(dissenting) — The majority concludes the trial court did not err in requiring the plaintiff to prove the existence of an alternative design, because the plaintiff assumed this burden by limiting his allegations to the existence of alternative designs. I cannot agree with this conclusion and dissent.
As the majority correctly notes, the determination of *719whether a design is defective is defined relative to consumer expectations. As we stated in Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 154, 542 P.2d 774 (1975),
In determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case. In other instances the nature of the product or the nature of the claimed defect may make other factors relevant to the issue.
(Italics mine.)
It is clear, under Tabert, at page 154, that although the "cost and feasibility of eliminating or minimizing the risk" through alternative design is a factor to be considered, there are also other factors which may determine whether a product is "unsafe to an extent beyond that which would be reasonably contemplated by the ordinary consumer". It is easy to imagine a product whose design is so unsafe that its manufacturer would be held liable even without a showing, required under instruction 12, "that there was ... a feasible and practical alternate design which, more likely than not, would have prevented the accident which resulted in plaintiffs injuries". Clerk's Papers, at 20.
The majority concludes, however, that it was not error to require plaintiff to prove the existence of an alternative design beyond the balance of probabilities, as the plaintiff assumed this burden by expressly limiting his allegations to the existence of alternative designs. The. majority assumes the plaintiff chose not to rely on any of the other factors discussed in Tabert. The record simply does not support this conclusion.
The jury was instructed:
In determining the reasonable expectations of persons who will be using or working near the equipment, you may consider the following factors:
(a) The gravity of the potential harm from the claimed defect;
(b) The purpose and function of the equipment *720involved;
(c) The circumstances and conditions under which the equipment will normally be used;
(d) The number and experience of persons who will be using or working near the equipment when it is in operation;
(e) The manner in which plaintiff's injury occurred; and
(f) Any other factor or factors you believe reasonably bear on this issue.
Instruction 13, Clerk's Papers, at 21. These factors obviously relate to the nature of the product and the claimed defect, as allowed under Tabert, quoted above. The jury could easily have concluded that any of these factors, singly or in combination, made the tower and yarder unsafe beyond reasonable consumer expectations.
The majority bases its conclusion that the plaintiff expressly limited his allegations to the existence of alternative designs almost exclusively on instruction 11 which states:
Plaintiff claims that the products, a T-90 tower and Bu 80 yarder, designed and manufactured by defendants, were not reasonably safe and therefore defective in one or more of the following respects:
a. Design and manufacture of T-90 tower because of the failure to include stops at the top of the tower to prevent logging beyond a square lead;
b. Design and manufacture of the Bu-80 yarder because of:
1. Failure to provide a counter on the drum to warn the operator when the log approached the landing area or
2. Failure to relocate the cab or ladder to a safer place or
3. Failure to allow the cab to swivel so as to allow the operator to better view incoming logs.
Plaintiff claims that one or more of these acts was the proximate cause of the injuries and damages to plaintiff. Defendants deny these claims.
Clerk's Papers, at 19.
Citing this instruction, the majority at page 716 con-*721eludes "[alternative design was therefore the only basis upon which plaintiff based his claim that the product was unreasonably dangerous". Yet, instruction 11 clearly relates to the nature of the claimed design defect discussed under Tabert, and not to the feasibility of eliminating or minimizing the potential risk. Under instruction 13, Tabert factors other than feasibility of alternative design — for instance, the gravity of the potential harm from the claimed defect and the relative cost of the product — were to be considered by the jury.
Additionally, a review of the record indicates that factors other than feasibility of design alternatives were relied upon by the plaintiff. David MacCollum, a consulting safety engineer, testified concerning the gravity of potential harm which could result from the defective design of the yarder and tower as follows:
My opinion that it's far from safe and that there are many hazards that — and the risks are very great, when you analyze the material that you presented me in the systems approach.
If the line is tight, you know, the main line and the haul line is tight, the chokers are long in length and they swing as a pendulum.
So in that set of circumstances, the logs then can easily come into the cab, which is now in a danger zone.
Then we say: Or, we slack off the haulback, and that causes this, then, to drop and act as a pendulum also. Or, we slack off on the main line, and that causes this, then, to pendulum effect. Or, you slack off on the throttle. And all of these "or's" then get you into a situation of where the hazard is then armed, it's then active; it swings as a pendulum into the cab.
And so that's a very gross hazard, and the likelihood of it becomes very high, because there's all of these, or this, or this, or this can happen to propel the log on the end of the pendulum into the cab.
The next point here is, when you have to have your controls in front of you and you have to watch yourself, or contort yourself to watch what you're doing, then you *722have a slower reaction time. You are next into the position of not being — having to contort yourself, so you are not in an easy position. And you have reduced the period of time, because the distance is short on that brow.
And I'd say certainly there is a lot of machine distraction, because the machine is noisy. And that's why you can't talk to the person from the ground. You have to climb that ladder to give any instructions.
So the noisy machine and the access in the danger zone brings the injured into that danger zone.
3 Report of Proceedings, at 29-35.
Dieter Jahns, an engineering psychologist, testified as follows regarding the safety of operating the tower and yar-der in a diamond lead:
I think operating the equipment from that lead puts too great a demand on the operator to operate it, to haul the logs safely and efficiently with respect to the total work relationship.
5 Report of Proceedings, at 18.
At page 19, Jahns went on to relate this analogy:
Based upon not only my search but research in the general literature, the human is notoriously bad at estimating distances beyond 20 feet and also very bad at estimating speed. Operating this gear would be similar to driving your car from here [Seattle] to Vancouver without a speedometer or odometer with all the road signs gone. You'd have very little information, knowing where you were and how fast you were getting there, and you'd probably have a bunch of tickets in the process.
See also testimony of Marvin Flickner, 1 Report of Proceedings, at 30-31, 75.
The plaintiff himself testified as follows, at page 89, concerning using the equipment to log in a diamond lead:
The whole logging operation, as you can realize, is dangerous because of the horsepower and the weight and the speed, and the organization has got to be precise to do things speedily and safely.
Barry Connor went on to testify, at page 138, that he considered operating the equipment in a V-lead "very, very, very" dangerous, because "[t]he operators become so *723crazed, if they keep continually doing something for so long".
Arthur Mendel, manager of marketing services for the defendant manufacturing company, testified that the equipment was sold to the logging company using it at the time of the accident for approximately $125,000 in 1973. 4 Report of Proceedings, at 10.
After reviewing the above evidence presented to the jury, I am unconvinced by the majority's statement, at page 716, that the evidence produced by the plaintiff "focuses almost exclusively upon defendants' failure to adopt the design modifications set forth in instruction 11". If the jury had not been incorrectly instructed as to the plaintiff's burden of proving the availability of an alternative, safer design, it could have found for the plaintiff on the evidence presented to it relating to other factors.
We should not characterize this error as harmless. As Judge Ringold noted in his dissenting opinion in Connor v. Skagit Corp., 30 Wn. App. 725, 740, 638 P.2d 115 (1981),
[w]e have no way of divining the specific reasons underlying the jury's verdict for the defendant. If the jury concluded that Connor met the burden of proof except for his failure to prove the existence of a design alternative as required by the erroneous instruction, then the error was prejudicial.
I am also troubled by the majority's characterization of the trial court's misstatement of the law relating to assumption of risk as "harmless" error. Majority, at 718. The jury was instructed that the defendant had the burden of proving
that the plaintiff unreasonably knowingly and voluntarily placed himself in a position where the risk of being struck by a log or part of the leadline or rigging was reasonably foreseeable by an ordinary prudent person experienced in the logging industry.
Instruction 14, Clerk's Papers, at 22. The jury was not instructed, however, that assumption of risk operates as a damage-reducing factor rather than a complete bar to a *724plaintiff in a strict liability cause of action. South v. A.B. Chance Co., 96 Wn.2d 439, 635 P.2d 728 (1981). Consequently, the jury could easily have thought, under instruction 14, that plaintiff's assumption of risk meant no liability on the part of the defendant. As the trial ultimately resulted in a defense verdict, we certainly cannot conclude the error was harmless.
I would reverse and remand for a new trial.
Utter, J., concurs with Dore, J.
Reconsideration denied August 24, 1983.