specially concurring in part:
I concur in the result reached by the majority opinion and but for the somewhat equivocal means by which the majority reaches its result I would have fully concurred in its opinion. I write only to clarify the analysis of the issues, as I view them, raised by the questions presented by the Ninth Circuit’s certificate to this Court.
I.
Questions Not Presented
First, given some of the language in the majority opinion, it is necessary to identify those issues which aré not before this Court for its determination. I refer primarily to those issues concerning federal procedural law. It is at once clear that the Ninth Circuit desires only advice regarding matters of Idaho substantive law. Issues concerning procedure within the federal court system are necessarily for that court to determine. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Thus, we are not required, nor would it be proper for us, to determine whether Lederle has waived its right to challenge Jury Instruction No. 27. Therefore, I do not join in that portion of the majority opinion which intimates an opinion on that issue; specifically, I do not join in the language found in footnote 13, ante at 342-343, 732 P.2d at 311-312. I likewise view the issue of whether the determination of the applicability of comment k to a given product is one of law or fact, and thus for the court or the jury to decide, is an issue for the federal court to decide. Certainly, the federal court has not requested us to give an opinion on that issue. Thus, it is not appropriate for this Court to say that “it is not for a court sitting on appeal to make such a determination.” Ante at 339,732 P.2d at 308. Consequently, I decline to join in language to the contrary found in the majority opinion. That language is pure dicta and in no way binding on the federal court.
Finally, no question is presented by the Ninth Circuit certificate which requires us to second-guess the jury's verdicts in this case. There is no need to engage in any presumptions as to the evidence adduced at trial or as to the findings of the jury. Therefore, I do not join in any of the majority’s attempts at such presumptions.1 The Ninth Circuit expressly stated that any questions regarding evidence adduced at trial or regarding the sufficiency of such evidence to support the jury verdicts are matters for its resolution. Toner v. Lederle Laboratories, 779 F.2d 1429, 1431 (9th Cir.1986). Rightly so; they are, again, matters of federal procedural law and not of substantive state law. If the Ninth Circuit has inaccurately characterized the facts in its opinion to us, as the majority attributes to counsel for Toner, ante at 332, 732 P.2d at 301, then the Ninth Circuit is the proper forum to determine such matters. Again, any presumptions made by the majority regarding what Toner proved and what the jury found are entirely unwarranted. They are not required in order to adequately address the questions presented.
II.
Questions Presented
The Ninth Circuit certified the following four questions to this Court pursuant to I.A.R. 12.1(a).
(1) Under Idaho law, do the principles set forth in Restatement (Second) of Torts *346§ 402A comment k apply to strict liability and negligence claims, and in particular to the claims in this suit?
(2) If yes, is there evidence from which a jury could find Tri-Immunol unavoidably unsafe?
(3) Under Idaho law, could the jury, on this record, find the defendant negligent for failure to develop a fractionated cell vaccine, or for any other reason?
(4) Were the jury instructions on the issue of negligence in full accordance with Idaho law, given the contentions of the parties in this case?
As the majority opinion correctly states, we accepted certification of only two of the four questions, numbers (1) and (4).
Though phrased in terms regarding the applicability of comment k, it is clear that the Ninth Circuit desires to know the elements which must be established to state a cause of action in a products liability case under state substantive law. “[W]e must look to the substantive law of the State of Idaho to determine the elements of plaintiffs’ cause of action.” Toner v. Lederle Laboratories, 779 F.2d 1429, 1431 (9th Cir.1986). Faced with a claim of inconsistent jury verdicts2 which, as stated by the Ninth Circuit is a matter for their resolution, the Court of Appeals essentially desires that we (1) set forth the distinction between the elements of a products liability action based on strict liability and one based on negligence; (2) determine the applicability of the “unavoidably unsafe” doctrine of comment k of the Restatement (Second) of Torts, § 402A, to both strict liability and negligence actions; and then (3) indicate whether the jury instructions given in this case adequately set forth those elements. As stated by the Ninth Circuit, “The question whether the trial court instructed the jury in accordance with Idaho law necessarily precedes resolution of the inconsistency claim.” Id. at 1434.
A.
Products Liability Based On Strict Liability in Tort
As noted by the majority opinion, this Court in Shields v. Morton Chemical Co., 95 Idaho 674, 518 P.2d 857 (1974), “accepted the doctrine of strict liability in tort in products liability actions.” Id. at 676, 518 P.2d at 859. The rule of strict liability we adopted was that set forth in the Restatement (Second) of Torts § 402A (1965). Under that rule a cause of action exists against a seller of a product if a plaintiff establishes that he suffered injury resulting from his proper use of the product which, though properly used, was “in a defective condition” such as rendered it “unreasonably dangerous” to the user or consumer.
The difficulty in applying the rule of strict liability set forth in § 402A usually surfaces in regard to the meaning to be given the phrase “in a defective condition unreasonably dangerous to the user or consumer.” As the majority opinion notes, comment g to § 402A defines “defective condition” as “a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” Comment i defines “unreasonably dangerous” as a danger “beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” In Rojas v. Lindsay Mfg. Co., 108 Idaho 590, 701 P.2d 210 (1985), we approved the following definition of the phrase: “A product is in a defective condition unreasonably dangerous ... if it is more dangerous than would be expected by an ordinary person who may reasonably be *347expected to use it. * * * i.e., for whose use it must be safely designed.” Id. at 591, 592, 701 P.2d at 211.
The definition of “in a defective condition unreasonably dangerous to the user or consumer” also takes on somewhat different meanings depending on the context of the products liability cause of action, i.e., whether the cause of action is premised on an alleged defect in the product’s design, or in the product’s manufacture (the design was not followed in the production phase), or in the product’s warning concerning its known dangers. See W. Keeton, Prosser and Keeton on The Law of Torts § 99 (5th ed. 1984) (hereinafter Prosser). We need not fully discuss these different bases for strict liability and their concomitant definitions of “defective condition” since only the first is presented by this case. The heart of Toners’ products liability claim is that a safer, more feasible alternative existed to Tri-Immunol. This claim relates solely to design defect.3 As explained by the majority, comment k only applies, if at all, to design defect cases. Ante at 335, 732 P.2d at 304.
In a design defect products liability case, the effect of comment k is to modify the definition of when a product is “in a defective condition unreasonably dangerous” by stating that “there are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use * * *. Such a product, properly prepared, and accompanied by proper instructions and warning, is not defective, nor is it unreasonably dangerous.” Restatement § 402A (comment k). Thus, under comment k, if a product is “unavoidably unsafe,” it is neither “defective” nor “unreasonably dangerous.” Contrary to the majority opinion, comment k does not “immunize certain products from strict liability claims,” ante at 339, 732 P.2d at 308, but merely defines which products are defective and unreasonably dangerous, and which are not. Thus, comment k clearly requires a utility-risk analysis, as the majority opinion concedes. The majority opinion acknowledges that comment k applies to actions for product liability based on strict liability in tort, although incorrectly describing the effect of comment k as resulting in an “immunity,” rather than merely acknowledging that unavoidably unsafe products are neither defective nor unreasonably dangerous.
B.
Products Liability Based on Negligence
While this Court has addressed strict products liability several times, as noted by the Ninth Circuit, we have never been presented with a case requiring a determination of “the duty, or standard of care, applicable to the manufacturer of drugs that are unsafe in some respects but that are necessary for the control of disease.” Toner v. Lederle Laboratories, supra, 779 F.2d at 1432. Thus, we have never addressed the question of whether a product which is socially desirable or necessary, even though “unavoidably unsafe,” may expose the manufacturer of that product to a products liability action whether on the theory of strict liability or negligence. On such a negligence claim, or upon any negligence claim for that matter, we have indicated that there are certain basic “concepts fundamental to any negligence action: duty, breach, proximate cause and damages,” Blake v. Cruz, 108 Idaho 253, 257, 698 P.2d 315, 319 (1985). Or, as more accurately stated by Chief Justice Donaldson in Alegría v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980), cited by the Ninth Circuit Court of Appeals:
“The elements of common law negligence have been summarized as (1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injuries; *348and (4) actual loss or damage.” Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980) (emphasis added).
The majority opinion fails to adequately analyze the present case under these “concepts fundamental to any negligence action.” Instead the majority simply states “the determination of negligence remains for the jury.” That statement is inadequate and to the extent it is inadequate, it is also misleading and incorrect.
The statement is correct only insofar as it applies to questions of fact. This Court has consistently held that if there is sufficient evidentiary support, all fact questions as to negligence are for the jury or trier of fact to decide. O’Connor v. Meyer, 66 Idaho 15, 154 P.2d 174 (1944). Questions of fact are usually raised in regard to elements (2), (3) and (4) above.4 However, as both the quote and the holding in Alegría indicate, the question of “duty” is not for the jury, rather it is a question of law for the court to decide. Essentially, the question of the existence of a duty involves a legal determination that some relationship exists between the defendant and the plaintiff which gives rise to an obligation of conduct toward a particular person in the first instance. “[D]uty is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.” Prosser at § 53. “[Wjhether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant ... is entirely a question of law to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.” Id. at § 37. The court is required to determine if, under the facts of a given case a duty is owed by defendant to plaintiff and, also, to determine the scope or extent of that duty.
“The existence of ‘duty’ is a question of law. (Citations omitted) ‘Legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage.’ Tarasoff v. Regents of University of California, [17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (Cal.1976).]” Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728, 732 (1980).
Furthermore, a determination of the existence of a duty in a particular case involves consideration of several factors, including:
“ ‘the foreseeability of harm to the plaintiff, the degree of certainity that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ” Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728, 732-33 (1980) quoting Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, 564 (1968).
The analysis is the same in a products liability case. The question of duty involves a consideration or balancing of all of the above factors. “It is no part of the province of a jury to decide whether the manufacturer of goods is under any obligation for the safety of the ultimate consumer.” Prosser at § 37.
As indicated in the majority opinion this balancing of risk versus utility in a negligence case is the same as that required in a strict liability case where comment k is deemed applicable. There is little difference between a products liability action in negligence and one in strict liability relating to the definition of the unsafe character of the product which allegedly causes the *349injury. In negligence law, and as the jury was instructed in Instruction 27 in this case, the product must not “expose the potential consumer to an unreasonable risk of harm.” In strict liability, the product must not be in a “condition unreasonably dangerous to the user.” The determination in negligence law of whether the product presents an “unreasonable risk of harm” to the consumer is really no different from the determination in strict liability law that a product is “unreasonably dangerous” to the consumer. The majority opinion acknowledges this, stating that there is, in reality, “little difference here [in cases of improper design] between the negligence action and the action based on strict liability.” 5 Ante at 342, 732 P.2d at 311, citing W. Prosser, Law of Torts, 659, n. 72 (4th ed. 1971), and quoting Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 841 (1973).
Since there is little or no difference between the negligence test of “unreasonable risk of harm” and the strict liability test of “unreasonably dangerous to the consumer,” Comment k and its rationale applies to both products liability actions based on strict liability and those based on negligence. By definition, a product which is “unavoidably unsafe” is neither “unreasonably dangerous to the consumer” (the strict liability standard) nor does it create an “unreasonable risk of harm” to the consumer (the negligence standard).
Nevertheless, the majority states, ante at 342, 732 P.2d at 311. “We conclude that the principles of comment k do not literally apply to negligence claims. More specifically, comment k does not shield sellers of products from negligence claims.” That statement exposes a misconception prevalent throughout the majority opinion that comment k “immunizes certain products from strict liability claims ...,” ante at 339, 732 P.2d at 308, and that “if a product qualifies as ‘unavoidably unsafe,’ [under comment k] the seller is held not to the strict liability standard but only to the standard of negligence.” Ante at 336, 732 P.2d at 305. Comment k is not an “immunity” or a “shield.” Comment k merely limits the definition of defective products under Section 402A, excluding “unavoidably unsafe products” as being “not defective, nor ... unreasonably dangerous.” Therefore, the semantical distractions of “immunity” and “shields” employed in the majority opinion tend to confuse rather than enlighten its products liability analysis. Those terms distract the reader’s attention from the fact that whether a particular products liability claim is phrased in terms of negligence or strict liability, there must either be a product which exposes the potential consumer to an “unreasonable risk of harm” (Negligence Instruction 27), or a product which is “unreasonably dangerous” Restatement (Second) § 402A. There is “little difference.” between those two standards, as the majority opinion acknowledges. Ante at 342, 732 P.2d at 311.
C.
The Jury Instructions
Having hopefully helped explain the Court’s decision regarding the elements of a cause of action for products liability based on strict liability and negligence, and the distinction between the two causes of action, the third question presented by the Ninth Circuit was whether the jury instructions given in this case adequately state the law in Idaho regarding a products liability action based on negligence. The majority’s treatment of this issue is inadequate due in large part to its concern that Lederle should not be permitted to raise the issue. However, as noted earlier, any question regarding Lederle’s ability to challenge the jury instructions is purely a question of federal law and not for this Court to decide. The question before this Court is not whether the proposed jury instructions ad*350equately express Idaho law, but whether the instructions actually given by the trial court do.
The majority opinion correctly holds, though in a very equivocal manner, that the instructions given are not adequate statements of Idaho law on negligence given the facts as related by the Court of Appeals and the contentions of the parties in the present case. The instructions are entirely devoid of any reference to comment k’s “unavoidably unsafe” standard or the requirement that the jury engage in a comment k risk versus utility balancing test. The majority asserts that the instructions implicitly required the jury to engage in such a balancing test. Ante at 342, 732 P.2d at 311. However, the majority opinion earlier concludes just the opposite, ante at 333, 732 P.2d at 302, when it states that, “Nothing in the record before us indicates that either the jury or trial court made any determination based on comment k.” Given that statement, I fail to see on what basis the majority opinion then asserts that “a balancing between utility and risk ... is implicit in [Jury Instruction No. 27].” Ante at 343, 732 P.2d at 312. Furthermore, the majority’s assertion that “the jury undoubtedly considered the state of scientific knowledge and the utility of the vaccine before assigning negligence,” ante at 343, 732 P.2d at 312, is mere speculation at best.
Even assuming, arguendo, that the comment k test was implicit in the jury instructions and that the jury did in fact consider the utility of the vaccine and the state of scientific knowledge before assigning negligence, it is entirely inconsistent for the majority to then conclude, based on the jury’s verdicts, “that Lederle was negligent for having manufactured and marketed the whole cell vaccine instead of a safer alternative.” Ante at 343, 732 P.2d at 312. Such a conclusion is directly contrary to the jury’s verdict that Tri-Immunol was not “in a defective condition unreasonably dangerous” to the consumer. In short, if the majority’s assertion that neither the parties nor the trial court addressed comment k is true, then it is clear beyond cavil that the jury instructions did not adequately state the law of Idaho regarding negligence in a products liability case.
Conclusion
In conclusion, while the answers set out in the majority opinion to the two certified questions are less than clear, I believe the Court’s opinion can ultimately be distilled down to the following responses.
As to question one, whether or not comment k applies to both strict liability and negligence claims in products liability actions, the answer is yes. The predicate for a products liability claim, whether based on negligence or strict liability, is a product which is “unreasonably dangerous,” or which creates an “unreasonable risk of harm.” Since there is little or no difference between those two standards, an “unavoidably unsafe” product whose utility outweighs the risk created by its use is by definition not “unreasonably dangerous” nor does it create an “unreasonable risk of harm.”
As to the second question certified and accepted by this Court, i.e., whether the jury instructions on the issue of negligence were in full accordance with Idaho law given the contention of the parties in this case, the Court’s answer is an apparent no. The court’s instructions did not instruct the jury regarding comment k’s “unavoidably unsafe” standard and the risk versus utility balancing test contained therein.
What effect the answers to the certified questions have on the disposition of this case is a matter entirely for the federal courts to determine.
SHEPARD, C.J., concurs.. Specifically, I do not join in the majority’s presumption that "the jury found that ‘in light of all the attendant circumstances,' Lederle failed ‘to exercise ordinary and reasonable care not to expose the potential consumer to an unreasonable risk of harm from the use of its products,’ ... that ‘the foreseeable risk of harm to potential users in light of then current scientific or medical knowledge and discoveries’ was such that Lederle was negligent in failing to further 'test and investigate the propensities of its product’ relative to those of the allegedly safer product, ... and that as a result Lederle was negligent for having 'manufactured and/or marketed the whole cell vaccine’ rather than the alternative.” Ante at 332, 732 P.2d at 301 (emphasis added). I specifically disagree with the majority’s presumption regarding the underscored material in the above quote.
. Lederle contends that the jury’s answers to the following two questions on the special verdict form are inconsistent.
“QUESTION NO. 2: Was defendant Lederle Laboratories negligent in connection with the product Tri-Immunol which was the proximate cause of the plaintiffs injuries? Yes.
“QUESTION NO. 3: Was the product Tri-Immunol manufactured by the defendant Lederle Laboratories in a defective condition unreasonably dangerous to persons which was the proximate cause of the plaintiffs injuries? No." Toner v. Lederle Laboratories, supra, 779 F.2d at 1433.
. As noted in the Ninth Circuit’s opinion. Toners abandoned their allegations of defective warnings prior to submitting the case to the jury. Toner v. Lederle Laboratories, supra, 779 F.2d at 1430.
. To the extent the majority opinion uses the term "negligence” to mean conduct contrary to that required by the duty owed by defendant to plaintiff, the term "negligent" essentially refers to element (2), i.e., breach of duty. In such a context the assertion in the majority opinion that the determination of negligence is for the jury is correct since whether a defendant has breached his duty of care is a question of fact, not of law.
. This conclusion reached by the majority opinion in Part IV negates the seemingly contrary assertion contained in footnote 6, ante at 336, 732 P.2d at 305. That footnote states, "In the next section, we will discuss further our conclusion that comment k immunity extends ... only to strict liability claims, and not to negligence claims."