dissenting and concurring.
There is difficulty in logic in applying comparative negligence principles to a case where a manufacturer is strictly liable in tort regardless of his negligence or lack of it.1 Professor Levine has pointed out: “[T]hose proposing the adoption of comparative fault in the strict liability action are actually suggesting a comparison of a fault doctrine (comparative negligence) to a no-fault doctrine (strict products liability).”2 But despite what the majority describes here as “some theoretical and semantic confusion when comparing the manufacturer’s strict liability with plaintiff’s negligence,” I can agree with the court that in certain circumstances responsibility may be imposed on the plaintiff for his contribution to the loss or injury he suffers. The justification for this is that judicial tribunals exist to administer justice by resolving disputes between parties, and it is essential to the proper administration of justice that the resolution of conflicting claims be done with fairness to all involved. As this court stated in Butaud v. Suburban Marine and Sporting Goods, Inc., 555 P.2d 42, 45 (Alaska 1976):
We feel that pure comparative negligence can provide a predicate of fairness to products liability cases in which the plaintiff and defendant contribute to the injury-
In order to achieve such fairness, the majority has concluded in this case that in a products liability action, where the design defect is in the lack of a safety device, comparative negligence principles would be applicable and the plaintiff may be comparatively negligent in the knowing use of a defective product where he voluntarily and unreasonably encounters the known risk. The difficulty I find in this rule of law is with the meaning and connotation of the word “unreasonable.” The trial court defined it, in its instructions to the jury, as follows:
In determining whether the deceased, Deraid Allen Beck, unreasonably proceeded to use the product, you should consider what a reasonably prudent person with the same knowledge would have done under the same or similar circumstances.3
This is the commonly used definition of the term, and the one most frequently applied to determine whether a plaintiff has or has not exercised what might be called “ordinary” or “common sense” care for his own safety under the particular circumstances of the case.
This rule is fine for the ordinary negligence case where comparative negligence principles are applied to ascertain what degrees of fault there are between the plaintiff and the defendant. But I believe in a case where strict liability in tort is involved, such as here, there should have to exist a higher degree of lack of care on the part of the plaintiff before the concept of comparative negligence could be used. In other words, in a product liability action where there is a defect in the manufactured product and the danger of using the product in such condition is apparent to the plaintiff, a degree of fault may be attributed to the plaintiff to reduce the damages to which he or she would be entitled only where his or her use of the product is highly unreasonable, or where there has been a substantial departure from the ordinary care expected of the reasonably prudent person in like circumstances.4
*894The justification for imposing strict liability in tort on the manufacturer of a defective product is twofold. First, it
rests upon a basic public policy reasoning that manufacturers should bear the cost of injury resulting from their marketing of defective products rather than the injured party who is essentially powerless to protect himself.
Butaud v. Suburban Marine and Sporting Goods, Inc., 555 P.2d 42, 44 (Alaska 1976). Secondly, “the manufacturer will generally be able to spread damages and assure against the risk of injuries stemming from the use of defective products which he has placed on the market,”5 which the injured plaintiff cannot do.
These reasons for imposing upon the manufacturer of a defective product strict liability in tort lose some of their meaning when comparative negligence principles are applied under a rule which permits a reduction in the plaintiff’s damages because of what might be termed “ordinary” lack of care. This is apparent from what happened here.
The majority opinion points out that Beck’s business was family run with very little sophistication, that they operated with large deficits and lacked sufficient objectivity to evaluate whether their own expense in installing ROPS would be warranted, and that it ignores economic reality to assume that many users will make safety alterations at their own expense. And yet, in this situation, the jury was given the standard “reasonably prudent person” test to determine whether Beck was at fault, not because of the manner in which he operated the front-end loader, but simply because he operated it at all and did not let it sit idle until he could find, and afford to install, a rollover protective shield.
It seems quite apparent to me that the jury, under this instruction, felt that even though Caterpillar was at fault (strictly liable) in not installing a protective device in case the loader turned over, Beck was equally at fault for operating the loader with knowledge that such protection was absent. It is not surprising, then, that the jury apparently reached a compromise and simply divided the responsibility on a 50-50 basis.
If my concept is correct, Beck could not have been comparatively at fault unless his action in operating the loader was “highly” unreasonable or constituted a “substantial” departure from the care expected of a reasonably prudent person under the same circumstances. In this instance, the question of Beck’s fault, or lack of it, should not have been submitted to the jury at all. As we stated in Cummins v. King & Sons, 453 P.2d 465, 466-67 (Alaska 1969):
[I]n order to justify submitting to the jury the question of whether the plaintiff himself was negligent, there must be evidence of such negligence. There must be facts from which one could reasonably infer that such negligence existed. As to the quantity of evidence needed, the test is whether the facts and resulting inferences are such that reasonable minds could justifiably have different views on the question of whether the plaintiff had been negligent. If they could, then it would be proper to submit that issue to the jury for its determination under appropriate instructions. If they could not — if reasonable minds could reach only the conclusion that the plaintiff was not negligent — then submitting the issue to the jury would not be justified, [footnote omitted]
In the circumstances of this case, applying the rule I would adopt, reasonable minds could reach only one conclusion — that Beck’s actions were not highly unreasonable and did not constitute a substantial departure from the care expected of one in his situation. Thus, the jury should not have considered this issue, but only the issue of *895Caterpillar’s strict liability in tort. Had this been done, Beck’s widow would have been awarded, and deservedly so, a substantially larger sum of money on account of her husband’s death. Such a result would have been more equitable because it would have tended more to achieve the primary purpose of imposing on the manufacturer strict liability in tort for placing defective products on the market, rather than imposing this burden on the consumer.
I dissent from this court’s approval of the trial court’s instructions relating to comparative negligence. In all other respects, I agree with the majority opinion of the court.
. In Bachner v. Pearson, 479 P.2d 319, 329 (Alaska 1970), this court stated in part:
[T]he focus of attention in strict liability cases is not on the conduct of the defendant, but rather on the existence of the defective product which causes injuries. Liability is attached, as a matter of policy, on the basis of the existence of a defect rather than on the basis of the defendant’s negligent conduct.
. Levine, Strict Products Liability and Comparative Negligence: The Collision of Fault and No-Fault, 14 San Diego L.Rev. 337, 351 (1977).
. Instruction No. 14. This instruction is approved by the majority opinion.
. See Restatement (Second) Torts § 500, comment g; § 502 (1965). I do not wish to resurrect the concept of “gross negligence,” which has been laid to rest by some courts and legal writers because of the confusion it has created. *894See Prosser, Torts § 34 (1971). But I believe that in products liability cases, where comparative fault or negligence principles are applied, the concept of an aggravated form of fault on the plaintiffs part is legitimate. See Prosser, supra, § 34 at 184.
. Bachner v. Pearson, 479 P.2d 319, 328 (Alaska 1970).