(dissenting) — I dissent, with all due respect, since I cannot determine if the majority has answered the spirit of the question. Specifically, we are asked if characteristics of similar products made by manufacturers other than the defendant manufacturer are "appropriate" factors to be weighed by the jury in determining the relative safety of the injury-causing product, in other words, if industry custom is relevant to consumer expectations. What the majority appears to decide is that evidence of compliance with industry custom is "not always admissible" as a relevant factor in evaluating the ordinary consumer's reasonable expectations of product safety. The implication is that although such evidence is probative of consumer expectations, its admissibility is subject to trial court discretion. If that is the majority's proposition, I agree. However, I do not agree that the relevance of industry custom evidence depends solely on plaintiff's tactical decision to raise the feasibility of an alternate, presumably safer, design. It is relevant, instead, because industry custom aids the jury in *216assessing the relative harms and benefits of a product's design. What degree of safety the consumer contemplates in regard to a particular product is inherently a reasonableness determination. To evaluate reasonableness, the trier of fact evaluates the product's safety characteristics against the product's utility. I would, therefore, respond to the certified question by finding industry custom evidence relevant to consumer expectations.
The majority concludes that the public policy expressed in the tort and product liability reform act of 1981, RCW 7.72, provides no guidance. I disagree. RCW 7.72.050(1) allows evidence of custom in the product seller's industry to be considered by the trier of fact. The legislative approval of industry custom evidence in product liability cases rests, in some part, on the assumption that the consumer expectations test previously articulated by this court in Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 542 P.2d 774 (1975) announced a balancing test closely related to a cost/ benefit analysis fundamental to a determination of negligence. See Washington State Senate Select Comm, on Tort & Prod. Liability Reform, Final Report 17 (1981) (hereinafter cited as Final Report). In defining "unreasonably unsafe" in product design cases, the Legislature purported to make explicit the balancing test that was implicitly followed under strict liability law. Final Report, at 17-18. The Washington State Senate's Select Committee on Tort and Product Liability Reform expressed the view that, in balancing various factors, the trier of fact should take into account the greatest amount of evidence available. Final Report, at 39-40. This policy judgment makes good sense whether considering product liability under case law or the new act. I see no reason to strain the rationale of our prior cases, and now disavow the balancing test of Tabert, to reach a result contrary to the product liability act.
The new product liability act retained the consumer expectations test as a factor in determining liability for design defect because it was believed to be harmonious with the act's balancing test used for determining reasonable *217safety. Final Report, at 35-36. Our decisions support that legislative judgment. Under Tabert, determining the reasonable expectations of the ordinary consumer requires balancing various factors such as the product's cost, the gravity of harm, and the cost and feasibility of eliminating or minimizing the risk to the consumer. Tabert, at 154; see Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 588 P.2d 1346 (1979); Wagner v. Flightcraft, Inc., 31 Wn. App. 558, 643 P.2d 906 (1982). Because the function of this balancing is to evaluate the reasonableness of the degree of safety the product possesses to the ordinary user, the test is comparable to a negligence analysis. See generally Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33 Vand. L. Rev. 593 (1980); Note, Strict Liability in Tort: Is It Applicable to Design Defect?, 20 Washburn L.J. 600 (1981). As in a negligence action, the heart of the jury inquiry is reasonableness. The ordinary consumer is deemed to expect not absolute safety, but reasonable safety based on consideration of the benefits the product offers and the potential harm it poses. The jury's function is to decide what degree of risk society is willing to accept to enjoy the benefit of the product before the manufacturer will be found liable for the harm caused.
This balancing of risk and utility in a strict liability case does not transform strict liability into negligence. See Little v. PPG Indus., Inc., 92 Wn.2d 118, 122, 594 P.2d 911 (1979). Under our case law, the plaintiff in a strict liability action does not have to prove any negligent conduct on the part of the manufacturer. The only pertinent inquiry assesses the relationship of the product's relative safety to what the consumer may reasonably expect.
The jury's balancing of the risks and benefits inherent in the design includes evaluating whether it is feasible to improve the safety features of the product, and whether that enhanced safety is something the ordinary consumer would expect to find based on the "cost" of providing the extra safety. A major aspect of the cost to the consumer *218may be the impact that greater safety has on the product's utility. See Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex. 1980). Industry custom is probative of the cost and technological feasibility of improved safety, the loss of utility that greater safety incurs, and the relative success in reducing the potential harm. Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192 (4th Cir. 1982); Boatland of Houston, Inc. v. Bailey, supra. Because the standard of design defectiveness is premised on the reasonableness of the design, industry custom has some bearing on the feasibility factors that the jury considers.
Evidence of compliance with industry custom should not, however, establish a conclusive defense. Industry standards reflect only the industry consensus on the proper balancing of the beneficial aspects and the potential harm in the design. The jury remains free to reject that balance and find the entire industry's products unsafe. Accord, Back v. Wickes Corp., 375 Mass. 633, 378 N.E.2d 964 (1978); Thi-bault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978).
The consumer expectations test has been criticized, as has been the requirement of unreasonable danger, by commentators who suggest that the test perpetuates poor manufacturing standards. See, e.g., J. Beasley, Products Liability and the Unreasonably Dangerous Requirement 399 (1981). The theory is that a pervasive "dangerous" design becomes "expected" by consumers so that it cannot be found unreasonably dangerous. This criticism points out the inequity of a consumer expectation test that asks only whether the ordinary consumer contemplated this harm. The better inquiry is whether the risk of harm is greater than the ordinary consumer is willing to bear because the benefits of having the product with the "defect" do not outweigh the costs of providing a safer product. Under this standard, the pervasiveness of the defective design will not decide the outcome. The jury will simply consider the gravity of the harm and the beneficial aspects, rejecting any design, however common, that presents an unreasonable *219risk.
Even if one accepts the majority's proposition that only a plaintiff may make industry custom relevant by resting the claim on a feasibility theory, this case meets that criterion. Plaintiff Lenhardt presented testimony that an inexpensive design change would correct the transmission defect. In substance, plaintiff claims that it is feasible to design a safer transmission. The jury is entitled to weigh that claim, to hear evidence on both sides of the issue, and to evaluate the impact of the feasibility claim on the ultimate issue of whether the product was unreasonably unsafe as designed.
I would hold that industry custom is probative of a product's reasonable safety, and thus relevant to what the ordinary consumer expects.
Dolliver, J., concurs with Dimmick, J.