concurring in part; dissenting in part.
I agree with that stated in the majority opinion except that pertaining to strict liability. This is not an appropriate case to determine that strict liability in tort is a valid cause of action in Wyoming.
1) Appellant did not properly plead strict liability.
2) There had been a substantial alteration in the 657 scraper since its delivery to the user.
In appellant’s first cause of action he purports to allege negligence in design, manufacture, inspection and the sale of the caterpillar model 657B. In his second cause of action appellant purports to state a cause of action for breach of express and implied warranties under the Uniform Commercial Code, § 34-21-101, et seq., W.S. 1977. Appellant contends, and the majority agree, that a cause of action for strict liability is stated in appellant’s third cause of action. Actually, in his third cause of action, appellant merely restates some of the requirements for a breach of warranty action under the U.C.C.
Pleadings should give notice to an adverse party what he may encounter. Watts v. Holmes, Wyo., 386 P.2d 718 (1963). We have held that the simplification of pleadings under the Wyoming Rules of Civil Procedure does not eliminate the necessity of stating in clear terms the basis of relief sought. Kearney Lake, Land & Reservoir Company v. Lake DeSmet Reservoir Company, Wyo., 475 P.2d 548 (1970). The pleading party must give fair notice to the opposing party of the basis for relief. Harris v. Grizzle, Wyo., 599 P.2d 580 (1979). In his complaint appellant did not give appellees notice that strict liability was an issue.
The majority adopts Restatement (Second) of Torts § 402A (1965); subsection (l)(b) requires that the product “reach the user or consumer without substantial change in the condition in which it is sold.” Appellant claims he fell from the scraper because of inadequate or defective safety devices. The alleged defects were:
1) Lack of proper hand grips and toeholds.
2) Lack of adequate non-skid surface materials.
3) A “buckle” or damage to the bumper upon which appellant stood.
In his deposition appellant admitted that the hand grips had been removed and the toehold modified after the machine came into the possession of the user. The nonskid tape was originally applied to the machine, but had worn off because of normal use or had been removed after it came into the user’s possession. The “buckle” or damage to the bumper upon which appellant stood occurred after the machine came into the possession of the user. These changes pertain to the very safety features of which appellant complains. Therefore, it cannot logically be argued that these changes were not substantial and material. Substantial changes in the nature of the product precludes recovery under Restatement (Second) of Torts, § 402A(l)(b) (1965).
I would hold that appellant is precluded from asserting a strict liability claim under the circumstances of this case.