I concur in the result.
Plaintiff sued defendant, the manufacturer of plaintiff’s automobile, for injuries sustained by plaintiff in an automobile collision with a third party. Plaintiff appeals from a judgment for defendant.
A. Position of the Parties on Strict Tort Liability
Plaintiff claimed that the collision occurred because of a defect in the seat assembly of the automobile, which defect caused him to lose control of the car. The defendant denied this claim but it also asserted an affirmative defense of conventional contributory negligence in the operation of the car. The position of the parties on the facts and the law applicable thereto is set forth in the instructions to the jury, infra.
Plaintiff submitted his claim to the jury on a theory of strict products liability as set forth in Restatement, Torts 2d § 402A (1965) at 347-48.
The critical issue is whether conventional contributory negligence in the operation of a motor vehicle is an affirmative defense to the manufacturer of the motor vehicle. It is not available as an affirmative defense.
This issue is a matter of first impression in New Mexico. All there is to date is the following comment in Garrett v. Nissen Corporation, 84 N.M. 16, 21, 498 P.2d 1359, 1364 (1972):
We need not in the present case contribute to the confusion as to whether the defenses of contributory negligence and assumption of risk are available to a defendant under “strict tort liability^' * *
It is only three years since New Mexico adopted the theory of a manufacturer’s liability under Section 402A. Stang v. Hertz Corporation, 83 N.M. 730, 497 P.2d 732 (1972). Until this Court’s recent opinion in First National Bank in Albuquerque v. Nor-Am Agricultural Products, Inc., (N.M. Ct.App.) 537 P.2d 682, decided April 30, 1975, there was little in the law to indicate how far that liability extends. See Stang v. Hertz Corporation, supra; Standhardt v. Flintkote Company, 84 N.M. 796, 508 P.2d 1283 (1973); Garrett v. Nissen Corporation, 84 N.M. 16, 498 P.2d 1359 (1972); Sutton v. Chevron Oil Company, 85 N.M. 604, 514 P.2d 1301 (Ct.App.1973) aff’d, 85 N.M. 679, 515 P.2d 1283 (1973). In First National Bank v. Nor-Am, supra, this Court, in an unanimous opinion, explained the parameters of Section 402A liability in New Mexico, and outlined the policy reasons behind its adoption.
There has been, as yet, no statement in our law to indicate the defenses that are available to a manufacturer defending against a Section 402A liability cause of action.
(1) Plaintiffs claim The court instructed the jury on plaintiff’s claim as follows:
The plaintiff claims that he sustained damages and that the proximate cause thereof was one or more of the following acts:
That in designing, constructing and assembling the 1964 Volkswagen, it was so designed, constructed and assembled, that the front seat when used by the driver in the usual type of traffic, would move and on occasions become separated, interfering with the safe operation of the vehicle; that on the 17th day of February, 1969, the plaintiff was driving a 1964 Volkswagen in a northerly direction on San Mateo, N.E. and as he was driving across 1-40 traffic conditions made it necessary for him to apply the brakes as would be expected under the then existing conditions and as he did so, the seat began to move causing plaintiff to lose control of his car and collide with another car which resulted in injuries * * *. (Emphasis added)
Plaintiff’s claim is that the proximate cause of the collision was the defect which caused him to lose control of his car. He does not claim that the defect was the proximate cause of his injuries. This claim is known as the “second collision” theory in which the defect caused the body of the passenger to collide with the interi- or part of the automobile. Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir. 1968) ; Arbet v. Gussarson, 225 N.W. 2d 431 (Wis.1975); Nanda v. Ford Motor Co., 509 F.2d 213 (7th Cir. 1974).
(2) Defendant’s defense
After stating the plaintiff’s claim, the court instructed the jury on defendant’s defense as follows:
The defendant denies all the plaintiff’s claims and in particular, that any defect existed in the Volkswagen at the time of its manufacture and further that it is incumbent upon the plaintiff to properly use the product.
Up to this point, the defendant denied that the proximate cause of the collision was the defect which caused plaintiff to lose control of his car. This is a good defense.
However, the trial court further instructed the jury:
In addition, the defendant asserts the following affirmative defense: That plaintiff was contributorily negligent in that:
(1) Plaintiff failed to keep a proper lookout for traffic signals and approaching vehicles.
^2) * * * [P]laintiff failed to yield the right of way at the intersection to the Mustang driven by Mr. Torres.
^3) * * * [P]laintiff failed to stop in obedience to the traffic signals which were operating at the intersection.
(4) * * * [P]laintiff failed to keep his car under proper control as he approached the intersection when he knew there were traffic signals in operation. (Emphasis added)
(3) Conclusion of instruction
The instruction concludes as follows:
The defendant has the burden of proving the affirmative defense.
If you find that plaintiff has proved those claims required of him and that defendant’s affirmative defense has not been proved, then your verdict should be for the plaintiff.
If on the other hand, you find that any one of the claims required to be proved by plaintiff has not been proved or that defendant’s affirmative defense has been proved, then your verdict should be for the defendant. (Emphasis added)
This affirmative defense is conventional contributory negligence.
B. The Error of This Instruction was Preserved for Review
Defendant contends that plaintiff did not object to that portion of the instruction relating to the affirmative defense and there- , fore “the law of the case is that contributory negligence is a proper defense.” Plaintiff did, however, properly object to nine other instructions applicable to the defense of conventional contributory negligence. The instructions objected to included two instructions on “proper lookout”, one which included “proper control”, and the violation of a traffic statute on traffic signals. These objections covered the affirmative defense.
The plaintiff also tendered a proper instruction on contributory negligence in the form of assumption of risk which the trial court refused.
By his objections, plaintiff alerted the trial court to the error involved. The objections stated on the above instruction included:
* * * Negligence is not an issue in a strict liability case, and the only time that negligence can be considered in a strict liability case is when it involves assumption or [sic] risk on the part of a plaintiff. That assumption of risk consisting of assuming the risk of the defect of the product. In other words, assumption of risk in a secondary sense as the term is ordinarily used.
******
* * * Plaintiff has requested an instruction correctly stating the law of contributory negligence in a products liability case, and in particular, an instruction in accord with Comment “N” Section 402-A of Restatement of Torts.
We recognize that “For preservation of any error in the charge, objection must be made, to any instruction given, whether in U.J.I. or not; * * * ” § 21-1-1(51) (1) (i), N.M.S.A.1953 (Repl. Vol. 4). Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971). The purpose of this rule was stated long ago in State v. Compton, 57 N.M. 227, 236, 257 P.2d 915, 921 (1953):
* * * [WJhere the court has instructed erroneously on the subject, although a correct instruction has been tendered on the point, if it leaves it doubtful whether the trial judge’s mind was actually alerted thereby to the defect sought to be corrected by the requested instruction, the error is not preserved unless, in addition, the specific vice in the instruction given is pointed out to the trial court by proper objection thereto.
This language was followed in Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028 (1960); Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337 (1960); State v. Henderson, 81 N.M. 270, 466 P.2d 116 (Ct.App. 1970).
We have no doubt that the trial judge’s mind was alerted to the defect in the instruction which the plaintiff wanted to correct. By the submission of a proper instruction the plaintiff alerted the trial court to the defect. State v. Montano, 83 N.M. 523, 494 P.2d 185 (Ct.App.1972). The continuous objections to instructions on the defense, conventional contributory negligence of the plaintiff also alerted the mind of the court.
A manifest injustice occurred. The jury could have found for defendant solely on the ground that plaintiff failed to keep a proper lookout, regardless of the defect in the automobile. The defect in the automobile was the controlling issue in plaintiff’s case. To prevent a manifest injustice, we may take note of the error in the instruction. Sayles v. Lilak & Moore, Inc., 32 Mich.App. 721, 189 N.W.2d 118 (1971). “This is the most important single instruction in the lawsuit, and court and counsel should give particular attention to it.” U. J.I. 3.1, Directions for Use.
The court’s instruction on conventional contributory negligence is preserved for review.
C. The majority opinion does grievous error in analysis of lazo.
The majority opinion states :
Defendant herein alleged plaintiff’s negligence not as an affirmative defense but rather as a denial of causation. Thus, our question on appeal is whether the trial court’s styling of defendant’s denial of causation as an affirmative defense was error. [Emphasis added]
First, defendant asserted plaintiff’s negligence as an affirmative defense; that “defendant has the burden of proving the affirmative defense”; that if the “defendant’s affirmative defense has been proved, then your verdict should be for the defendant.”
Second, the majority opinion explicitly refrains from deciding one of defendant’s theories of the case, to wit: That plaintiff misused the automobile by driving negligently and that this negligent driving is a form of contributory negligence which bars plaintiffs recovery.
The validity of the italicized theory presents the determinative question on this appeal.
The erroneous assumption of the majority is that the evidence introduced’ at trial as to plaintiff’s negligent driving is relevant only to a denial of proximate cause by defendant’s defective vehicle, but not to the affirmative defense of contributory negligence. Defendant’s evidence of plaintiff’s negligent driving was introduced, not only as a denial of causation, but that evidence was relevant also to defendant’s theory of contributory negligence in the form of misuse of the defendant’s product. Plaintiff’s negligent driving does not constitute a misuse of the defendant’s product. Negligent driving is not an available form of contributory negligence in a products liability action against an auto manufacturer. See, infra.
D. Jury instructions on conventional contributory negligence as a defense under strict tort liability are preju-dicially erroneous.
Liability pursuant to Section 402A was adopted in New Mexico. Stang v. Hertz Corporation, stipra. The defense of contributory negligence is stated in Section 402A, Comment n, at page 356:
n. Contributory Negligence. Since the liability with which this section deals is not based upon the negligence of the seller, but is strict liability, the rule applied to strict liability cases (See Section 524) applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence, On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery. [Emphasis added].
Availability of this defense does not conflict with New Mexico’s abandonment of assumption of risk as a defense apart from contributory negligence. See Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971).
The court instructed the jury that four factual grounds existed as a defense of contributory negligence. Those grounds do not state that plaintiff voluntarily and unreasonably proceeded to encounter a known danger. Conventional contributory negligence is not a defense when the doctrine of strict liability applies. On the other hand, contributory negligence in the form of assumption of risk is available as a defense. This defense asserts that the plaintiff assumed the risk of his injuries or damages by voluntarily and unreasonably proceeding to encounter a known danger. Restatement, Comment n, supra. Cases throughout the country have followed Comment n in removing conventional contributory negligence as a defense. Messick v. General Motors Corporation, 460 F.2d 485 (5th Cir. 1972); DeFelice v. Ford Motor Company, 28 Conn.Sup. 164, 255 A.2d 636 (1969); Williams v. Ford Motor Company, 454 S.W.2d 611 (Mo.App.1970); Devaney v. Sarno, 125 N.J.Super. 414, 311 A.2d 208 (A.D.1973); Ford Motor Company v. Henderson, 500 S.W.2d 709 (Tex. Civ.App.1973); Hartzell Propeller Company v. Alexander, 485 S.W.2d 943 (Tex. Civ.App. 1972). Annot., Products Liability: Contributory Negligence or Assumption of Risk as Defense Under Defense of Strict Liability in Tort, 46 A.L.R.3d 240 (1972); Annot., Products Liability: Strict Liability in Tort, 13 A.L.R.3d 1057 (1967).
These courts have uniformly held that if the user or consumer discovers the defect and is aware of the dangers and nonetheless proceeds unreasonably to use the product, he is barred from recovery.
Defendant’s affirmative defense avoids the defect as the proximate cause of the collision. It does not claim that conventional negligence in the operation of the vehicle caused plaintiff to lose control of his vehicle. It claims that, in the absence of the defective seat assembly, the proximate cause of the collision was the negligence of the plaintiff in the operation of his vehicle. This defense would be proper if it claimed that the defect did not cause plaintiff to lose control of his vehicle; that the defect was not the proximate cause of the collision; that the sole proximate cause of the collision was the negligent operation of the vehicle upon the four factual bases set forth in the instructions.
If we adopted defendant’s contention, the jury could believe that the defective seat assembly which caused plaintiff to lose control of his vehicle was a proximate cause of the collision and yet deny plaintiff recovery because he failed to keep a proper lookout. This would destroy the doctrine of special products liability under Section 402A.
For a form of instruction on Assumption of Risk-Products Liability adopted in California, see B.A.J.I. 9.02, 1975 Supplemental Service Pamphlet No. 1.
The trial court’s instructions to the jury on conventional contributory negligence were prejudicially erroneous.
E. In the public interest, we set forth the guidelines on defenses to special products liability cases.
As a guide to quell the confusion which exists, the following breakdown of contributory negligence into four types explains what defenses are available, and what defense is not available.
(1) Contributory negligence in the form of assumption of risk is available as a defense as stated supra.
(2) Plaintiffs misuse of the product in a manner that could not have been reasonably foreseen by the manufacturer is available as a defense. Plaintiff’s misuse, rather than a product defect, becomes the proximate cause of plaintiff’s injuries or damages. Thus, defendant can assert plaintiff’s misuse to disprove causation. Strictly speaking, this is part of the denial of plaintiff’s case, rather than an affirmative defense. Brown v. General Motors Corp., 355 F.2d 814 (4th Cir. 1966); Swain v. Boeing Airplane Co., 337 F.2d 940 (2nd Cir.), cert. denied, 380 U.S. 951, 85 S.Ct. 1083, 13 L.Ed.2d 969 (1964); Greeno v. Clark Equipment Co., 237 F. Supp. 427 (D.Ind.1965); Erickson v. Sears, Roebuck & Co., 240 Cal.App.2d 793, 50 Cal.Rptr. 143 (Ct.App.2nd Dist. 1966).
Automobile accidents or collisions caused by negligent driving are reasonably foreseeable. Therefore, the defense of product misuse cannot be based on facts tending to prove negligent driving by plaintiff that resulted in a collision. Culpepper v. Volkswagen of America, Inc., 33 Cal.App.3d 510, 109 Cal.Rptr. 110 (Ct.App.4th Dist. 1973); Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972); Thompson v. Package Machinery Company, 22 Cal.App.3d 188, 99 Cal.Rptr. 281 (Ct.App.2nd Dist. 1971); Higgins v. Paul Hardeman, Inc., 457 S.W. 2d 943 (Ct.App.1970).
The great weight of authority throughout the country holds that product misuse by the plaintiff that was unforeseeable by the defendant-manufacturer constitutes contributory negligence in a Section 402A liability action. Foreseeable product misuse is not contributory negligence Whether a given misuse is foreseeable or unforeseeable is a question of fact for the jury in each case. General Motors Corporation v. Walden, 406 F.2d 606 (10th Cir. 1969); Olsen v. Royal Metals Corp., 392 F.2d 116 (5th Cir. 1968); Helene Curtis Indus., Inc. v. Pruitt, 385 F.2d 841 (5th Cir. 1967); Simpson Timber Co. v. Parks, 369 F.2d 324 (9th Cir. 1966), rev’d in plaintiff’s favor, 388 U.S. 459, 87 S.Ct. 2115, 18 L.Ed.2d 1319 (1967), plaintiff ultimately prevailing in 390 F.2d 353 (1968); Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir. 1962) ; Boyl v. California Chemical Co., 221 F.Supp. 669 (D.Or.1963); Culpepper v. Volkswagen of America, Inc., supra; Cronin v. I.B.E. Olson Corp., supra; Thompson v. Package Machinery Company, supra; Martinez v. Nichols Conveyor & Engineering Co., 243 Cal.App.2d 795, 52 Cal.Rptr. 842 (1966); Phillips v. Ogle Aluminum Furniture, Inc., 106 Cal.App.2d 650, 235 P.2d 857 (Cal.App. 1959); Dunham v. Vaughan & Bushnell Mfg. Co., 86 Ill.App.2d 315, 229 N.E.2d 684 (1967); Higgins v. Paul Hardeman, Inc., supra; Haberly v. Reardon Co., 319 S.W. 2d 859 (Mo. 1958); Speyer, Inc. v. Humble Oil & Refining Co., 275 F.Supp. 861 (W. D.Pa.1967); Ringstad v. I. Magnin & Co., 39 Wash.2d 923, 239 P.2d 848 (Wash. 1952).
(3) Plaintiff’s misuse of the product which causes the defect to be put into operation is available as a defense. Culpep-per, supra; Cronin, supra; Thompson, supra; Higgins, supra.
(4) A manufacturer may not rely on the most common form of contributory negligence — plaintiff’s negligent failure to discover the defective condition of defendant’s product, or to guard against the possibility of its existence. Jurisdictions throughout the country have removed this defense from the manufacturer’s arsenal when the plaintiff pleads a special liability* theory. Restatement, Torts 2d § 402A, Comment n, at 356; Messick v. General Motors Corporation, supra; Williams v. Ford Motor Company, supra; Devaney v. Sarno, supra; Ford Motor Company v. Henderson, supra; Hartzell Propeller Company v. Alexander, supra; Annot., Products Liability, supra; Annot., Products Liability: Strict Liability in Tort, supra.
Contributory negligence in the form commonly known as assumption of risk, and in the form of plaintiff’s misuse of the product which was the proximate cause of his injuries, are the only types of defenses that are available in a products liability action that is founded on Section 402A.