The Colorado Supreme Court will soon decide a case examining the core elements of Colorado’s product liability law.  In Walker v. Ford Motor Company, the Colorado Supreme Court will determine how to define whether the subject product is “unreasonably dangerous.”  Currently, Colorado’s strict products liability pattern jury instructions set forth both the “consumer expectation” test and the “risk-benefit” test as alternate theories for establishing liability; albeit, in practice courts rarely instruct juries on the consumer expectations test as a standalone theory of recovery.  Through Walker, the Supreme Court has the opportunity to declare the risk-benefit test as Colorado’s single standard for assessing a product’s inherent danger.

Walker involves strict products liability claims arising from alleged design defects in the driver’s seat of the 1998 Ford Explorer.  The trial court utilized the pattern jury instructions that allowed the jury to find the product unreasonably dangerous using either the risk-benefit test or the consumer expectation test.  The jury returned a verdict in Walker’s favor.  The Colorado Court of Appeals reversed on a 2-1 vote, holding that instructing the jury using the consumer expectation test as an independent basis for liability misstates Colorado law.  The majority found that the consumer expectation test has survived, but only as one factor among others incorporated into the risk-benefit test.  Although one judge dissented, the Court of Appeals majority declared that under Colorado’s approach to strict liability the consumer expectation test is “not an alternative test to the risk-benefit test,” but rather “a sub-part of that test.”

As the Court of Appeals’ ruling highlights, Colorado has distinguished itself from other states in its conception of strict products liability.  While many states have abandoned the requirement that a product be found “unreasonably dangerous,” Colorado continues to attach importance to the “unreasonably dangerous” element.  In doing so, the Colorado Supreme Court in prior cases has properly recognized that there must be some limits on the liability of product manufacturers in order to encourage product safety innovation.  To encourage these limitations on liability, the Supreme Court has previously indicated that consumer expectation is inappropriate as a freestanding test.   At its core, the consumer expectation test’s reliance on a single factor is simply too abstract to constitute a useful independent standard.  While no product provides absolute safety, it can be assumed that consumers expect a certain level of safety.  However, under the consumer expectation test, the outlying question remains: how safe is safe enough?  To define what an ordinary consumer expects in response to this inquiry is impossible. 

The risk-benefit analysis, on the other hand, allows the jury to weigh the full range of considerations bearing on a product’s safety and achieve a balanced liability evaluation.  Proper assessments require that the degree of risk present in every product’s design be balanced against considerations such as cost and the availability of alternative designs.  As the Colorado Supreme Court has stated in other strict products liability cases, by examining and weighing various factors a jury is “much more likely to be fair to the interests of both manufacturers and consumers” in determining the inherent risk or safety in product design.  In short, the risk-benefit test simply provides a better approach for deciding products liability claims where jurors are often required to analyze technical and scientific information and apply complex legal concepts.

The Supreme Court’s decision in Walker will determine whether Colorado’s strict products liability will continue to follow the pathway established in previous cases.  A Colorado Supreme Court ruling that allows a jury to decide between alternate theories could effectively nullify the evolution of the state’s product liability law.  Briefing in Walker recently concluded, and the Colorado Supreme Court will rule on these issues soon. 

Disclosure:  Attorneys from Taylor|Anderson LLP submitted an amicus brief in Walker v. Ford Motor Co. on behalf of the Colorado Civil Justice League and the American Tort Reform Association in support of the position argued by Ford Motor Company.