Walker v. Ford Motor Co.

CHIEF JUSTICE RICE delivered the Opinion of the Court.

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org. ADVANCE SHEET HEADNOTE Torts—Products Liability—Design Defect.

In this case, the supreme court considers whether a trial court errs when it gives a jury instruction that allows the jury to apply either the consumer expectation test or the risk-benefit test to determine whether a driver's car seat was unreasonably dangerous due to a design defect. The court concludes that the risk-benefit test is the appropriate test to assess whether a product was unreasonably dangerous due to a design defect when, as here, the dangerousness of the design is "defined primarily by technical, scientific information." Ortho Pharm. Corp. v. Heath, 722 P.2d 410, 414 (Colo. 1986), overruled on other grounds by Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992). The court further concludes that the jury's separate finding of negligence did not render the instructional error harmless in this case. Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 14CA273 Judgment Affirmed
en banc
Attorneys for Petitioner:
Purvis Gray Thomson, LLP
John A. Purvis
Michael J. Thomson

Boulder
, Colorado Attorneys for Respondent:
Wheeler Trigg O'Donnell LLP
Edward C. Stewart
Jessica G. Scott
Theresa R. Wardon

Denver
, Colorado Attorneys for Amicus Curiae Alliance of Automobile Manufacturers:
Shook, Hardy & Bacon LLP
S. Kirk Ingebretsen

Denver
, Colorado Shook, Hardy & Bacon LLP
Victor E. Schwartz
Phil S. Goldberg
Cary Silverman

Washington
, District of Columbia Attorneys for Amici Curiae Colorado Civil Justice League and American Tort Reform Association:
Taylor Anderson LLP
Lee Mickus
Margaret Boehmer

Denver
, Colorado Attorneys for Amicus Curiae The Colorado Trial Lawyers Association:
Burg Simpson Eldredge Hersh & Jardine, P.C.
Brian K. Matise
David K. TeSelle
Nelson P. Boyle

Englewood
, Colorado Attorneys for Amicus Curiae Product Liability Advisory Council, Inc.:
Wells, Anderson & Race, LLC
Mary A. Wells
L. Michael Brooks, Jr.

Denver
, Colorado CHIEF JUSTICE RICE delivered the Opinion of the Court. on the consumer expectation test alone. We hold further that the jury's separate finding of negligence did not render the instructional error harmless. Accordingly, we affirm the court of appeals on different grounds and remand the case for further proceedings consistent with this opinion.

This court has used the terms "risk-benefit test" and "risk-benefit analysis" interchangeably. See, e.g., Armentrout, 842 P.2d at 183; Ortho, 722 P.2d at 413.

I.

¶3 Forrest Walker was rear-ended while driving his 1998 Ford Explorer in Boulder, Colorado. Upon impact, Walker's car accelerated forward and his car seat yielded rearward. Walker asserts that he sustained head and neck injuries in the crash, and he sued the other driver and Ford Motor Company ("Ford") to recover for those injuries. Walker settled with the other driver, but he proceeded to trial against Ford on theories of strict liability and negligence. He claimed that the seat was defective in its design, and that Ford was negligent for failing to take reasonable care in the design and manufacture of its product so as to prevent an unreasonable risk of harm. ¶4 Walker's case was tried to a jury in 2013. During trial, Ford and Walker offered extensive testimony from biomechanical and seat-design experts on the design characteristics of the car seat. Ford's experts explained the concept behind yielding seats, saying they absorb energy that would otherwise impact the driver in a crash, and testified to the benefits of such seats in collisions like Walker's. Ford also presented data from testing that it claims proved the benefits of Ford's seat design, showed that the seat performed better in rear-end collision testing than its 1998 competitors, and demonstrated that the crash forces Walker experienced did not exceed injury thresholds. Walker's experts testified that, although car seats should have some yield, the seat in the 1998 Ford Explorer needed to be stronger, and that it was technologically and economically feasible in 1998 to build a stronger seat with a better head restraint. Walker's experts also testified that the seat was not state-of-the-art in 1998 and gave examples of feasible design alternatives. During closing arguments, Walker's attorney appealed to the jury to use "common sense" and suggested it could conclude the seat was unreasonably dangerous by "look[ing] at what happened" to the seat, "without having to decide who's right among the experts on the liability issues." ¶5 At the end of trial, as relevant here, Ford asked that the jury be instructed to assess the dangerousness of the car seat using the risk-benefit test. Walker requested the consumer expectation test. The trial court gave the jury an instruction, based on the Colorado pattern jury instruction at the time, allowing it to apply either test. Specifically, the instruction stated:

A product is unreasonably dangerous because of a defect in its design if it creates a risk of harm to persons or property that would not ordinarily be expected or is not outweighed by the benefits to be achieved from such design.
A product is defective in its design, even if it is manufactured and performs exactly as intended, if any aspect of its design makes the product unreasonably dangerous.

Jury Instr. No. 18; see also CJI-Civ. 4th 14:3 (2016). The court also gave the jury a separate instruction listing seven non-exclusive factors it could consider in "weighing ¶6 The court of appeals reversed the jury's verdict. Walker, ¶ 3. The court held that the trial court erred by instructing the jury separately on the consumer expectation test, because the test is included as an element of the risk-benefit test. Id. at ¶¶ 14, 26. Specifically, the court summarily concluded that factor six of the risk-benefit test "is merely a rephrasing of the consumer expectation test." Id. at ¶ 19. The court went on to hold that the instructional error was not harmless, because it allowed the jury to consider the consumer expectation test twice and to find for Walker even if it failed to consider the other elements of the risk-benefit test. Id. at ¶¶ 30-33. The court thus reversed the verdict and remanded the case for a new trial, with directions for the trial court to omit the separate consumer expectation test from the jury instructions. Id. at ¶ 34. ¶7 Walker petitioned this court for review and we granted certiorari. We now affirm the court of appeals, albeit on different grounds, and remand the case for further proceedings consistent with this opinion.

This instruction has since been updated, and the design-defect instruction now omits the phrase "would not ordinarily be expected or." See CJI-Civ. 4th 14:3 (2017); see also CJI-Civ. 4th 14:3, Note on Use 3 (2016).

Jury Instruction 19 states:

In weighing the risks versus the benefits of a product design, you may consider among other things:
1. the usefulness and desirability of the product—its utility to the user and to the public as a whole;
2. the safety aspects of the product—the likelihood that it will cause injury and the probable seriousness of the injury;
3. the availability of the substitute product which would meet the same need and not be as unsafe;
4. the manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility;
5. the user's ability to avoid danger by the exercise of due care in the use of the product;
6. the user's anticipated awareness of dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and
7. the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

We granted certiorari to consider the following issues:

1. Whether the court of appeals erred in concluding that the "risk-benefit" test for strict product liability incorporates the "consumer expectation" test, such that the trial court reversibly erred by separately instructing the jury on the "consumer expectation" test.
2. Whether the jury's separate finding of negligence renders harmless any instructional error regarding strict liability.
3. Whether the court of appeals' decision, if correct, applies retroactively.

II.

¶8 First, we consider whether the trial court erred by instructing the jury on the consumer expectation test, and we conclude that it did. We then address whether the jury's separate finding of negligence rendered the instructional error harmless, and we conclude that it did not.

A.

¶9 We review de novo whether a jury instruction states the law correctly, and we review the trial court's decision to give a particular jury instruction for an abuse of discretion. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). ¶10 This court has looked to the doctrine of strict products liability as set forth in section 402A of the Restatement (Second) of Torts. Camacho v. Honda Motor Co., 741 P.2d 1240, 1244 (Colo. 1987). Under section 402A, a manufacturer may be held strictly liable for harm caused by "any product in a defective condition unreasonably dangerous to the user or consumer." Restatement (Second) of Torts § 402A (Am. Law. Inst. 1965); see also Camacho, 741 P.2d at 1244. A product may be in such a condition due to a manufacturing defect, which causes the product to fail to conform to the manufacturer's specifications, or due to a failure to warn or a design defect that renders the product unreasonably dangerous despite the fact that it was manufactured exactly as intended. Camacho, 741 P.2d at 1247. Additionally, a motor-vehicle manufacturer may be held liable for injuries sustained in a motor-vehicle accident "where a manufacturing or design defect, though not the cause of the accident, caused or enhanced the injuries." Id. at 1242-43. The plaintiff must prove that a product is ¶18 We are not persuaded by Walker's argument that there is no inconsistency in applying and instructing a jury on both tests, as was done here. As developed above, our precedent holds the consumer expectation test to be improper in design-defect cases involving scientific, technical information. Here, Instruction 18 allowed the jury to apply either the consumer expectation test or the risk-benefit test. Jury Instr. No. 18 (stating that the jury could find the seat unreasonably dangerous based on a risk that "would not ordinarily be expected or is not outweighed by the benefits" of the design (emphasis added)). Therefore, the instruction authorized the jury to apply the consumer expectation test alone. Counsel for Walker stressed this fact to the jury during closing arguments, urging the jury to use "common sense" and suggesting it could conclude that the seat was unreasonably dangerous by "look[ing] at what happened" to the seat, "without having to decide who's right among the experts on the liability issues." Instruction 18 was contrary to our precedent, and the trial court erred by giving it. ¶19 Because we find that Instruction 18 was inconsistent with our precedent, we need not reach the issue upon which the court of appeals rested its opinion, namely, whether the consumer expectation test is subsumed into factor six of the risk-benefit test. Instruction 19, which listed the seven factors from our Ortho decision, has not been challenged in this case, and may be used on remand.

The seven factors discussed in Ortho were:

(1) The usefulness and desirability of the product—its utility to the user and to the public as a whole.
(2) The safety aspects of the product—the likelihood that it will cause injury and the probable seriousness of the injury.
(3) The availability of the substitute product which would meet the same need and not be as unsafe.
(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
(5) The user's ability to avoid danger by the exercise of care in the use of the product.
(6) The user's anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

We mentioned evidence of feasible design alternatives in Ortho and Camacho as well, but we did not explicitly discuss such evidence as a risk-benefit factor. See Ortho, 722 P.2d at 416; Camacho, 741 P.2d at 1249.

That the instruction was a pattern instruction does not save it from a finding of error, as pattern instructions are "not law, not authoritative, and not binding," and they "do not trump case law." Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009).

B.

¶20 Walker argues that, even if Instruction 18 was erroneous, the jury's separate finding of negligence renders the error harmless. ¶21 This court will deem an error harmless, and thus will not reverse a judgment, unless the error resulted in substantial prejudice to a party. See Armentrout, 842 P.2d at 186; accord C.A.R. 35(c) ("The appellate court may disregard any error or defect not affecting the substantial rights of the parties."). With respect to jury instructions, "the giving of an erroneous instruction constitutes reversible error once prejudice is shown." Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 204 (Colo. 1992). ¶22 Walker asserts that his negligence claim is an alternative basis for the jury's verdict. Emphasizing that the jury found for him in both strict liability and negligence, he argues that the negligence finding renders harmless any error in the trial court's strict liability instructions. Walker argues further that the jury was properly instructed on the elements of negligence and on the separate nature of his claims, and we must assume the jury followed instructions. He thus contends that the court of appeals erred in finding reversible error, and the jury's verdict should stand. We disagree. ¶23 A manufacturer is not negligent for designing a reasonably safe product. Accordingly, regardless of whether a design-defect claim is based in strict liability or negligence, in order to properly return a verdict for the plaintiff, a fact-finder must determine that the product at issue is unreasonably dangerous. See, e.g., Camacho, 741 P.2d at 1245 ("[W]hen a product is not reasonably safe a products liability action may be maintained"); Mile Hi, 842 P.2d at 205 ("Regardless of whether a product liability action especially if—it followed the trial court's instructions. Accordingly, we cannot conclude that the trial court's error in giving Instruction 18 was harmless.

Our holding today applies this court's longstanding precedent. We therefore reject Walker's argument that, if we were to find reversible error, we should apply our decision today only prospectively. --------

III.

¶26 For the reasons stated above, we affirm the court of appeals on different grounds, and remand the case for further proceedings consistent with this opinion.

Ortho, 722 P.2d at 414.