(concurring specialty)-
On the dashboard of plaintiff’s 1977 automatic transmission Ford pickup is a panel indicator which tells the driver what gear he or she has shifted into. To put the pickup in park, the driver must move the shift lever far enough over to the left so that the indicator is on P. If the indicator is left between P[ark] and R[everse], the shift lever will rest on a “land,” a flat surface between the P slot and the R slot on the rooster comb plate. If this happens, any vibration (such as jumping on the rear bumper of the pickup as plaintiff did here) may cause the shift lever to slide into reverse. The problem is that if the shift lever is not moved far enough to the left, but only to the “land” between P and R, the driver has the “feeling” that the pickup is in the park position when it actually is not. The parties refer to this phenomena as an illusory park. Unless the driver checks to see that the panel indicator is in the proper position or at least engages the parking handbrake, there is the danger of the vehicle slipping into reverse and, if the engine is running (as it was here), of the pickup moving backwards.
Ford’s transmission control system was common to the industry and accepted industry practice. Clearly, this system permitted a dangerous situation to develop under certain circumstances. In an effort to show this condition was not only dangerous but unreasonably dangerous under Bilotta, plaintiff put in evidence that Ford could have sharpened the tooth between park and reverse and deepened the park latch. Plaintiff’s expert, Michael Inden, testified that this technology was feasible in the 1970’s when Ford’s 1977 pickup was manufactured, and that this design change would substantially reduce the occurrence of a phantom park. Ford conceded this design change was feasible for its 1977 models. Ford made this concession in an unsuccessful attempt to keep out the fact that in 1980 it had made this very design change. While conceding the feasibility of this design change, Ford’s experts contended that there was no reliable evidence that the 1980 modifications had cured the problem. (Ironically, plaintiff’s other expert, William Barr, did not think the 1980 design changes would help correct the problem either.) On this state of the record, such as it was, plaintiff had a prima facie case of strict liability for the jury.
My only reason for writing is to comment on further evidence offered by plaintiff on alternative design. In 1979, in a different trial, plaintiff’s expert, William Barr, had testified that Ford’s system was not unreasonably dangerous. In this case, however, Barr testified that he had now invented a device, as yet untested, never yet installed in any vehicle, containing some “bugs,” but which he thought with “a good deal of work” might fix the problem. The majority opinion says this testimony of alternative design was “weak.” In my view, Barr did not show his- device was practical, and his testimony would not have withstood a motion to strike if one had been made. (Ford’s expert, it might be added, thought Barr’s device could not be *101made to work satisfactorily; that even if it could, it would not significantly reduce the problem; and that the device might make shifting more difficult.)
Conscious design defects present difficult problems of proof for both plaintiffs and manufacturers. There is much room for second guessing, and courts are being asked to establish standards of reasonableness for manufacturers (whether it be Ford or a fledgling family operation). Establishing standards entails a weighing of engineering, marketing, and financing factors, which, at times, may be a difficult task for courts to perform. See Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Colum.L.Rev. 1531 (1973). On the other hand, the establishment of standards cannot always be avoided by passing the problem off to the jury under a general reasonable care instruction.
In any event, the limited issue before us is whether the trial court erred in refusing to give defendant’s requested instruction that plaintiff was required to prove the existence of a feasible, practical alternative design. I agree with the majority opinion that the trial court’s instructions on burden of proof were adequate and that it was unnecessary to give the requested instruction which would have unduly singled out one aspect of the proof. I also agree with the court’s disposition of the other issues.
Sometimes where proof is lacking for a conscious design defect, plaintiff may still be able to show breach of a duty to warn. Henderson, supra, at 1562-63. Here, plaintiff knew his pickup might move if the shift lever was not completely in the park position, and there was no need to warn on this elementary, obvious fact. But what plaintiff did not know was that the shift lever would feel like it was in park when it was not. The jury could have found there should have been a warning placed in the owner’s manual about this illusory effect.