dissenting.
The specially concurring opinion of Mr. Justice McAllister states:
“* * * 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. * # *’ ”
I cannot agree with the concept that Section 402A of the Restatement (Second) of Torts is based upon “enterprise liability” which has come to mean the manufacturer’s ability to spread the risk and loss by adding the cost of the loss or the price of product liability insurance protection to the manufactured article’s sales price; that manufacturers with national and international sales organizations can thereby distribute this loss to all of the consumers of its product for the benefit of the few who suffer.
This may be a fine economic theory but it has no *296place in the law where the courts are seeking justice based on fault or innocence., It may justify the rule but it cannot be the reason for creating it.①
In fact, I have trouble accepting as a' fact that Section 402A- was- a “restatement” of the law as it existed in 1964, when adopted. At that time there were only two cases to support it, namely, Greenman v. Yuba Power Products, Inc., 59 Cal 2d 57, 27 Cal Rptr 697, 377 P2d 897 (1963), and Goldberg v. Kollsman Instrument Corp., 12 NY2d 432, 240 NYS2d 592, 191 NE2d 81 (1963). Writers-have reported that, the section was merely the idea of Professor William Prosser, Reporter for the Restatement. At the time of its adoption, numeroiis writers- criticized Section 402A as not being in accord with common law authority and on the further ground that it might subsequently be inconsistent with the Uniform Commercial Code. See 22 Stan L Rev 715 (1970).
This court has undoubtedly, like most other courts, adopted Section 402A but we specifically rejected enterprise liability or the spreading the risk theory in Wights v. Staff Jennings, 241 Or 301, 405 P2d 624 (1965). To my knowledge, we have not embraced this concept in any opinion where we have found liability or denied liability on the basis of Section 402A.② As stated by Dean Prosser,
“The courts are going to be compelled to make up their minds as to what they are trying to do. Are they adopting a so-called socialistic theory, a *297compulsory insurance, risk distribution and so on? Or. are they going to adopt the theory that this thing is justified by the defendant’s conduct in putting the product on the market, and representing to the public that it is fit for use? Prosser, Products Liability in Perspective, 5 Gonzaga L. Rev. 157,170 (1970).”
At this point of time in the evolution of this new concept of liability, I am not willing to place the court in a position of adopting a law based on a socialistic theory. Regardless of which theory of law, negligence or implied warranty of merchantable quality, claims the progenitorship, a new remedy of strict products liability was created by our adopting Section 402A in order to give justice to those cases involving mass production and sale of defective products to consumers.
In adopting • Section 402A we created a new remedy of strict products liability, but we should not say that we have eliminated fault as a prerequisite to liability under this theory③ nor do we make the manufacturer-retailer an insurer subject to absolute liability.④
I dissent from the result reached by the majority. When the parties rested, the defendants moved “the court for an order directing a verdict for defendants upon the grounds that there is no substantial evidence that the defendants, or either of them, were negligent in any of the particulars charged in *298the complaint and upon the further ground that there is neither proof nor pleading that there was a defect in the tire at the time the tire left the hands of the defendant.” The majority opinion agrees that “[t]he testimony of plaintiff’s witnesses did not substantiate in any way any of the allegations of negligence in the complaint. As a result, plaintiff failed to sustain his negligence count,” but concludes that plaintiff’s second expert witness, Robert McCann, an experienced tire recapper, testified “that the small hole and resultant air pocket, which the witness said caused the blowout, came into existence subsequent to the retreading of the tire and its sale to plaintiff.”
The following is testimony of Mr. McCann:
“* * * 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 in 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.
“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.”
Defendant’s expert witness, Jarley • Pete, testified that the tire failure “appears to be a rupture from an impact that occurred” and, also, that the tire was not defective at the time of its manufacture.
*299Comment g to Section 402A of Restatement (Second) of Torts states:
* * The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.”
Witness McCann was unable to say that the tire was in a defective condition at the time it left the hands of the defendant seller. Witness Pete testified that the tire was not defective at the time of its manufacture. I do not believe the evidence submitted was sufficient to support an inference from which the jury might conclude that the tire was in a defective condition at the time it left the hands of the manufacturer or the defendant seller.
I would affirm the trial court.
For criticism of the theory of “spreading the risk,” see Plant, Strict Liability of Manufacturers for Injuries Caused by Defects in Products—An Opposing View, 24 Tenn L Rev 938; 945 (1957); Prosser on Torts 673, n 44 (3d ed 1964).
In Macomber v. Cox, 249 Or 61, 66, 435 P2d 462 (1968), we rejected “enterprise liability.”
See Cochran v. Brooke, 243 Or 89, 94, 409 P2d 904 (1966), and' concurring opinion by Chiei Justice O’Connell in State ex reí Western Seed v. Campbell, 250 Or 262, 282-84 (1968).
Cowan, Some Policy Bases of Product LioMlity, 17 Stan L Rev 1077, 1089-90 (1965).