Ford Appeal Nets More Maker-Friendly Defect Test for Seat

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By Martina Barash

Ford Motor Co. scored a victory Nov. 13 when the Colorado Supreme Court, in throwing out a $3 million defect verdict against the automaker, said a jury should weigh risks and benefits to decide whether an automotive seat is unreasonably dangerous under state law.

The court found that the so-called risk-utility test is best for determining whether some product designs are dangerous. A different test based on consumer expectations isn’t suited to situations where dangerousness hinges primarily on “technical, scientific information,” the court said in its unanimous decision ( Petitioner: Forrest Walker, v. Respondent: Ford Motor Company. , Colo., Supreme Court Case No. 15SC899, 11/13/17 ).

“The Colorado case was wisely decided,” Victor Schwartz of Shook Hardy & Bacon LLP in Washington told Bloomberg Law Nov. 13. The firm submitted a friend-of the court brief for the Alliance of Automobile Manufacturers, an industry trade group, which supported Ford.

“Consumer-expectation tests do not work at all when there are complicated engineering decisions such as design liability, because consumers don’t know what to expect,” he said.

They can expect too much or too little, he said.

Here, the court threw out an approximately $3 million verdict for a Colorado man, Forrest Walker, who seriously injured his head and neck when he was rear-ended and his 1998 Ford Explorer’s seat allegedly went backward—a design called a “yielding” seat.

Walker challenged the design of the seat and a jury found for him on both strict liability and negligence claims.

Juries using a risk-utility test “can consider factors that deal with engineering choices,” Schwartz said. That test is often associated with a set of guidelines known as the Restatement (Third) of Torts: Products Liability.

Nelson P. Boyle of Burg Simpson Eldredge Hersh & Jardine PC, told Bloomberg Law that his firm’s brief for a plaintiffs’ attorneys’ group, the Colorado Trial Lawyers Association, pointed to several recent state supreme court decisions rejecting the Third Restatement.

And the amici curiae on the other side—the Auto Alliance and others—"were angling for the Third Restatement,” he said. But the justices didn’t even mention it, he said.

“It’s significant that they rejected the attempt to bring in the Third Restatement,” he said.

But Walker can’t keep his award on the basis of the negligence claim, because that too rests on a determination that the product is unreasonably dangerous, the supreme court said. And that should have been made using the risk-benefit test, the court said.

The case will go back to the lower court.

Purvis Gray Thompson LLP represented the plaintiff.

Wheeler Trigg O’Donnell LLP represented Ford.

To contact the reporter on this story: Martina Barash in Washington at

To contact the editor responsible for this story: Steven Patrick at

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