dissenting.
The majority opinion will create more problems than it solves. It states that the eases, principally the leading case of Dow v. Holly Manufacturing Co., 1958, 49 Cal2d 720, 321 P2d 736, “reason that a building *71contractor is in essentially the same position as a supplier o£ chattels and that, therefore, the rule developed in the products liability cases should be applicable.” The majority then hold that since this court, in Wights v. Staff Jennings, 1965, 241 Or 301, 405 P2d 624, rejected the distribution of loss doctrine in deciding products liability cases we should reject holding defendant liable for the negligence of the subcontractor.
This is simply not 'the basis for the decision in the Dow case. The rationale of the Dow case is based on the responsibility and control of the general contractor. The Dow case held the contractor to the responsibility to deliver a sound finished product. This is clearly stated in the opinion:
“It has been held that the owner of property cannot escape liability for a dangerous condition on his property by having an independent contractor assume the duty of constructing or repairing a building or chattel. Knell v. Morris, 39 Cal.2d 450, 247 P.2d 352; Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 143 P.2d 929; Snyder v. Southern Cal. Edison Co., 44 Cal.2d 793, 285 P.2d 912. There is no, reasonable distinction between the owner’s inability to escape liability and that of the contractor. The contractor, equally with the owner of the proj)erty, has supervision over the entire building and its construction, including the work performed by a subcontractor, and where he negligently creates a condition, either by himself or through a subcontractor, he is primarily responsible for that condition and the consequences that may follow from it. He is in full control of the construction and knows or should know what is being placed in the building. Indeed, what is placed there is peculiarly within his knowledge, and where, as here, it involves a defective appliance which is covered and hidden by the walls in the course of *72construction, the responsibility for such defect should rest upon him as well as on the subcontractor.” Dow v. Holly Manufacturing Co., 1958, 49 Cal2d 720, 321 P2d 736, 739.
That is the reason for finding liability in the Dow case.
It is true, of course, that the quoted language is followed by this reference to the supplier of chattel cases:
“There is also a close analogy between a supplier of chattels and a general contractor for the construction of a building. The contractor supplies all of the materials used as well as the labor either by fabricating it himself, buying it from another or having an independent subcontractor do the same thing. The owner in effect buys a properly completed building from the contractor which the contractor is bound to supply. In the case of the supplier of chattels when he supplies the goods it is immaterial to his liability that he may have had another supply the product; he is nevertheless liable because he has vouched for the chattels as his own by taking the contract. The same is true of a house where he supplies many parts, as well as labor, most of which are probably not fabricated by him but by independent contractors or sellers. * * Dow v. Holly Manufacturing Co., supra, at page 739.
But that analogy to the products liability cases is strictly related to the immunity question. It is not a statement of the basis of the contractor’s liability.
More importantly, the concepts of a strict enterprise liability, as rejected in Wights v. Staff Jennings, supra, is an ill-fitting standard to test the problem here. The basis of the liability rejected in Wights was stated to be: “The broad proposition is stated by Professor Fleming James, Jr., as follows: * * Strict *73liability is to be preferred over a system of liability based on fault wherever you have an enterprise or activity, beneficial to many, which takes a more or less inevitable accident toll of human life and limb. This is true at least where the accident victims are as a class economically ill-equipped to carry the burden of serious accident losses. * * * ’ ” 241 Or at p 308, 405 P2d at p 628. The quotation continues in this familiar pattern.
The theory has been more succinctly stated in a note at 54 Oal L Rev at 1707-08 (1966), which says: “The most generally accepted argument advanced in support of absolute liability on the part of a manufacturer* is nothing more than a distillation of the theory of risk distribution through the price structure which Professor Ehrenzweig* and Justice Traynor* were advancing a decade ago.” (* Footnotes omitted).
It should be perfectly obvious that this reasoning, this theory of liability is wholly inapplicable to the reasons for and the limit of liability that should be imposed on the general contractor in the usual building contractor’s case.
The idea of spreading the risk, of compelling the enterprise to bear its accident burdens, the deep pocket approach has nothing to do with the reasons that would support a policy of imposing liability on the prime building contractor. The very nature of the function of the building contractor and his relationships to the other involved parties precludes any consideration of a “price structure” that permits widespread distribution of the risk.
The general or prime contractor’s function, in modern building, is to assemble a large and complex group of subcontractors, to coordinate their work and to be responsible for it. This is what he is paid for. In *74today’s more complex and sophisticated building, the prime contractor frequently performs no building function at all. His sole function is to assemble the many skills required to build a complete building and to oversee the function of each. He selects the subcontractors, he imposes on them contract terms of his own choosing. Or, as stated-in the Dow case, he is free to do all the work with his own employees. And, when fault in the building does appear, it is frequently impossible, accordingly, to find which skill represented by which subcontractor or by which sub of a sub, was responsible. The damaged third party, like the innocent tenant in this case, should be able, like the owner, to look to the one responsible person to right the injury and harm. The damaged party should not be relegated to the chore of endeavoring to find the culprit who may have omitted or committed the act which caused the fault.
And, if there is need to spread the risk, the contractor can do so by his own contract with the subcontractor. He at least has that choice. The damaged third party has the choice of being bounced from party to party, hoping he may find the right one.
The buck should not pass beyond the general contractor, not as a matter of enterprise liability but because of inherent responsibility. This, in reality, is what the courts have done in following MacPherson v. Buick. The responsibility has been moved from the hapless local purveyor and placed where it belongs. Some day, belatedly, this court will follow the trend and eliminate the immunity windfall of the prime contractor.
If the court desires to rigidly adhere to the doctrine of immunity and its many exceptions as found in Chapter 15, Restatement (Second) of Torts, it should *75say so. Presumably, the court is now saying that the ultimate rule, which will eventually be decided by this court, to govern the liability of the manufacturers, etc. of chattels will also govern the liability of a building contractor for the negligence of a subcontractor. The problem is, and the confusion and uncertainty will be, that the lawyer and the courts will not know hoAv a case should be framed; shall the laAvyer prepare his case and evidence Avithin the tests of the Restatement rules, or shall he attempt to prove a products liability case? And, will he be obliged to negate the idea that he is seeking liability because of the contractor’s deep pocket?
The evidence in the case at hand and -the question to be decided is the same as the facts and law stated in the Dow case. We should follow it.
Inasmuch as the duty of supervision, inspection and control by a general building contractor is so commonly recognized, I also disagree with the majorities decision relative to the pleading question in this case.