(concurring).
While I concur with the opinion, I would extend the concept of strict liability to cover “economic loss” rather than use the warranty theory advanced by the majority.
The history of products liability law does not justify a distinction between personal injury and property damage. The primary purpose of the strict liability rule is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the consumers who are powerless to protect themselves.
Those in favor of the dichotomy between “economic loss” and other types of damage argue that an abolition of the distinction would result in manufacturers being liable for damages of unknown and unlimited scope.1 This concept is embraced by the majority, which notes that the manufacturer who may now minimize liability by relying on certain provisions in the Uniform Commercial Code, would be unable to do so if the doctrine of strict liability were applied. In essence, this position intimates that manufacturers’ rights under the Uniform Commercial Code should be maintained in order to assure the predictability of their potential liability.
I agree with Justice Peters of the California Supreme Court, who in his separate opinion in Seely v. White Motor Co.,2 noted that the concerns expressed by the majority in this case would for all intents and purposes be eliminated if the notion of “defective” in the strict liability doctrine is viewed as co-extensive with the concept of “unmerchantability” in the implied warranty field. The term has been well defined by case law and has a fixed meaning so far as the Uniform Commercial Code is concerned.
If the doctrine of strict liability were adopted for cases such as the present one, the ordinary consumer, whose bargaining power is seldom equal to the manufacturers’, would have the opportunity to bring an action against the original wrongdoer, instead o'f the local retailer who served as little more than a conduit for the defective product. The costs of such an action would properly be borne by the manufacturer. This procedure recognizes the average consumer’s lack of sophistication with respect to the complex world of commerce and the Uniform Commercial Code.
. In truth, XJraetical limitations such as the cost of hiring an attorney would be a deterrent to most suits. Hence, only cases similar to the instant one where a substantial loss is involved would result in litigation.
. 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145, 152-158 (1965).