join, dissenting:
Mr. Justice Ward, Mr. Justice Moran and I dissent and would affirm the judgment of the appellate court. In holding that “defendant GATX should be allowed to show that a given alternative design is not required by Federal regulations and that such evidence is relevant in determining ‘whether the complained-of condition was an unreasonably dangerous defect’ ” (77 Ill. 2d at 438), the majority has completely ignored the basic tenet of product liability law, and has applied the law of negligence. The question is whether the product was defective, not whether the defect resulted from defendant’s fault.
In Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, we held that a manufacturer is held to the degree of knowledge and skill of experts and is under a nondelegable duty to make a product which is reasonably safe. Proof that a product is not reasonably safe may be shown by evidence of the availability and feasibility of alternate designs at the time of its manufacture. Plaintiff’s expert witness testified that in September 1971, when the car in question was built, it was feasible from an economic, practical and technological viewpoint to install head-shields. Defendant’s experts testified to the contrary. The standards which defendant sought to introduce were the bare minimum below which the manufacturer might not fall, obviously failed to take into recognition the availability of improved methods of manufacture, and certainly did not serve to bar the installation of improved safety devices. They would, in any event, be wholly irrelevant to the question of technological feasibility.
The authorities upon which the majority relies do not support its position. In Wenzell v. MTD Products, Inc. (1975), 32 Ill. App. 3d 279, the circuit court struck an allegation in the complaint of a violation of a safety specification. The appellate court held only that a violation of the standards would not of itself vest a cause of action in the plaintiff. In Jonescue v. Jewel Home Shopping Service (1973), 16 Ill. App. 3d 339, there is no indication that there was any objection to a conclusion contained in a report that a product was nontoxic orally. The appellate court’s holding did not involve the question of admissibility of evidence; it held that “Although compliance with a relevant statutory scheme declaring whether defendant must warn of the dangers of its product is some evidence that the Jeteo cleaner is not harmful or toxic, such compliance is not conclusive or controlling in defining defendant’s common law liability for failure to warn.” 16 Ill. App. 3d 339, 345.
The majority is in error for yet another reason. Defendant GATX was not only the manufacturer of the car in question; it was also the lessor to Phillips Petroleum Company, the lessee. The record shows that, as noted by the appellate court, “at the time of the Decatur accident, the necessary technology for the design of headshields- and the AAR approval procedure for their installation on tank cars” was in existence. (64 Ill. App. 3d 770, 781.) Under these circumstances the appellate court correctly held that “a ‘state of the art’ defense based on GATX’s compliance with federally mandated tank car design specifications would have been irrelevant.” 64 Ill. App. 3d 770, 781.