(dissenting). I respectfully dissent on one issue only. In my opinion, fairness and justice call for a reversal of the lower court ruling and retrial of this case.
The Kentucky statute, Ky Rev Stat 411.320(3), provides:
In any product liability action, if the plaintiff failed to exercise ordinary care in the circumstances in his use of the product, and such failure was a substantial cause of the occurrence that caused injury or damage to the plaintiff, the defendant shall not be liable whether or not said defendant was at fault or the product was defective.
It is a fair observation that the defendant did plead contributory negligence, and relied on proofs denying negligence on its part and contending negligence on plaintiff’s part.
Plaintiffs contended, the trial court agreed, and the trial was conducted on the basis that, under the law in the State of Kentucky, comparative negligence applied in this product liability action.
The trial court, in ruling on the motion for entry of judgment of no cause of action in the instant case, stated:
So this Court’s opinion is that the law today is [sic] the state of Kentucky is that comparative negligence is the law on product liability actions and regular negligence cases because — and I rely on this Inland v Steel [sic] case which was handed down in October of 1984. And therefore, the motion for entry of judgment of no cause of action is *794denied. I’ll sign the judgment as rendered by the jury.
Well, my reading of Hilen, in the Hilen v Hayes case, the Supreme Court adopted comparative negligence in Kentucky in regular negligence cases and that in the Lewis v Inland Steel case, the Court of Appeals took the Hilen v Hayes case and extended it to include product liability cases by directing that when that case be retried, that the jury be instructed on the issue of comparative negligence because their interpretation is that the State statute now has comparative negligence.
That’s my reading of the case and the ruling will remain the same on that.
The trial court applied Kentucky law in this case. The trial court, based on its reading of the Kentucky Supreme Court cases of Hilen v Hayes, 673 SW2d 713 (Ky, 1984), and the Kentucky Court of Appeals case of Lewis v Inland Steel Co, CCH Prod Liab Rep, ¶ 10,253 (Ky App, 1984), ruled that the Kentucky Supreme Court adopted comparative negligence in product liability cases.
Even if the trial court’s reading of Hilen and Lewis was disputed, reversal on appeal would not appear likely, absent subsequent applicable Kentucky law to the contrary. Had the trial court instructed the jury that a finding of contributory negligence was a defense and the jury returned a verdict of no cause of action, a serious appealable issue would have resulted.
On July 3, 1986, after the initial appellate briefs had been submitted in this case, the Kentucky Supreme Court expressly ruled that contributory negligence is an absolute bar to recovery in product liability cases. Reda Pump Co v Finck, 713 SW2d 818, 821 (Ky, 1986). The Reda court observed in part:
*795We adhere to the principle that the establishment of public policy is the prerogative of the General Assembly. If there is any present conñict or confusion in the law applicable to products liability actions it is of our own making. We resolve the issue now by holding that [Ky Rev Stat] 411.320(3) absolutely bars recovery in products liability options [sic] where the plaintiff is contributorily negligent and his negligence is a substantial cause of the occurrence which caused his injury, and by further holding that [Ky Rev Stat] 411.130(3) is not unconstitutional. [Emphasis added.]
Construction of Kentucky’s statutes is best left to Kentucky courts.
However, in my opinion, the Reda court proceeded further than justice and fairness indicated. Reda additionally ruled that, since the jury found comparative negligence, recovery by plaintiff was not permitted.
Based on MCR 7.216(A)(7), formerly GCR 1963, 820, relief from judgment may be granted as the case may require. I would rule to set aside the judgment and remand the case for a new trial with the question of contributory negligence being submitted to the jury for determination if a fact question was involved.