The opinion
FILES, P. J., Concurring and Dissenting.
I would affirm the entire judgment.
In this case of first impression the majority holds that the retailer (Brown) may be excused upon the ground that it was ignorant of the use for which the crane was intended, as understood by both the manufacturer and the user.
It is important to remember that this kind of liability is not based upon fault. The retailer may be, and usually is, wholly innocent of any fault or wrongdoing. In Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262 [ 37 Cal.Rptr. 896 , 391 P.2d 168 ], and again in Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 587 [ 75 Cal.Rptr. 652 , 451 P.2d 84 ], the Supreme Court stated the reasons for holding the retailer strictly liable in a case of this kind. The majority decision in this case cannot be reconciled with that reasoning.
The explanations of strict liability in the Restatement, and in the BAJI instructions, do not recognize any separate retailer’s defense of the kind *589 asserted here. Both authorities explain the defective condition of the product in terms of the expectation of the user, not the knowledge or intent of the seller.
Restatement Second of Torts section 402A, comment g, states: “The rule stated in this Section applies only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”
BAJI (5th ed. 1969) Nos. 9.00 and 9.01 use this language: “An article is unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”
The majority opinion seems to claim support from the sentence in Johnson v. Standard Brands Paint Co. (1969) 274 Cal.App.2d 331, 340 [ 79 Cal.Rptr. 194 ], which says, “The ultimate test is whether the article was being used in a way which the seller should have reasonably anticipated.” Assuming that that dictum is a correct statement of law, it does not support the decision here. In the case at bench the retailer should have anticipated that the crane would be used for the purpose which was both the intention of the manufacturer and the expectation of the user, even though the retailer may have been unaware of what that purpose was. The verdict of the jury in favor of plaintiff against the manufacturer necessarily includes a finding that the crane was unsafe for the use which they intended. That finding necessarily results in liability upon the retailer.