dissenting.
On petition for rehearing, I now respectfully dissent.
While I agree with the adoption by this court of the doctrine of strict liability, set forth in Restatement (Second) of Torts, 402A, and with the concept that a product may be defective and unreasonably dangerous to the user where there is a failure to adequately warn as to its proper maintenance and use, I disagree with the court’s extension of the doctrine of strict liability to allow recovery for damages resulting to the property *67which is the subject of sale and proves to be defective and unreasonably dangerous. I consider this to be an unnecessary enlargement of the strict liability doctrine in duplication of available appropriate remedies.
In my view, Santor v. Karagheusian, 44 N.J. 52, 207 A.2d 305, 16 A.L.R.3d 670, which was essentially a breach of warranty case, sets forth no compelling reason to extend the application of strict liability to the property which is the subject of the sale. The following cases, which I consider more persuasive, take the opposite view: Seely v. White Motor Co., 63 Cal. 2d 9, 403 P.2d 145, 45 Cal. Rptr. 17; Brewer v. Reliable Automotive Co., 240 Cal. App. 2d 173, 49 Cal. Rptr. 498; TWA v. Curtiss-Wright Corp., 1 Misc. 2d 477, 148 N.Y.S.2d 284, aff'd 2 App. Div. 2d 666, 153 N.Y.S.2d 546 See also R. Hursh & H. Bailey, American Law of Products Liability (2d ed. 1974) § 4:21; 63 Am. Jur. 2d Products Liability § 140.
While the strict liability theory may legitimately be used to allow recovery for injuries to persons and property (other than property covered by warranty), I feel that to apply the rationale of section 402A to the product itself would unduly confuse an already uncertain area of the law involving tort and contract theories of recovery.
Remedies in the instant situation are better left to the UCC warranty provisions, specifically section 4-2-318, C.R.S. 1973, which extends warranties to “any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured by breach of the warranty.” The privity obstacle that was formerly a problem in warranty cases appears to be effectively eliminated by this provision, and should not in and of itself prevent recovery in this case on remand for a new trial.
I would, therefore, affirm the ruling of the district court, denying recovery on the theory of strict liability, and would reverse and remand for a new trial on the warranty issues.
I am.authorized to say that MR. JUSTICE KELLEY and MR. JUSTICE ERICKSON join in this dissent.