specially concurring.
I agree with the result reached by the majority in this case. I also agree with most of the analysis contained in the majority opinion. I write separately, however, because my conclusions with respect to the propriety of the so-called “misuse” instruction differ somewhat from those adopted by the majority.
The genesis of the modern concept of strict liability for defective products is Restatement (Second) of Torts § 402A (1965), the tenets of which were expressly adopted by our supreme court in Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1976). As originally postulated, a consumer’s actions in using a product would normally not constitute a defense to a claim based upon a defect that rendered that product unreasonably dangerous. Restatement, supra, comment n at 356; Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978). There were, however, two exceptions to this general rule.
First, if the consumer used the product for a purpose or in a manner that was both unintended by the manufacturer and unforeseeable by it, the manufacturer would not be liable for any injuries resulting from that “misuse.” See Restatement, supra, comment h at 351; Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo.1986).
Second, if the consumer knew of the defect and proceeded unreasonably to use the product in a way in which the danger presented by the defect caused injuries, the consumer would be considered to have assumed the risk. See Restatement, supra, comment n at 356. Cf. Uptain v. Huntington Lab, Inc., supra (treating use in violation of written instructions to be “misuse,” rather than assumption of risk).
These underlying concepts as to the defenses available in a products liability case, however, have, in my opinion, undergone a fundamental change as a result of the General Assembly’s adoption of § 13-21-406, C.R.S. (1987 Repl.Vol. 6A). Under that statute, while a consumer’s culpable actions will not bar his or her recovery (assuming that such actions were not the sole cause of the injuries), the damages recoverable must be *111“diminished in proportion to the amount of causal fault attributed to the person suffering the harm.”
Under this statute, the term “fault” has been construed to include misuse, States v. R.D. Werner Co., 799 P.2d 427 (Colo.App.1990), as well as a “broad range of culpable behavior including, but not limited to, negligence.” Huffman v. Caterpillar Tractor Co., 908 F.2d 1470, 1477 (10th Cir.1990).
This being the case, it is no longer necessary, in my opinion, to decide whether a consumer’s actions would constitute “misuse” under the Restatement or prior jurisprudence such as Uptain, supra, or Armentrout v. FMC Corp., 842 P.2d 175 (Colo.1992). Indeed, a reasonable argument could be made that it is no longer necessary to give any special instruction on misuse. If either misuse or any other act of negligence by the consumer is the sole cause of his or her injuries and the alleged defect did not contribute to those injuries in any manner, a verdict for the defendant is appropriate. See States v. R.D. Werner Co., supra.
Here, the jury found that it was plaintiffs actions and not any product defect that caused his injuries. Hence, whether those actions constituted misuse as that concept has been previously developed or some other form of culpable misconduct is irrelevant.
For these reasons, I would not decide the question whether plaintiffs actions constituted misuse, and I would direct the trial court upon remand to consider whether any special instruction on this concept should be given.