concurring and dissenting:
While I concur in the result reached by the majority opinion, I respectfully dissent from the opinion’s analysis and reasoning with re-speet to the affirmative defense of assumption of the risk. This disagreement causes me to write separately. My reasons follow:
I
The majority opinion reasons that even assuming that Holt is right in his assignment of trial error in the rejection, as a matter of law, of his failure to warn claim, “the error would be harmless in light of the jury’s finding that Holt voluntarily assumed the risk of a known defect. Fed.R.Civ.P. 61. Voluntary assumption of risk is a complete defense to strict product liability under Oklahoma law. Kirkland [v. General Motors Corporation, 521 P.2d 1353, 1366-67 (Okla.1974) ].” Majority Opinion at 1295. With this statement and others, the majority opinion approves the trial judge’s submission of the assumption of the risk defense, and upholds the jury’s finding that Deere had proven that defense of assumption of the risk here. The majority opinion “hold[s] that the district court did not err in submitting to the jury the instruction on voluntary assumption of the risk.” Majority Opinion at 1295.
I respectfully disagree with the majority opinion’s holding that the evidence on the affirmative defense was sufficient to support the finding necessary to such a defense of “voluntary assumption of the risk of a known defect ” by the injured party’s actions. McMurray v. Deere & Co., Inc., 858 F.2d 1436, 1439 (10th Cir.1988) (emphasis added). I also disagree because treating the assumption of the risk defense as a proper basis for a holding here, see maj. op. at 1295, is unnecessary dictum. The jury’s finding in Part I of its verdict that Holt did not prove the essential elements of his products liability claim, App. II at Tab. 2, is an ample basis for deciding the case and affirming the judgment *1297below. Thus, to me, the majority opinion’s treatment of McMurray, its interpretation of the assumption of the risk cases from Oklahoma, and the discussion of the evidence on the defense here, are all unnecessary dictum.
II
The majority opinion itself concedes the weakness of the evidence on the assumption of the risk defense. It says that “the evidence is by no means overwhelming that Holt knew before the accident that this grader would start in gear.” Majority Opinion at 1294. As the opinion notes, Holt’s testimony was clear on his lack of knowledge of malfunctioning which caused the grader to start in gear. Holt testified:
I was unaware that that switch — did not hear it or I never saw that that switch did not operate.
App. I at 38. Holt was asked about having said he had worked on the grader five, six or seven times; and he was asked why he would not be aware the neutral start switch was malfunctioning. He replied:
Because I always started the equipment in neutral — neutral that’s the only position I knew it would start in.
Id. at 38.
The majority opinion relies on the evidence that two other people, who were the main operators of the grader, knew that the grader started in gear, Thompson and Dye. Nevertheless, the opinion notes that they testified they never told anyone that the grader started in gear. Majority Opinion at 1294. The evidence relied on by the majority opinion as most significant was that of Mrs. Mattie Boyles, the president and general manager of Lawton Transit Mix. Mrs. Boyles testified that she remembered Holt saying: “I don’t know why I did it.” I App. at 235.1 From statements it cites, the majority opinion concludes that a reasonable juror could infer that Holt knew the grader could start in gear and injure him. Id. at 1294-95. I disagree.
From the admittedly weak evidence on the point, I feel that the record would support no more than an inference that Holt did not know why he stood on the ground when he started the grader — at most indicating contributory negligence. This record, however, supports only speculation that Holt voluntarily assumed the risk of a “known defect.” “[A] scintilla of evidence is insufficient to present a question for the jury, and the jury’s finding must be supported by something more than ‘some evidence.’ ” Hunni-cutt v. Wright, 986 F.2d 119, 122 (5th Cir. 1993). We must remember we are dealing with an affirmative defense — “voluntary assumption of the risk of a known defect,” McMurray, 858 F.2d at 1439 (emphasis added), and “Deere had the burden of proving such knowledge in raising this affirmative defense.” Id. at 1440 (emphasis added).
The majority opinion reads Jordan v. General Motors Corp., 590 P.2d 193 (Okla.1979), as an opinion that “implies that the plaintiffs ‘general’ knowledge of [a car’s] ‘defective condition’ (acting strangely, having a tendency to veer) was sufficient to create a jury question on assumption of risk.” Id. at 196. That case is clearly distinguishable from Holt’s case. It is apparent that the record there showed actual observation of the malfunctioning of the car before the injury and the plaintiff continued to use the car nonetheless — not our case.
The argument for us to water down the Oklahoma requirement for proving “voluntary assumption of the risk of a known defect,” McMurray, 858 F.2d at 1439, has been rejected by this court in McMurray. We *1298there followed the clear teaching of the Oklahoma Supreme Court on Oklahoma law:
“In order to avoid abuse of this legitimate defense [assumption of the risk], or confusion of same with its common law counterpart of the same name, it should be narrowly defined as voluntary assumption of the risk of a known defect.” 521 P.2d at 1366 (emphasis in original).... Under Kirkland, “there must be a showing that plaintiff knew of a defect unreasonably dangerous in nature, yet voluntarily used the product. Only then is he precluded from recovery under this defense.” Hogue v. A.B. Chance Co., 592 P.2d 973, 975 (Okla.1978) (emphasis in original).
McMurray, 858 F.2d at 1440 (quoting Kirkland and Hogue).
In light of our rejection in McMurray of the suggestion to water down the burden to establish assumption of the risk, and the mere speculation about Holt’s knowledge and actions here, I cannot agree that the burden of Deere to raise and establish the affirmative defense was met. “Any inferences that could be drawn constitute nothing more than pure speculation.” McMurray, 458 F.2d at 1441. Moreover, that speculation would only suggest that Holt was careless in standing on the ground when he tried to start the grader — mere contributory negligence — not a defense to this Oklahoma products liability claim. Fields v. Volkswagen of America, Inc., 555 P.2d 48, 56 (Okla.1976).
For these reasons I cannot join the majority opinion. However, in light of the verdict finding that Holt had not proven the essential elements of his products liability claim, I concur in the affirmance of the judgment by the opinion.
. There were various versions repeated of statements Holt was said to have made in the hospital. These were repeated to Mrs. Boyles as she was questioned about her deposition testimony. She was asked if she didn't recall that Holt said to Mrs. Boyles, "I knew better than that"; she replied at trial: "No, I don't remember that." I App. at 234.
After questioning about Holt's statements, related in her deposition, Mrs. Boyles concluded in her trial testimony that: "I remember the statement T don't know why I did it.'" I App. at 235. Then she added:
Mr. Holt was in an awful lot of pain, there was a lot of emotion at the time on my part seeing him suffering like he was.
Id. at 235.