dissenting.
I respectfully dissent because I believe the case sub judice is controlled by Abee v. Stone Mountain Mem. Assn., 252 Ga. 465 (314 SE2d 444), wherein the Georgia Supreme Court affirmed the Court of Appeals’ holding in Abee v. Stone Mountain Mem. Assn., 169 Ga. App. 167 (312 SE2d 142), that assumption of the risk does not — as a *837matter of law — bar an action against an alleged manufacturer based on strict liability under OCGA § 51-1-11 (b). Id. at 168 (1), 170 (2).
In Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, supra, an eleven-year-old child flipped over, fractured his jaw, lost one front tooth, and broke his other front tooth while riding a water slide that was erected by a contractor at Stone Mountain Park. On certiorari, the Georgia Supreme Court affirmed the Court of Appeals’ judgment in Abee v. Stone Mountain Mem. Assn., 169 Ga. App. 167, supra, wherein this Court had affirmed the trial court’s grant of “summary judgment to Stone Mountain Memorial Association and Smith Construction Company for negligence in the operation, maintenance, construction or supervision of the slide or design of the water pump because the facts show plaintiff assumed the risk; [but at the same time reversed the grant of] summary judgment [as to] Smith Construction on the strict liability count on the basis that Smith was not a manufacturer. . . ” Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, supra. While neither the Supreme Court nor the Court of Appeals explains in Abee why the doctrine of assumption of the risk barred the plaintiff’s negligence claims while not barring the plaintiff’s strict liability claim under OCGA § 51-1-11 (b), such a rule is consistent with the Georgia Supreme Court’s holding in Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671), where the primary focus of a manufacturer’s liability under OCGA § 51-1-11 (b) was not the conduct of the parties but the characteristic of the product as measured by a risk-utility analysis. Indeed, the Supreme Court expressly states in Banks that a user’s knowledge of a prodüct and ability to avoid dangers associated with use of the product are merely factors the trier of fact may consider — under a risk-utility analysis — in determining whether the manufacturer breached its duty under OCGA § 51-1-11 (b) and thus whether any such defect was a proximate cause of resulting injuries. Id. at 733 (1), 736, n. 6. This perspective tells me that Banks not only establishes the risk analysis test as an appropriate vehicle for determining whether a product’s design is defective, but also fairly implements “Georgia’s public policy of shifting to manufacturers the burden of loss caused bjr defective products. . . .” Alexander v. Gen. Motors Corp., 267 Ga. 339, 340 (478 SE2d 123). I therefore cannot join in the majority’s attempt to diminish these goals in the case sub judice by holding that Stephen Sharpnack’s alleged assumption of the risk completely severs Hoffinger’s liability under OCGA § 51-1-11 (b). I would instead adopt an approach taken by other jurisdictions whereby the trier of fact is allowed to consider the relative responsibility of the parties in apportioning the loss and damage resulting from the injury. See Milwaukee Elec. Tool Corp. v. Superior Court &c., 19 Cal. Rptr. 2d 24, 36-37 (1993); Suter v. San Angelo Foundry &c. Co., 406 A2d 140, 145-149 *838(1979), superseded by statute on other grounds as stated in Dewey v. R. J. Reynolds Tobacco Co., 577 A2d 1239, 1251-1253 (1990). I believe that holding otherwise — and effectively allowing a manufacturer to escape liability under OCGA § 51-1-11 (b) by pointing the finger at the consumer — would undermine the policy behind Georgia’s strict liability statute and would erode the manufacturer’s incentive to achieve safety in design and production, sanctioning the marketing of dangerous products. See American Law of Products Liability, § 41:23. Accordingly, I would reverse the trial court’s order granting summary judgment with regard to plaintiffs’ strict tort liability claim under OCGA § 51-1-11 (b). I believe that genuine issues of material fact remain as to Hoffinger’s liability for placing a defectively designed pool on the market as well as the extent Stephen Sharpnack’s alleged assumption of the risk diminished Hoffinger’s liability.
Decided December 5, 1996 Mozley, Finlayson & Loggins, Robert M. Finlayson II, Richard D. Hall, for appellants. Finley & Buckley, Timothy J. Buckley III, for appellee.