(concurring in the result)—The majority holds that a manufacturer's product is defectively designed within the meaning of RCW 7.72.030 either if its hazards outweigh its utility or if it is unsafe in the contemplation of the reasonable consumer. The language of RCW 7.72.030 provides only for the former standard.
*661I
Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 149, 542 P.2d 774 (1975) held that strict liability principles applied to design defect claims. Reasoning that an "unreasonably dangerous" product is "necessarily defective," the court held that a product is unreasonably dangerous if it is:
unsafe to an extent beyond that which would be reasonably contemplated by the ordinary consumer. . . .
In determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case.
(Italics mine.) Tabert, at 154. Prior to the enactment of RCW 7.72.030, the trier of fact could, but did not have to, balance the risk and gravity of potential harm against the feasibility and cost of eliminating a defect. The ultimate issue in a design defect case was the ordinary consumer's reasonable expectations. Lenhardt v. Ford Motor Co., 102 Wn.2d 208, 683 P.2d 1097, 40 A.L.R.4th 609 (1984); Connor v. Skagit Corp., 99 Wn.2d 709, 715, 664 P.2d 1208 (1983).
The 1981 tort reform act changed this hierarchy. RCW 7.72.030(1) (a) alters Tabert's definition of an unsafe product:
A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the claimant's harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product[.]
RCW 7.72.030(3) provides that consumer expectations are a factor, but only a factor, to be considered in determining whether a product is unsafe:
In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.
The plain language of RCW 7.72.030(3) clearly indicates that the ordinary consumer's expectations are no longer the ultimate issue in a defective design case. Rather, consumer *662expectations are now evidence for the trier of fact to consider, along with all the other relevant evidence in the case, in determining what the Legislature has framed as the ultimate issue—whether a product's hazards outweigh its utility-
The majority opinion violates the plain meaning of this legislative enactment by maintaining consumer expectations as an alternate basis for imposing liability. According to the majority, even though a product is "reasonably safe as designed" under the criteria set forth by the Legislature in RCW 7.72.030(l)(a):
the plaintiif may nevertheless establish manufacturer liability by showing the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer. RCW 7.72.030(3). If the product design results in a product which does not satisfy this consumer expectations standard, then the product is not reasonably safe.
Majority opinion, at 654. The majority endeavors to support this "interpretation" by pointing to its alleged.consistency with RCW 7.72.050(1), which provides for the admissibility of evidence of industry custom, technological feasibility, and legislative, administrative, or nongovernmental standards:
[TJhis evidence will often be relevant to that which is reasonable for an ordinary consumer to expect in the way of product safety. In this regard, we adhere to our requirement in Tabert that the expectations of the consumer must be the reasonable expectations of the ordinary consumer.
Majority opinion, at 655.
What Tabert once held is not what the tort reform act now says. RCW 7.72.030(3) requires the trier of fact to consider "whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer." The statute does not reference a consumer's reasonable expectations or ask what a reasonable consumer should have expected, but focuses on what an ordinary consumer in fact would have expected. The Legislature has not put the word "reasonable” in this statute.
*663In sum, the current language of RCW 7.72.030 shows that the Legislature intended to make risk-utility balancing the ultimate issue in product liability design defect actions. The expectations of the ordinary consumer are merely a factor for the trier of fact to consider in striking this balance, not an alternative basis for imposing liability.
II
I do agree, however, with the majority's conclusion that the Legislature did not intend to adopt common law negligence as the standard for design defects. Although a design defect claim is "akin to negligence," Couch v. Mine Safety Appliances Co., 107 Wn.2d 232, 239 n.5, 728 P.2d 585 (1986) (quoting Senate Journal, 47th Legislature (1981), at 624) (in the sense that it requires the trier of fact to balance risk against utility), a design defect claim significantly differs from an ordinary negligence claim in another important respect.
If design defects were evaluated under ordinary negligence principles, the trier of fact would have considered the reasonableness of the manufacturer's conduct in light of the circumstances ás the manufacturer reasonably understood them to be at the time. RCW 7.72.030(l)(a) instead requires that a product's safety be evaluated by an objective, rather than a subjective, standard.
RCW 7.72.030(l)(a) does not refer to the reasonableness of the manufacturer's conduct; The statute defines a reasonably safe product in light of what was technologically feasible at the time, rather than in light of what technological expertise a manufacturer possessed. The Legislature thus retained the pre-tort reform rule that "the reasonableness of the defendant's conduct is irrelevant". (Italics mine.) Lenhardt, 102 Wn.2d at 213. The statute instead holds manufacturers to a more stringent "state of the art" standard of liability.
*664Comparison of this section with RCW 7.72.030(l)(c) indicates that the Legislature intended to adopt an objective "state of the art" standard of liability. RCW 7.72-.030(1) (c) provides:
A product is not reasonably safe because adequate warnings or instructions were not provided after the product was manufactured where a manufacturer learned or where a reasonably prudent manufacturer should have learned about a danger connected with the product after it was manufactured. In such a case, the manufacturer is under a duty to act with regard to issuing warnings or instructions concerning the danger in the manner that a reasonably prudent manufacturer would act in the same or similar circumstances. This duty is satisfied if the manufacturer exercises reasonable care to inform product users.
(Italics mine.) As the emphasized language clearly indicates, the Legislature knew how to apply a subjective negligence standard when it desired to do so.
Moreover, this interpretation harmonizes the various standards of product liability set forth in RCW 7.72.030. In RCW 7.72.030(2), the Legislature imposed absolute liability for harms caused by defectively manufactured products. In RCW 7.72.030(1)(a) and (l)(b), the Legislature imposed strict liability for defectively designed or labeled products. Finally, in RCW 7.72.030(l)(c), the Legislature imposed negligence liability for failing to warn of dangers discovered after product manufacture. Interpreting the sections of RCW 7.72.030 according to their plain meaning results in a unified, rational system of product liability.
Ill
In the present case, the trial court instructed the jury that the manufacturer was liable "if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed at the time it left the manufacturer's control." The court further instructed the jury that negligence consisted of "the doing of some act which a reasonably careful person would not do under the same or similar circumstances ..."
*665These instructions, considered together, permitted the jury to evaluate the the reasonableness of the manufacturer's conduct, rather than weigh the hazards and utility of the manufacturer's product. The jury could have found that although the product was objectively unsafe, the manufacturer's conduct, viewed subjectively from the manufacturer's perspective, was reasonable. I therefore agree with the majority's conclusion that the giving of these instructions constituted error. The judgment should be reversed and the case remanded for retrial.
Dolliver, J., concurs with Callow, C.J.