with whom CLIFFORD, Justice, joins, dissenting.
I must respectfully dissent. Because fault in the sense of negligence by the defendant in the design of the chain saw is not a prerequisite to the plaintiff’s recovery under 14 M.R.S.A. § 221, I would vacate the judgment and remand this case to the Superior Court for a new trial on the strict liability count of the plaintiff’s complaint. See Austin v. Raybestos-Manhattan, Inc., 471 A.2d 280, 282, 285 (Me.1984).
Here, the court recognizes that the plaintiff presented sufficient evidence to establish that the product was in a defective condition, unreasonably dangerous to the user because the utility of the chain saw without a brake did not outweigh the risk of harm to its users. The court nonetheless holds that because of the jury’s finding that the defendant was not negligent in the design of the chain saw, that finding obviates any possible legal responsibility on the part of the defendant.
The danger utility test is not based on the presence or absence of due care of a defendant but on the danger-in-fact of a particular feature of the product as weighed against its utility. It is the product itself, and not the defendant’s conduct, that is evaluated to determine whether the defendant will be held strictly liable for the injuries proximately caused by the reasonable use of the product. “Under this test, a product can be said to be defective in the kind of way that makes it unreasonably dangerous if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product.” W. Prosser & W. Keeton, The Law of Torts, § 99 at 699 (5th ed. 1984) (emphasis added) (hereinafter Law of Torts). In the design utility test for strict liability it is irrelevant that a risk or hazard related to the use of the product as designed was not discoverable under existing technology and in the exercise of utmost care1 or that the defendant may have over-evaluated the benefits of the product as designed. “[T]he benefits relevant to the *1287utility of the product are those that are actually found to flow from the use of the product as designed rather than as perceived at the time the product was designed and marketed.” Id. at 700 (emphasis added).
Contrary to the holding of the court, the trial court not only did not, but could not, “set forth the exact same ‘danger utility test’ for negligence that it would have laid out for a strict liability count.” Supra p. 1286. Here, a fair reading of the trial court’s instructions makes clear that the instructions in their entirety properly were directed to the duty of care owed by the manufacturer of a product and those factors for consideration by the jury in determining whether the defendant had breached that duty.2 The plaintiff’s claim of strict liability against the defendant-manufacturer of the chain saw does not rest on any duty of care owed by the manufacturer to the user of that product. It rests on a policy decision made by the Legislature when it enacted section 221 in 19733 that the existence of fault or negligence in the manufacture or sale of a dangerously defective product should no longer be required as a prerequisite to imposing liability on the manufacturer or seller for the costs of accidental injuries caused by the product. See generally Restatement (Second) of Torts (1965) comments to § 402A; Law of Torts § 98 at 692, 693; 3 Legis.Rec. 3897 (1973).
With its focus on the product manufactured and sold and not on the conduct of the manufacturer and seller, to allow recovery by the plaintiff the factfinder must determine 1) if the product as it existed at the time of the accident was dangerous in fact,4 and 2) if so, did that danger outweigh the benefits that in fact flowed from the use of the product as designed?5
I am aware of our decision in Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144 (Me.1983), in which we expressly stated that the court “was not addressing” the issue of strict liability imposed regardless of the manufacturer’s exercise of reasonable care in the design of a product. Id. at 1148. Notwithstanding some ambiguity of the language, I find no conflict in our holding confined to “the particular facts in [that] case,” id. at 1148 (emphasis added), and our interpretation of section 221 set forth in Austin v. Raybestos-Manhattan, Inc., 471 A.2d 280, 282 (Me.1984), that “[u]nder [section 221] a plaintiff may recover for injuries resulting from an unreasonably dangerous, defective product without having to prove negligence on the part of the defendant in preparing or selling the *1288product.” Clearly the statute makes no distinction between the product in a “defective condition unreasonably dangerous to the user” by reason of its design and a product that is in a “defective condition unreasonably dangerous to the user” by reason of its assembly, container, or packaging.
In the instant case we are squarely presented with the issue we determined not to address in Stanley. In my opinion, the language of section 221 clearly requires that when the product defect claimed is the defective design of that product, the plaintiff may recover for injuries resulting from its use without having to prove negligence of the defendant in the conception of that design or in the reduction of that design conception to the concrete form of a salea-ble product.
Accordingly, I would hold that the trial court not only erred in granting a directed verdict for the defendant on the strict liability issue, but that the error was not rendered harmless by the court’s instructions, and would remand the case for a new trial on that issue.
. In Bernier v. Raymark, Inc., 516 A.2d 534, 537-40 (Me.1986), we discussed the admissibility of state-of-the-art evidence when the product defect alleged is a failure to warn of a dangerous ingredient in a product. Implicit in a claim *1287based on that theory is the element of negligence, i.e., that the manufacturer knew or should have known in the exercise of ordinary care of the risk or hazard and failed to warn. In such case, unlike here, the state of the art is relevant to the issue presented to the factfinder.
. The plaintiffs failure to challenge the correctness of the instruction is irrelevant. The instructions given properly set forth the law of negligence which was the only theory for the potential liability of the defendant allowed to go to the jury.
. 14 M.R.S.A. § 221 is an almost verbatim recitation of section 402A of the Restatement (Second) of Torts (1965). Among the policy reasons that led the American Law Institute to adopt section 402A were that the consumer of products forced to rely on the manufacturer and sellers of those products are entitled to maximum protection at the hands of someone; that the cost of damaging events due to defectively dangerous products can best be borne by the manufacturers and sellers of those products; the expectation that imposition of liability without fault would deter accidents caused by defective products; and a recognition that if fault or negligence of the manufacturer or seller were the only justification for imposing liability on them for costs of accidents due to defective products, it would place a costly and often difficult burden of proof on the injured consumer. With the adoption of a tort theory the imposition of strict liability for a dangerous defective product on a contract theory based on breach of implied promises has been abandoned. See comments to § 402A and Law of Torts § 98.
. Section 221 requires that there not be a significant change in the condition of the product from the date of sale.
. See Austin v. Raybestos-Manhattan Inc., 471 A.2d at 287, 288 for a full discussion of the applicability of 14 M.R.S.A. § 156 (1980) to a plaintiffs claim based on section 221.