Chapter 3 - § 3.3 • ELEMENT ONE: DEFECTIVE CONDITION
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§ 3.3 • ELEMENT ONE: DEFECTIVE CONDITION
The first element of a strict liability products defect claim is that the product has a "defective condition unreasonably dangerous" to the consumer. There are five points that warrant attention on the element of defective condition before examination of the types of defective conditions.
First, strict liability claims can vary widely depending upon the alleged defective condition. There are three categories of defect that render a product unreasonably dangerous under Colorado law: (1) manufacturing defect, (2) design defect, and (3) failure to warn.17 Although at first blush this issue could appear to be relatively unimportant — as these are categories of one of multiple elements of one of multiple product liability claims — understanding and differentiating between the three categories is key to understanding product liability claims in general. Indeed, the United States Supreme Court has described these three categories as the "classic and well known triumvirate of grounds for [product] liability."18
Practice Pointer
In their simplest form, product liability actions address one (or more) of three possible types of defects: manufacturing defects, design defects, or failure to warn. Practitioners should be clear as to which defect or defects their claims or defenses are directed.
Second, the "unreasonably dangerous" language should not be overlooked. Courts, commentators, and this book often refer to this element simply as a "defect" or a "defective condition" and omit the phrase "unreasonably dangerous."19 However, these terms are distinct, and both "defective condition" and "unreasonably dangerous" are requirements to state a claim.20
The Restatement (Second) of Torts § 402A describes the element as "a defective condition unreasonably dangerous to the user or consumer."21 Although some jurisdictions have eliminated the phrase "unreasonably dangerous," Colorado has not.22 While other courts have noted that the "unreasonably dangerous" statement introduces negligence language into a strict liability cause of action, the Colorado Supreme Court has explained that "the 'unreasonably dangerous' portion of the definition serves the useful function of placing some limits on the liability of a manufacturer or seller."23 The Restatement (Second) of Torts provides multiple examples of potentially dangerous products that are not unreasonably dangerous.24
Third, the issue of whether a product is defective and unreasonably dangerous is generally an issue for the jury.25 That said, trial courts in many of the cases cited below find no defect at the summary judgment or directed verdict stage.
Fourth, the occurrence of an accident with the use of a product does not necessarily make the product defective and unreasonably dangerous.26 Put another way, the fact that a plaintiff is injured (or that a plaintiff's property was damaged), without more, does not establish that the product was defective and unreasonably dangerous.27
Fifth, a unique problem arises when the product at issue is itself destroyed as a result of the alleged defect — for example, a product that may have caused a fire and is destroyed in that fire. In such circumstances, the plaintiff can use, to a certain degree, circumstantial evidence and inferences to prove product defect.28
Each of the three types of defective conditions: (1) manufacturing defect, (2) design defect, and (3) failure to warn, are analyzed in turn below.
§ 3.3.1—Manufacturing Defect
The issue in manufacturing defect cases is whether the product as produced (i.e., manufactured) conformed with the manufacturer's specifications.29 A manufacturing defect usually occurs because of insufficient quality control by the manufacturer.30 Unlike a claim of design defect, a claim that there was a defect in the manufacturing is usually an easier standard for a plaintiff to establish.31 Under Colorado law, a plaintiff may prove a manufacturing defect by direct or circumstantial evidence.32 As it is a simpler and more straightforward claim than design defect or failure to warn, and there are on a whole fewer manufacturing defect claims than design defect or failure to warn claims, there is a relative paucity of Colorado law on the topic.33
§ 3.3.2—Design Defect
A design defect claim involves the allegation that there is a defect in the manufacturer's design of the product. A "defect" in a product's design refers to any aspect in the product's design, not necessarily a flaw, which in turn causes the product to be unreasonably dangerous.34
There are two different tests in Colorado for the trier of fact to determine whether a design defect exists. They are: (1) the risk-benefit test and (2) the consumer expectation test.35 The first part of this section addresses which test should be applied to which cases. The second part of this section examines the consumer expectation test. The third part of this section addresses the risk-benefit test.
Practice Pointer
In design defect cases, practitioners should determine whether the risk-benefit test, the consumer expectation test, or both tests apply.
Depending upon the circumstances, a manufacturer's failure to provide safety devices can be actionable under the theory of design defect.36 This is related to the crashworthiness doctrine.37 These topics are addressed in the fourth part of this section.
Applicability of Consumer Expectation or Risk-Benefit Test
Whether the trier of fact should apply the risk-benefit test, the consumer expectation test, or both, is an important issue in design defect cases. Risk-benefit is the appropriate test for the trier of fact to apply where "the unreasonableness of the danger in the design defect and the efficacy of alternative designs in achieving a reasonable degree of safety must be defined by primarily technical, scientific information."38 Put another way, the test is appropriate when the products are complex and largely beyond the knowledge and experience of the ordinary consumer.39 For example, Colorado courts have applied the risk-benefit test to cases of prescription drugs,40 motorcycle leg guards,41 cranes,42 electric sewer augers,43 truck engines,44 steering cables,45 seat belts,46 car seats,47 plastic injection molding machines,48 and helmets.49
On the other hand, as a general matter, Colorado views "the consumer expectation test in disfavor."50 Although the consumer expectation test is applied to certain designs, Colorado courts are often unwilling to apply it as the sole measure for determining whether a design defect renders a product unreasonably dangerous.51 Examples of when the consumer expectation test would be appropriate include cases involving "whiskey containing fuel oil" or "butter contaminated with poisonous fish oil."52
For designs involving specialized knowledge, it is reversible error for the court to apply (or instruct upon) the consumer expectation test when the risk-benefit test is applica-ble.53 However, the tests are not necessarily mutually exclusive, and in appropriate circumstances where the issues do not involve the sort of technical scientific information to render the consumer expectation test inappropriate, the court can instruct the jury on both tests.54
Consumer Expectation Test
Under the consumer expectation test, the plaintiff must prove that a product is unreasonably dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.55 The consumer expectation test derives from comment i of the Restatement (Second) of Torts § 402A, which provides:
The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. . . . The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.56
The Risk-Benefit Test
Under the risk-benefit test, the plaintiff bears the burden of proving that the risks of a challenged design outweigh the benefits of the design.57 Colorado case law has established a number of factors to be considered in this analysis. These factors include:
(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.58
However, this list is not exclusive, and there are other factors the finder of fact can apply.59 The Colorado Supreme Court has set forth an alternative set of factors, noting that the relevant factors "cannot be confined to a single list which always must be applied regardless of the circumstances."60 This alternate list of factors are:
(1) Polycentricity: Aspects of the product design may be related in such a way that any design change would substantially affect the cost, utility, safety, or esthetics of the product....
(2) Close risk-utility proof: The task of weighing and balancing the product's potential for harm against its utility may be difficult or impossible.
(3) State of the art: The alternative design may not be practically feasible in light of the state of
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