to the Colorado Court of Appeals Court of Appeals Case No.
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,
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,
Attorneys for Amicus Curiae Product Liability Advisory
Council, Inc.: Wells, Anderson & Race, LLC Mary A. Wells
L. Michael Brooks, Jr. Denver, Colorado
In this products liability case, we consider whether the
trial court erred when it gave a jury instruction that
allowed 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 of appeals concluded that the trial
court did err by instructing the jury separately on the
consumer expectation test, because the test already comprises
an element of the risk-benefit test. Walker v. Ford Motor
Co., 2015 COA 124, ¶¶ 26-28, P.3d .
We now affirm the court of appeals, albeit on different
grounds. This court determined more than thirty years ago
that 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."
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). We have found
the consumer expectation test, by contrast, "not
suitable" in such a case. Id. at 415. Here, the
jury was tasked with determining whether a car seat was
unreasonably dangerous due to a design defect-a determination
that, as evidenced by the extensive expert testimony at
trial, required consideration of technical, scientific
information. Thus, the proper test under which to assess the
design's dangerousness was the risk-benefit test,
the consumer expectation test. We therefore hold that the
trial court erred by instructing the jury on both tests,
thereby allowing it to base its verdict 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.
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.
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
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 the risks versus the benefits of a
product design." Jury Instr. No. 19. Of these seven
factors, "factor six" stated that the jury could
consider "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." Id. The jury ultimately found
for Walker on both his strict-liability and negligence
claims, and it awarded him nearly $3 million plus interest.
After Ford's motion for a new trial or judgment
notwithstanding the verdict was denied when the trial court
did not rule on it during the allotted time, Ford appealed
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.
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 ...