Dambacher by Dambacher v. Mallis

WIEAND, Judge,

concurring and dissenting:

A jury found that Sears, Roebuck & Company (Sears) had marketed a defective, steel-belted, radial tire because it failed to imprint on the wall of the tire a warning against using it in conjunction with non-radial tires. On appeal from a judgment entered on the verdict, Sears contends (1) that the adequacy of the warning was submitted to the jury improperly and on inadequate instructions; (2) that the trial court erred in permitting opinion testimony from witnesses who were not properly qualified as experts; (3) that the trial court erred in several evidentiary rulings; and (4) that the court erred in requiring the jury to apportion fault among Sears, whose liability was predicated upon principles of strict liability, and other defendants whose liability depended upon principles of negligence. I agree with the majority that the trial court improperly received expert opinion testimony from witnesses who were not qualified to give such testimony. In my judgment, however, a new trial is also required because the trial court gave inadequate instructions to the jury regarding the sufficiency of the warning given by the manufacturer.

On November 2, 1977, Nicholas Mallis, Jr. observed that the front, right tire on his grandfather’s 1971 Plymouth Fury was flat. All tires were then non-radial tires. Mallis replaced the flat tire with a used, steel-belted, radial tire which he found lying in the driveway of his grandfather’s home. The tire had been distributed originally by Sears, and its name was imprinted thereon. There was evidence *66 that the tire had been in the trunk of the vehicle as a spare when the grandfather purchased the vehicle in a used condition from General Services Administration, an agency of the United States Government.

On the following day, November 3, 1977, Mallis took the car to school. Because bus service was not available after school that day, Mallis offered a ride to seven of his classmates at Archbishop Carroll High School. One of his classmates, Joann Dambacher, took a position in the rear seat of the Mallis vehicle. It was drizzling at the time and there were wet leaves on the road as Mallis drove toward an S-curve on Matson Ford Road in Radnor Township, Delaware County. Mallis negotiated the first part of the curve at a speed of 20-25 m.p.h. but lost control of the vehicle when it slid to the right during the second part of the curve. The vehicle went over an embankment and struck a tree. Joann Dambacher was seriously injured.

Joann’s parents filed suit against Nicholas Mallis and his grandfather on November 17, 1977. Sears was joined as a party defendant on June 5, 1978, and the Pennsylvania Department of Transportation (PennDot) was joined on October 31, 1979. The court entered a compulsory non-suit in favor of the grandfather at trial. A jury awarded damages of $810,000.00 and apportioned fault as follows: Mallis — 50%; Sears — 45%; and PennDot — 5%. 1 The trial court subsequently awarded a new trial but limited the new trial to the issue of damages. It caused judgment to be entered against Sears on the issue of liability.

In reviewing the denial of Sears’ motion for judgment n.o.v., several principles must be kept clearly before us.

A judgment n.o.v. may be entered only in a clear case. In considering such a motion, a reviewing court is required to consider the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. Claytor v. Durham, 273 Pa.Super. *67 571, 576 , 417 A.2d 1196, 1199 (1980). A judgment n.o.v. is proper only where the facts are such that no two reasonable persons could fail to agree. Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 409 , 430 A.2d 665, 670 (1981); Kiely v. Southeastern Pennsylvania Transportation Authority, 264 Pa.Super. 578, 580 , 401 A.2d 366, 367 (1979).

Sperrazza v. Cambridge Mutual Fire Insurance Co., 313 Pa.Super. 60 , 64 n. 2, 459 A.2d 409 , 411 n. 2 (1983). See: Feld v. Merriam, 314 Pa.Super. 414, 422 , 461 A.2d 225, 229 (1983); Spraggins v. Shields, 310 Pa.Super. 408, 410 , 456 A.2d 1000, 1001 (1983).

The plaintiffs produced witnesses who testified, over objection, that the mixing of the Sears radial tire with three non-radial tires was dangerous and a cause of the accident. This testimony, if believed, was relevant to Sears’ duty to warn and also to the cause of the accident. A jury could have found that Sears was strictly liable for a tire that was defective without adequate warning regarding its use and that its failure to give adequate warning was a substantial factor in causing the accident. Other possible causes, such as Mallis’ lack of driving experience, overcrowding of the vehicle, poor tire treads, a wet and defectively constructed highway, were for the jury’s consideration but did not compel a finding that the allegedly defective tire had not been a substantial factor. See generally: Gill v. McGraw Electric Co., 264 Pa.Super. 368 , 399 A.2d 1095 (1979) (compulsory nonsuit improperly entered in favor of suppliers of electric range in suit alleging strict liability in tort). Cf. Barth v. B.F. Goodrich Tire Co., 265 Cal.App.2d 228 , 71 Cal.Rptr. 306 (1968) (a jury question is presented regarding a manufacturer’s strict liability for failing to give adequate warning of dangerous propensity of tires when used on a vehicle overloaded with passengers); Annot., Products Liability: Liability for Injury or Death Allegedly Caused by Defective Tire, 81 A.L.R.3d 318 (1977).

*68 Section 402A of the Restatement (Second) of Torts 2 was adopted and made a part of the substantive law of this Commonwealth by the Supreme Court in Webb v. Zern, 422 Pa. 424 , 220 A.2d 853 (1966). Pursuant to this rule of law, a seller of products is strictly liable for physical harm caused by a product sold in a defective condition unreasonably dangerous to the user. See: Sherk v. Daisy-Heddon, 498 Pa. 594 , 450 A.2d 615 (1982); Azzarello v. Black Bros. Co., 480 Pa. 547 , 391 A.2d 1020 (1978); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83 , 337 A.2d 893 (1975) (plurality opinion); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321 , 319 A.2d 914 (1974); Evans v. Thomas, 304 Pa.Super. 338 , 450 A.2d 710 (1982); Smialek v. Chrysler Motors Corp., 290 Pa.Super. 496 , 434 A.2d 1253 (1981); 1 R. Hursh and H. Bailey, American Law of Products Liability 2d § 4:10 (1974). Strict liability in tort, however, is not the same as absolute liability. Suppliers of products are not insurers against harm. Absent a showing of defect, the supplier of a product has no liability under Section 402A. See: Azzarello v. Black Bros. Co., supra 480 Pa. at 553 -554 & n. 5, 391 A.2d at 1024 & n. 5; Berkebile v. Brantly Helicopter Corp., supra, 462 Pa. at 94 , 337 A.2d at 898 . Accord: Restatement (Second) of Torts § 402A, comment g; J. Dooley, Modern Tort Law § 35.37 (1977); W. Prosser, Law of Torts § 99 (4th ed. 1971); J. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 828 (1973).

*69 Definition of the term “defective” in Section 402A cases has had a turbulent history and has received less than uniform and consistent treatment. Courts and commentators alike have devoted substantial effort to achieving a consistent, workable definition of. the term “defect.” See generally: W. Kimble & R. Lesher, Products Liability §§ 53, 54 (1979); W. Keeton, The Meaning of Defect in Products Liability Law —A Review of Basic Principles, 45 Mo.L.Rev. 579 (1980); R. Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn.L.R. 363 (1965). The requirement that a product be defective implies that something must be wrong with the product. J. Wade, supra, 44 Miss.L.J. at 830. The prevailing interpretation of the term “defective” is that the product does not meet the reasonable expectations of the ordinary consumer as to its safety. W. Prosser, supra § 99. See: Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 463 , 467 A.2d 615, 625 (1983) (Dissenting Opinion by Wieand, J.), quoting Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 136 , 359 A.2d 822, 825 (1976); 1 R. Hursh & H. Bailey, supra § 4:12; W. Kimble and R. Lesher, supra § 54; W. Keeton, supra, 45 Mo.L.Rev. at 588-595. In this Commonwealth, “the jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Azzarello v. Black Bros. Co., supra 480 Pa. at 559 , 391 A.2d at 1026 (footnote omitted). See also: Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32 , 319 A.2d 903, 907 (1974); Burch v. Sears, Roebuck & Co., supra 320 Pa.Super. at 450 , 467 A.2d at 618 ; Meyer v. Heilman, 307 Pa.Super. 184, 188 , 452 A.2d 1376, 1378 (1982), overruled on other grounds, 503 Pa. 472 , 469 A.2d 1037 (1983); Smialek v. Chrysler Motors Corp., supra 290 Pa.Super. at 502 , 434 A.2d at 1256 .

Actions under Section 402A fall into three basic categories: (1) products allegedly unsafe because of a manufacturing defect; (2) products allegedly unsafe because of a defect in design; and (3) products allegedly unsafe because *70 of a failure to provide adequate warnings or instructions to insure safe use of the product. See: Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107 , 463 N.Y.S.2d 398, 401 , 450 N.E.2d 204, 207 (1983); Wiseman v. Goodyear Tire and Rubber Co., 29 Wash.App. 883, 886 , 631 P.2d 976, 978 (1981); 2 L. Frumer & M. Friedman, Products Liability § 16A[4][f][i] (rev. ed. 1983); W. Keeton, supra, 45 Mo.L. Rev. at 585-587; Comment, Is There a Distinction Between Strict Liability and Negligence in Failure to Warn Actions? 15 Suffolk U.L.Rev. 983, 983 (1981). See also: W. Prosser, supra § 99.

The existence of a manufacturing defect can be most readily understood. Where a product, at the time it leaves the seller’s hands, fails to comport with its intended design and is unsafe for normal handling or use, it is defective. See: Phipps v. General Motors Corp., 278 Md. 337, 344 , 363 A.2d 955, 959 (1976), citing 2 L. Frumer & M. Friedman, supra § 16A[4][f][iii]; O’Brien v. Muskin Corp., 94 N.J. 169, 180 , 463 A.2d 298, 304 (1983). “The defective condition may arise not only from harmful ingredients, not characteristic of the product itself either as to presence or quantity, but also from foreign objects contained in the product, from decay or deterioration before sale, or from the way in which the product is [manufactured] or packed.” Restatement (Second) of Torts § 402A, comment h. See: Sochanski v. Sears, Roebuck and Co., 689 F.2d 45 (3d Cir.1982) (defective tire on garden cart); Bialek v. Pittsburgh Brewing Co., 430 Pa. 176 , 242 A.2d 231 (1968) (explosion of bottle); Evans v. Thomas, supra (explosion of odorless propane gas). See generally: W. Keeton, supra, 45 Mo.L.Rev. at 585-586. The burden of proving that the product was defective at the time it left the seller, of course, is upon the plaintiff. See: Vizzini v. Ford Motor Co., 569 F.2d 754, 758 (3d Cir.1977); Wright v. Federal Machine Co., 535 F.Supp. 645, 649 (E.D.Pa.1982); Sherk v. Daisy-Heddon, supra 498 Pa. at 598 , 450 A.2d at 617; Berkebile v. Brantly Helicopter Corp. supra 462 Pa. at 94 , 337 A.2d at 898 ; Evans v. Thomas, supra 304 Pa.Super. at 344 , 450 A.2d at *71 712 ; Gill v. McGraw Electric Co., supra 464 Pa.Super. at 378, 399 A.3d at 1100-1101; Lenkiewicz v. Lange, 242 Pa.Super. 87, 91 , 363 A.2d 1172, 1175 (1976) (plurality opinion). These principles of law have been uniformly accepted. The only remaining area of substantial dispute pertains to evidentiary issues, i.e., the circumstances under which a defect can be inferred at the time the product left the manufacturer or seller.

A product may also be deemed defective even though it comports in all respects to its intended design. It may be defective because of a defect in the design of the product. In Azzarello v. Black Bros. Co., supra, the Supreme Court held that a supplier must provide a product “which is designed to make it safe for the intended use. Under this standard, the jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use.” Id. 480 Pa. at 559 , 391 A.2d at 1027 (footnote omitted). This standard requires, inter alia, that the product be measured against the “state of the art.” The product must be measured against that which was feasible in light of the technology which existed at the time the product was designed. See: W. Kimble & R. Lesher, supra § 228. One must ask, “What could reasonably have been done technologically and economically to reduce the risk of harm?”

An additional and perhaps more meaningful standard in design defect cases would require the utility of the product to be balanced against the risk inherent in its use. See: McKay v. Sandmold Systems, Inc., 333 Pa.Super. 235 , 482 A.2d 260 (1984). See also: 2 L. Frumer & M. Friedman, supra § 16A[4][f][iv]; W. Keeton, supra, 45 Mo.L.Rev. at 592-593. Thus, a knife cannot be found defective merely because it cuts; its utility outweighs the risk involved in normal use. See generally: Berkebile v. Brantly Helicopter Corp., supra 462 Pa. at 95 , 337 A.2d at 899 ; Evans v. Thomas, supra 304 Pa.Super. at 344 , 450 A.2d at 712 ; Restatement (Second) of Torts § 402A, comment i; W. *72 Prosser, supra § 99. On the other hand, a product may be defective because its usefulness is outweighed by the dangerous propensities inherent in its design. Thus, a pesticide’s limited value may be so outweighed by its propensity for harm that the manufacturer should be held strictly liable for the harm which it causes. Similarly, a machine may be found defective because the risk posed by some aspect of its design outweighs its utility. See: Barker v. Lull Engineering Co., 20 Cal.3d 413, 432 , 143 Cal.Rptr. 225, 238 , 573 P.2d 443, 456 (1978) (“high-lift loader” designed to lift heavy loads on varying terrains could be found defective for lack of stabilizers, seat belt, roll bar, and properly protected leveling mechanism); Ontai v. Straub Clinic and Hospital, Inc., 659 P.2d 734, 739-740 (Hawaii 1983) (x-ray table designed to raise patient to vertical position lacking adequate locking mechanism for foot rest); Voss v. Black & Decker Mfg. Co., supra 59 N.Y.2d at 108 , 463 N.Y.S.2d at 402 , 450 N.E.2d at 208 (blade guard on circular saw which allowed excessive amount of blade to be exposed). When a balancing test is applied, “[t]he utility of the product must be evaluated from the point of view of the public as a whole, because a finding of liability for defective design could result in the removal of an entire product line from the market.” Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 807 , 395 A.2d 843, 846 (1978). The resolution of such an issue depends upon social policy. Azzarello v. Black Bros. Co., supra 480 Pa. at 558 , 391 A.2d at 1026 . Some products are so important that a manufacturer must be allowed to avoid liability if he has given adequate warnings and/or instructions regarding safe and proper use of the product. “Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.” Restatement (Second) of Torts § 402A, comment j. See: Incollingo v. Ewing, supra 444 Pa. at 287, 282 A.2d at 219; Pegg v. General Motors Corp., 258 Pa.Super. 59, 77 , 391 A.2d 1074, 1083 (1978).

*73 The converse is also true. A product can be found defective if it lacks adequate warnings or' instructions. See: Brown v. Caterpillar Tractor Co., 696 F.2d 246 , 255 n. 20 (3d Cir.1982); Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85, 92-93 (3d Cir.1976); Berkebile v. Brantly Helicopter Corp., supra 462 Pa. at 100 , 337 A.2d at 902 ; Incollingo v. Ewing, supra 444 Pa. at 287, 282 A.2d at 219; Pegg v. General Motors Corp., supra 258 Pa.Super. at 77 , 391 A.2d at 1083 .

In the instant case, the evidence showed that Sears in fact had issued instructions concerning the use of its steel-belted radial tires. Those instructions were as follows:

Selection — IDEALLY, ALL FOUR TIRES SHOULD BE OF THE SAME CONSTRUCTION-TYPE (all bias ply, all bias-belted, or all radial) and of the same aspect ratio (all 82 series, all 78 series, all 70 series, or all 60 series). “Aspect ratio” refers to the ratio of the height of the tire in cross section to its width. For example, the cross section height of a “78 series” tire is 78% of its cross section width. If it is necessary to mix tire construction-types or aspect ratios, those with the highest traction capabilities should be mounted on the rear wheels, even on front-wheel drive vehicles.

In general, traction capabilities are as follows: Radial (best), bias-belted (next), bias-ply (next). With respect to aspect ratios, the lower the series number, the greater the traction. For example, a 70 series tire can be expected to provide better traction than a 78 series tire of; the same construction-type. Do not mix tires of different construction-type or aspect ratio on the same axle.

Sizing — FOLLOW VEHICLE MANUFACTURER’S SPECIFICATIONS. It is acceptable and often beneficial to up-size one size, but tires smaller than vehicle specifications should never be used. All four tires should be the same size.

These instructions had been contained in a pamphlet issued by Sears in conjunction with the warranty issued with each new tire sold. The plaintiffs contended that this warning *74 was inadequate. They argued that a more unequivocal warning should have been embossed on the side wall of the tire itself.

Despite language to the contrary in some decisions, most authorities are agreed that a determination of the adequacy of warnings can be made only by borrowing and using negligence concepts. 3 Thus, Dean Keeton writes:

[A] product may be defective as marketed because of a failure to adequately warn, or a failure to use proper means to warn about a risk or hazard related to the way the product was designed. Although this begins to involve design hazards, liability is imposed on the ground that the seller or manufacturer failed adequately to warn about some risk or hazard, or failed adequately to instruct about how to avoid the risk or harm. Under this approach, the product is allegedly defective as marketed because of the failure to properly present it to purchasers and users.

Notwithstanding what some courts have said, in establishing this ground of recovery, the plaintiff in most states must prove negligence in the failure to warn properly. There will be no liability in these cases without a showing that the defendant knew or should have known of the risk or hazard about which he failed to warn. Moreover, there will be no liability unless the seller or manufacturer failed to take the precautions that a reasonable person would take in presenting the product to the public.

Although this ground of recovery is sometimes referred to as strict liability, it is really nothing more than a ground of negligence liability better described as the sale of a product in a defective condition.

W. Keeton, supra, 45 Mo.L.Rev. at 586-587 (footnotes omitted) (emphasis added). See also: W. Kimble & R. Lesher, supra § 198. See generally: 2 L. Frumer & M. *75 Friedman, supra § 16A[4][f][vi]; J. Beasley, Products Liability and the Unreasonably Dangerous Requirement 480 (1981); J. Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 13 (1965); Comment, supra, 15 Suffolk U.L.Rev.

The failure to recognize this interplay between strict liability and negligence principles in failure to warn cases has caused considerable confusion. Thus, in Berkebile v. Brantly Helicopter Corp., supra, the opinion written for the Court, but representing the views of only two Justices, suggested that the reasonable man standard for determining negligence had no place in a case seeking to impose strict liability under Section 402A for a failure to warn. Perhaps as a matter of academic purity, an attempt to eliminate standards of reasonableness from strict liability in products liability cases can be applauded. In actual practice, however, such an approach is not feasible in failure to warn cases. This is particularly so where, as here, the issue is not whether notice was given but whether the notice given was adequate. To ask a jury to determine whether a tire was “defective” because of inadequate warnings without defining “defective” and without giving the jury any objective standard by which to measure the adequacy of the warning is to invite pure speculation. As Dean Wade has observed, “[t]o use [the term ‘defective’] without defining it to the jury is almost to ensure that they will be misled.” J. Wade, supra, 44 Miss.L.J. at 832. See: Barker v. Lull Engineering Co., supra, 20 Cal.3d at 428 , 143 Cal.Rptr. at 225 , 573 P.2d at 453 .

Therefore, a majority of jurisdictions has held, as did the court in In re Air Crash Disaster at Washington, D.C., 559 F.Supp. 333 (D.D.C.1983), that “the issue of a failure to warn is governed by a negligence standard.” Id. at 345 , citing Young v. Up-Right Scaffolds, Inc., 637 F.2d 810, 814 (D.C.Cir.1980) (if a defendant was not negligent in labelling a product, product is not unreasonably unsafe). Accord: Basko v. Sterling Drug, Inc., 416 F.2d 417, 426 (2nd Cir. 1969) (Restatement adopts the ordinary negligence concept of duty to warn); Hall v. E.I. DuPont De Nemours & Co., *76 345 F.Supp. 353, 368 (E.D.N.Y.1972) (whether a product is “defective” because of inadequate warnings depends on the negligence standards of “foreseeability, seriousness, and cost of preventing”); Russell v. G.A.F. Corp., 422 A.2d 989, 991 (D.C.App.1980) (under theories of negligence and strict liability, the manufacturer’s duty to provide warnings “is the same: ordinary care”); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 434 , 581 P.2d 271, 279 (1978) (whether product is defective because of a failure to warn depends upon the negligence standards of foreseeability, seriousness, and cost of preventing); Jonescue v. Jewel Home Shopping Service, 16 Ill.App.3d 339, 343 , 306 N.E.2d 312, 315 (1974) (in failure to warn case, differences between negligence and strict liability “become immaterial”); Mays v. Ciba-Geigy Corp., 233 Kan. 38, 57-58 , 661 P.2d 348, 362-363 (1983) (standard in failure to warn case under both negligence and strict liability theories is the same: ordinary care); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62 , 423 N.Y.S.2d 95, 97 (1979), aff'd mem., 52 N.Y.2d 768 , 436 N.Y.S.2d 614 , 417 N.E.2d 1002 (1980) (failure to warn plaintiff required to prove negligence). Contra: Holloway v. J.B. Systems, Ltd., 609 F.2d 1069 (3d Cir.1979).

The majority declines to join this growing consensus. Instead, it holds that if a supplier has failed to give warnings adequate to make its product safe, the product is defective. (At 426). This is an explosive concept. It may well become a plaintiff’s backup theory for recovery in all products liability cases. Under the majority’s test, neither foreseeability nor reasonableness is for the jury’s consideration; these traditional negligence concepts never enter the equation, not even in close cases. Rather, the supplier will have an absolute duty to warn users of its product of any injury which may result from such use. Under this standard, a manufacturer of knives who fails to warn that a knife may cut will manufacture a defective product. And an automobile manufacturer may well be charged with placing a defective automobile on the market if he fails to warn of the danger inherent in excessive speed. The major *77 ity, moreover, has failed to recognize and its rule will prove unworkable with respect to dangers about which the manufacturer learns for the first time after its product has been manufactured.

I am persuaded that the application of negligence standards presents a better approach. 4 Thus, in cases where a *78 failure to give adequate warning or instruction is alleged, the duty to warn must be measured against foreseeability and reasonableness. There can be no liability for a failure to warn without a showing that the defendant supplier failed to give reasonable warning of risks or hazards of which he knew or should have known. See: Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 344 (5th Cir. 1982) (Texas law), citing Borel v. Fiberboard Paper Products Corp., 493 F.2d 1076, 1088 (5th Cir.1973), cert. denied, 419 U.S. 869 , 95 S.Ct. 127 , 42 L.Ed.2d 107 (1974); Karjala v. Johns-Manville Products Corp., 523 F.2d 155, 158 (8th Cir.1975) (Minnesota law); Garrison v. Rohm and Haas Co., 492 F.2d 346, 352 (6th Cir.1974) (Kentucky law); Hoffman v. Sterling Drug, Inc., 485 F.2d 132 , 140 n. 26 (3d Cir.1973) (Pennsylvania law); Giordano v. Ford Motor Co., 165 Ga.App. 644, 645 , 299 S.E.2d 897 , 899 (1983); Woodill v. Parke Davis & Co., 79 Ill.2d 26, 35-36 , 37 Ill.Dec. 304, 308-309 , 402 N.E.2d 194, 198-199 (1980); Nissen Trampoline Co. v. Terre Haute First National Bank, 332 N.E.2d 820, 825 (Ind.App.1975), rev’d on other grounds, 265 Ind. 457 , 358 N.E.2d 974 (1976); O’Brien v. Muskin Corp., supra, 94 N.J. at 179 , 463 A.2d at 303 ; Richards v. Upjohn Co., 95 N.M. 675, 679 , 625 P.2d 1192, 1196 (N.M.Ct.App. 1980); White v. Dealers Transit, Inc., 4 Ohio App.3d 40, 45 , 446 N.E.2d 460, 466 (1980); McKee v. Moore, 648 P.2d 21, 23 *79 (Okla.1982); Bristol-Myers v. Gonzales, 561 S.W.2d 801, 804 (Tex.1978). But see: Patricia R. v. Sullivan, 631 P.2d 91 (Alaska 1981); Little v. PPG Industries, Inc., 19 Wash. App. 812 , 579 P.2d 940 (1978), aff'd and modified, 92 Wash.2d 118 , 594 P.2d 911 (1979). Because proof of knowledge by a defendant manufacturer or distributor regarding the risks inherent in the use of his product is not readily available to the plaintiff, however, the defendant’s knowledge of the dangerous propensities inherent in his product should be presumed, and the burden of coming forward with evidence to the contrary may be placed upon the defendant manufacturer or distributor. See: J. Wade, supra, 44 Miss.L.J. at 838-839. See also: Phillips v. Kimwood Machine Co., 269 Or. 485, 490 , 525 P.2d 1033, 1035 (1974). Cf. Voss v. Black & Decker Mfg. Co., supra, 59 N.Y.2d at 107 , 463 N.Y.S.2d at 401-402 , 450 N.E.2d at 207-208 (design case).

In the instant case, a warning was in fact given. The issue for the jury was whether that warning was adequate or whether, as appellees contended, the warning should have been embossed on the side of the tire. Under the absolute duty to warn rule adopted by the majority, a jury will be compelled to find the radial tire defective because the user was not in fact warned of the danger of mixing it with nonradial tires. The better rule, I suggest, would require the supplier to exert reasonable efforts to warn users of radial tires of dangers known to the supplier or of which he should have been aware. Thus, in the instant case, the jury should have been instructed to determine whether the warning given by Sears was reasonable. This requirement of “reasonableness” will preserve “the use of familiar terms and thought processes with which courts, lawyers, and jurors customarily deal.” McKay v. Sandmold Systems, Inc., supra 333 Pa.Super. at 242 , 482 A.2d at 264 , quoting Phillips v. Kimwood Machine Co., 269 Or. 485, 493 , 525 P.2d 1033, 1037 (1974). It will enable the law in this Commonwealth to retain concepts of strict liability envisioned by Restatement (Second) of Torts § 402A and *80 will avoid the flaw in Azzarello which “encourages juries to impose liability merely because plaintiffs have somehow been injured while using defendant’s products.” J. Henderson, Renewed Judicial Controversy over Defective Product Design: Toward the Preservation of an Emerging Consensus, 63 Minn.L.Rev. 773, 801 (1979).

The evidence in this case was conflicting. Plaintiff’s experts testified that it was dangerous to mix tire types, and one of them expressed the opinion that a warning, to be adequate, should have been embossed on the side wall of the tire. Appellant’s evidence showed (1) that mixing radial and non-radial tires rendered a vehicle difficult to control only when the vehicle was engaged in violent, high speed maneuvers and (2) that it was not practical to emboss a warning, with letters of adequate size, on the side of the tire. To do so would require the elimination of other, equally important instructions carried on the sides of its tires.

The trial court submitted it to the jury to determine whether Sears’ radial tire was “defective” because of “inadequate” warnings regarding its use with non-radial tires on the same vehicle. When it did so, however, it gave the jury no standard by which to determine whether the tire was defective because of inadequate warnings. Without such guidance the jury could not make an intelligent decision. It had no standard by which to determine the adequacy of the warnings which Sears had given in presenting its radial tire to the public. It could not determine, because it was not instructed, whether Sears had taken the precautions which a reasonable manufacturer would have taken in instructing the public concerning the limitations to be placed upon the use of its radial tires. In my opinion, this failure by the trial court requires that a new trial be granted.

William Kelly and Walter Pruyn were called by appellees to testify as expert witnesses. They were permitted to express opinions, over objection, that the use of Sears’ radial tire in conjunction with non-radial tires had caused the vehicle to steer erratically and thereby contributed to *81 Mallis’ loss of control of the vehicle. Pruyn also expressed an opinion, over objection, that radial tires should bear an embossed warning against mixing radial and non-radial tires. This warning, he said, should appear on the side of radial tires in white letters one and one-half inches to two inches high. 5 Sears argues on appeal that these matters required knowledge and experience beyond that possessed by appellees’ witnesses and that the court, therefore, erred in permitting them to testify as experts. The majority and I are agreed that there is merit in this argument.

Before the opinion testimony of an expert may be received, the subject of the inquiry “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman____ [Also], the witness must have sufficient skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier [of fact] in his search for truth.” McCormick on Evidence 29-30 (2nd ed. 1972) (footnotes omitted). See generally: Rutter v. Northeastern Beaver County School District, 496 Pa. 590 , 437 A.2d 1198 (1981) (plurality opinion); Kuisis v. Baldwin-Lima-Hamilton Corp., supra; Reardon v. Meehan, 424 Pa. 460 , 227 A.2d 667 (1967); Steele v. Shepperd, 411 Pa. 481 , 192 A.2d 397 (1963); Walheim v. Kirkpatrick, 305 Pa.Super. 590 , 451 A.2d 1033 (1982); Hughes v. Emerald Mines Corp., 303 Pa.Super. 426 , 450 A.2d 1 (1982); Kravinsky v. Glover, 263 Pa.Super. 8 , 396 A.2d 1349 (1979); Lebesco v. Southeastern Pennsylvania Transportation Authority, 251 Pa.Super. 415 , 380 A.2d 848 (1977); Densler v. Metropolitan Edison Co., 235 Pa.Super. 585 , 345 A.2d 758 (1975); 2 Jones on Evidence § 14:12 (6th ed. 1972).

“An expert witness has been defined as a person who possesses knowledge not within the ordinary reach and who, because of this knowledge is specially qualified to speak upon a particular subject.” Erschen v. Pennsylvania Independent Oil Co., 259 Pa.Super. 474, 477 , 393 A.2d *82 924, 926 (1978). “The Pennsylvania standard of qualification for an expert witness is a liberal one. Tf a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given his evidence is for the jury.’ Kuisis v. Baldwin-Lima-Hamilton Corp., [supra, 457 Pa. at 338, 319 A.2d at 924].” Rutter v. Northeastern Beaver County School District, supra 496 Pa. at 597-598 , 437 A.2d at 1201 . See also: Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30 , 233 A.2d 896 (1967); Reardon v. Meehan, supra; McKnight v. City of Philadelphia, 299 Pa.Super. 327 , 445 A.2d 778 (1982); Pratt v. Stein, 298 Pa.Super. 92 , 444 A.2d 674 (1982); Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230 , 433 A.2d 40 (1981). But see: Burch v. Sears, Roebuck & Co., supra, 320 Pa.Super. at 471 n. 4, 467 A.2d at 629 n. 4 (Dissenting Opinion by Wieand, J.); Ragan v. Steen, 229 Pa.Super. 515, 528 , 331 A.2d 724, 736 (1974) (Concurring Opinion by Spaeth, J.). While the standard for qualifying a witness as an expert is a liberal one, it remains a well established rule that “[t]he witness must show special knowledge of the very question upon which he promises to express an opinion.” Jones Appeal, 449 Pa. 543 , 551 n. 5, 297 A.2d 117 , 121 n. 5 (1972) (report of “doctor” with respect to parent’s mental health and fitness as a parent inadmissible as expert opinion because, inter alia, doctor did not appear in court and did not, therefore, state area of expertise on record). See: Duffy v. National Janitorial Services, Inc., 429 Pa. 334 , 240 A.2d 527 (1968) (plurality opinion) (although proposed expert may have had expertise in some other field, he was not qualified as an expert with respect to fire causation, having had no formal training and very little experience with respect thereto); Sweeney v. Blue Anchor Beverage Co., 325 Pa. 216 , 189 A. 331 (1937) (a witness described as a “teacher of biological sciences” was unqualified as an expert with respect to what caused the breaking of a bottle of ginger ale); Erschen v. Pennsylvania Independent Oil Co., supra (a trooper, employed as a fire marshall for six months, was not qualified as an expert with respect to the origin of a gas explosion). In *83 determining whether a witness is qualified to express an opinion as an expert,

[t]he object is to be sure that the question to the witness will be answered by a person who is fitted to answer it. His fitness, then, is a fitness to answer on that point. He may be fitted to answer ¡about countless other matters, but that does not justify accepting his views on the matter in hand.

2 Wigmore on Evidence § 555 (Chadbourn rev. 1979) (emphasis added). See: Randolph v. Collectramatic, Inc., 590 F.2d 844, 848 (10th Cir.1979); Arnold v. Loose, 352 F.2d 959, 962 (3rd Cir.1965) (applying Pennsylvania law); Flick v. James Monfredo, Inc., 356 F.Supp. 1143, 1149 (E.D.Pa.), aff'd mem., 487 F.2d 1394 (3rd Cir.1973) (applying Pennsylvania law); Robinson v. Greeley and Hansen, 114 Ill. App.3d 720, 727 , 70 Ill.Dec. 376, 381 , 449 N.E.2d 250, 255 (1983); Barrett v. Coast Range Plywood, 294 Or. 641, 645 , 661 P.2d 926, 929 (1983); Burch v. Sears, Roebuck & Co., supra, 320 Pa.Super. at 471-472 , 467 A.2d at 629 (Dissenting Opinion by Wieand, J.); 2 Jones on Evidence § 14:12, supra.

The issue in this case called for expert testimony. The jury had to decide whether a radial tire on the right front wheel of the Plymouth Fury driven by Mallis, when the other three wheels were mounted with non-radial tires, was a substantial factor in causing Mallis to lose control while driving between 20 and 25 miles per hour. To aid the jury in its search for the answer, it was necessary that an expert witness possess knowledge, whether gained by education, experience, or both, in the field of vehicle dynamics. He had to possess sufficient knowledge or experience to enable him to understand and predict the movement of vehicles under varying circumstances. At a minimum, this required knowledge in the fields of engineering and physics.

William Kelly readily admitted that he had received neither formal education nor training in these disciplines. He was an automobile mechanic. He had performed the job of auto mechanic well and had advanced to become service *84 manager for an automobile dealer. However, he “didn’t specialize in any mechanical things” in high school; did not attend college; “never studied engineering of any kind”; did not take any courses involving the design of tires; and received neither formal education nor informal training regarding vehicle dynamics as affected by changes in the types or conditions of tires. He had never worked for anyone whose function it was to test automobile performance as affected by changes in the types or conditions of tires. He said that he had road tested other 1971 Plymouth Fury automobiles, but the tests which he conducted were to determine, for state inspection purposes, whether there might be a mechanical problem that could not be observed by visual inspection. The tests were not made with the idea of testing the effect of mixing tires, and Kelly did not know during any given test whether, or how, the tires were mixed. He had not made tests to determine the dynamics of a vehicle moving with mixed tires and had “never read any technical articles published by a scientific or professional or engineering society.” The extent of his reading on the subject had been the service manual distributed by Chrysler and the State Inspection Manual.

Kelly was permitted to give an expert opinion because he said he was an expert. His naked assertion of expertise was unsupported by education, training or experience. He should not have been permitted to express an opinion that the presence of a radial tire on the right front wheel was a substantial causative factor in the accident which caused injury to the plaintiff. He had no reasonable pretension to specialized knowledge on the subject under investigation.

The trial court’s admission of Kelly’s evidence was alone error requiring a new trial. Therefore, Pruyn’s qualifications need not be reviewed at length. Suffice it to say that his pretension to expertise was not much greater than Kelly’s. He was a retired school teacher, seventy-five years of age, who had taught automobile mechanics. Upon retirement, he became a self-styled “accident investigator.” It did not appear that he had any relevant knowledge of *85 principles of vehicle dynamics or that he had'greater experience in testing vehicles than Kelly. Not only did the evidence show an absence of any proven record of achievement in the field of automobile dynamics, but it failed to demonstrate familiarity with the design, manufacture and marketing of automobile tires about the embossment of which he was permitted to express an opinion. See: Flick v. James Monfredo, Inc., supra (Pruyn not qualified as “impactologist” with respect to reconstruction of motorcycle accident).

Even where the scope of a witness’ education and experience may be broad enough to embrace a subject in a general way, the subject frequently is so specialized that the witness does not possess the expertise necessary to express an opinion. Thus, a manager of an automotive repair business with fifteen years experience is not qualified as an expert in accident reconstruction. Callander v. Hunter Motor Lines, Inc., 327 F.2d 754 (4th Cir.1964). Similarly, an orthopedic surgeon, who has never read a text on diabetes or diabetic comas and who has no special knowledge in the field of diabetes, is not necessarily qualified to express an opinion that a driver lapsed into a diabetic coma, causing loss of control of a vehicle. Arnold v. Loose, supra. Also, a radiologist may not be qualified to testify as to the proper procedure to be used in chest surgery. Hunt v. Bradshaw, 251 F.2d 103 (4th Cir.1958). See also: Wesley v. State, 32 Ala.App. 383 , 26 So.2d 413 (1946) (toxicologist not qualified to testify that wound was inflicted by screwdriver or similar instrument); Gaston v. Hunter, 121 Ariz. 33 , 588 P.2d 326 (Ct.App.1978) (neurosurgeon not qualified as expert with respect to orthopedic standards of care); Huffman v. Lindquist, 37 Cal.2d 465 , 234 P.2d 34 (1951) (autopsy surgeon not qualified as to treatment for brain injury); Moore v. Belt, 34 Cal.2d 525 , 212 P.2d 509 (1950) (autopsy surgeon not qualified as to existing standards in practice of urology); Dolan v. Galluzzo, 77 Ill.2d 279 , 32 Ill.Dec. 900 , 396 N.E.2d 13 (1979) (physician unlicensed in podiatry not qualified to testify in *86 malpractice action against podiatrist); Burrell v. Kirkpatrick, 410 So.2d 1255 (La.Ct.App.1978) (fireman with 27 years experience as firefighter not qualified to testify on causes of fire); E.N. Nason, Inc. v. Land-Ho Development Corp., 403 A.2d 1173 (Me.1979) (former superintendent of public works and construction worker from Massachusetts not qualified to testify on conditions and trade practices concerning a road construction project in central Maine); Keefer v. C.R. Bard, Inc., 110 Mich.App. 563 , 313 N.W.2d 151 (1981) (defendant’s expert on catheters properly prohibited from expressing an opinion with respect to the absence of blood on a catheter needle in the absence of evidence of his ability to recognize or identify blood); Swanson v. Chatterton, 281 Minn. 129 , 160 N.W.2d 662 (1968) (internist not qualified as to orthopedic surgery); State v. Askin, 90 Mont. 394 , 3 P.2d 654 (1931) (general practitioner not qualified to testify as to brain injury); Whitehurst v. Boehm, 41 N.C.App. 670 , 255 S.E.2d 761 (1979) (orthopedic surgeon unfamiliar, with practice of podiatry not qualified to testify as to standard of care required of podiatrist); Capan v. Divine Providence Hospital, 270 Pa.Super. 127 , 410 A.2d 1282 (1979) (anesthesiologist not qualified as to autopsy report).

The experiences of - Kelly and Pruyn in the field of automobile mechanics may have-embraced the subject of tires in a general way. Nothing in their training or experience, however, was sufficient to qualify them to express opinions regarding the causative effect of mixed tires on a vehicle being driven 20-25 m.p.h. on a wet roadway. Similarly, Pruyn was not qualified to express-an opinion regarding the embossing of warnings on the sides of tires.

Sears contends that the trial court also erred when it refused to allow evidence of experiments conducted by Sears and designed to- evaluate tire force, friction and oversteering when a radial tire has been mounted on a car with non-radial tires. The trial court excluded evidence of the experiments because the simulated conditions under which the experiments had been conducted varied from *87 conditions at the time of the accident. “Experiments for use in a trial to be admissible are normally held to a very strict standard and must be thoroughly authenticated before being admitted and this for the very good reason' that normally the possibility exists of great divergence of conditions and the existence of a great many variables which could affect any given result.” Clover Bar, Inc. Liquor License Case, 203 Pa.Super. 11, 14 , 198 A.2d 366, 368 (1964). See: Atene v. Lawrence, 456 Pa. 541 , 545-546 n. 5, 318 A.2d 695 , 698 n. 5 (1974) (plurality opinion). The admission of such evidence is committed to the discretion of the trial court, and a determination to exclude test results because of a dissimilarity of conditions will not be reversed in the absence of an abuse thereof. Glick v. White Motor Co., 458 F.2d 1287, 1294-1295 (3d Cir.1972); Weaver v. Ford Motor Co., 382 F.Supp. 1068, 1072 (E.D.Pa.1974), aff'd mem., 515 F.2d 506 (3d Cir.1975). See also: Commonwealth v. Sero, 478 Pa. 440 , 387 A.2d 63 (1978). In the instant case, there was no abuse of the trial court’s discretion.

The trial court permitted Sears to introduce evidence of prior accidents on Matson Ford Road in order to prove a dangerous highway condition and PennDot’s knowledge thereof. However, the court refused to allow evidence of subsequent accidents. There was no error in this ruling. Moreover, even if we assume that such evidence would have served a relevant purpose, its exclusion was harmless. The only proper effect which it could have had was cumulative; it would not have aided the jury further in its search for truth. See: Baldino v. Castagna, 308 Pa.Super. 506, 517 , 454 A.2d 1012, 1018 (1982), rev’d on other grounds, 505 Pa. 239 , 478 A.2d 807 (1984). This is peculiarly apparent where, as here, the jury found as a fact that PennDot had been guilty of causal negligence.

Finally, Sears contends that the trial court erred when it directed the jury to apportion liability among parties whose liability depended on negligence and Sears, whose liability *88 depended upon principles of strict liability in tort. 6 The Pennsylvania Comparative Negligence statute provides at 42 Pa.C.S. § 7102 as follows:

(a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

(b) Recovery against joint defendant; contribution.

—Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

Although the legislature has used the term “negligence” in defining the scope of the act, it appears to me that the term was used generically to include actions sounding in tort. In reality and more precisely, it appears that the legislature intended to enact a comparative fault statute. Thus, damages allowed in a tort action must be apportioned among all *89 defendants against whom recovery is allowed according to the proportion which each defendant’s “fault” bears to the “causal fault” attributed to all defendants. In this manner the Pennsylvania statute can be interpreted consistently with the Uniform Act 7 which has been proposed for enactment by the states. To interpret the Pennsylvania statute narrowly to have application only in tort actions where recovery is premised upon “negligence” would be to create such absurd and unreasonable procedural and substantive difficulties that the statute would be rendered meaningless and impossible of application in many tort actions. This we may not do. 1 Pa.C.S. § 1922(1). See: Bundy v. Belin, 501 Pa. 255, 261 , 461 A.2d 197, 200 (1983); Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502 , 464 A.2d 431, 434 (1983); Worley v. Augustine, 310 Pa.Super. 178, 183 , 456 A.2d 558, 561 (1983). See generally: Annot., Applicability of Comparative Negligence Doctrine to Actions Based on Strict Liability in Tort, 9 A.L.R. 4th 633 (1981). The instant case is a good example. To require apportionment of negligence between Mallis and PennDot but without considering the causative effect of Sears’ fault, if any, would achieve an absurd and nonsensical result. A just result can be achieved only if the plaintiff’s damages can be allocated among all parties whose fault has caused the loss. I would hold, therefore, that the trial court did not err when it called upon the jury to apportion fault among Mallis and PennDot, who were charged with negligence, and Sears, from whom recovery was sought on grounds of strict liability for distributing a product found to be defective because of inadequate warnings.

For these reasons, I concur with the majority that the judgment should be vacated and the case remanded for a new trial. However, I am of the opinion that the jury *90 should be instructed consistently with standards suggested in this Concurring and Dissenting Opinion.

ROWLEY, J., joins in this opinion.

. PennDot had settled prior to trial for $87,500.00 and had taken a joint tortfeasor's release.

. Section 402A of the Restatement (Second) of Torts provides as follows:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

. The defect alleged in Azzarello was a design defect. The Supreme Court’s holding in that case does not preclude the use of negligence principles in cases where the alleged defect is a failure to give adequate warning.

. A negligence standard has been adopted by the Modern Uniform Products Liability Act. Section 104[c], 44 Fed.Reg. 62, 721 (1979) provides:

(C) The Product Was Unreasonably Unsafe Because Adequate Warnings or Instructions Were Not Provided.

(1) .In order to determine that the product was unreasonably unsafe because adequate warnings or instructions were not provided about a danger connected with the product or its proper use, the trier of fact must find that, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms and the seriousness of those harms rendered the manufacturer’s instructions inadequate and that the manufacturer should and could have provided the instructions or warnings which claimant alleges would have been adequate.

(2) Examples of evidence that is especially probative in making this evaluation include:

(a) The manufacturer’s ability, at the time of manufacture, to be aware of the product’s danger and the nature of the potential harm;

(b) The manufacturer’s ability to anticipate that the likely product user would be aware of the product’s danger and the nature of the potential harm;

(c) The technological and practical feasibility of providing adequate warnings and instructions;

(d) The clarity and conspicuousness of the warnings or instructions that were provided; and

(e) The adequacy of the warnings or instructions that were provided.

(3) In any claim under this Subsection, the claimant must prove by a preponderance of the evidence that if adequate warnings or instructions had been provided, they would have been effective because a reasonably prudent product user would have either declined to use the product or would have used the product in a manner so as to have avoided the harm.

(4) A manufacturer shall not be liable for its failure to warn or instruct about dangers that are obvious; for “product misuse” as defined in Subsection 112(C)(1); or for alterations or modifications of the product which do not constitute "reasonably anticipated conduct” under Subsection 102(G).

(5) A manufacturer is under an obligation to provide adequate warnings or instructions to the actual product user unless the manufacturer provided such warnings to a person who may be reasonably expected to assure that action is taken to avoid the harm, or that the risk of the harm is explained to the actual product user.

*78 For products that may be legally used only by or under the supervision of a class of experts, warnings or instructions may be provided to the using or supervisory expert.

For products that are tangible goods sold or handled only in bulk or other workplace products, warnings or instructions may be provided to the employer of the employee-claimant if there is no practical and feasible means of transmitting them to the employee-claimant.

(6) Post-Manufacture Duty to Warn.

In addition to the claim provided in Subsection (C)(1), a claim may arise under this Subsection where a reasonably prudent manufacturer should have learned about a danger connected with the product after it was manufactured. In such a case, the manufacturer is under an obligation to act with regard to the danger as a reasonably prudent manufacturer in the same or similar circumstances. This obligation is satisfied if the manufacturer makes reasonable efforts to inform product users or a person who may be reasonably expected to assure that action is taken to avoid the harm, or that the risk of harm is explained to the actual product user.

. He did not explain why the warning should appear only on radial tires and not also on non-radial tires.

. The majority holds that Sears waived this argument when its counsel failed to object to the court’s instruction at trial. This position is not well taken. At page 1041a of the record (page 66-X of the trial transcript), the following appears:

"Mr. Williams: And then you said if they find against more than one the Comparative Negligence Act applies. First, we'd like an exception to that part of the charge.

The Court: You may have an exception to that.”

The issue was also preserved in post-trial motions and was considered by. the court en banc. Therefore, it is properly before this Court for review. \

. The Uniform Act would define "fault" to include, inter alia, “acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability." Uniform Comparative Fault Act, Section 1(b).