir. 1978); Skaggs v. Clairol, Inc., 6 Cal.App.3d 1, 85 Cal.Rptr. 584, 588 (1970). See also Annot., 53 A.L.R.3d 239, 248 (1973).
I believe that the cases cited by the majority in support of its position must be viewed as being limited to the particular facts and circumstances in those cases, including the instructions actually submitted to the jury. The district court concluded that under the facts of this ease, considering the law of North Dakota and the instructions actually presented to the jury, there “were no grounds of negligence,” including failure to warn, “that were not encompassed by the strict liability theory” submitted to the jury. Randall v. Warnaco, Inc., supra, slip op. at 3. It is well established that in diversity cases “the opinions of an experienced local district judge with respect to [state] law are entitled to great weight.” Western Casualty and Surety Co. v. Crawford, 635 F.2d 667, 671 (8th Cir. 1980) (citation omitted).
Although the district court recognized that the North Dakota Supreme Court had not directly addressed the relationship between strict liability and negligence in the failure to warn context, the court found ample support for its conclusion that the same duty to warn of dangers inherent in a product’s use or those uses which can be reasonably anticipated exists in both negligence and strict liability under North Dakota law. See Olson v. A. W. Chesterton Co., 256 N.W.2d 530, 535 (N.D.1977).
In Seibel v. Symons Corp., 221 N.W.2d 50 (N.D.1974), a negligent failure to warn products liability case, the court stated the rule to be that
a manufacturer supplying a machine has a duty to exercise reasonable care to inform the user of any dangerous condition and character of the machine when put to the use for which it was manufactured and sold, where such danger is known or which reasonably should have been known by the manufacturer in the exercise of ordinary care.
Id. at 54 (citation omitted). In Schmidt v. Plains Electric, 281 N.W.2d 794 (N.D.1979), a products liability case based on strict liability, the court, quoting this same language, concluded that “[a] product may be considered ‘defective’ so as to put into operation the strict liability doctrine if the manufacturer or seller has reason to anticipate a danger from the use of the product and fails to give an appropriate warning.” Id. at 802 (citation omitted). The district court in the instant case also noted that if there was a difference between negligence and strict liability in the failure to warn situation, it was that strict liability is easier to establish in that it relieves the plaintiff of the burden of proving negligence. See Jahnig v. Coisman, 283 N.W.2d 557, 561 (S.D.1979).
The trial court’s instruction sixteen informed the jury that
[a] product may also be defective and unreasonably dangerous by reason of a failure to warn of dangers that can be reasonably anticipated. A manufacturer has a duty to warn of dangers inherent in the product’s intended use, and also to warn of dangers involved in a use which can be reasonably anticipated.
I agree with the trial court that, in light of this instruction, the jury could not have consistently found no defect based on a failure to warn under strict liability, but *1236found the defendant negligent in its failure to warn.
Special interrogatory number one submitted by the trial court to the jury 1 required the jury to find each of five elements for the appellant to prevail under strict liability:
First: That the tent involved in this case was a Caravan model tent manufac- ■ tured and placed in the stream of commerce by defendant Hirsch-Weis. In this case, there is no dispute on this issue.
Second: That the tent was defective when it left the control of defendant, and it was expected that the product would reach and did reach the user, plaintiff, without substantial change in the condition in which it was placed in the stream of commerce by defendant.
Third: That the defect rendered the product unreasonably dangerous to a user, for the use intended.
Fourth: That plaintiff was using the product in a way it was intended to be used, or in such a way as could have been reasonably anticipated by the defendant.
Fifth: That the defective condition was a proximate cause of plaintiff’s injuries.2
The jury concluded that appellant had failed to prove all five of these elements. Unless appellant was required to prove one of these elements under a strict liability theory, but not under a negligence theory, the appellant’s negligence claim was totally encompassed by the strict liability claim and there would have been no prejudicial error in the court’s failure to instruct the jury as to negligence.
Appellant argues, and the majority appears to conclude, that she was prejudiced in that under her negligence claim she was not required to prove the second element of strict liability, i.e., that the tent was defective when it left the hands of the defendant and reached the user without a substantial change in the condition in which it was placed in the stream of commerce. However, it should be noted that “[generally, in order to recover under either negligence or strict liability it is necessary to prove that a defect existed in the product at the time the manufacturer parted with possession.” McIntyre v. Everest & Jennings, Inc., supra, 575 F.2d at 157; Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 637 (8th Cir. 1972). See generally Annot., 41 A.L.R.3d 1251, 1253 (1972) (and cases cited therein).
There is little reason to doubt that this general rule is the law of North Dakota.3 Thus, the basic principle embodied in the second element of the district court’s instruction number 22 would appear to be an element of either a strict liability or a negligence theory of recovery, with the jury entertaining essentially the same considerations under either theory. For this reason, I believe that the failure of the trial court to instruct on negligence in the circumstances of this case did not prejudice the appellant in that her negligence claim was subsumed by the strict liability instructions actually given.
. Interrogatory No. 1 provided in part:
Has the plaintiff proved by a preponderance of the evidence all the issues she has the burden of proving against defendant as those issues have been set out in these instructions? (See Instruction No. 22).
Answer: Yes_ No_
If your answer to Interrogatory No. 1 is “No” you need not consider the remaining interrogatories.
(R:123).
. Instruction No. 22 (R:115).
. It would appear that under current North Dakota law covering products liability the alteration or modification of a product after the sale to the initial user or consumer that is a substantial contributory cause of the injury bars recovery against the manufacturer regardless of the legal theory upon which the action is based. See N.D.Cent. Code §§ 28-01.1-04 & -06 (1979).