concurring in the result.
[¶ 18] I reluctantly concur in the result. Only under the doctrine of the law of the case is this result affirmable. Comstock Constr., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, ¶ 12, 651 N.W.2d 656.
*632[¶ 19] I am concerned the majority opinion leaves the impression that the methods used in Halvorson v. Voeller, 336 N.W.2d 118 (N.D.1983), based upon the law as it existed in 1983, is the correct method of assessing fault and the right to recover for injury after the adoption of N.D.C.C. §§ 32-03.2-01 to 32-03.2-02 in 1987. The result in this case points out the importance of correct jury instructions and the requirement that the trial court apply the law applicable at the time of Duma’s injury. Although it was not done here, Duma failed to demonstrate she preserved the right to a new trial by making the proper objections.
[¶ 20] Duma asserts the jury’s answers to the special verdict form are inconsistent and cannot be reconciled. Applying our modified comparative fault law in effect since 1987, I would agree. The jury allocated no fault to Duma and yet found 100% of her injuries could have been avoided had she worn her seat belt. On that basis, judgment was entered that she take nothing. Under the principles of modified comparative fault, articulated in N.D.C.C. § 32-03.2-02, those answers and that result are irreconcilable. Current law, however, is not the law that was applied in this case. Unfortunately, Duma has failed to preserve proper objections to challenge the validity of the jury verdict.
[¶ 21] The trial court and trial counsel treated Halvorson as if the method applied in that case survived the 1987 adoption of modified comparative fault. N.D.C.C. § 32-03.2-02. The jury was instructed in a manner that intermixed current negligence law applying modified comparative fault and prior negligence law in which an injured party’s failure to avoid injury or to mitigate damages was separately considered and served as a separate basis to eliminate the right to recover damages. Only under such a regime can the result in this case be considered logical and probable.
[¶ 22] Section 32-03.2-02, N.D.C.C., provides in part:
Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering. The court may, and when requested by any party, shall direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury. The court shall then reduce the amount of such damages in proportion to the amount of fault attributable to the person recovering.... Under this section, fault includes negligence, ... failure to avoid injury,....
[¶ 23] Under modified comparative fault, all fault which contributes to the injury must be weighed by the jury. N.D.C.C. § 32-03.2-02 (emphasis added). Fault specifically includes “failure to exercise reasonable care to avoid an injury or to mitigate damages.” N.D.C.C. § 32-03.2-01; NDJI C—2.80. Under modified comparative fault, the jury does not first determine who was at fault for the accident and, later and separately, determine if the injury could have been avoided by the injured person. All of the contributing factors to the injury are weighed together for purposes of allocating percentages of fault. “The law makes no distinction between accident-causing fault and injury-causing fault. If you find fault, you must allocate the fault on a percentage basis between all persons legally responsible for *633such fault, whether they are or ever were parties to this lawsuit.” NDJI C—2.84.
[¶ 24] The special verdict form was not the problem in this case. Rather, the instructions given to this jury were hopelessly confusing and the response the trial judge gave to the question asked by the jury only added to the jury’s misunderstanding of how to consider fault. On the one hand, the jury received an instruction on comparative fault following current law:
You will return a special verdict in which you will make special findings of fact determining:
1) who was at fault, if anyone;
2) whether such fault was a proximate cause of damages;
8) the respective percentages of fault allocated to the defendant, the plaintiff or anyone else who contributed to proximately cause any damages;
4) the amount of plaintiffs damages without reduction for fault.
The Court will determine from your special verdict form the amount of damages, if any, which are recoverable.
However, this jury was also instructed:
It is the duty of a person who has been injured in person or property to exercise ordinary care to avoid loss or minimize the resulting damages. One who fails to do so cannot recover damages for any injury that could have been prevented by the exercise of ordinary care.
And in closing instructions, the jury was told, under an instruction that was adapted from Halvorson and correct in 1983 when that cáse was decided:
Evidence was presented from which you find that the plaintiff was not using an available seatbelt and shoulder harness at the time of the accident. If you find (1) that it was unreasonable for the plaintiff not to use the seatbelt and shoulder harness and (2) that the. plaintiff would not have received some or all of her injuries had she worn a seat belt and shoulder harness, then (3) the amount of damages awarded the plaintiff for the injuries she sustained, if any, must be reduced in proportion to the amount of injury she would have avoided by the use of a seatbelt and shoulder harness.
These contradictory instructions, taken from different stages in the development of North Dakota law, suggest the failure to use a seat belt negates any right to recover without first determining whether Duma’s failure was fault and, if so, whether that fault exceeded the fault of others who contributed to her injuries.
[¶ 25] The jury’s question indicated it was confused by the instructions. It specifically asked: “Please clarify question 5. Does question 5 ask if Sandra Duma is at fault for the accident or at fault for her injuries.” The court responded: “Question 5 asks if Sandra Duma is at fault for the accident.” The jury’s question should have alerted both counsel and the court that the instructions either were confusing or did not accurately describe the law of modified comparative fault. Instead, the trial court compounded the problem, apparently without objection from counsel, by telling the jury to focus on fault for the accident, rather than the injury. Because appellant has not supplied a transcript, appellant has failed to demonstrate that she properly objected to the court’s response to the jury’s question. This misinformation given by the trial court explains a jury finding no fault on the part of Duma, even though there is a finding that 100% of her injuries could have been avoided by use of the seat belt.
[¶ 26] Unfortunately, Duma tried this case under pre-1987 law without objection. *634The doctrine of the law of the case requires the result reached by the majority.
[¶27] WILLIAM A. NEUMANN, J., concurs.