specially concurring.
This is a products liability case to recover for injuries sustained by plaintiff when a recapped tire on the left rear wheel of his car blew out, causing the car to leave the road and crash into a pole. Plaintiff sued the recapper, the wholesaler, and Mulholland’s, Inc., from whom he bought the tire. The trial court directed a verdict for all defendants and plaintiff appeals.
The amended complaint on which the action was tried alleged that defendants negligently recapped the tire and, further, that defendants had breached their implied warranties of merchantable quality. Despite those allegations, plaintiff, in his brief, relies on cases applying the rule of strict liability in tort as embodied in § 402 A of the Restatement of Torts 2d. Defendants, in their brief, also rely entirely on cases decided *283in § 402 A. Neither party makes any reference to the statutes governing implied warranties.
In McGrath v. White Motor Corp., 258 Or 583, 593-594, 484 P2d 838 (1971) we said:
“* * * The complaint in this case was drafted at a time when the concept the pleader was attempting to allege was emerging as a tort of strict liability. Admittedly, he used the term of ‘implied warranty,’ a term often associated with contract. The concept of strict liability in products liability cases is now sufficiently recognized that we suggest the problems caused by the use of ‘warranty’ can be avoided by the use of tort terms. * * *”
In that case we reaffirmed our adoption of § 402 A in Heaton v. Ford Motor Co., 248 Or 467, 435 P2d 806 (1967).
As McGrath was decided only days before the amended complaint was filed in this case, I agree with the majority that, under the circumstances, it is proper to apply the rules of strict liability in tort. I would emphasize, however, that the bar of this state has now been given ample warning that the use of warranty terminology is not a proper way to raise the issue of strict liability under § 402 A. In cases commenced after the publication of the McGrath opinion, we should assume that a plaintiff who couches his complaint in warranty terms has done so because he wishes to proceed under the provisions of our commercial code dealing with warranties in sales contracts. Similarly, a complaint phrased in § 402 A language should be construed as an attempt to state a cause of action for strict liability in tort. Plaintiff’s attorneys Should, in each case, carefully distinguish between the two theories and clearly frame their pleadings accordingly.
*284I concur in the majority’s holding that it was not error to exclude the testimony of plaintiff’s rubber expert Lucas on the subject of ozone deterioration in the rubber of the casing. Although this witness, during the offer of proof, testified that he found substantial ozone deterioration when he examined the tire, and that this deterioration would reduce the strength and elasticity of the rubber, he was unable to say that the ozone deterioration had progressed to the point that the tire was unfit for recapping. Plaintiff’s effort to prove his cause of action in negligence failed when his witness was unable to testify that any excessive ozone deterioration was the cause of the blowout.
I also agree with the majority that the case should have been submitted to the jury on the strict liability count. However, because I am unable to agree with the effort of the majority to rest § 402 A liability on two separate inconsistent bases I am filing this separate opinion. The majority concept of a dual theory of § 402 A liability permeates the opinion, but is epitomized by the following statements:
“In addition to the enterprise liability rationale, something similar to the rationale behind an implied representation of merchantable quality also has to be part of the theoretical basis for the rule.
* * *
*****
“Both rationales, that of a representational tort and that of enterprise liability, have their place in Section 402A. * * *”
As formulated in § 402 A, the necessary elements of a strict products liability ease are (1) the sale of a product by one who is engaged in the business of selling such products; (2) a product which was *285expected to, and did, reach the consumer or user without substantial change in condition; (3) a product which, when sold, was in a “defective condition unreasonably dangerous to the user or consumer”; (4) injury to the user or consumer, or damage to his property; (5) which was caused by the product’s defective condition. In order to prove the third and fifth elements —the product’s defective condition and causation—the plaintiff generally begins by showing that an unexpected malfunction of the product during normal use resulted in injury. In some cases, the seller’s prima facie liability will be evident from the facts of the accident itself. If the product is new, if it is being used for the precise purpose for which it was intended, and if the accident is clearly caused by a failure of the product itself, plaintiff’s proof on these elements will often be relatively simple.
In other cases, however, it will not be so easy to show that the product was defective. If, for example, the product fails because of a weakness which developed through use, or while being subjected to unusual stress, it will be necessary for the plaintiff to show somehow that the failure was the result of some shortcoming in the product for which the seller should be held liable. Proof of a specific flaw may be available in such cases. See Tucker v. Unit Crane & Shovel Corp., 256 Or 318, 473 P2d 862 (1970); McGrath v. White Motor Corp., supra. There will be cases, however, where the product cannot be examined for such flaws, or where, because of the condition or nature of the product, examination will not disclose with certainty whether a specific identifiable flaw, which was present at the time of sale, was the cause of the product’s failure. In such cases, the definitions in the *286Comments to § 402 A become important. Comment g provides:
“The rule stated in this Section applies only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. * * *” (Emphasis added.)
In Comment i we find:
“* * * The article sold must be dangerous to an extent 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. * * *” (Emphasis added.)
In other words, the plaintiff will often have to prove that the ordinary consumer would reasonably expect the product to last longer than it did, or to be stronger than it was. Such proof, moreover, may often be relevant even when there is some evidence of a specific manufacturing flaw, especially where that evidence is disputed or inconclusive. Clearly, however, proof of high expectations as to product performance is not enough, standing alone, to make out a case of strict liability. The central fact in each case will be the failure of the product. In the present case, the tire blew out. In Heaton v. Ford Motor Co., supra, a wheel collapsed shortly after striking a rock. The plaintiff in Heaton did not make a case for the jury because he was unable to show a specific manufacturing flaw or defect in design which was responsible for the collapse. He was also unable to prove that wheels on vehicles like his are normally expected to be strong enough to withstand high-speed impacts with large rocks. Such evidence, had it been available, would have been admissible to show that the product’s failure—the col*287lapse of the wheel—was probably the result of some defect in construction or design for which the manufacturer ought to be held liable.
I find the majority opinion unacceptable because it elevates evidence of consumer expectation into an alternative doctrinal basis for § 402 A liability.
Strict products liability, as embodied in § 402 A, is a means of providing compensation for injured consumers by allocating the costs to the enterprise responsible for the manufacture and sale of the product. Its justification is found in the consumer’s need for protection and in the ability of the enterprise to spread the risk by treating the costs of user injuries as a cost of doing business.
Comment c to § 402 A clearly recognizes this basis for the seller’s liability:
“On whatever theory, the justification for the strict liability has been said to be that the seller by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.” Restatement of Torts 2d at 349-350.
As Professor Keeton has expressed it,
“* * * No doubt the tremendous technological *288advances that have occurred in recent years result-" ing in a proliferation of chemical products and drugs increasing the incidence of injuries from the use of products is one factor creating pressures for ■the imposition of strict liability. Another factor is, to be sure, the alterations that have occurred in this century as regards the manufacturing and marketing processes. Legal entities with mammoth aecumulations of capital, large volume of sales, and national advertising are typical. This has led' to the view that such entities are capable, if held responsible, of passing , on to users generally losses suffered by the few. Thus there has come about a wider, acceptance for the view that when the benefits to the many come .at a high cost to the few, the mány should pay for these losses. # * *” Keeton, Products Liability—Liability Without Fault and the Requirement of a Defect, 41 Tex L Rev 855, 856 (1963).
As the majority recognizes, the liability of the enterprise is kept within reasonable bounds by the' requirement of a defect in the product. This requirement prevents the seller’s liability from being absolute, and its definition, has been recognized as a question of policy. Dickerson, Products Liability: How Good Does a Product Have to Bef, 42 Ind L J 301, 302-303 (1967); Keeton, op. cit. at 858-859. It is the essence of the seller’s duty, imposed by law, to furnish a reasonably safe product. I believe the majority opinion, with its emphasis on warranty rationale and the concept of an implied representation, obscures this important point.
The standard of the reasonable expectations of consumers is employed in the comments to § 402 A only as a means of defining a defect. Consumer expectations are facts which the courts will, naturally, use in defining the scope of strict products liability. Such expectations, have many sources in addition to *289the seller’s representations about the product. In a proper case, evidence of actual representations, either express or “implied in fact,” will be relevant to a determination of what consumers have a right to expect of the particular product. Nevertheless, a seller who has made no representations whatsoever will be liable for injuries caused by his failure to furnish a reasonably safe product. There is no need, in the analysis of .a strict liability case under § 402 A, for the fictional notion that putting a product on the market involves any implied representations as to its quality.
In spite of the role of the doctrine of implied warranty in its developmental history, strict products liability is sui generis. It is not now, whatever its history, a representational tort. The gist of the tort is not a misrepresentation, but the sale of an unsafe product. Representations by a seller, when relevant, are important only to show that the product .ought to have met a particular standard of safe.ty. They are not theoretically necessary in any way to the imposition of strict liability on sellers generally.
In the present case I agree with the majority . that plaintiff’s evidence was . sufficient .to take his case to the jury on the theory of strict liability. My conclusion is based, not on any representation implicit in the sale of the tire, but on evidence which would permit the jury to infer that there, was a flaw in. the casing when the tire was sold-
There was, in the first place, evidence that the tire had not simply worn out under normal use. It had been driven for only eight or nine months, for a total distance of about 5,000 or 6,000 miles, and about 40 percent of the tread remained- at- the time of the *290accident. Plaintiff testified as to the performance he expected from the tire:
“A Well, normally you buy a tire like that, I figured I should get at least twelve to fifteen thousand miles under normal useage.”
Defendants’ expert witness, when asked on cross-examination what performance users can expect from a recapped tire, replied:
“They expect to get the same service as the new tires that they had previously.”
The jury, from this evidence, would have been justified in finding that the ordinary purchaser of a recapped tire could reasonably expect that, given normal use, it would not blow out'as soon as this tire did.
There was also evidence from which the jury could find that the tire had not been damaged or unduly weakened after its purchase by plaintiff. Plaintiff testified that the tire was always kept properly inflated, that it had been driven almost exclusively on paved roads, and that it had not been subjected to any impacts which could have weakened the casing.
Finally, there was evidence from which the jury could infer that the tire contained a specific defect at the time of recapping and sale. Plaintiff’s second expert witness, an experienced tire recapper, testified that the blowout did not appear to have been caused by impact. The probable cause of the tire’s failure, he testified, was
“* * * that there has been such as a small pin hole where air has seeped through from the inside of the casing out to the fabric or cords of the tire which has caused a bubble or air pocket that eventually the tire would stand no more and blew out or exploded; or, number two, possibly an air pocket *291in the tire from original manufacture 'that over a period of time, with the heat and flexing of running the tire, could have developed gases and expanded and done the same thing.
w
“Q * * * Now based on your experience could you give us an opinion, based on a reasonable scientific probability, whether this pin hole or the air hole were in the casing at the time of manufacturing?
“A That would be awful hard for me to determine by looking at the tire.”
Although the witness was unable to determine from looking at the tire whether the casing contained an air pocket or hole at the time it was recapped, he nevertheless testified that such a condition was the probable cause of the blowout. This evidence, together with plaintiff’s testimony that the tire had not been subjected to any unusual use or impact after he purchased it, would permit the jury to infer that when the casing was recapped it contained either an air pocket, a hole, or a weak spot which permitted a hole and then an air pocket to form during normal use. It could further properly find that if any of these three conditions existed, it constituted a defect which made the tire unreasonably dangerous.
It is not necessary in this case to explore the outer limits of the meaning of “defective.” I would not permit the jury, in a case like this one, to find that the tire was defective simply because plaintiff suffered a blowout during the expected life of the tire. Tires wear out at different rates depending on their initial quality, their maintenance, and the uses made by the consumer. They are exposed during use to many hazards which may contribute to premature fail*292ure, and biowonts may occur in the total absence of •manufacturing flaws. Plaintiff’s evidence in this case, however, tended to exclude other causes and to indicate the probability of a flaw at the time of sale as the cause of the blowout. For an analysis of the various kinds of evidence which may, in combination, be sufficient evidence of a defect, see Rheingold, Proof of Defect in Product Liability Cases, 38 Tenn L Rev 325 (1971).
Cases from other jurisdictions involving tire blowouts show similar results. Where the only evidence tending to show the cause of the failure was that the tire blew out, the jury will not be permitted to find that the tire was defective at the time of sale. ..See, e.g., Shramek v. General Motors Corp., Chevrolet M. Div., 69 Ill App 2d 72, 216 NE2d 244 (1966); Williams v. U. S. Royal Tires, 101 S2d 488 (La App 1958); Wojciuk v. United States Rubber Co., 19 Wis2d 224, 120 NW2d 47, 6 ALR3d 1357 (1963). But where, in addition to the unexpected blowout, there is some evidence tending to show the probability that it was caused by a defect in manufacture, it has been held that there was a question for the jury. See, e.g., Smith v. Uniroyal, Inc., 420 F2d 438 (7th Cir 1970); Craig v. Burch, 228 S2d 723 (La App 1969).
When a manufacturer or merchant sells a recapped tire containing á flaw which results in a blowout, during normal use-and well within the limits of the tire’s expected life as indicated by the remaining tread, I would hold that the tire is “defective” and that the cost of the resulting injuries should properly be borne by the enterprise. Having concluded that the evidence in this case was sufficient to permit the jury to make such a finding, I agrée that the jxidgment must be reversed and the case remanded for a new trial.