(concurring in part and dissenting in part).
For the reasons persuasively set out in the court’s opinion, I agree that the “latent-patent danger” rule of Halvorson v. American Hoist and Derrick Co., 307 Minn. 48, 240 N.W.2d 303 (1976), should be overruled. The court, however, also holds that plaintiff may proceed to trial on both his negligence and strict liability counts. I would reverse *214the summary judgment on plaintiff’s first count for negligence but, since I do not see this as an appropriate strict liability claim, I would affirm as to the second count in strict liability.
There is a great deal of confusion in products liability law created by the overlapping theories of negligence, strict liability, and breach of warranty. While fine distinctions can be made, these are often of little help to the trial bench that has to instruct the jury and to the jury that has to bring in a verdict. For example, in Randall v. Warnaco, Inc., Hirsch-Weis Division, 677 F.2d 1226 (8th Cir.1982), the trial court, applying North Dakota law, dismissed plaintiff’s negligence count and submitted the case to the jury on strict liability. It did so on the grounds that to submit both theories would only be confusing to the jurors and that strict liability was a more favorable theory to protect plaintiff’s rights. The jury found no strict liability. On appeal, the Court of Appeals, by a split decision, reversed, holding that negligence should have been submitted too. In Magnuson v. Rupp Manufacturing, Inc., 285 Minn. 32, 171 N.W.2d 201 (1969), we held that it was not error for the trial court to have refused to instruct on strict liability since submission on negligence issues only did not prejudice the plaintiff. Trial courts, to play safe, will tend to submit products liability issues on all theories, but then there is a risk of a perverse jury verdict.1 The best proof of this is Halvor-son. There, on almost identical facts, the jury found negligence but no strict liability, and we held the verdict was “inconsistent and irreconcilable.”
In this case the plaintiff was working on an aerial ladder in close proximity to an electric powerline. He knew the powerline was there and he knew the dangers involved. Nevertheless, in maneuvering the ladder, he “made a mistake,” as his counsel put it, by “unconsciously exposing himself” to an obvious danger. As a consequence, plaintiff’s arm (apparently not the ladder itself) came in contact with the powerline. Plaintiff’s theory, really, is that the manufacturer could have protected him from his forgetfulness by doing more than affixing warning decals to the ladder, however adequate their message might be; the manufacturer should have equipped the ladder with insulation, sensors or other proximity warning devices which would have either warned plaintiff he was too close to the electric wires or prevented an electric current from passing through plaintiff to the ground.
Clearly, we have negligence issues here. The manufacturer, who has a duty to design and make a reasonably safe product, could reasonably have foreseen that its ladder would be used around electric power-lines and that people, being what they are, are at times preoccupied and forgetful. At the same time, plaintiff has a duty to use reasonable care for his own safety and the obviousness of the danger goes to his contributory negligence and assumption of risk. The same policy considerations that are served by strict liability are served by a negligence action. Manufacturers of unsafe products are to be held accountable. Unlike Magnuson, supra, where the risk of danger in operating a snowmobile was so obvious that strict liability was inapplicable, here, weighing the likelihood and severity of the harm (electrocution) against the burden of adding safety devices more effective than warning decals (insulation or sensors) makes a jury issue.
Why then do we have to superimpose still another theory on this case, a strict liability theory that is really a carbon copy of the *215negligence áction? As a practical matter, where the strict liability claim is based on unsafe design or failure to warn, as is this case, there is essentially no difference between strict liability and negligence.2
It is said the distinctive feature of strict liability is that plaintiff does not have to establish negligence and that the focus is on the condition of the product, not the conduct of the manufacturer. This is not, however, quite true. To say the plaintiff does not have to prove negligence does not mean the manufacturer is not in some sense at fault, only that the plaintiff does not have to prove it. And it is not the product that is sued, but the person who makes or markets it. At the bottom of a strict liability theory is still the notion (certainly shared by jurors) that the manufacturer did something wrong and, therefore, should pay.
This notion of “wrongness” surfaces when the law attempts to define what it means by a defect. A defect is something which makes the product “unreasonably dangerous.” And something is unreasonably dangerous “if the product is dangerous when used by an ordinary user who uses it with knowledge common to the community as to the product’s characteristics and common usage.” So we come full circle back to something with negligence overtones, and even more ironically, by adapting the consumer expectation test of what is “unreasonably dangerous” we have reincorporated the old tort rule of patent danger. The above-quoted definition of “unreasonably dangerous” is taken from Halvorson, which perhaps explains why that jury found no strict liability for an uninsulated crane without sensors being operated by an experienced operator in a situation of obvious danger.
Strict liability performs a great service in emphasizing the manufacturer’s duty of care to put out a safe product. It continues to perform that service. Professor Wade’s seven-point balancing test for a utility-risk standard (quoted in the court’s opinion) is not, it seems to me, a definition of strict liability but only a guide to enable courts, as a matter of policy, to draw a line as to liability, whether that liability be characterized as negligence or strict liability or both.3
However, the only question before us is whether, on the facts presented, plaintiff may try his case in negligence or strict liability or both. I would hold this case is *216to be tried in negligence only. I would hold, on these facts, where the danger in the use of the product by the plaintiff-user is fully obvious, and where the claims of “defect” are limited to assertions that the manufacturer should have added devices to its product to warn and protect the user against the obvious danger, that strict liability offers nothing but confusion to jurors and that only the negligence claim is to be submitted to the jury.
. Since strict liability was first developed, contributory negligence has been allowed as a defense. And now our Comparative Fault Act requires a jury to lump negligence and strict liability together as “fault” and to compare the two.
The comment of Dean Keeton is apt: “Our supreme courts should arrive at a theory of recovery to the exclusion of all others. Trial judges cannot under the present state of the law be criticized for being unable to submit a product liability case to a jury in a satisfactory manner.” Keeton, Product Liability and the Meaning of Defect, 5 St. Mary’s L.J. 30, 36 (1973).
. See, e.g., Knitz v. Minster Machine Co., 69 Ohio St.2d 460, 466 n. 5, 432 N.E.2d 814, 818 n. 5 (1982); Brizendine v. Visador Co., 437 F.2d 822 (9th Cir.1970) (applying Oregon law). As Professor Wade observes, “As in the design cases, there is [in the failure to warn case] little difference for the manufacturer (as distinguished from the supplier) in an action for negligence and one for strict liability.” Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 842 (1973).
If something goes wrong in the manufacturing process, if a product has a part missing or malformed or is made of improper materials, clearly we have a “defect” in the product in the common sense of the term. But to say a product is defective because not accompanied with operating instructions, or because it is without warning devices or because it lacks in the conception of its design, is to use the word “defect,” as Professor Wade would say, “in a Pick-wickian sense, with a special esoteric meaning of its own.” Id. at 832. Words, of course, sometimes need to be used in a special sense, but when this is done, their impact on lay jurors should be kept in mind. Witness the trouble jurors have had with the term “proximate cause.”
. Professor Wade does not recommend that the jury be given his seven-point test. Some commentators urge one tort action. See Keeton, supra; and Wade, supra, at 849-50; cf. Twer-ski, From Defect to Cause to Comparative Fault — Rethinking Some Products Liability Concepts, 60 Marq.L.Rev. 297 (1977). Eventually, the various theories may coalesce into one tort, perhaps called “product fault liability,” which will use the traditional concepts of negligence which have served so well and are understandable to jurors, while at the same time incorporating some of the notions of strict liability which stress the manufacturer’s duty of care, the supplier’s vicarious “breach of warranty” liability, and, in certain situations, a relaxation of the plaintiffs burden of proof as to the manufacturer’s fault.
Thus, in this case, along with the standard negligence instructions, the court might add that the jury is to consider, on the manufacturer’s duty of care among all the facts and circumstances, the likelihood that the operator may be exposed to dangers from the environment in which the product is used, the seriousness of the dangers posed, and the mechanical and economic feasibility of additional safety devices for the product.