Walker v. Ford Motor Co.

• Decision Date: 13 November 2017
• Docket Number: Supreme Court Case No. 15SC899
• Citation: 406 P.3d 845
• Parties: Forrest WALKER, Petitioner, v. FORD MOTOR COMPANY, Respondent.
• Court: Colorado Supreme Court

406 P.3d 845

Forrest WALKER, Petitioner,

v.FORD MOTOR COMPANY, Respondent.

Supreme Court Case No. 15SC899

Supreme Court of Colorado.

November 13, 2017

Rehearing Denied December 18, 2017

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

En Banc

CHIEF JUSTICE RICE delivered the Opinion of the Court.

¶1 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, 410 P.3d 609, 615.

¶2 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,¹ not 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.

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).² 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. 19.³ 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 verdict.

¶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.⁴ We now affirm the court of appeals, albeit on different grounds, and remand the case for further proceedings consistent with this opinion.

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 defective and unreasonably dangerous in order to establish liability under section 402A. See Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1175 (Colo. 1993) (citing Camacho, 741 P.2d at 1245 ).

¶11 In making the determination as to whether a product's design is unreasonably dangerous, we have recognized two tests: the consumer expectation test and the risk-benefit analysis. Ortho, 722 P.2d at 413. The consumer expectation test asks whether a product...