dissenting.
I am more convinced now than ever that the court made a serious mistake in holding (1) that Sturm, Ruger was entitled to an instruction on comparative negligence and (2) that the jury’s award of punitive damages was excessive. On rehearing, I would modify our original holding and affirm the judgment of the superior court.
I
It is still my opinion that there was no evidence of negligence on the part of the plaintiff. As noted by Senior Justice Dimond in his original dissent, the evidence established “nothing more than that the gun slipped and Day grabbed it.” Sturm, Ruger & Co. v. Day, 594 P.2d 38, 49 (Alaska 1979) (Dimond, Sr. J., joined by Burke, J., dissenting). There is simply nothing in the record to suggest that Day’s conduct amounted to a failure to exercise ordinary care.
Even if Day was guilty of negligence, however, I would still deny Sturm, Ruger the benefit of a comparative negligence instruction. As evidenced by the fact that it awarded punitive damages to Day, the jury found, in accordance with the court’s instructions, “that [Sturm, Ruger] acted with reckless indifference toward the safety of its customers, or that its acts were maliciously or wantonly done.” Day, on the other hand, if negligent at all, was certainly guilty of nothing more than ordinary negligence. A rule that allows such a defendant the benefit of an instruction on comparative negligence is, in my opinion, both bad law and a sad commentary on our perception of the public policy of this state.1 Yet, that is exactly the rule that we have established by our holding in this case.
II
On the issue of punitive damages, I applaud the majority’s retreat from its original position that the amount of the award suggested that the jury’s verdict was the result of impermissible “passion or prejudice,” and its decision to allow an award of $500,000, on remand, rather than limiting the award to $250,000. I still believe, however, that the jury’s verdict was entirely justified given the purpose of punitive damages.2 Id. at 50 (Burke, J., dissenting).
Perhaps the most disturbing aspect of this case to me is the message that it holds *626for the manufacturing and marketing world: Concerned by “[t]he spectre of bankruptcy and excessive punishment,” Id. at 48, we will allow a manufacturer, motivated by considerations of profit, who acts with callous and calculated disregard for the lives and safety of its customers, to keep all but a small part of the profits directly attributable to its misconduct. Rather than give a windfall, i. e., non-compensatory damages, to an innocent purchaser seriously injured by the manufacturer’s failure to correct a known, dangerous defect, we will allow the windfall, instead, to go to the guilty party. We will lend our protection and assistance to that manufacturer, by enabling it to compete more effectively against its safety conscious competitors, i. e., those who have cut into their own profits, thereby making them less able to compete in the marketplace, by devoting money and effort to the research, design considerations and manufacturing techniques necessary to discover and avoid risk of harm to those purchasing and using their products. In other words, we will encourage, rather than discourage the wrongdoer, by giving the wrongdoer an economic advantage over those competitors who function in a responsible manner.
. Of the few courts which have addressed this question, most have held, or at least indicated in dicta, that the plaintiffs conduct can and should be compared with the defendant’s aggravated misconduct, and his recovery reduced accordingly. See, e. g., Anderson v. Eagle Motor Lines, Inc., 423 F.2d 81, 83 (5th Cir. 1970); Billingsley v. Westrac Co., 365 F.2d 619, 623 (8th Cir. 1966); Li v. Yellow Cab Co. of California, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, 1241 (1975); Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105, 113 (1962). At least two courts, however, have held that a plaintiffs ordinary negligence should not be compared to a defendant’s aggravated misconduct, to reduce the former’s recovery, although they differ as to the kind of aggravated misconduct that will bar comparison. In Ryan v. Foster & Marshall, Inc., 556 F.2d 460 (9th Cir. 1977), the Ninth Circuit Court of Appeals, applying Oregon law, upheld the district court’s determination that “the plaintiff’s comparative negligence could not be used to offset the defendant’s gross negligence.” Id. at 465. A New Jersey Superior Court, in Draney v. Bachman, 138 N.J.Super. 503, 351 A.2d 409 (1976), held that fault should be compared when the defendant has been grossly negligent but not when his conduct can be characterized as “wilful and wanton.” Id. at 414-15. The court stated: “It is to such conduct that punitive damages may attach, with aim of punishing the offender and precluding repetition of the act. Comparative negligence should not apply in such cases.” Id. at 415 (citations omitted).
. Although the majority alludes to those factors that we said should be considered in determining the amount to be awarded as punitive damages, Sturm, Ruger & Co. v. Day, 594 P.2d at 48 n.17, and purports to apply them, I think the majority, in reality, ignores those factors, choosing, instead, to simply substitute its own judgment for that of the jury.