I respectfully dissent. Justice Gene McClosky of the Second Appellate District wrote a most persuasive decision which I reprint and adopt as my own:
“Plaintiff’s sole contention on appeal is that the verdict for V.W. was invalid because it did not represent the verdict of nine jurors voting identically on the issues of manufacturing defect and causation.3
In Collin v. Connecticut Valley Arms, Inc. (1982) 137 Cal.App.3d 815 [187 Cal.Rptr. 306], (petn. for hg. den. Jan. 27, 1983) this court was presented with a similar set of facts and asked to resolve a similar issue.4 Collin, who was severely injured when a shotgun he was shooting exploded, brought a personal injury action for damages against Connecticut Valley Arms, Inc. (CVA), the manufacturer of the shotgun, and others. The case was submitted to the jury by way of a special verdict.
By a vote of 11 to 1, the jury found that there was no defect and thus found that CVA was not strictly liable. On the issues of CVA’s negligence and causation, 10 out of 12 jurors found that CVA was negligent, but 9 out of 12 jurors found that CVA’s negligence was not a proximate cause of Collin’s injuries. Only seven jurors, however, voted in an identical pattern on the issues of negligence and causation (i.e., ‘yes-no’ respectively). The voting pattern of the Collin jury in relevant part was as follows:
*684Special Verdict Issue Juror Number (Y=yes; N=no)
123456789 10 11 12
11. Were any of the defendants neg- YYYYNNYYYYYY ligent? CVA?
12. Was the negligence of such de-NYNNNNYNNNYN fendant(s) a proximate cause of injury to plaintiff? CVA?
Judgment was entered against plaintiff Collin in favor of defendant CVA, and Collin appealed. He contended that no verdict had been reached since nine identical jurors did not agree on the negligence and causation answers as required by BAJI No. 15.51,5 which the trial courts gave to the juries in the Collin case and in the case before us. (In the case before us, the trial judge used the word ‘presiding officer’ instead of ‘foreman,’ and the word ‘courtroom’ instead of ‘room,’ omitting the words ‘you shall.’)
Relying on Juarez v. Superior Court (1982) 31 Cal.3d 759 [183 Cal.Rptr. 852, 647 P.2d 128], and United Farm Workers of America v. Superior Court (1980) 111 Cal.App.3d 1009 [169 Cal.Rptr. 94], this court agreed with Collin’s contention and concluded ‘that no verdict was reached here because the same nine jurors did not agree on the questions of negligence and proximate cause.’ (Collin v. Connecticut Valley Arms, Inc., supra, 137 Cal.App.3d at p. 819.) Having so concluded, we reversed the judgment and remanded the case.
Unlike Collin or the case at bench, Juarez and United Farm Workers were comparative negligence cases. As we noted in Phelps v. Superior Court (1982) 136 Cal.App.3d 802, 805, 808 [186 Cal.Rptr. 626], Juarez announced an exception to the general rule of Earl v. Times-Mirror Co. (1921) 185 Cal. 165, 182-186 [196 P. 75], a precomparative negligence case, that in a nonbifurcated trial nine identical jurors had to agree oh all elements necessary to the ultimate verdict. That exception was stated by our Supreme Court as follows: ‘[i]/" nine identical jurors agree that a party is negligent and that such negligence is the proximate cause of the other party’s injuries, special verdicts apportioning damages are valid so long as they command the votes of any nine jurors.’ (Juarez v. Superior Court, supra, 31 Cal.3d at p. 768, first italics added.)
*685The Juarez court also referred with approval to the United Farm Workers case wherein the Court of Appeal held ‘that to find liability, the same nine jurors who find negligence on the part of a party must also find that negligence to be a proximate cause of the injury [citation], but, it is not required that nine identical jurors find both plaintiff and defendant negligent. Jurors not concurring in a finding agreed to by three-fourths of the jury are not told to discontinue participating, drop out of negotiations, leave the room, not listen, or refrain from speaking during discussions.’ (United Farm Workers of America v. Superior Court, supra, 111 Cal.App.3d at p. 1019; italics added.)
The holdings in Juarez and United Farm Workers contain a general principle applicable in all personal injury cases wherein a special verdict is utilized and only three-fourths of the jury need concur to reach a verdict. (Cal. Const., art. I, § 16; Code Civ. Proc., § 618.)6 To return a verdict in favor of a party who has the burden of proving liability at least nine identical jurors must answer each of the questions addressed to the jury in the special verdict in such a manner that indicates that those identical nine have found the existence of all of the elements necessary to establish liability. Whether, after Juarez, the same nine jurors who find liability must also agree on the amount of damages in a nonbifurcated noncomparative negligence case as required by Earl is a question we need not, and do not decide. Accordingly, we omit any discussion of damages and discuss only the negligence or defect and causation elements necessary for a verdict of liability.
V.W. asks us to reject our reasoning in Collin. It contends that we ‘misinterpreted prior case law holding that in order to establish liability, the same nine jurors must concur in special verdicts to support a judgment in favor of the plaintiff. ’ It urges that: ‘These cases do not require the same result in the context of a defense verdict, and to blindly apply the language of prior case holdings without regard to the differing burdens of proof was error. While rational consistency may require the concurrence of nine identical jurors in order to hold a party liable, the same principles clearly do not apply where a defendant bears no burden of proof on the dispositive issue and the jury finds in the defendant’s favor because the plaintiff has failed to establish all the elements of his cause of action.’
If nine jurors find negligence or defect, and a different combination of nine jurors find causation, Earl and Juarez require us to conclude that a *686plaintiff asserting a defendant’s liability has failed to prove it. Obedient to Earl, Juarez, Collin, article I, section 16 of the California Constitution, and Code of Civil Procedure section 618, we also hold that at least nine identical jurors must vote in the consistent voting pattern in order for their answers to constitute a special verdict and thereby establish the nonliability of a defendant.
The determination of which party has the burden of proof as to certain issues is of vital importance in the jury’s determination of those issues. Once they have been determined, however, which party has the burden of proof is no longer of any moment for the purpose of determining whether the jury has reached a verdict. The only question then remaining is whether the answers to the questions posed amount to a rationally consistent vote of nine identical jurors on the questions of negligence or defect and causation. If they do, they result in a special verdict, otherwise, as here, they do not.
In the case at bench as only seven jurors answered identically to the necessary element or issue questions, we conclude that the jury did not reach the single requisite special verdict complete as to the liability issues. We therefore conclude that the trial court erroneously denied plaintiff’s motion for a mistrial.
There is some appeal to the proposition that since 10 jurors voted that there was no causation, and since causation is 1 of the elements requisite to a finding of liability, it logically follows that the special verdict reached here logically required the entry of a judgment for the defendant.
The answer to that proposition is that given by Justice Oliver Wendell Holmes, Jr., in The Common Law (1881) that ‘The life of the law has not been logic: it has been experience.’ Earl, Juarez, Collin, article I, section 16 of the California Constitution, and section 618 of the Code of Civil Procedure, however, compel the result we reach here. If that law is to be changed, it is for the Legislature to do so, not this court.”
We reject as meritless V.W.’s contention that plaintiff waived any objection to the verdict by her failure to request a specific jury instruction that nine or more jurors had to vote identically on the issues of defect and causation to return a verdict for defendants and by her failure to object to the instruction given that in order to return a verdict for plaintiff the same nine jurors would have to concur as to each issue necessary to establish liability. (On this latter point, see Code Civ. Proc., § 647.)
We also reject as meritless, V.W.’s contention that Collin is distinguishable and, therefore, inapplicable. We find no meaningful distinction between Collin and the present case. Nor do we consider the Supreme Court’s denial of Collin’s petition for a hearing to be a positive approval of the Collin decision. (See People v. Triggs (1973) 8 Cal.3d 884, 890-891 [106 Cal.Rptr. 408, 506 P.2d 232], disapproved in part on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4 [150 Cal.Rptr. 910, 587 P.2d 706].)
At those times BAJI No. 15.51 was entitled ‘Concluding Instruction—Special Verdict’ and in pertinent part provided: ‘As soon as 9 or more identical jurors have agreed upon each answer required by such directions on the special verdict form, so that each of those 9 or more may be able to state truthfully that every answer is his or hers, you shall have such verdict signed and dated by your foreman and you shall return with it to this room. ’
Article I, section 16 of the California Constitution in pertinent part provides that ‘[t]rial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. . . . ’
Code of Civil Procedure section 618 provides: ‘When the jury, or three-fourths of them, have agreed upon a verdict, they must be conducted into court and the verdict rendered by their foreman. . . .’