Colorado Supreme Court Says Risk-Benefit Test, Not Consumer Expectation Test, To Be Used in Design Defect Cases

The Colorado Supreme Court has held that a trial court erred when it allowed a jury to consider the consumer expectation test in a design defect case, saying “the risk-benefit test is the appropriate test to assess whether a product is unreasonably dangerous due to a design defect where the dangerousness of the design is defined primarily by technical scientific information.”

Shook Partners Kirk Ingebretsen, Victor Schwartz, Phil Goldberg and Cary Silverman filed an amicus brief on behalf of the Alliance of Automobile Manufacturers arguing that the trial court erred when it gave jury instructions that allowed the jury to use either the risk-benefit test or the “consumer expectations” test. The risk-benefit test asks whether the benefits of a particular design outweigh the risks of harm it presents to consumers; the consumer expectation test asks whether a product performed as safely as an ordinary consumer would expect.

The amicus brief indicates that the risk utility test focuses on whether a reasonable alternative design that the manufacturer could have adopted that would have resulted in a safer product, not just for the plaintiff, but for others as well.” A risk-benefit test provides a jury with an “objective guidepost” to determine whether a product is defective, and also encourages manufacturers to use available technology to develop safer products for all consumers. Although a particular product design might be the safest for one person, an alternative design might pose a greater risk of harm to others, so products should be evaluated using a reasonableness test that takes into consideration the risk, a product’s usefulness and the burden on the manufacturer to take the necessary steps to avoid the risk. The brief indicated that, in contrast, the “consumer expectations test” provides no guidelines for a jury with respect to complex design choices. In such situations, juries need guidance from experts in order to reach a sound decision.

At trial, the jury chose to apply the consumer expectations test and found for the plaintiff on both his strict-liability and negligence claims, awarding him nearly $3 million in damages. The Colorado Court of Appeals reversed the verdict and held that the trial court erred only by giving the jury separate instructions on the consumer expectation test, because that test “was included as an element of the risk-benefit test.” The plaintiff then asked the Supreme Court to review the appellate decision. 

The Court, following the arguments set forth in the Shook amicus brief, addressed the issue more broadly. The court appreciated the fact that the consumer expectations test simply does not work when design issues involve highly complex technology issues and choices. In that context, the court said, ordinary consumers do not know what to expect; there is a need for experts to guide a jury with respect to such choices under fundamental risk utility guidelines. The plaintiff argued that he should still prevail on the grounds of negligence. The court rejected this argument, saying “A manufacturer is not negligent for designing a reasonably safe product.” 

In this case, the Court said the faulty jury instruction caused substantial prejudice to the automaker; accordingly, it affirmed and remanded the case. 

The case is Walker v. Ford Motor Co., No. 2015SC000899, (Colo., advance sheet headnote filed November 13, 2017). Shook represented the 12-member Alliance of Automobile Manufacturers (BMW Group, FCA US LLC, Ford Motor Company, General Motors, Jaguar Land Rover, Mazda, Mercedes-Benz USA, Mitsubishi Motors, Porsche Cars North America, Toyota, Volkswagen Group of America and Volvo Car Corporation), which produces 77 percent of all U.S. car and light truck sales.