I concur in the affirmance of the order granting a new trial. But, in my opinion, a new trial should not be necessary and the trial court’s order denying the motion for judgment notwithstanding the verdict should be reversed.
The majority opinion contains a scholarly and exhaustive analysis of the problems faced by a large affluent manufacturer in trying to protect itself against a jury simply awarding an injured plaintiff a large sum of money because of the manufacturer’s ability to pay regardless of any solid evidence of liability. One jury has already done that in this case. In fact, the majority clearly indicates, though not in so many words, that General Motors’ liability for this accident simply does not exist. They appear hopeful that a retrial will prove this to be the case.
The problem, as I see it, is that there is no guarantee that on a retrial, even under proper instructions, a similar miscarriage, but one that is beyond the power of the court to correct, will not occur. It is unjust to expose General Motors to such a hazard.
I agree that “a lawsuit is a poor way to design a motor vehicle,” but to permit this issue to go to a jury gives the jury the power to do so with no guarantee that a jury can come to grips with the difficulties and hard choices inherent in designing a complicated product.
It is a matter of common knowledge that there is no place on an automobile where a tank holding 20 or so gallons of volatile gasoline can be “safely” located. Should General Motors then be held to have defectively designed the automobile because it required gasoline as a fuel? Absolutely not,.
Thus in each case the involvement of the gas tank will depend on the circumstances of the particular crash. Plaintiff’s expert testified that in- this case the area below the floor of the vehicle was not appreciably damaged. From this it is argued that it was negligent not to have put the tank there. But what if the angle of the collision had been different or Prior’s vehicle had been a low-slung sports car that went beneath the rear bumper and *16struck the area which plaintiff contends is the “safe” area. Would plaintiff’s expert then say in that case that it would be negligent to have the tank in such a position and that the tank should have been in the fender?
Clearly the fortuitous circumstances of a particular mishap should not be the controlling factor. General Motors’ liability should not depend upon the direction or manner in which Prior impacted the target vehicle. The testimony of plaintiff’s expert created no factual issue.
Thus the retrial may well degenerate into a debate over the probabilities as to which type of impact is most likely to occur or which kind of accident is the “most foreseeable,” i.e., front, rear, side, etc.
The question of defective design is not whether the vehicle was designed to minimize the damage from the particular accident that did occur but whether on balance the vehicle is designed to minimize damage in the usual and foreseeable mishaps.
Anyone who purchases an automobile knows that if he is in an accident which happens to involve the gas tank, the threat of fire exists. Thus it would not be unreasonable to say that purchasers of automobiles should select the car which they feel has the tank in a position least likely to be involved in a severe impact. They know best the use to which the car will be put. If their choice proves to be unwise, there is no reason to require the manufacturer to have greater foresight.
To inject defective design into this case is an unwarranted extension of the rule of Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121 [104 Cal.Rptr. 433, 501 P.2d 1153].
Cronin cited with approval language from Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, at page 64 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049]: “ ‘To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using [the product] in a way it was intended to be used as a result of a defect in design ... of which plaintiff was not aware that made [the product] unsafe for its intended use.’ ” (Italics added.)
Clearly, in the case at bar, the plaintiff as noted must be chargeable with being aware of the danger of the presence of gasoline in the vehicle and a knowledge that the tank was located where it was. Further, there is no evidence that the positioning of the gas tank in the fender of the vehicle is a “defect in design” other than as noted it happened to be in a position at which the vehicle was struck.
*17Thus under the facts of this case the determination of the issue of whether or not there was in fact a defect in design in the vehicle must turn on an inquiry as to whether such a position made the vehicle “unreasonably dangerous.” Despite the fact that the Supreme Court in Cronin appears to reject such a test, it is obvious to me that the Cronin court did not contemplate the type of factual situation which is present here.
To follow the reasoning advanced by the plaintiff in this case General Motors must have foreseen the probability of the car being struck at high speed on the left rear quadrant. The plaintiff knew that the gas tank was located in the left rear fender thus if the reasoning is followed that such a crash was foreseeable in designing the vehicle then the plaintiff would be negligent in parking the car in the position that he did with the left rear exposed to the impact. Surely the foreseeability of this accident should be no greater to the manufacturer than to the plaintiff.
Even the instruction offered by General Motors and rejected by the trial court is not completely satisfactory in directing the jury’s inquiry because it deals too generally with the subject of “properly” locating the tank. “Properly located” for what? This particular accident? No, the question is “properly located” for the most common and expected occurrences. The evidence offered by the plaintiff failed completely to provide any basis for the jury to determine that the tank was not “properly located” or that the location of the tank had anything to do with plaintiff’s injury except that it just happened to be in the location on which Prior targeted.
The majority states that a “manufacturer must evaluate the crashworthiness of his product and take such steps as may be reasonable and practicable to forestall particular crash injuries and mitigate the seriousness of others.” I submit that there is no practical or reasonable way that an automobile can be constructed so that its fuel tank will remain intact against an impact from all directions at a speed of 65 to 85 miles per hour. Yet that is exactly what must be found if General Motors is to suffer liability in this case.
I would reverse the order denying General Motors’ notice for judgment notwithstanding the verdict.
A petition for a rehearing was deemed denied October 25, 1974, pursuant to rule 27e, California Rules of Court. Petitions of all the appellants for a hearing by the Supreme Court were denied November 21, 1974.