SABERS, Justice (on reassignment).
This appeal arises from the final judgment entered upon the jury’s verdict, the trial court’s denial of plaintiffs motion for new trial, and orders awarding costs to defendants. We reverse and remand.
James Zacher (Zacher), an employee of the Windmill Truck Stop in Rapid City, South Dakota (Windmill), was injured on August 2, 1978, when a multi-piece truck wheel exploded during remounting. Zacher filed an action for damages based on the three substantive theories of product liability: strict liability, breach of implied warranty, and negligence. All three theories were asserted against each of three defendants: The Budd Company (Budd), manufacturer of the wheel; Yellowstone Molasses Service, Inc. (Yellowstone), owner and lessor of the wheel and the trailer to which it was attached at the time of the accident; and Dixon Brothers, Inc. (Dixon), lessee of the wheel and trailer at the time of the explosion. Zacher’s wife also sought damages in this action.
Statement of Facts
The multi-piece truck wheel (wheel) which exploded consisted of a disc and rim assembly and a side ring and lock ring assembly. The disc and rim assembly is commonly thought of as the wheel. The side ring and lock ring are affixed to each other by two rivets. The rim was designed and manufactured by Firestone Tire & Rubber Company (Firestone), and the disc portion was designed and manufactured by Budd. In 1951, Budd permanently riveted these parts together and thereby constructed the disc and rim assembly which was part of this particular wheel. The side ring and lock ring assembly, which made up the third component of the multi-piece wheel, was manufactured by Firestone sometime before 1946.
[124]*124Single-piece rims are used when tubeless tires are used. The record discloses that tubeless tires were not feasible on passenger cars until the early 1950’s. Following this, trucking operations became interested in tubeless tires for trucks.1 Single-piece tire rims and tubeless tires for trucks were developed in 1953 and first produced in 1954.
The evidence showed that the side ring and lock ring assembly did not match the disc and rim assembly manufactured by Budd. There was no evidence, however, to show that Budd incorrectly combined its disc and rim assembly with the side ring and lock ring assembly on this particular wheel. Indeed, the only evidence presented showed that they correctly assembled the wheel.
At some time, the disc and rim assembly involved in this accident, and manufactured by Budd, was mismatched with a side ring and lock ring assembly. Firestone designed and manufactured this particular side ring and lock ring assembly to fit an older model rim. The two components did not fit together properly: the ring assembly tongue could not be completely seated into the disc and rim assembly gutter, the combination of which increased the possibility of an explosion. Not only were the components mismatched, but these mismatched components themselves were out of round. The danger of explosion exists when the wheel unit is combined with a tire. As the tire (or tube) is inflated, the tire-wheel assembly becomes a “pressure vessel” with substantial stored energy wanting to escape. All tire-wheel units, whether initially single- or multi-piece wheels, pose some danger of explosive dis-assembly. However, the danger increases in a multi-piece wheel when its components are mismatched.
This wheel had also been physically altered from the condition in which it left Budd’s hands. As manufactured and distributed, the valve stem slot did not extend to the edge of the disc and rim assembly. Someone using a chisel or torch had lengthened the slot on this Budd assembly to extend it to the edge of the wheel.
On August 2, 1978, this wheel was on a trailer owned by Yellowstone, a trucking company which owned fourteen over-the-road tractors and approximately thirty trailers at that time. Yellowstone’s primary contracts were seasonal and during the off-season it leased its equipment to other trucking companies on short-term leases of less than thirty days. Yellowstone leased the trailer on which this wheel was mounted to Dixon on August 2, 1978. A Yellowstone driver, on Yellowstone’s payroll, drove the vehicle for Dixon. The lease provided that the equipment was in “first-class condition” and would be so maintained by Yellowstone during the term of the lease. Before the lease was signed, a Dixon employee inspected the trailer and found a flat tire on an inside dual. Two Yellowstone drivers drove the vehicle to the Windmill, the shop which serviced tires on Yellowstone trucks when they were in the area. Windmill held itself out to the public as a competent and qualified truck tire repair service.
a. Trial Testimony
Zacher was experienced in repairing flat tires and in the disassembly and reassembly of large truck wheels. From the time he began work as a service station attendant at the Windmill, some nine to ten months earlier, Zacher ordinarily repaired approximately five flat truck tires per day. He had also worked with multi-piece wheels at two other jobs prior to his employment with Windmill. The Windmill was not a distributor of new or used truck wheels or components. There were no catalogs, matching charts, or other literature concerning truck wheels available to Zacher at the Windmill. From time to time, defendant Budd issued cautionary literature but distributed it only to its own distributors and not to truck stops or service [125]*125stations. Neither the general manager of the Windmill, Darrell Lich, nor Zacher, had ever seen that type of literature before the accident or prior to their pretrial depositions. The only document which Zacher had ever seen before the accident was a poster that hung on the wall at the Windmill which merely reminded workers to be careful with multi-piece wheels.
A “safety cage” was provided for Windmill employees while they worked on truck wheels with inflated tires. Zacher always used the safety cage. As an added precaution, before removing such a wheel from the safety cage after inflation of the tire, he rotated it several times on rollers at the bottom of the cage and visually examined the entire circumference of the wheel to make sure the side ring and lock ring were properly seated on the rim.
LeRoy Iverson, Yellowstone’s general manager and acting safety engineer, testified that about one year before the August 1978 accident, Yellowstone had leased the subject trailer to Consolidated of Spokane, Washington. During that lease, about eight new tires were installed on the trailer. It was his belief that the old multi-piece wheel involved in the accident was substituted onto the trailer when those eight tires were installed in Washington. He stated that the wheel and eight or ten others just like it, may also have been placed on the trailer by either Emil Ren-nich, an independent tire repairman whose services were customarily used by Yellowstone, or by one of Yellowstone’s own shop employees. He conceded the wheel was unsafe and should have been culled out of the fleet and thrown away.
It was conceded by all expert witnesses who testified, including representatives from all defendants, that this multi-piece wheel was not in “first class condition”, was unsafe, and posed the risk of an explosive disassembly.
John Haug, manager of Budd’s wheel engineering department, testified that both pieces of this wheel, (the rim-disc portion and the separate side ring and lock ring), had outlived their average useful life expectancy of between ten and fifteen years. Additionally, he stated that the side ring and lock ring assembly was the wrong size and type. The side ring and lock ring was a 7.33 V “R” and the rim-disc assembly was a model # 59930, 7.5 “R 5 °” size and type. Although a person like Zacher working in a service station would not see a cross sectional drawing of such a “mismatch”, Budd had one2 prepared for trial. This drawing illustrates that, when viewed from that prospective, the separate components do not fit together properly. Haug concluded that they should not have been used together because the mismatch increased the likelihood of an explosive disas-sembly. Before the accident, the specific mismatch in question had been recognized in Budd’s cautionary literature as a “foreseeable” mismatch.
[126]*126[[Image here]]
There was nothing in any of the literature which Budd had distributed during the twenty years or so prior to the accident to assist a tire repairman in determining [127]*127whether the model # 59930 rim-disc was type “R” or a “R 5 °,” so that a mismatch of parts could be detected or avoided. Moreover, this rim-disc assembly and the side ring and lock ring assembly were devoid of any imprinted designation of their type or style. An examination disclosed the absence of any “R” or “R 5 °” designation on either of them. Mr. Haug conceded that for the cost of a few cents in mass production, a short, meaningful message such as “R 5 °: Use only R 50 ring,” could have been indelibly imprinted on the rim-disc assembly.
Neil Burgess, one of Dixon’s shopmen, testified that when repairing a flat or changing a tire, he always put the same side ring and lock ring, which had been removed, back onto the rim-disc. He also stated that every careful service station attendant should always reinstall the same ring that was removed.
Dan Litzsinger, a Yellowstone employee, testified that Yellowstone had a company policy or rule that its drivers were never to permit a service station attendant to substitute equipment when repairing a flat tire. Yellowstone employees were told to make sure that the same rim and ring that comes off the rig goes back on it. Litzsinger further stated that even an experienced shopman would be unable to tell by visual examination, absent appropriate markings, whether this side ring and lock ring and the rim-disc assembly matched one another.
Phil Peterson, another Yellowstone driver, came back to the Windmill approximately one month after the accident. He advised Darrell Lich, Windmill’s manager, that after this tractor-trailer was returned to Yellowstone, upon inspection, six more wheels just like the one involved in the accident were found on the vehicle and removed.
Another Yellowstone driver-employee named Schuman, hung around the shop most of the time and watched Zacher perform the repair job. Schuman testified that Zacher did nothing wrong and appeared to be a skilled tire repairman. Zacher used all of the proper safety equipment and put the same side ring and lock ring back onto the rim-disc that Schuman had brought in together. Zacher made no substitutions.
After the tire was repaired, the wheel reassembled, and the tire inflated, Zacher rotated the wheel several times on the rollers at the bottom of the safety cage and inspected the entire circumference of the wheel to make sure that the ring was properly seated on the rim. Zacher next took the wheel out of the safety cage, rolled it over to the trailer, used some bars to elevate it back onto the hub, and by hand started the installation of the lug nuts. Just as he began tightening the lug nuts down with an air gun, an explosion occurred. The next thing Zacher remembered was waking up on the floor of the shop in a lot of pain. He looked at one foot and saw that it was turned completely around on his leg — pointing in the wrong direction. He also noticed that one arm had been badly injured. He believed that he had lost the arm.
Zacher was hospitalized on four separate occasions for a total of forty-eight days. After several surgical procedures on his arm and leg, his medical expenses totaled $19,300.05. Claimed past and future economic losses amounted to between $634,990 and $970,670. He was permanently disabled from engaging in a line of work which required heavy lifting or subjected his arm or leg to any bad bumps or jars.
Professor William Groves, head of the mechanical engineering department at the South Dakota School of Mines & Technology, testified as an expert witness for the plaintiffs. He testified that the elongation of the valve stem slot caused a loss of 27 of 28ths of its rigidity which contributed to causing the explosive disassembly of the components of the wheel; that the wheel was comprised of mismatched components; and that the wrong size and type of side ring and lock ring had been used on Yellowstone’s rim. In his opinion, the mismatch also contributed to the explosive dis-assembly of the ring from the rim.
[128]*128Professor Groves further testified that the manufacturer’s failure to properly identify the component parts, by the use of either an indelible imprint stamped into the steel, color coding, or the use of an interlocking, matching locator pin and hole, fell below an acceptable standard of care from the standpoint of safety. His examination disclosed that the model number [59930] of the rim had been indelibly imprinted onto the rim and was still visible after years of use. He testified that it would have been feasible, and would not have affected the integrity of the rim, for Budd to have had the rim indelibly imprinted with a warning such as “R 5 °: Use only R 50 ring.” According to Professor Groves, the absence of such an imprinted warning similarly contributed to causing the mismatch of components and the ensuing explosive disassem-bly. He stated that the quantity of energy impounded within an inflated truck tire is more than the energy generated by the explosion of a “stick of dynamite.” He also expressed the opinion that “single-piece” truck wheels were and are safe, and that multi-piece wheels are inherently defective and unreasonably dangerous,
b. Trial Motions and Rulings
During trial, cautionary instructions which were requested and given, advised the jury that it must not consider certain evidence against Yellowstone and Dixon. This evidence was notice to the wheel industry of prior accidents caused by explosive disassembly of multi-piece wheels, recognition by the wheel industry of the fact that multi-piece wheels were dangerous, and comments contained in the articles used by counsel for Budd during cross- and re-cross examination of Professor Groves, (that all multi-piece wheels are inherently defective and unreasonably dangerous). Zacher objected to the cautionary instructions. Zacher argued that it was unfair to allow the jury to use such knowledge against Zacher on the issues of contributory negligence and assumption of the risk, but not allow the jury to impute the same to defendants Yellowstone and Dixon on the issue of negligence, especially when there was no evidence that Zacher had knowledge of that information.
Budd moved the trial court for summary judgment on all three theories of liability. These motions were denied. Budd additionally moved for summary judgment based upon the six year product liability statute of limitations, SDCL 15-2-12.1. This motion was also denied.3 Yellowstone and Dixon requested summary judgment on the strict liability and breach of warranty causes of action on grounds that they did not manufacture or sell the multi-piece wheel that exploded. All three defendants moved the trial court for summary judgment on the punitive damage counts based on the absence of any evidence of willful or wanton misconduct. See: SDCL 21-3-2.
Prior to trial, the trial court granted all three defendants summary judgment on the punitive damages count and granted Yellowstone and Dixon summary judgment on the strict liability and breach of warranty counts. Following presentation of evidence to the jury, the trial court granted Budd’s motion to dismiss the breach of implied warranty count.
The questions of whether Budd, as the manufacturer and seller of the disc and rim assembly, was liable on strict liability grounds and whether any of the three defendants were liable for negligence went to the jury. The trial judge believed there was a genuine issue of material fact as to whether Yellowstone or Dixon made a reasonably thorough inspection prior to and after exchange of the trailer. The jury was also asked whether Zacher’s claims against Budd were barred by SDCL 15-2-12.1. They returned a special verdict and found that none of the three defendants had been negligent and that Budd was not liable to Zacher under the strict liability theory. The jury also decided that Zach[129]*129er’s claims against Budd were barred by the product liability statute of limitations.
The trial court then ordered Zacher’s action dismissed on the merits and that the defendants should recover their costs of the action, including their costs for taking depositions. Zacher moved the court for a judgment notwithstanding the verdict or in the alternative for a new trial, and objected to the taxation of costs. A hearing was held, Zacher’s motions were denied, and the costs of most of the depositions were taxed. Zacher appeals from the final judgment, the denial of his motion for judgment notwithstanding the verdict, and the taxation of depositions costs.
c. Issues
Zacher raises eight issues on appeal and urges that the trial court committed prejudicial error when it:
(1) applied and instructed the jury on SDCL 15-2-12.1, the six year product liability statute of limitations;
(2) instructed the jury that defendants were not liable if they complied with industry and governmental standards;
(3) gave its own instructions to the jury rather than Zacher’s proposed instructions;
(4) granted motions for summary judgment on breach of warranty and strict liability to Yellowstone and Dixon and refused to instruct on breach of warranty against Budd;
(5) allowed defense counsel to read certain publications before the jury;
(6) denied Zacher’s request to hear a rebuttal witness;
(7) refused to instruct the jury that defendants’ violation of safety statutes and rules constituted negligence per se; and
(8) taxed Zacher with defendants’ costs of the action, including their costs of depositions.
These issues are discussed in the above order as follows:
1. SINCE THE COURT’S INSTRUCTIONS WERE BASED ON PRIOR LAW AND THE SIX YEAR PRODUCT LIABILITY STATUTE OF LIMITATIONS, WHICH WAS SUBSEQUENTLY RULED UNCONSTITUTIONAL, ZACHERS ARE ENTITLED TO A NEW TRIAL
In reliance upon prior law and the six year product liability statute of limitations,4 SDCL 15-2-12.1,5 the trial court [130]*130submitted Instruction #366 to the jury. The jury found that Zacher’s claims against Budd were time barred by the statute of limitations. However, SDCL 15-2-12.1 was declared unconstitutional in Daugaard v. Baltic Co-op Building Supply Ass’n., 349 N.W.2d 419 (S.D.1984). Therefore, through no fault of the trial court, Instruction #36 was erroneous and a new trial must be granted.
Budd argues that even if Instruction # 36 was erroneous, it was not prejudicial error irrespective of SDCL 15-2-12.1, because the jury determined that Budd was not liable to Zachers under the theories of strict liability or negligence. We have examined the special verdict form, the jury’s question concerning same, and the court’s answer thereto.7 We conclude that the jury’s determination that Budd was not liable to Zacher was clearly based upon the statute of limitations instruction, and not solely on the separate basis of either strict liability or negligence. Therefore, we reject Budd’s argument.
Daugaard concerned consolidated actions, all of which arose out of a propane gas explosion and fire at the Baltic grain elevator. 349 N.W.2d at 419. The trial court entered summary judgment against the plaintiffs who had suffered severe injuries in the explosion-fire, and the executrix of one who perished from his injuries. Id. at 424. The court rested its decision on the application of two statutes: SDCL 15-2-9, the six year statute of limitations for deficiencies in construction of improvements to real property, and SDCL 15-2-12.1, the six year product liability statute of limitations. On appeal, the plaintiffs asserted that these statutes unconstitutionally “locked the courtroom door” before they had an opportunity to open it. Id. at 424. We wrote:
Our constitution, as enacted by our forefathers and occasionally amended, is solid core upon which all our state laws must be premised. Clearly and unequi-vocably, our constitution directs that the courts of this state shall be open to the injured and oppressed....
SDCL 15-2-9 and SDCL 15-2-12.1 are a locked deadbolt and shackle on our courtroom doors. We are unwilling to couch SDCL 15-2-9 and SDCL 15-2-12.1 in wishful language which portends their effect is somehow constitutional. SDCL 15-2-9 and SDCL 15-2-12.1 are statutes of nullification which stamp out our citizens’ causes of action before they accrue. SDCL 15-2-9 and SDCL 15-2-12.1 have transgressed constitutional limitations [131]*131and therefore it is our duty to declare these two statutes unconstitutional.8
Id. at 425.
Based upon the “open courts” provision9 of the South Dakota Constitution, the Dau-gaard court declared the statutes unconstitutional, and in doing so, reversed the summary judgments and remanded for trial. Id. at 427.
Daugaard has been followed by the Supreme Court of Arizona in Kenyon v. Hammer, 688 P.2d 961 (Ariz.1984),10 and by the Supreme Court of Utah in Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985).
In Berry, decedent’s wife and children filed a wrongful death action against an airplane manufacturer predicated upon the theories of negligence, strict liability, and breach of warranty. 717 P.2d at 671. The decedent died in an airplane crash. The aircraft was approximately twenty-three years old at the time of the crash, and had been purchased by its current owner some nine years earlier. The trial court awarded Beech summary judgment on all theories of liability based on the statute of repose contained in section 3 of Utah’s Product Liability Act (Act).11 Id. at 671-672.
On appeal, the appellants claimed that section 3 was unconstitutional because it violated the Open Courts Clause12 of the Utah Constitution. Id. Characterizing section 3 as “sweeping and absolute once the statutory period has elapsed,” the court held.that the elimination of all causes of action after the period specified in the statute, without regard to when an injury occurred, was arbitrary, unreasonable, and unconstitutional as violative of the Open Courts Clause of the Utah Constitution.
[132]*132Id. at 681.13
In Zacher’s case, SDCL 15-2-12.1 began to run from the date of the first sale of the multi-piece wheel. Budd constructed the disc-rim assembly in 1951. The side ring and lock ring assembly was manufactured by Firestone sometime before 1946. The jury found that this multi-piece wheel was delivered to its first purchaser(s) more than six years before the accident. The explosion which injured Zacher did not occur until August 2, 1978. On its face, SDCL 15-2-12.1 operated to time bar any action against Budd which occurred more than six years after the wheel was delivered to its first purchaser. More importantly, however, it operated here to bar Zacher’s cause of action before it even existed, and even though he was diligent in seeking a judicial remedy. As such, the operation of SDCL 15-2-12.1 afforded Zacher no time nor opportunity to try his rights in court. Therefore, based upon the foregoing authorities, and the evidence before us, we find that Instruction #36 unlawfully extinguished Zacher’s right to seek redress for his injury before it even arose, and thus, denied him justice.
It is interesting to note the history of SDCL 15-2-12.1 since Daugaard, supra. As indicated above, Daugaard ruled the statute unconstitutional in 1984. In 1985, the statute was repealed by section 2, chapter 157 of the 1985 Sessions Laws.
In addition, and in its place, the 1985 Legislature enacted SDCL 15-2-12.2 as follows:
An action against a manufacturer, lessor or seller of a product, regardless of the substantive legal theory upon which the action is brought, for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, installation, inspection, preparation, assembly, testing, packaging, labeling or sale of any product or failure to warn or protect against a danger or hazard in the use, misuse or unintended use of any product, or the failure to provide proper instructions for the use of any product may be commenced only within three years of the date when the personal injury, death or property damage occurred, became known or should have become known to the injured party.
This section is prospective in application. Source: 1985 S.D.Sess.Laws, ch. 157, § 1.
By its terms, this statute is prospective in application. As such, it does not apply to this case, but at a minimum, it does:
1. impliedly affirm the decision in Dau-gaard by adopting the Daugaard rationale in providing a three year statute of limitations from the time of the personal injury, death or damage;
2. provide a smooth transition for South Dakota product liability law;
3. quiet Daugaard’s critics by attempting to settle the future.
Daugaard’s first critic was Justice Woll-man, who dissented in part as follows: “It will be interesting to see whether the life span of today’s majority opinion will be as ephemeral as the composition of the court [133]*133that produced it. However long-lived today’s interment of McMacken, the decision will do nothing to add to this court’s reputation for constancy, consistency, and reasoned elaboration.” Daugaard, 349 N.W.2d at 428.
We submit that this court’s reputation for constancy, consistency, and reasoned elaboration has in fact been strengthened by the Legislature’s enactment of SDCL 15-2-12.2. More importantly, however, SDCL 15-2-12.2 recognizes and approves this court’s earnest search for constitutional fairness.
Accordingly we hold that the trial court’s instruction was erroneous, and we reverse and remand for a new trial.
2. IS COMPLIANCE WITH INDUSTRY, ASSOCIATION AND GOVERNMENT STANDARDS CONCLUSIVE?
The next question is whether the trial court committed error when it instructed the jury that defendants were not liable if they complied with industry, association, and governmental standards.
Zacher complains that the trial court gave Instructions 20, 21 and 33 over his objections, and that collectively these instructions amounted to a directed verdict for Budd, if Budd complied with the standards of their own industry, voluntary association, or governmental bodies. Zacher points out that the instruction was contrary to South Dakota law, universal law, and argued that no industry or voluntary association may, in fact, adopt its own standards as conclusive. That is, industry standards are merely a minimal standard that may be considered, and Instruction #20 states that it is a conclusive standard. We agree. See: Turner v. American Motors General Corp., 392 A.2d 1005, 1007 (D.C.Ct.App.1978) (“Compliance with a legislafive enactment or administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precaution.”); Potter v. Battle Creek Gas Co., 29 Mich.App. 71, 185 N.W.2d 37, 39 (1970) (“[H]ad the defendant violated one, or more, of the standards of the commission that fact might be deemed to be proof of negligence or evidence of negligence, it does not follow that coming within the standards ... insulates defendant from a finding of negligence.”). See also: Restatement (Second) of Torts § 295A (1965) (“In determining whether conduct is negligent, the customs of a community, or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them.”).14
Therefore, the trial court’s instructions, that compliance with standards exonerated the defendants from liability, were clearly prejudicial and reversible error.
Additionally, plaintiffs proposed Instruction #2 instead of the instructions mentioned above:
In determining whether the defendants were guilty of negligence for failure to use reasonable care in connection with the performance by them of the duties which they owed to the plaintiffs as elsewhere defined in these instructions, you may consider whether the defendants followed or complied with the standards and customs of their own industry or trade. However, compliance with such legislative enactments, rules or regulations and/or compliance with the standards and customs of their own industry or trade are not controlling and does not prevent you from finding them negligent if a reasonable man in the position of the defendants would or reasonably should have taken additional precautions.
[134]*134Whenever under particular circumstances and in view of the risk involved a reasonable person would depart from the customs and standards of a particular industry or trade or take precautions additional to those required by a legislative enactment, rule or regulation, such a defendant may be found negligent if it fails to so depart or take such additional precautions. (emphasis in original).
In view of the facts and circumstances of this case, proposed Instruction # 2 was an accurate statement of the applicable law and should have been given by the trial court instead of the erroneous instructions mentioned above. The last paragraph of Instruction # 33 properly instructed the jury that compliance with [governmental] regulations could be considered as evidence of the exercise of reasonable care by Yellowstone and Dixon but was not conclusive on the issue of negligence. However, this instruction did not correct the error in respect to the conclusiveness of standards of industry and voluntary associations. Therefore, this error relates not only to the negligence claims against Budd but also against the defendants Yellowstone and Dixon.
3. FORESEEABLE PRODUCT MISUSE, MISMATCH OR CHANGE DOES NOT RELIEVE THE MANUFACTURER OF ALL LIABILITY NOR ITS DUTY TO WARN
Zacher contends that the trial court committed reversible error by giving Instruction # 19,15 and compounded the error by refusing to give his proposed Instructions 5 through 10 and 18.16 Zacher objected to Instruction # 19 because it provided that Budd, the manufacturer, must not be found liable to the plaintiffs if its product reached Zacher with “any substantial change” in its condition from the time it left Budd’s control, or if “subsequent misuse or other causes” made the product harmful or dangerous. According to Zacher, this instruction misstated the law because neither Instruction # 19, nor any other instruction covered the required modifying issues of “foreseeability” or “intervening cause.” Therefore, Zacher argues that the trial court erred in refusing to give his proposed instructions.
Not all substantial changes in the condition of a product will relieve the manufacturer of liability; nor will misuse of a product necessarily relieve the manufacturer of such liability under all circumstances. The overriding consideration ignored by the trial court’s instructions concerning both the alleged substantial changes or alterations to the subject wheel, and its alleged misuse, was the doctrine of foreseeability.
In Olson v. A.W. Chesterton Co., 256 N.W.2d 530 (N.D.1977), a conveyor belt operator sustained personal injuries after applying a belt dressing to the conveyor belt upon which he was working. Thereafter, he brought an action against the manufacturer of the belt dressing based on the theory of strict liability in tort. Because the warning on the belt dressing container required application by pouring it slowly over the running belt, and the operator [135]*135squirted it directly upon one of the top drive pulleys, the manufacturer argued that the operator’s method of application constituted misuse of the product, thus relieving them of liability. The court held:
It is now well-settled that one who manufactures or sells a product has a duty not only to warn of dangers inherent in its intended use, but also to warn of dangers involved in a use which can be reasonably anticipated.
Id. at 535.
The court found this dual responsibility applicable to product liability cases based not only on negligence, but on strict liability as well. Regarding the latter theory, the court quoted in part from Thomas v. General Motors Corp., 13 Cal.App.3d 81, 91 CalRptr. 301, 306 (1970) and stated:
Although it is incumbent on a plaintiff seeking to impose strict liability to establish that he was injured while using the product in a way it was intended to be used ... a manufacturer may be held liable where the misuse by the customer was reasonably foreseeable_ Whether the use or misuse of a product by the plaintiff was reasonably foreseeable is ultimately a jury question.
Here, the trial court gave no instructions to the jury that Budd’s “duty to warn” applied to the theory of strict liability. Instead the court gave a duty to warn instruction which was limited in its application to the theory of negligence. Since the testimony of Professor Groves was that the manufacturer’s failure to indelibly imprint cautionary information upon the rim and ring contributed to the subsequent explosion, the failure to give a duty to warn instruction, broad enough to encompass strict liability, constituted reversible error under the Olson rationale.
This court has held that the issue of foreseeability is a fact issue for the jury, not an issue of law for the court. Rikansrud v. City of Canton, 79 S.D. 592, 116 N.W.2d 234 (1962). Thus, even if a plaintiff is assumed contributorily negligent, whether that intervening force supersedes the defendant’s negligence is for the jury to decide. Id. 79 S.D. at 604-608, 116 N.W.2d at 240-242. Similarly, in Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982), the court stated:
The law recognizes that there can be strict liability of a supplier even though the product is altered or changed if it is foreseeable that the alteration would be made and the change does not unforesee-ably render the product unsafe.
Id. at 203-204, quoting from Hales v. Green Colonial, Inc., 490 F.2d 1015, 1020 (8th Cir.1974).
In Griggs v. Firestone Tire & Rubber Company, 513 F.2d 851 (8th Cir.) cert. denied, 423 U.S. 865, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975), the court held that where there exists both a design defect and misuse of the product, and it is assumed that each contributes to an accident, the misuse of the product is not an intervening cause if the misuse was foreseeable. Id. at 861-862. Griggs was a service station attendant who sustained personal injuries when a tire and rim assembly exploded as he was attaching a multi-piece wheel to a truck. He sued the rim manufacturer based on negligence. The case was tried before a jury and plaintiff was awarded $250,000 in damages. On appeal, the manufacturer, Firestone, raised questions concerning its duty to warn Griggs of the possibility of an explosive disassembly. Id. at 853. Other similarities to the Zacher case are:
—A mismatch of component parts: a Firestone type “R” side ring and lock ring had been used on a “5°” (also known as a “R 5 °”) rim;
—The manufacturer conceded that the mismatched components were capable of being assembled together, and that such a mismatch was potentially dangerous;
—The only job that both service station attendants were employed to perform was to change flat tires;
[136]*136—Both attendants reassembled the same mismatched parts presented to them;
—The absence of appropriate identifying marks or warnings indelibly imprinted directly upon the rim components;
—Testimony indicated that it was feasible, and would have been meaningful, to imprint a warning directly upon the steel rim components without affecting the integrity of the rim;
—The failure of warning literature distributed by the manufacturer to trickle down to service stations which repaired truck tires.
Id. at 853-856.
In Griggs, the manufacturer raised two issues on appeal. First, Firestone argued that it had fulfilled its “duty to warn” by distributing cautionary literature to its distributors only, and that it had no obligation to personally seek out and warn Griggs. Second, Firestone claimed that any assumed negligence arising out of a breach of its duty to warn could not have been the proximate cause of the explosion because the mismatch of the rim components constituted an independent, intervening act which constituted the superseding cause of the accident. Id. at 856. In rejecting the first contention, the court quoted from the Restatement (Second) of Torts § 388 (1965),17 and then stated:
In the instant case we have no difficulty with the proposition that the jury reasonably could have found that defendant had not met its duty to exercise reasonable care. By any standard the danger inhering in defendant’s product must be deemed great: there is an obvious potential for severe injury from wholly unanticipated explosion of a wheel assembly under great pressure in close proximity to the repairman. As Firestone acknowledges in its warning literature, the resulting harm may easily be grievous bodily injury or even death. Given this potential for severe injury, we cannot say as a matter of law that defendant discharged its duty through the informational literature which it supplied to the various parts distributors and automobile manufacturers using its rims.18 To so hold would be to ignore the fact that the jury was not bound to consider such an informational campaign as necessarily equivalent to the exercise of reasonable care. As noted in the Restatement,19 [137]*137reasonable care may dictate that a warning be impressed directly on the article when (as here) the danger is great and such a warning would not be impracticable or unduly burdensome. Plaintiff presented testimony from which the jury could find that such a warning was practicable and, since Firestone already impresses identification information on its rim parts, the jury could obviously find that the impressing of additional warning information was not unduly burdensome. We believe the jury could reasonably have found that ordinary care required that a warning be impressed directly on this dangerous instrumentality.
Id. at 858-859.
Here Budd’s own warning literature,20 which was circulated to its immediate distributors, but never seen by Zacher, implicitly acknowledged that its product was “dangerous for the use for which it is supplied” and that those “for whose use the chattel is supplied” would not realize that dangerous condition. See: § 388, Restatement (Second) of Torts, supra. However, Budd vigorously disputes the claim that it failed to exercise reasonable care in warning Zacher of that danger. As noted in Griggs, supra, the Restatement comments indicate that the danger posed by a chattel may be so great as to make it unreasonable for a supplier to entrust conveyance of a warning to a middleman in the chain of distribution. In such circumstances, the supplier may be required, where “practicable and not unduly burdensome” to make the chattel carry its own warning. 513 F.2d at 858.
[138]*138[[Image here]]
The Griggs court further stated:
In closing our discussion of this issue, we observe that the necessity for rim disas-sembly is not an infrequent occurrence. The record indicates that a rim may last for twenty-six years or more, and that it probably will have to be disassembled at least once a year. In the life of any given rim, therefore, there are numerous occasions when components may be mis[139]*139matched and a potential ‘bomb’ created. In calculating the warning appropriate to this danger, Firestone assumed that most people servicing its rims would realize the dangers presented and possess the requisite aptitude and experience to assemble the rim safely ... (emphasis in original).
... We cannot say as a matter of law that it was reasonable for Firestone to devise its method of warning according to this assumption regarding rim users. Indeed, in view of the inevitability of rim disassembly and the practical fact that, at least in some cases, repair is bound to be undertaken, as here, by those not familiar with the particular dangers of these multi-piece rims, the jury could find that Firestone’s assumption was unreasonable and that it failed its duty of care, (emphasis added).
Id. at 859.
In the present case, testimony indicated that a reasonably prudent service station attendant who repairs a flat tire on a truck wheel should reassemble the same components and make no substitution of component parts. Zacher was experienced in working with multi-piece wheels. However, there were no discernible markings on the components which indicated their size and type. A mere visual examination did not disclose that they were not matching parts. Yet as stated by Professor Groves, Budd would have experienced minimal expense to have indelibly imprinted upon the wheel and rim the simple warning: “R 5 °: Use only R 5 0 ring.” Indeed, Groves testified that the Firestone rim, which had been indelibly stamped with model number 59930, was still visible after years of use. Therefore, Budd may have breached its duty to warn under Griggs, supra, in view of the foreseeability of mismatched parts, the inherent danger therein, the failure of its warning literature to “trickle down” to service stations using its products, and the inability of even an experienced repairman to notice the mismatched parts.
In Griggs, Firestone asserted that legal causation had not been demonstrated because the mismatch of components constituted an independent intervening cause of Griggs’ injuries. 513 F.2d at 861. The court stated:
[Wjhether an intervening act will constitute an independent intervening cause is a question of foreseeability, (citations ommitted) ... Even where the act is the negligence of a third party, the act does not become a superseding cause where ‘a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted.’ Restatement (Second) of Torts § 447(b). Moreover, ‘the law does not require precision in foreseeing the exact hazard or consequence’ which in fact transpires; it is sufficient ‘if what occurred was one of the kind of consequences which might reasonably be foreseen.’ (citation omitted).
Thus, in rejecting Firestone’s second contention, the court held:
In this case the alleged intervening cause — the mismatch of the rim components — was precisely the event against which Firestone warned in its safety literature. It does not matter that the exact manner in which the mismatch occurred was not foreseen. Firestone cannot argue that, as a matter of law, the precise danger which it contemplated was unforeseen. Accordingly, this contention must fail.
Id. at 862.
In addition, the fact that the valve stem slot was elongated to the edge of the rim did not, and need not have caused Zacher any concern. Jim Dixon, vice president of Dixon Brothers, testified that elongated valve stem slots were so common that a “reasonably prudent service station attendant” should “pay no attention” to them, and should “reinstall it or put it back together the same way as it came into ... [the] shop.” Based on this evidence, the jury could find that the elongation of the valve stem slot before it reached Zacher’s [140]*140hands was a “foreseeable” alteration, and that the alleged “misuse” by the mismatch of components was similarly foreseeable by Budd.
The trial court’s Instruction # 19 advised the jury that any substantial change and any “subsequent misuse”, rather than “unforeseeable” subsequent misuse, would necessarily relieve Budd of liability. As such, the trial court erroneously removed the issues of “foreseeability” and “intervening” or “superseding” cause from the jury despite evidence to the contrary. See: Graham v. Joseph T. Ryerson & Sons, 96 Mich.App. 480, 292 N.W.2d 704, 708-709 (1980) (Exploding multi-piece wheel case, held, (1) Jury question existed as to whether manufacturer of wheel side ring had duty to warn of “special” danger involved to tire repairman engaged in repair of flat tire, and (2) Manufacturers are duty bound to design products that are safe for their intended or reasonably anticipated use, which may include reasonably anticipated misuse.); Henkel v. R and S Bottling Co., 323 N.W.2d 185 (Iowa 1982); Niffenegger v. Lakeland Construction Co., 95 Ill.App.3d 420, 50 Ill.Dec. 945, 420 N.E.2d 262, 267 (1981); Southwest Wheel & Manufacturing Co. v. Sholts, 501 S.W.2d 387 (Tex.Civ.App.1973); Knowles v. Jenney, 157 Me. 392, 173 A.2d 347 (1961); 63 Am.Jur.2d Products Liability §§ 560 and 961 (1984) and cases cited therein.
Based on the foregoing, we hold that the trial court committed prejudicial and reversible error by giving Instruction # 19 without modification for foreseeable misuse, mismatch and change, and by failing to give the jury a separate instruction based on Budd’s duty to warn under the theory of strict liability in tort.
4. IMPLIED WARRANTY AS SEPARATE, SUBSTANTIVE THEORY
The trial court originally denied defendant Budd’s motion for summary judgment on the issues of implied warranty and strict liability. It instructed the jury with respect to defendant Budd on the theory of strict liability choosing, however, not to instruct on the issue of implied warranty. Zacher claims this is error, that the theories are substantively different and that, by failure to instruct on each of such theories, the trial court prevented the jury from considering separate theories.
In Pearson v. Franklin Laboratories, Inc., 254 N.W.2d 133 (S.D.1977), we noted that once it was established that a product defect exists, there was little difference between the liability theories of breach of warranty and strict liability in tort, apart from the availability of the defenses of lack of notice, disclaimer, and perhaps lack of privity. Breach of warranty requires proof that a product did not conform to expectations; that the product was either nonmer-chantable or unfit for an ordinary purpose. SDCL 57A-2-714(l), 57A-2-314(2)(c). Strict liability, on the other hand, requires that the product be defective and unreasonably dangerous. Restatement (Second) of Torts § 402A. As between strict liability under § 402A and warranty liability, the warranty predicate, “fitness for ordinary purposes,” appears to set a lower liability threshhold that is more beneficial to a plaintiff. It also appears easier for the jury to understand and apply. However, several courts have held that for the purpose of jury instructions, strict liability claims subsume the warranty claim and have upheld trial courts’ refusals to give parallel instructions.
In Foster v. Ford Motor Co., 621 F.2d 715 (5th Cir.1980), the Fifth Circuit Court of Appeals responded to plaintiffs claims that they were entitled to an instruction on breach of warranty as follows: “We note the elements of proof for that theory and strict liability are substantially similar.” Id. at 719. The court noted that the negative implication of the warranty requirements — that goods be “fit for the ordinary purposes for which such goods are used”— is that “the goods not be unreasonably dangerous.” Id. In noting that the jury should be instructed on a legal theory only if the evidence is sufficient to justify such an instruction, the decision pointed out that the proof was directed primarily to the issue of whether the product itself was [141]*141“unreasonably dangerous.” Id. at 718-719. As in Foster, most of Zacher’s evidence went to show that multi-piece wheel assemblies are unreasonably dangerous or defectively designed.
In McKnelly v. Sperry Corp., 642 F.2d 1101 (8th Cir.1981), the court held that under the Iowa Products Liability Law the breach of warranty theory did not have to be submitted to the jury when strict liability and negligence are fully submitted. The Eighth Circuit Court noted:
The Iowa Supreme Court takes the view that strict liability is ordinarily in lieu of a theory of implied warranty, and both theories should be submitted only in ‘exceptional situations.’ This is because as a practical matter, the issues under implied warranty are adequately submitted under strict liability, particularly in a personal injury as opposed to an economic injury action.
642 F.2d at 1105. In view of our previous holding in Pearson, supra, the Eighth Circuit decision would appear to be applicable in South Dakota as well. Therefore, although separate implied warranty instructions are favored and may be required in certain cases, it was not reversible error for the court to refuse these instructions in this case.
In addition, Zacher was not entitled to instructions on implied warranty or strict liability as against defendants Yellowstone and Dixon. Yellowstone was the owner and lessor of the property in the instant case and its drivers continued to operate the equipment under the lease with Dixon. Dixon was the lessee of the equipment. Both were users of the equipment. Neither Yellowstone nor Dixon were sellers, lessors, or manufacturers of the equipment as to Zacher, who was not a user of the equipment but a bailee for repair, (i.e., a bailee to fix the flat tire for hire). Therefore, neither Yellowstone nor Dixon subjected themselves to liability under theories of either strict liability or implied warranty.
We have reviewed all of the other issues raised by the Zachers and find no error. However, in view of our decision, the taxation of costs against them is vacated.
Accordingly, this case is reversed and remanded for a new trial in accordance with this opinion.
WUEST, C.J., and FOSHEIM, J., concur.
HENDERSON, J., concurs with a writing.
MORGAN, J., concurs in part and dissents in part.