dissenting.
I must respectfully dissent from the majority opinion. The opinion and decision of the Court of Appeals, found at Conder v. Hull Lift Truck, Inc., (1980) Ind.App., 405 N.E.2d 538, should not be disturbed. Therein, the Court of Appeals affirmed the judgment entered in favor of Hull Lift Truck, Inc., but reversed the judgment entered in favor of Allis-Chalmers Corporation and remanded the cause for a new trial on the basis of various errors in the final instructions given to the jury.
Prior to its analysis of the instructional errors upon which the Court of Appeals predicated its decision, the majority concludes that “if in fact they [the instructions] were improper,” the instructions “cannot be said to have contributed to the verdict and, therefore, were, at most, harmless error.” See Majority Opinion, supra. The majority’s conclusion stems from its extensive recitation of testimony elicited from Robert Slabaugh, a mechanic employed by Hull Lift. As the majority points out, Hull Lift had leased the forklift vehicle to Globemaster, plaintiff Conder’s employer; pursuant to the lease agreement, Hull Lift retained all responsibility for maintenance of the forklift vehicle.
Slabaugh was in charge of periodic maintenance on the forklift vehicle involved in the accident; as the majority acknowledges, he would often find that people had adjusted the carburetor in various manners, such as unhooking the governor, wiring the governor open, lengthening the linkage, or removing stops, all designed to provide more speed. While Slabaugh would discover these adjustments during his periodic maintenance inspections of the vehicle, the record also reveals, as the Court of Appeals emphasized, that Slabaugh was not the person who last serviced the vehicle before Conder’s accident. Conder v. Hull Lift Truck, Inc., supra at 547.
Slabaugh’s testimony consequently cannot be regarded as conclusive of the question whether Allis-Chalmers negligently failed to warn of the hazards associated with the carburetor assemblage. Whether proper warnings might have prevented the accident remained in doubt, a factual question for the jury to resolve. To properly resolve the issue, it was necessary that the jury be properly instructed on the law it should apply; we cannot say that any error in the final instructions was necessarily harmless. Harper v. James, 203 N.E.2d 531; Birdsong v. I. T. T. Continental Baking Company, (1974) 160 Ind.App. 411, 312 N.E.2d 104; Summers v. Weyer, (1967) 141 Ind.App. 176, 226 N.E.2d 904.
The majority further errs in its analysis of the instructional questions which prompted the Court of Appeals to reverse the judgment entered in favor of Allis-Chalmers. The Court of Appeals properly found the trial court erred in giving Allis-Chalmers’s instructions numbered 5, 7, and 10.
Instruction number 5 informed the jury that Allis-Chalmers “was not and is not an insurer or guarantor in regard to the quality of its product and is not required to manufacture or produce a product which is perfect or accident proof.” The majority describes the language as “perhaps ... a poor choice of words,” yet tacitly approves its substance on the rationale that “a manufacturer or seller is not liable for every failure of its product which results in injury.”
Nobody would properly argue that a manufacturer or seller is liable for every *20injury suffered in connection with a product. The “failure” of a product, however, whether it be caused by improper design or a defect in quality, is precisely what triggers product liability — assuming the failure was the cause of the injury. The majority’s language, as well as the instruction, as the Court of Appeals noted, strikes directly at one of the most fundamental considerations underlying Section 402A of the Restatement (Second) of Torts — that the manufacturer represents to the public that its product is reasonably safe for its intended or reasonably foreseeable use, and that the public justifiably relies on that expectation. Restatement (Second) of Torts, § 402A, Comment c; see also, Prosser, The Assault on the Citadel, 69 Yale L.J. 1099 (1960); Shapo, A Representational Theory of Consumer Protection: Doctrine, Function, and Legal Liability for Product Disappointment, 60 Va.L.Rev. 113 (1974).
The Court of Appeals recognized that the instruction was wholly at odds with the law of products liability and more than a mere poor choice of words. It properly held that the instruction should not have been given.
Allis-Chalmers’s instruction number 7 informed the jury that if the conduct of either Raymond Conder, his employer, or Hull Lift Truck was the cause of the accident, Allis-Chalmers was not liable. As the Court of Appeals noted, there was absolutely no evidence that Conder’s own conduct contributed to the accident. There is no indication that he misused the machine or that he altered it in any way. The instruction was inappropriate to the evidence, confusing to the jury, and should not have been given.
Allis-Chalmers’s instruction number 10 informed the jury that Allis-Chalmers “was not required to warn of potential dangers resulting from the misuse or substantial change of such products by others.” On the basis that the instruction failed to incorporate the element of foreseeability with respect to misuse of the product, the Court of Appeals found it improper. Judge Chipman spoke for the unanimous court:
“The environmental approach to product use assumes a manufacturer markets a product for an intended use. This is not to say, however, that in considering design alternatives, including various instructions and warnings, a manufacturer may simply close his eyes to hazards associated with foreseeable misuse of the product. Accordingly, the defense of misuse is available only when the product is used in a manner not reasonably foreseeable. Perfection Paint & Color Co. v. Konduris, (1970) 147 Ind.App. 106, 258 N.E.2d 681; Cornette, supra, (concurring opinion). Similarly, the failure to warn of hazards associated with foreseeable misuse of a product may render the product unreasonably dangerous. Wolfe v. Ford Motor Co., (1978) Mass.App., 376 N.E.2d 143; Frey v. Montgomery Ward & Co., Inc., (1977) Minn. 258 N.W.2d 782; Featherall v. Firestone Tire and Rubber Co., (1979) Va., 252 S.E.2d 358; Gierach v. Snap-On Tools, (1977) 79 Wis.2d 47, 255 N.W.2d 465.
“To require manufacturers to consider product design in light of foreseeable product misuse, and to warn of hazards associated with foreseeable product misuse, is consonant with another major policy basis advanced for the adoption of strict products liability: the safety incentive rationale. This rationale assumes it is in the public interest to fix financial responsibility for a product injury wherever it will most effectively reduce hazards to life and health inherent in products that reach the market. Escola v. Coca-Cola Bottling Co., (1944) 24 Cal.2d 453, 150 P.2d 436 (Traynor, J., concurring). When product misuse and its attendant risks is reasonably foreseeable, the manufacturer is in the best position to avoid product related injuries through safety design.
“Allis-Chalmers argues the term ‘misuse’ as used in Instruction No. 10 ‘implies a lack of foreseeability.’ However, there is nothing in the wording of this instruction which directs the lay juror to consider the element of foreseeability; indeed the jury may well have applied the usual and *21much narrower lay definition of misuse (i.e., improper use, abuse, or abnormal use) without considering the uses of the product in the environment which should reasonably have been foreseen by the manufacturer.” Conder v. Hull Lift Truck, Inc., supra at 546 [footnotes omitted].
This analysis reflects recognition of the rationale behind products liability law.
The majority of this Court, however, finds no error in the statement that a manufacturer is “not required to warn of potential dangers resulting from misuse.” It finds the statement acceptable on the basis that the element of foreseeability was incorporated into other instructions. Those instructions, however, related to “substantial changes,” not “misuse.” The defenses are distinct in product liability analysis.
In addition, the majority suggests “It would be an impossible task to require a manufacturer to give warnings to a user of all the ways in which a unit or any component of that unit might be used.” Majority Opinion, supra. Yet, as the majority acknowledges, if a misuse is foreseeable and the resultant danger is not apparent, then the manufacturer’s responsibilities are triggered. The instruction failed to embody those rules of law, and for that precise reason the Court of Appeals properly found that it was an improper instruction.
Finally, it is noted that with respect to each of the instructions found erroneous by the Court of Appeals, the majority has relied on other instructions to support its conclusions that the instructions were proper. It is true, of course, that instructions are to be construed together. Palmer v. Decker, (1970) 253 Ind. 593, 255 N.E.2d 797. This Court has also recognized that an improper instruction cannot necessarily be cured by the giving of a proper instruction, for the result leaves the jury to determine which of the contradictory propositions of law it should apply. Harper v. James, supra. In implementing other instructions to buttress its conclusions with respect to Allis-Chal-mers’s instructions 5 and 10, the majority has violated the rule of Harper v. James, supra, for those instructions were cast in terms wholly contrary to both the letter and spirit of products liability law, as the Court of Appeals emphasized.
I dissent; Allis-Chalmers’s petition to transfer should be denied.
DeBRULER, J., concurs.