[34 Cal.Rptr.2d 609] [8 Cal.4th 555] [882 P.2d 300] Grace, Skocypec, Cosgrove & Schirm, Barry R. Schirm, Jan L. Pocatera, Susan L. Olson, Lisa M. Kralik, McCutchen, Doyle, Brown & Enersen, David M. Heilbron, Leslie G. Landau and Robert A. Brundage, for defendant and appellant.

Harry M. Grossman as amicus curiae on behalf of defendant and appellant.

Charlotte E. Costan, Horton, Barbaro & Reilly, Frank P. Barbaro and Douglas A. Scott, for plaintiff and respondent.

[34 Cal.Rptr.2d 610] [882 P.2d 301] Ian Herzog, Douglas Devries, Leonard Sachs, Bruce Broillet, David Rosen, Thomas Stolpman, Gary Paul, Robert Steinberg, Roland Wrinkle, Harvey R. Levine, Leonard Esquina, Greene, Broillet, Taylor & Wheeler, Christine Spagnoli, Esner, Marylander, Zakheim & Higa, Stuart B. Esner and Grant Marylander as amici curiae on behalf of plaintiff and respondent.

[8 Cal.4th 556] BAXTER, Justice.

Plaintiff's ankles were badly injured when her General Motors (GM) car collided with another vehicle. She sued GM, asserting that defects in her automobile allowed its left front wheel to break free, collapse rearward, and smash the floorboard into her feet. GM denied any defect and claimed that the force of the collision itself was the sole cause of the injuries. Expert witnesses debated the issues at length. Plaintiff prevailed at trial, and the Court of Appeal affirmed the judgment.

We granted review to resolve three questions. First, may a product's design be found defective on grounds that the product's performance fell below the safety expectations of the ordinary consumer (see Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 426-432, 143 Cal.Rptr. 225, 573 P.2d 443) if the question of how safely the product should have performed cannot be answered by the common experience of its users? Second, in an action for enhanced collision injuries caused by an uncrashworthy vehicle, where a correct general instruction on legal cause is given, is it error to refuse a defense instruction that any defect cannot be a legal cause of injury if the accident would have produced the same injury even without the defect? Third, if the refusal is error, is it reversible per se? (See, e.g., Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 10-11, 116 Cal.Rptr. 575.)

We reach the following conclusions: The trial court erred by giving an "ordinary consumer expectations" instruction in this complex case. Moreover, the court should have granted GM's request for a special instruction explaining its correct theory of legal cause. However, neither error warrants reversal unless it caused actual prejudice, and both errors were harmless on this record. We will therefore affirm the Court of Appeal's judgment.

FACTS

On the early afternoon of January 16, 1984, plaintiff was driving her 1982 Camaro in the southbound center lane of Bolsa Chica Road, an arterial street in Westminster. There was a slight drizzle, the roadway was damp, and apparently plaintiff was not wearing her seat belt. A 1972 Datsun, approaching northbound, suddenly skidded into the path of plaintiff's car. The Datsun's left rear quarter struck plaintiff's Camaro in an area near the left [8 Cal.4th 557] front wheel. Estimates of the vehicles' combined closing speeds on impact vary from 30 to 70 miles per hour.^[1]

The collision bent the Camaro's frame adjacent to the wheel and tore loose the bracket that attached the wheel assembly (specifically, the lower control arm) to the frame. As a result, the wheel collapsed rearward and inward. The wheel hit the underside of the "toe pan"--the slanted floorboard area beneath the pedals--causing the toe pan to crumple, or "deform," upward into the passenger compartment.

Plaintiff received a fractured rib and relatively minor scalp and knee injuries. Her most severe injuries were fractures of both ankles, and the more serious of these was the compound compression fracture of her left ankle. This injury never healed properly. In order to relieve plaintiff's pain, an orthopedic surgeon fused the joint. As a permanent result, plaintiff cannot flex her left ankle. She walks with considerable difficulty, and her condition is expected to deteriorate.

After the accident, the Camaro was acquired by a salvage dealer, Noah Hipolito. Soon thereafter, plaintiff's son, Jeffrey Bishop, and her original attorney, Richard Hawkins, [34 Cal.Rptr.2d 611] [882 P.2d 302] , each inspected and photographed the car and its damaged floorboard area. The failed bracket assembly was retrieved. However, Hipolito later discarded the damaged toe pan, repaired the Camaro, and resold it. Thus, except for the bracket assembly, no part of the vehicle was retained as evidence.

Plaintiff sued GM for her ankle injuries, asserting a theory of strict tort liability for a defective product. She claimed the severe trauma to her ankles was not a natural consequence of the accident, but occurred when the collapse of the Camaro's wheel caused the toe pan to crush violently upward against her feet. Plaintiff attributed the wheel collapse to a manufacturing defect, the substandard quality of the weld attaching the lower control arm bracket to the frame. She also claimed that the placement of the bracket, and the configuration of the frame, were defective designs because they did not limit the wheel's rearward travel in the event the bracket should fail.

The available physical and circumstantial evidence left room for debate about the exact angle and force of the impact and the extent to which the toe pan had actually deformed. The issues of defect and causation were addressed through numerous experts produced by both sides in such areas as [8 Cal.4th 558] biomechanics, metallurgy, orthopedics, design engineering, and crash-test simulation.

Plaintiff submitted the results of crash tests, and also asserted the similarity of another real-world collision involving a 1987 Camaro driven by Dana Carr. According to plaintiff's experts, these examples indicated that Camaro accidents of similar direction and force do not generally produce wheel bracket assembly failure, extensive toe pan deformation, or severe ankle injuries such as those plaintiff had experienced. These experts opined that without the deformation of the toe pan in plaintiff's car, her accident could not have produced enough force to fracture her ankles.

A metallurgist testifying on plaintiff's behalf examined the failed bracket from her car. He concluded that its weld was particularly weak because of excess "porosity" caused by improper welding techniques. Plaintiff's experts also emphasized the alternative frame and bracket design used by the Ford Mustang of comparable model years. They asserted that the Mustang's design, unlike the Camaro's, provided protection against unlimited rearward travel of the wheel should a bracket assembly give way.

GM's metallurgist disputed the claims of excessive weakness or porosity in the bracket weld. Expert witnesses for GM also countered the assertions of defective design. GM asserted that the Camaro's bracket was overdesigned to withstand forces in excess of all expected uses. According to expert testimony adduced by GM, the Mustang's alternative frame and bracket configuration did not fit the Camaro's overall design goals and was not distinctly safer for all collision stresses to which the vehicle might be subjected. Indeed, one witness noted, at least one more recent Ford product had adopted the Camaro's design.

A second major thrust of GM's defense was that the force of the collision, rather than any product defect, was the sole cause of plaintiff's ankle injuries. Using the results of accident reconstruction, computer simulations, and actual crash tests, GM sought to prove that the probable collision force concentrated on the left front wheel of plaintiff's Camaro exceeded the "yield strength" of any feasible weld or design.

By similar means, GM also sought to show that plaintiff's ankle injuries were not caused by the upward movement of the toe pan, but by the inertial forward and downward motion of plaintiff's unrestrained body and legs against the toe pan at the instant of impact. From plaintiff's other injuries, and from photographs showing the general pattern of damage to the Camaro's interior, GM's experts inferred that plaintiff was not wearing her seat belt and had locked or braced her legs in reaction to the imminent collision.

[8 Cal.4th 559] Hence, they concluded, her rigid ankles had absorbed the full force of her inertial forward movement, which was sufficient to cause the fractures. Based on their test results, GM's witnesses opined that plaintiff's ankles had probably moved forward, struck the toe pan, and broken before significant deformation of the toe pan occurred.

[34 Cal.Rptr.2d 612] [882 P.2d 303] The court instructed the jury that a manufacturer is liable for "enhanced" injuries caused by a manufacturing or design defect in its product while the product is being used in a foreseeable way. Over GM's objection, the court gave the standard design defect instruction without modification. (See BAJI No. 9.00.5 (7th ed. 1986).) This instruction advised that a product is defective in design "if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if there is a risk of danger inherent in the design which outweighs the benefit of the design." (Italics added.)

The jury was also told that in order to establish liability for a design defect under the "ordinary consumer expectations" standard, plaintiff must show (1) the manufacturer's product failed to perform as safely as an ordinary consumer would expect, (2) the defect existed when the product left the manufacturer's possession, (3) the defect was a "legal cause" of plaintiff's "enhanced injury," and (4) the product was used in a reasonably foreseeable manner.

With respect to all theories of liability, the instructions indicated that "[a] legal cause of injury is a cause which is a substantial factor in bringing about the injury." (See BAJI No. 3.76 (7th ed. 1986).) However, the trial court refused the following instruction proffered by GM: "If you find that the subject Camaro ... was improperly designed, but you also find that [plaintiff] would have received enhanced injuries even if the design had been proper, then you must find that the design was not a substantial factor in bringing about her injuries and therefore was not a contributing cause thereto."

In a series of special findings, the jury determined that the Camaro contained a defect (of unspecified nature) which was a "legal cause" of plaintiff's "enhanced injury." The jury further concluded that although plaintiff was guilty of comparative fault, her conduct was not a legal cause of her enhanced injuries. Plaintiff received an award of $1.65 million.

GM appealed. Among other things, it argued that the trial court erred by instructing on ordinary consumer expectations in a complex design-defect case, and by failing to give GM's special instruction on causation.

[8 Cal.4th 560] Following one line of authority, the Court of Appeal concluded that a jury may rely on expert assistance to determine what level of safe performance an ordinary consumer would expect under particular circumstances. Hence, the Court of Appeal ruled, there was no error in use of the ordinary consumer expectations standard for design defect in this case.

The Court of Appeal agreed with GM that its specific instruction on causation should not have been refused. However, the court rejected precedent suggesting that an error of this kind is reversible per se. Here, the Court of Appeal ruled, the error was harmless. After dismissing GM's remaining appellate claims, the Court of Appeal affirmed the judgment. We granted review.

DISCUSSION

1. Test for design defect.

A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way. (Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 126-130, 104 Cal.Rptr. 433, 501 P.2d 1153 [Cronin ]; Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897 [Greenman ].) Because traffic accidents are foreseeable, vehicle manufacturers must consider collision safety when they design and build their products. Thus, whatever the cause of an accident, a vehicle's producer is liable for specific collision injuries that would not have occurred but for a manufacturing or design defect in the vehicle. (Cronin, supra, 8 Cal.3d at p. 126, 104 Cal.Rptr. 433, 501 P.2d 1153.)

In Cronin, supra, a bread van driver was hurt when the hasp retaining the bread trays broke during a collision, causing the trays to shift forward and propel him through the windshield. He sued the van's producer, alleging that the hasp had failed because of the defective metal used in its manufacture. The court instructed that the driver could recover [34 Cal.Rptr.2d 613] [882 P.2d 304] if he proved a defect, unknown to him, which caused injury while the van was being used as intended or designed. The manufacturer appealed the subsequent damage award. It urged the court should have instructed that liability could not be imposed unless the defect rendered the product "unreasonably dangerous."

We rejected this contention, holding that the "unreasonably dangerous" test derived from the Restatement (see Rest.2d Torts, § 402A) is inapplicable in California. As we observed, the Restatement defines "unreasonably dangerous" as "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. " (Id., com. i, p. 352, [8 Cal.4th 561] italics added.) The original purpose of this formula, we explained, was to make clear that common products such as sugar, butter, and liquor are not defective simply because they pose inherent health risks well known to the general public. However, Cronin indicated, the formula had been applied so as to force injured persons to prove both an actual defect and "unreasonable" danger. (8 Cal.3d at pp. 132-133, 104 Cal.Rptr. 433, 501 P.2d 1153.)

This "double burden," Cronin reasoned, ran contrary to the purpose of Greenman, supra, to relieve persons injured by defective products from proof of elements that ring of negligence. Instead, Cronin concluded, an injured plaintiff should recover so long as he proves that the product was defective, and that the defect caused injury in reasonably foreseeable use. (Cronin, supra, 8 Cal.3d at pp. 133-134, 104 Cal.Rptr. 433, 501 P.2d 1153.)

In Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (Barker ), the operator of a high-lift loader sued its manufacturer for injuries he received when the loader toppled during a lift on sloping ground. The operator alleged various design defects which made the loader unsafe to use on a slope. In a pre-Cronin trial, the court instructed that the operator could recover only if a defect in the loader's design made the machine " 'unreasonably dangerous for its intended use.' " (Id., at p. 417, 143 Cal.Rptr. 225, 573 P.2d 443.) The operator appealed the defense verdict, citing the "unreasonably dangerous" instruction as prejudicial error.

The manufacturer responded that even if the "unreasonably dangerous" test was inappropriate for manufacturing defects, such as the substandard fastener material in Cronin, it should be retained for design defects. This rule would not produce the undue double burden that concerned us in Cronin, the manufacturer insisted, because unreasonable danger is part of the definition of design defect, not an additional element of strict product liability. Without this limitation, the manufacturer contended, juries would lack guidance when determining if a defect had sprung not from a mistake in supply or assembly, but from a flaw in the product's specifications.

The Barker court disagreed. It reasoned as follows: Our concerns in Cronin extended beyond double-burden problems. There we also sought to avoid the danger that a jury would deny recovery, as the Restatement had intended, "so long as the product did not fall below the ordinary consumer's expectations as to [its] safety...." (Barker, supra, 20 Cal.3d at p. 425, 143 Cal.Rptr. 225, 573 P.2d 443, fn. omitted.) This danger was particularly acute in design defect cases, where a manufacturer might argue that because the item which caused injury was identical to others of the same product line, it must necessarily have satisfied ordinary consumer expectations. (Id., at p. 426, 143 Cal.Rptr. 225, 573 P.2d 443.)

[8 Cal.4th 562] Despite these difficulties, Barker explained, it is possible to define a design defect, and the expectations of the ordinary consumer are relevant to that issue. At a minimum, said Barker, a product is defective in design if it does fail to perform as safely as an ordinary consumer would expect. This principle, Barker asserted, acknowledges the relationship between strict tort liability for a defective product and the common law doctrine of warranty, which holds that a product's presence on the market includes an implied representation " 'that it [will] safely do the jobs for which it was built.' " (20 Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d [34 Cal.Rptr.2d 614] [882 P.2d 305] 443, quoting Greenman, supra, 59 Cal.2d at p. 64, 27 Cal.Rptr. 697, 377 P.2d 897.) "Under this [minimum] standard," Barker observed, "an injured plaintiff will frequently be able to demonstrate the defectiveness of the product by resort to circumstantial evidence, even when the accident itself precludes identification of the specific defect at fault. [Citations.]" (20 Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443, italics added.)

However, Barker asserted, the Restatement had erred in proposing that a violation of ordinary consumer expectations was necessary for recovery on this ground. "As Professor Wade has pointed out, ... the expectations of the ordinary consumer cannot be viewed as the exclusive yardstick for evaluating design defectiveness because '[i]n many situations ... the consumer would not know what to expect, because he would have no idea how safe the product could be made.' " (20 Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443, quoting Wade, On the Nature of Strict Tort Liability for Products (1973) 44 Miss.L.J. 825, 829, italics added.)

Thus, Barker concluded, "a product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies 'excessive preventable danger,' or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design. [Citations.]" (20 Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443, fn. omitted.) Barker held that under this latter standard, "a jury may consider, among other relevant factors, the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design. [Citations.]" (Id., at p. 431, 143 Cal.Rptr. 225, 573 P.2d 443.)

Barker also made clear that when the ultimate issue of design defect calls for a careful assessment of feasibility, practicality, risk, and benefit, the case should not be resolved simply on the basis of ordinary consumer expectations. As Barker observed, "past design defect decisions demonstrate that, as a practical matter, in many instances it is simply impossible to eliminate the [8 Cal.4th 563] balancing or weighing of competing considerations in determining whether a product is defectively designed or not...." (20 Cal.3d at p. 433, 143 Cal.Rptr. 225, 573 P.2d 443.)

An example, Barker noted, was the "crashworthiness" issue presented in Self v. General Motors Corp., supra, 42 Cal.App.3d 1, 116 Cal.Rptr. 575. The debate there was whether the explosion of a vehicle's fuel tank in an accident was due to a defect in design. This, in turn, entailed concerns about whether placement of the tank in a position less vulnerable to rear end collisions, even if technically feasible, "would have created a greater risk of injury in other, more common situations." (Barker, supra, 20 Cal.3d at p. 433, 143 Cal.Rptr. 225, 573 P.2d 443.) Because this complex weighing of risks, benefits, and practical alternatives is "implicit" in so many design-defect determinations, Barker concluded, "an instruction which appears to preclude such a weighing process under all circumstances may mislead the jury." (Id., at p. 434, 143 Cal.Rptr. 225, 573 P.2d 443.)

Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 184 Cal.Rptr. 891, 649 P.2d 224 (Campbell ) provided additional strong hints about the proper use of the ordinary consumer expectations prong of Barker. Plaintiff Campbell, a bus passenger, was thrown from her seat and injured during a sharp turn. She sued GM, the manufacturer of the bus, alleging that the vehicle was defectively designed because there was no "grab bar" within easy reach of her seat. Campbell presented no expert testimony, but she submitted photographs of the interior of the bus, showing where safety bars and handles were located in relation to the seat she had occupied. At the conclusion of her case in chief, GM moved for nonsuit, arguing that her evidence of design defect and proximate cause was not sufficient. The trial court granted the motion, but we reversed.

We emphasized that in order to establish a design defect under Barker's ordinary consumer expectations test, it was enough for Campbell to show "the objective conditions of the product" so that the jurors could employ [882 P.2d 306] [34 Cal.Rptr.2d 615] "[their] own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence. [Fn. omitted.] Since public transportation is a matter of common experience, no expert testimony was required to enable the jury to reach a decision on this part of the Barker inquiry." (Campbell, supra, 32 Cal.3d at p. 126, 184 Cal.Rptr. 891, 649 P.2d 224.)

"Indeed, it is difficult to conceive what testimony an 'expert' could provide. The thrust of the first Barker test is that the product must meet the safety expectations of the general public as represented by the ordinary consumer, not the industry or a government agency. '[O]ne can hardly imagine what credentials a witness must possess before he can be certified as an expert on the issue of ordinary consumer expectations.' " (Campbell, [8 Cal.4th 564] supra, 32 Cal.3d at pp. 126-127, 184 Cal.Rptr. 891, 649 P.2d 224, quoting Schwartz, Foreword: Understanding Products Liability (1979) 67 Cal.L.Rev. 435, 480, italics added.)

Had we ended our discussion at this point, it would have been clear that a product violates ordinary consumer expectations only when the circumstances arouse such reasonable expectations based on common experience of the product's users. However, dictum in the next paragraph of Campbell injected ambiguity. We said, "The quantum of proof necessary to establish a prima facie case ... under the first [i.e., ordinary consumer expectations] prong of Barker cannot be reduced to an easy formula. However, if the product is one within the common experience of ordinary consumers" (italics added), it will generally be enough for the injured plaintiff to show the circumstances of the accident and "the objective features of the product which are relevant to an evaluation of its safety...." (32 Cal.3d at p. 127, 184 Cal.Rptr. 891, 649 P.2d 224.) One might infer from this passage that the ordinary consumer expectations prong of Barker is not limited to product performance "within the common experience" of the product's ordinary consumers.

Several subsequent Court of Appeal cases considered the point. In Bates v. John Deere Co. (1983) 148 Cal.App.3d 40, 195 Cal.Rptr. 637, plaintiff caught his leg in a commercial cotton picker while clearing debris from the moving machinery. He claimed the machine should have included an emergency shutoff switch within reach of the remote position from which its sole operator periodically had to undertake this debris-clearing task. Defense experts suggested that such a feature might induce a false sense of security and make the machine even more dangerous.

The trial court properly found a design defect under the risk-benefit test, but defendant challenged the court's additional use of the ordinary consumer expectations test. Although it saw no need to decide the issue, the Court of Appeal agreed that "[w]e, too, find it difficult to apply the ... [consumer expectations] test to these facts, in part because it is difficult to conceive that an ordinary consumer would know what to expect concerning the safety design of a commercial cotton picker. [Citing Barker.]" (148 Cal.App.3d at p. 52, 195 Cal.Rptr. 637.)

In Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485, 200 Cal.Rptr. 387, the Court of Appeal upheld the trial court's refusal to instruct on reasonable consumer expectations because unassisted lay jurors "would not know what to expect" about the safety design of a Bobcat model 440 loader, and no experts had testified on the issue. However, the Court of Appeal remarked that on retrial, "appellants are free to present evidence in the form of expert opinions on the reasonable expectations of consumers of the product involved here...." (Id., at p. 496, 200 Cal.Rptr. 387.)

[8 Cal.4th 565] In Akers v. Kelley Co. (1985) 173 Cal.App.3d 633, 219 Cal.Rptr. 513 (Akers ), there was an accident involving a "dockboard," a spring-loaded plate which attaches to a loading dock and adjusts to form a bridge between the dock and truck beds of different elevations. Several hours after the prongs of a forklift struck the dockboard, it suddenly flew apart, injuring a nearby worker. Experts debated at length whether the dockboard's components should have been designed to withstand forklift impacts, and whether a failure in design was a cause of the accident. Over defendant's objection, the trial [34 Cal.Rptr.2d 616] [882 P.2d 307] court instructed only on the consumer expectations test for design defect.

The Court of Appeal affirmed. It declined to read Campbell as limiting the consumer expectations test to products or accidents of common experience. (Akers, supra, 173 Cal.App.3d at p. 650, 219 Cal.Rptr. 513.) That test, said Akers, "is entirely appropriate in a case such as this one. There are certain kinds of accidents--even where fairly complex machinery is involved--which are so bizarre that the average juror, upon hearing the particulars, might reasonably think: 'Whatever the user may have expected from that contraption, it certainly wasn't that.' Here, a dockboard flew apart and injured [plaintiff]. A reasonable juror with no previous experience of dockboards could conclude that the dockboard in question failed to meet 'consumer expectations' as to its safety...." (Id., at p. 651, 219 Cal.Rptr. 513.) This was so, the Court of Appeal concluded, even though expert testimony might be necessary to establish that the manufacturer was responsible for the flaw which caused the product to fail. (Ibid.)

To similar effect is West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 220 Cal.Rptr. 437 (West ). The plaintiff in West became seriously ill in February 1980, during her menstrual period. At this time, there were increasing indications that tampon use sometimes causes toxic shock syndrome (TSS). After reading medical reports, plaintiff's physicians belatedly concluded that she had suffered TSS caused by tampons which defendant had designed and produced. At trial, experts debated the nature of plaintiff's illness, and they also disputed whether the tampon design and materials used by defendant encouraged TSS. The trial court instructed only on the consumer expectations prong of Barker.

On appeal, defendant argued that the risk-benefit test alone was proper. However, West agreed with Akers that Campbell does not preclude the consumer expectations test in complex cases involving expert testimony. In a time before general awareness and warnings about TSS, the court reasoned, plaintiff "had every right to expect" that use of this seemingly innocuous product "would not lead to a serious (or perhaps fatal) illness...." Hence, the consumer expectations instruction was appropriate. (West, supra, 174 Cal.App.3d at p. 867, 220 Cal.Rptr. 437.)

[8 Cal.4th 566] Finally, in Rosburg v. Minnesota Mining & Mfg. Co. (1986) 181 Cal.App.3d 726, 226 Cal.Rptr. 299, plaintiff claimed she was entitled to judgment under the consumer expectations test because her own testimony that she believed her breast implants would last a lifetime without leaking was the only lay evidence of what consumers expected. However, the Court of Appeal ruled that breast implant performance is beyond common experience, and that expert testimony on what the consumer should expect was therefore relevant and admissible. Here, the court observed, both plaintiff's surgeon and another defense expert had insisted that failures were expectable and patients were not advised otherwise. Hence, there was substantial evidence to support the finding below that no defect was proven under the consumer expectations test. (Id., at pp. 732-733, 226 Cal.Rptr. 299.)^[2]

In Barker, we offered two alternative ways to prove a design defect, each appropriate to its own circumstances. The purposes, behaviors, and dangers of certain products are commonly understood by those who ordinarily use them. By the same token, the ordinary users or consumers of a product may have reasonable, widely accepted minimum expectations about the circumstances under [34 Cal.Rptr.2d 617] [882 P.2d 308] which it should perform safely. Consumers govern their own conduct by these expectations, and products on the market should conform to them.

In some cases, therefore, "ordinary knowledge ... as to ... [the product's] characteristics" (Rest.2d Torts, supra, § 402A, com. i., p. 352) may permit an inference that the product did not perform as safely as it should. If the facts permit such a conclusion, and if the failure resulted from the product's design, a finding of defect is warranted without any further proof. The manufacturer may not defend a claim that a product's design failed to perform as safely as its ordinary consumers would expect by presenting expert evidence of the design's relative risks and benefits.^[3]

However, as we noted in Barker, a complex product, even when it is being used as intended, may often cause injury in a way that does not engage its [8 Cal.4th 567] ordinary consumers' reasonable minimum assumptions about safe performance. For example, the ordinary consumer of an automobile simply has "no idea" how it should perform in all foreseeable situations, or how safe it should be made against all foreseeable hazards. (Barker, supra, 20 Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443.)

An injured person is not foreclosed from proving a defect in the product's design simply because he cannot show that the reasonable minimum safety expectations of its ordinary consumers were violated. Under Barker 's alternative test, a product is still defective if its design embodies "excessive preventable danger" (20 Cal.3d at p. 430, 143 Cal.Rptr. 225, 573 P.2d 443), that is, unless "the benefits of the ... design outweigh the risk of danger inherent in such design" (id., at p. 432, 143 Cal.Rptr. 225, 573 P.2d 443). But this determination involves technical issues of feasibility, cost, practicality, risk, and benefit (id., at p. 431, 143 Cal.Rptr. 225, 573 P.2d 443) which are "impossible" to avoid (id., at p. 433, 143 Cal.Rptr. 225, 573 P.2d 443). In such cases, the jury must consider the manufacturer's evidence of competing design considerations (id., at pp. 433-434, 143 Cal.Rptr. 225, 573 P.2d 443), and the issue of design defect cannot fairly be resolved by standardless reference to the "expectations" of an "ordinary consumer."

As we have seen, the consumer expectations test is reserved for cases in which the everyday experience of the product's users permits a conclusion that the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design. It follows that where the minimum safety of a product is within the common knowledge of lay jurors, expert witnesses may not be used to demonstrate what an ordinary consumer would or should expect. Use of expert testimony for that purpose would invade the jury's function (see Evid.Code, § 801, subd. (a)), and would invite circumvention of the rule that the risks and benefits of a challenged design must be carefully balanced whenever the issue of design defect goes beyond the common experience of the product's users.^[4]

[34 Cal.Rptr.2d 618] [8 Cal.4th 568] [882 P.2d 309] By the same token, the jury may not be left free to find a violation of ordinary consumer expectations whenever it chooses. Unless the facts actually permit an inference that the product's performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in the balancing of risks and benefits required by the second prong of Barker.

Accordingly, as Barker indicated, instructions are misleading and incorrect if they allow a jury to avoid this risk-benefit analysis in a case where it is required. (20 Cal.3d at p. 434, 143 Cal.Rptr. 225, 573 P.2d 443.) Instructions based on the ordinary consumer expectations prong of Barker are not appropriate where, as a matter of law, the evidence would not support a jury verdict on that theory. Whenever that is so, the jury must be instructed solely on the alternative risk-benefit theory of design defect announced in Barker.^[5]

GM suggests that the consumer expectations test is improper whenever "crashworthiness," a complex product, or technical questions of causation are at issue. Because the variety of potential product injuries is infinite, the line cannot be drawn as clearly as GM proposes. But the fundamental distinction is not impossible to define. The crucial question in each individual case is whether the circumstances of the product's failure permit an [8 Cal.4th 569] inference that the product's design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.^[6]

GM argues at length that the consumer expectations test is an "unworkable, amorphic, fleeting standard" which should be entirely abolished as a basis for design defect. In GM's view, the test is deficient and unfair in several respects. First, it defies definition. Second, it focuses not on the objective condition of products, but on the subjective, unstable, and often unreasonable opinions of consumers. Third, it ignores the reality that ordinary consumers know little about how safe the complex products they use can or should be made. Fourth, it invites the jury to isolate the particular consumer, component, accident, and injury before it instead of considering whether the whole product fairly accommodates the competing expectations of [34 Cal.Rptr.2d 619] [882 P.2d 310] all consumers in all situations (see Daly v. General Motors Corp., supra, 20 Cal.3d 725, 746-747, 144 Cal.Rptr. 380, 575 P.2d 1162). Fifth, it eliminates the careful balancing of risks and benefits which is essential to any design issue.

In its amicus curiae brief, the Product Liability Advisory Council, Inc. (Council) makes similar arguments. The Council proposes that all design defect claims be resolved under a single risk-benefit analysis geared to "reasonable safety."

We fully understand the dangers of improper use of the consumer expectations test. However, we cannot accept GM's insinuation that ordinary consumers lack any legitimate expectations about the minimum safety of the products they use. In particular circumstances, a product's design may perform so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers. In such cases, a lay jury is competent to make that determination.

Nor are we persuaded by the Council's proposal. In essence, it would reinvest product liability claims with the requirement of "unreasonable danger" that we rejected in Cronin and Barker.

When use of the consumer expectations test is limited as Barker intended, the principal concerns raised by GM and the Council are met. Within these limits, the test remains a workable means of determining the existence of [8 Cal.4th 570] design defect. We therefore find no compelling reason to overrule the consumer expectations prong of Barker at this late date, and we decline to do so.^[7]

Applying our conclusions to the facts of this case, however, we agree that the instant jury should not have been instructed on ordinary consumer expectations. Plaintiff's theory of design defect was one of technical and mechanical detail. It sought to examine the precise behavior of several obscure components of her car under the complex circumstances of a particular accident. The collision's exact speed, angle, and point of impact were disputed. It seems settled, however, that plaintiff's Camaro received a substantial oblique blow near the left front wheel, and that the adjacent frame members and bracket assembly absorbed considerable inertial force.

An ordinary consumer of automobiles cannot reasonably expect that a car's frame, suspension, or interior will be designed to remain intact in any and all accidents. Nor would ordinary experience and understanding inform such a consumer how safely an automobile's design should perform under the esoteric circumstances of the collision at issue here. Indeed, both parties assumed that quite complicated design considerations were at issue, and that expert testimony was necessary to illuminate these matters. Therefore, injection of ordinary consumer expectations into the design defect equation was improper.

We are equally persuaded, however, that the error was harmless, because it is not reasonably probable defendant would have obtained a more favorable result in its absence. (E.g., Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069, 232 Cal.Rptr. 528, 728 P.2d 1163; see Cal. Const., art. VI, § 13; Code Civ.Proc., § 475.) In assessing prejudice from an erroneous instruction, we consider, insofar as relevant, "(1) the degree of conflict in the evidence on critical issues [citations]; (2) whether respondent's argument to the jury may have contributed to the instruction's misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation]; (4) the [8 Cal.4th 571] closeness [34 Cal.Rptr.2d 620] of [882 P.2d 311] the jury's verdict [citation]; and (5) the effect of other instructions in remedying the error [citations]." (Pool, supra, at pp. 1069-1070, 232 Cal.Rptr. 528, 728 P.2d 1163, quoting LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876, 148 Cal.Rptr. 355, 582 P.2d 946.)

Here there were no instructions which specifically remedied the erroneous placement of the consumer expectations alternative before the jury. Moreover, plaintiff's counsel briefly reminded the jury that the instructions allowed it to find a design defect under either the consumer expectations or risk-benefit tests. However, the consumer expectations theory was never emphasized at any point. As previously noted, the case was tried on the assumption that the alleged design defect was a matter of technical debate. Virtually all the evidence and argument on design defect focused on expert evaluation of the strengths, shortcomings, risks, and benefits of the challenged design, as compared with a competitor's approach.

Neither plaintiff's counsel nor any expert witness on her behalf told the jury that the Camaro's design violated the safety expectations of the ordinary consumer. Nor did they suggest the jury should find such a violation regardless of its assessment of such competing design considerations as risk, benefit, feasibility, and cost. The jury never made any requests which hinted it was inclined to apply the consumer expectations test without regard to a weighing of risks and benefits.

Under these circumstances, we find it highly unlikely that a reasonable jury took that path. We see no reasonable probability that the jury disregarded the voluminous evidence on the risks and benefits of the Camaro's design, and instead rested its verdict on its independent assessment of what an ordinary consumer would expect. Accordingly, we conclude, the error in presenting that theory to the jury provides no basis for disturbing the trial judgment.^[8]

[8 Cal.4th 572] 2. Causation instructions.

GM next claims the trial court committed prejudicial error by refusing to instruct that any design defect was not a "substantial" or "contributing" cause of plaintiff's "enhanced" injuries if those same injuries would have occurred even with a nondefective design. This proffered instruction conformed to GM's trial theories that given the angle and force of the collision, the wheel would have collapsed regardless of any defect, and in any event, that the wheel's collapse played no part in the ankle injuries plaintiff received.

A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct [34 Cal.Rptr.2d 621] [882 P.2d 312] in specific terms that relate the party's theory to the particular case. (E.g., Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 543, 138 Cal.Rptr. 705, 564 P.2d 857; Borenkraut v. Whitten (1961) 56 Cal.2d 538, 545-546, 15 Cal.Rptr. 635, 364 P.2d 467; Phillips v. G.L. Truman Excavation Co. (1961) 55 Cal.2d 801, 806, 13 Cal.Rptr. 401, 362 P.2d 33; Self v. General Motors Corp., supra, 42 Cal.App.3d 1, 10, 116 Cal.Rptr. 575 [Self ].)

GM's proposed instruction was correct in form and substance. A manufacturer is liable only when a defect in its product was a legal cause of injury. (Cronin, supra, 8 Cal.3d at pp. 133-134, 104 Cal.Rptr. 433, 501 P.2d 1153.) A tort is a legal cause of injury only when it is a substantial factor in producing the injury. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1048-1054, 1 Cal.Rptr.2d 913, 819 P.2d 872.) If the external force of a vehicle accident was so severe that it would have caused identical injuries notwithstanding an abstract "defect" in the vehicle's collision safety, the defect cannot be considered a substantial factor in bringing them about. (E.g., Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 862-864, 275 Cal.Rptr. 715; Endicott v. Nissan Motor [8 Cal.4th 573] Corp. (1977) 73 Cal.App.3d 917, 926, 141 Cal.Rptr. 95; Self, supra, 42 Cal.App.3d at p. 10, 116 Cal.Rptr. 575.)^[9]

The general causation instruction given by the trial court correctly advised that plaintiff could not recover for a design defect unless it was a "substantial factor" in producing plaintiff's "enhanced" injuries. However, this instruction dealt only by "negative implication" (Self, supra, 42 Cal.App.3d at p. 10, 116 Cal.Rptr. 575) with GM's theory that any such defect was not a "substantial factor" in this case because this particular accident would have broken plaintiff's ankles in any event. As we have seen, GM presented substantial evidence to that effect. GM was therefore entitled to its special instruction, and the trial court's refusal to give it was error.^[10]

GM argues vigorously that the error is reversible per se. GM claims a California rule that the erroneous denial of instructions explaining a "central theory" of a party's case is prejudicial as a matter of law.

Substantial authority supports GM's view. However, GM's contention is out of step with the usual rules governing instructional error. More significantly, it overlooks the proper application of California's constitutional requirement that a judgment not be reversed unless error caused actual prejudice in light of the whole record. Hence, we conclude, the error at issue [8 Cal.4th 574] must be subjected to an examination whether actual prejudice occurred under the particular circumstances.

A judgment may not be reversed on appeal, even for error involving "misdirection [34 Cal.Rptr.2d 622] [882 P.2d 313] of the jury," unless "after an examination of the entire cause, including the evidence," it appears the error caused a "miscarriage of justice." (Cal. Const., art. VI, § 13.) When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 835, 299 P.2d 243.)

Thus, when the jury receives an improper instruction in a civil case, prejudice will generally be found only " '[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction....' " (LeMons v. Regents of University of California, supra, 21 Cal.3d 869, 875, 148 Cal.Rptr. 355, 582 P.2d 946, quoting Robinson v. Cable (1961) 55 Cal.2d 425, 428, 11 Cal.Rptr. 377, 359 P.2d 929.) That assessment, in turn, requires evaluation of several factors, including the evidence, counsel's arguments, the effect of other instructions, and any indication by the jury itself that it was misled. (Pool v. City of Oakland, supra, 42 Cal.3d 1051, 1069-1070, 232 Cal.Rptr. 528, 728 P.2d 1163.)

However, a substantial body of California decisions recites that the erroneous denial of correct specific instructions covering a civil litigant's supportable "theory of the case" is "inherently" prejudicial. Decades old, this principle has been stated, or at least implicitly applied, in a wide variety of situations, ranging from the complete preclusion of a claim or defense (e.g., Hasson v. Ford Motor Co., supra, 19 Cal.3d 530, 548, 138 Cal.Rptr. 705, 564 P.2d 857 [contributory negligence]; Phillips v. G.L. Truman Excavation Co., supra, 55 Cal.2d 801, 806, 13 Cal.Rptr. 401, 362 P.2d 33 [same]; Bernal v. Richard Wolf Medical Instruments Corp. (1990) 221 Cal.App.3d 1326, 1337-1338, 272 Cal.Rptr. 41 [warranty theories in product liability action]; Paverud v. Niagara Machine & Tool Works (1987) 189 Cal.App.3d 858, 862-864, 234 Cal.Rptr. 585 [superseding cause]; White v. Uniroyal, Inc. (1984) 155 Cal.App.3d 1, 29-33, 202 Cal.Rptr. 141 [peculiar risk doctrine] ) to mere lack of specificity in relating correct general principles to the particular facts (e.g., Borenkraut v. Whitten, supra, 56 Cal.2d 538, 544-546, 15 Cal.Rptr. 635, 364 P.2d 467 [specific duty of care when priming automobile carburetor]; Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d 479, 489-490, 227 Cal.Rptr. 465 [affirmative duty to eliminate known dangerous condition in restaurant]; Ng. v. Hudson (1977) 75 Cal.App.3d 250, 261-262, 142 Cal.Rptr. 69 ["proximate cause" as including aggravation of dormant pre-existing condition]; Self, supra, 42 Cal.App.3d 1, 10, 116 Cal.Rptr. 575 [defect not "substantial factor" if same injury would have occurred regardless of defect]; see also, [8 Cal.4th 575] e.g., Lopez v. Ormonde (1968) 258 Cal.App.2d 176, 180, 65 Cal.Rptr. 513 [refusal of imminent peril instructions; prejudice assumed]; Edelman v. Zeigler (1965) 233 Cal.App.2d 871, 883-884, 44 Cal.Rptr. 114 [refusal of res ipsa loquitur instructions; prejudice assumed]).

The rationale generally given is that an error of this nature prevents jury consideration of the omitted "theory" and thus denies, to that extent, the right to a jury trial. We once declared that "[s]uch an error cannot be cured by the beneficent provisions of article VI, section [13 of the California Constitution]" (Phillips v. G.L. Truman Excavation Co., supra, 55 Cal.2d at p. 808, 13 Cal.Rptr. 401, 362 P.2d 33), and this reasoning has been followed with little elaboration in more recent cases. (E.g., White v. Uniroyal, Inc., supra, 155 Cal.App.3d at p. 33, 202 Cal.Rptr. 141; Ng v. Hudson, supra, 75 Cal.App.3d at pp. 261-262, 142 Cal.Rptr. 69; Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 641, 128 Cal.Rptr. 807.)

The "inherent prejudice" line of authority is not unbroken. A number of decisions, when addressing erroneous denials of specific "theory" instructions, have assessed the actual effect of the error on the judgment. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 951-952, 160 Cal.Rptr. 141, 603 P.2d 58 [court instructed generally on respondeat superior liability, but failed to instruct sua sponte on limits of vicarious liability for punitive damages; any error deemed harmless under art. VI, § 13]; Hildebrand v. Los Angeles Junction Ry. Co. (1960) 53 Cal.2d 826, [34 Cal.Rptr.2d 623] [882 P.2d 314] 831, 832, 3 Cal.Rptr. 313, 350 P.2d 65 [court instructed generally that "party who asserts the affirmative of an issue" has burden of proof, but refused plaintiff's specific instruction that defendant has burden of proving contributory negligence; error deemed harmless after "review [of] entire record" under art. VI, former § 4 1/2 (now § 13) ]; Walbrook Ins. Co. v. Liberty Mutual Ins. Co. (1992) 5 Cal.App.4th 1445, 1461-1462, 7 Cal.Rptr.2d 513 [refusal in insurance bad faith action to instruct that amount of underlying personal injury verdict furnishes inference of value of claim; error deemed harmless under "all the circumstances" where other instructions invited jury to consider "strength and weaknesses" of third party's claim]; Sesler v. Ghumman (1990) 219 Cal.App.3d 218, 226, 268 Cal.Rptr. 70 [refusal to instruct in detail on duty of care when turning left against multiple lanes of traffic; LeMons factors applied to assess prejudice; misleading argument of plaintiff's counsel emphasized]; Montez v. Ford Motor Co. (1980) 101 Cal.App.3d 315, 322, 161 Cal.Rptr. 578 [refusal to give plaintiff's proffered instruction defining manufacturing defect deemed harmless under art. VI, § 13]; Wechlo v. Winyard (1973) 33 Cal.App.3d 990, 996, 109 Cal.Rptr. 462 [refusal of last clear chance instruction deemed prejudicial because of evidence that jury focused closely on issues of negligence and contributory negligence]; see [8 Cal.4th 576] Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 404-408, 264 Cal.Rptr. 779 [error to omit elements of fraud by nondisclosure, but judgment may be upheld where missing elements necessarily found in connection with other theories].)

In deciding what standard of reversibility should apply to the erroneous omission of instructions explaining the theory of a claim or defense, we take guidance from a recent decision of this court, People v. Cahill (1993) 5 Cal.4th 478, 20 Cal.Rptr.2d 582, 853 P.2d 1037 (Cahill). There we abrogated California's traditional rule that admission of an involuntary confession as evidence in a criminal case was reversible per se. In so doing, we examined at length the purpose and application of the California Constitution's reversible error provision, article VI, section 13.

As we explained, the predecessor of article VI, section 13 (art. VI, § 4 1/2) was added to the California Constitution in 1911. Its purpose was to counteract prior assumptions that a reviewing court could not consider the trial evidence in deciding whether an error had caused prejudice. (Cahill, supra, 5 Cal.4th at pp. 489-490, 20 Cal.Rptr.2d 582, 853 P.2d 1037.) People v. O'Bryan (1913) 165 Cal. 55, 130 P. 1042 soon made clear that "[under] the new constitutional provision the appellate courts are empowered to examine 'the entire cause, including the evidence ' and are required to affirm the judgment ... if error has not resulted 'in a miscarriage of justice.' [Citation omitted.]" (Cahill, supra, 5 Cal.4th at p. 490, 20 Cal.Rptr.2d 582, 853 P.2d 1037, quoting O'Bryan, supra, 165 Cal. at p. 64, 130 P. 1042, italics in original.)

Confusion arose after O'Bryan because California courts developed a "variety of differently worded tests" to determine whether a miscarriage of justice had occurred. (Cahill, supra, 5 Cal.4th at p. 492, 20 Cal.Rptr.2d 582, 853 P.2d 1037.) People v. Watson, supra, 46 Cal.2d 818, 299 P.2d 243 resolved this confusion by articulating a "generally applicable" standard. For most errors, this test permits reversal " 'only when the [reviewing] court after an examination of the entire cause, including the evidence, is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Cahill, supra, 5 Cal.4th at p. 492, 20 Cal.Rptr.2d 582, 853 P.2d 1037, quoting Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.) Of course, the Watson test has since been applied equally in civil and criminal cases.

Both O'Bryan and Watson recognized that certain limited forms of error would constitute a miscarriage of justice without regard to the state of the evidence. O'Bryan spoke particularly of criminal law errors which, under Anglo-American standards of justice, deny the accused a determination of guilt or innocence " 'by an orderly legal procedure in which the substantial rights belonging to defendants shall be respected.' " (Cahill, supra, 5 Cal.4th at p. 501, 20 Cal.Rptr.2d 582, 853 P.2d 1037, quoting O'Bryan, supra, 165 [34 Cal.Rptr.2d 624] [882 P.2d 315] Cal. at p. 65, 130 P. 1042, italics added by Cahill.)

[8 Cal.4th 577] In Cahill, supra, we sought to give meaning to the distinction articulated by O'Bryan. As we observed, "the kinds of errors that, regardless of the evidence, may result in a 'miscarriage of justice' because they operate to deny a criminal defendant the constitutionally required 'orderly legal procedure' (or, in other words, a fair trial)--for example, the denial of the defendant's right to a jury trial or to an impartial trial judge [citation]--all involve fundamental 'structural defects' in the judicial proceedings ... rather than the improper admission of a particular item of evidence." (Cahill, supra, 5 Cal.4th at pp. 501-502, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)

Cahill noted that by their nature, "'structural defects in the constitution of the trial mechanism,'" such as those automatically reversible in criminal cases under federal constitutional law (see Arizona v. Fulminante (1991) 499 U.S. 279, 309-310, 111 S.Ct. 1246, 1264-1265, 113 L.Ed.2d 302), are not susceptible to conventional harmless-error analysis. (Cahill, supra, 5 Cal.4th at p. 493, 20 Cal.Rptr.2d 582, 853 P.2d 1037.) Additional examples from California criminal law, as cited by Cahill, include improper denial of the right to separate counsel (see, e.g., People v. Douglas (1964) 61 Cal.2d 430, 436-439, 38 Cal.Rptr. 884, 392 P.2d 964), conflict of interest by counsel (see, e.g., People v. Mroczko (1983) 35 Cal.3d 86, 104-105, 197 Cal.Rptr. 52, 672 P.2d 835), ineffectual waiver of right to jury trial (see, e.g., People v. Holmes (1960) 54 Cal.2d 442, 5 Cal.Rptr. 871, 353 P.2d 583), and discrimination in jury selection (see e.g., People v. Wheeler (1978) 22 Cal.3d 258, 283, 148 Cal.Rptr. 890, 583 P.2d 748). (Cahill, supra, 5 Cal.4th at p. 493, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)

By contrast, Cahill observed, admission of an involuntary confession is mere "trial error," that is, "'error which occurred during the presentation of the case to the jury....'" This category of error, said Cahill, "'may ... be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was [prejudicial or harmless].'" (5 Cal.4th at p. 502, 20 Cal.Rptr.2d 582, 853 P.2d 1037, quoting Fulminante, supra, 499 U.S. at pp. 307-308, 111 S.Ct. at 1264.) Indeed, Cahill noted, the "admission or rejection of evidence" is among those specific forms of error for which article VI, section 13, "by its terms, directs that ... prejudicial [effect] ... be determined 'after an examination of the entire cause, including the evidence.' " (Cahill, supra, 5 Cal.4th at p. 502, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)

Earlier California authorities justified an exception for involuntary confessions on grounds that a confession is such persuasive evidence of guilt. The cases reasoned that it would be extremely difficult to determine whether improper admission of this "evidentiary bombshell" was harmless in a particular case. (See, e.g., People v. Jacobson (1965) 63 Cal.2d 319, 330, 46 Cal.Rptr. 515, 405 P.2d 555; People v. Schader (1965) 62 Cal.2d 716, 731, [8 Cal.4th 578] 44 Cal.Rptr. 193, 401 P.2d 665; People v. Parham (1963) 60 Cal.2d 378, 385, 33 Cal.Rptr. 497, 384 P.2d 1001.)

Cahill explained, however, that "[i]n relying upon this rationale ... the California decisions ... lost sight of the principal purpose and significance of ... California's constitutional provision explicitly addressing the matter of reversible error. The recognition that confessions, 'as a class,' '[a]lmost invariably' will provide persuasive evidence of a defendant's guilt [citation] ... simply means that the improper admission of a confession is much more likely to affect the outcome of a trial than are other categories of evidence, and thus is much more likely to be prejudicial under the traditional harmless-error standard. But ... that consequence does not, in our view, justify the judicial adoption of a state-law rule that automatically and monolithically treats all improperly admitted confessions as requiring reversal of the defendant's conviction; the California constitutional reversible-error provision was adopted for the specific purpose of eliminating just such a prophylactic approach to reversible error. [Fn. omitted.]" (5 Cal.4th at p. 503, 20 Cal.Rptr.2d 582, 853 P.2d 1037, italics in original.)

Cahill next rejected contentions that a reversible-per-se rule should be retained in order to deter the extraction of involuntary [34 Cal.Rptr.2d 625] [882 P.2d 316] confessions, a particularly "egregious" form of official misconduct, and to guard against the unreliability of such confessions. (5 Cal.4th at pp. 505-507, 20 Cal.Rptr.2d 582, 853 P.2d 1037.) Finally, for several reasons, Cahill declined to retain the rule as a matter of stare decisis.

In particular, Cahill noted that "retention of a reversible-per-se rule, solely on the basis of stare decisis, would fail to give proper recognition to the important public policies underlying the reversible error provision set forth in California's Constitution--policies that remain of vital significance today...." (5 Cal.4th at p. 508, 20 Cal.Rptr.2d 582, 853 P.2d 1037.) Among other things, Cahill explained that when a defendant has received a fair and accurate trial despite some error, "reversal of the judgment will result either in a superfluous retrial in which the outcome is a foregone conclusion or, even more unfortunately, in a new trial whose result is altered by the loss of essential witnesses or testimony through the passage of time. In either event, public confidence in the operation of the criminal justice system is diminished." (Id., at p. 509, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)

These principles, properly adapted, apply with equal or even greater force to the issue before us. Of course, we are here concerned with a civil, not a criminal trial. But the constitutional requirement of actual prejudice cannot apply any less stringently to a civil judgment than to a criminal conviction, in which the rights of an accused threatened with deprivation of liberty are at stake.

[8 Cal.4th 579] Indeed, as in Cahill, the express terms of article VI, section 13 weigh against automatic reversal for the kind of error we consider here. The constitutional provision explicitly mentions "misdirection of the jury" as error which warrants reversal only if, "after an examination of the entire cause, including the evidence, the court [concludes] ... that the error ... resulted in a miscarriage of justice." The word "misdirection" logically includes every kind of instructional error. It seems manifest that incorrect, ambiguous, conflicting, or wrongly omitted instructions may equally "misdirect" the jury's deliberations. Nothing in the language or history of article VI, section 13 suggests that its requirement of actual prejudice, determined by reference to "the entire cause, including the evidence," applies to some forms of "misdirection," but not others.

Moreover, erroneous refusal of a proffered civil instruction clearly is not a fundamental denial of the orderly legal procedure due a criminal accused. Nor is it a " 'structural [defect] in the ... trial mechanism' " that defies evaluation for harmlessness. Instead, like the improper admission of evidence at issue in Cahill, it is trial error, a mistake that occurred in presentation of the case to the jury. By its nature, error of this kind " 'may ... be quantitatively assessed in ... context ... in order to determine whether its [commission] was [prejudicial or harmless].' " (Cahill, supra, 5 Cal.4th at p. 502, 20 Cal.Rptr.2d 582, 853 P.2d 1037, quoting Arizona v. Fulminante, supra, 499 U.S. 279, 307-308, 111 S.Ct. 1246, 1264.)

We are not persuaded otherwise by earlier pronouncements that certain kinds of erroneous instructional omissions in civil cases are automatically reversible because they violate a litigant's right to jury trial. In our view, if a civil litigant was permitted to introduce evidence, cross-examine witnesses, and present argument before a fairly selected jury that rendered its honest verdict on the trial record, there has been no "structural [defect] in the constitution of the trial mechanism" that might call for automatic reversal of a civil judgment without consideration of actual prejudice. Obviously, any substantial "error which occurred during the presentation of the case to the jury" distorts or impairs the jury function to some degree. That fact cannot turn every such civil trial error into a fundamental, structural denial of the right to a jury.

Nor can we accept the traditional rationale that certain forms of instructional omission in civil cases are "inherently" prejudicial. Cases that automatically applied that theory without reference to the actual record "lost sight of the principal purpose and significance of ... California's constitutional provision explicitly addressing the matter of reversible error...." (Cahill, supra, 5 Cal.4th at p. 503, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)

[34 Cal.Rptr.2d 626] [8 Cal.4th 580] [882 P.2d 317] Erroneous civil instructional omissions, like the criminal evidentiary error at issue in Cahill, may be more or less likely to cause actual prejudice, depending on their nature and context. Particularly serious forms of error might "almost invariably" prove prejudicial in fact. But it does not follow that courts may "automatically and monolithically" treat a particular category of civil instructional error as reversible per se. Article VI, section 13 requires examination of each individual case to determine whether prejudice actually occurred in light of the entire record. (See Cahill, supra, 5 Cal.4th at p. 503, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)

Finally, we may not blindly endorse traditional rules of automatic reversal or "inherent" prejudice in order to preserve doctrinal stability. As in Cahill, our adherence to such principles would undermine the important and still-vital requirements and policies of article VI, section 13. No form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party.

We therefore conclude that there is no rule of automatic reversal or "inherent" prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Contrary implications in prior decisions such as Self, supra, 42 Cal.App.3d 1, 116 Cal.Rptr. 575, are disapproved and overruled.

Instructional error in a civil case is prejudicial "where it seems probable" that the error "prejudicially affected the verdict." (See Pool v. City of Oakland, supra, 42 Cal.3d 1051, 1069, 232 Cal.Rptr. 528, 728 P.2d 1163; LeMons v. Regents of University of California, supra, 21 Cal.3d 869, 875, 148 Cal.Rptr. 355, 582 P.2d 946; People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243.) Of course, that determination depends heavily on the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury.

But the analysis cannot stop there. Actual prejudice must be assessed in the context of the individual trial record. For this purpose, the multifactor test set forth in such cases as LeMons and Pool, both supra, is as pertinent in cases of instructional omission as in cases where instructions were erroneously given. Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of [8 Cal.4th 581] the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.^[11]

[34 Cal.Rptr.2d 627] [882 P.2d 318] Here, GM does not even suggest that the refusal of its causation instruction caused it actual, as opposed to "inherent," prejudice. Nonetheless, we examine the error by the standards we have set forth above. Our evaluation convinces us that the error was harmless.

At the outset, we note that the omission of GM's proposed language did not cause an entire absence of instructional support for GM's causation defense. (Compare, e.g., Hasson v. Ford Motor Co., supra, 19 Cal.3d 530, 548, 138 Cal.Rptr. 705, 564 P.2d 857 [contributory negligence instruction refused].) The trial court instructed that plaintiff could not recover for a design defect unless the defect was a "substantial" factor in producing her "enhanced" injuries. In general terms, the instructions thus encompassed GM's causation theory, and they did not foreclose a defense verdict on that theory.

What GM failed to obtain was a further explanation of how general principles of causation related to GM's specific claim that plaintiff's ankle injuries were caused by the force of the accident, not by any design defect in the Camaro. In essence, the omitted language was thus similar in function and purpose to "pinpoint" instructions. It is well settled that the erroneous refusal of "pinpoint" instructions may be deemed harmless in appropriate cases. (See, e.g., People v. Wright (1988) 45 Cal.3d 1126, 1144-1152, 248 Cal.Rptr. 600, 755 P.2d 1049.)

The fact that no other instructions covered GM's well-supported theory with the required specificity may weigh in favor of a finding that prejudice [8 Cal.4th 582] occurred in this case. However, other factors show there is no reasonable probability the jury was misled or the verdict affected.

It was obvious at trial that GM's theory of causation was a major aspect of its case. Without objection, GM produced voluminous expert evidence in support of its hypothesis that even if plaintiff's Camaro was defective, the force of the collision was the sole "substantial" cause of plaintiff's ankle injuries.

Again without objection, GM's counsel devoted significant argument to this theory, and counsel articulated it very clearly. At length, counsel urged the evidence showed that the toe pan's deformation could not have broken plaintiff's ankles and that the actual cause of injury was plaintiff's own inertial impact against the floorboard. Moreover, counsel emphasized, "[i]f the crash is so severe that you think [plaintiff's] ankles would have broken anyway," then any defect was not a cause of plaintiff's injuries.^[12]

In turn, plaintiff also devoted substantial attention to the causation issue raised by GM. Plaintiff's counsel presented contrary evidence, cross-examined defense experts, and argued that GM's theory was not persuasive on the facts. However, neither plaintiff's counsel nor the court ever suggested that it was legally irrelevant.

Thus, the evidence and argument uniformly supported the reasonable inference that the general causation instruction allowed GM to escape liability if plaintiff's injuries would have occurred regardless of any defect. Hence, there seems little chance the jury was [34 Cal.Rptr.2d 628] [882 P.2d 319] actually misled. The jury itself gave no indication it was confused on the point, or that its deliberations were affected accordingly. We therefore find no reasonable probability that the [8 Cal.4th 583] error in refusing GM's special instruction on causation affected the jury's verdict. Accordingly, we conclude, the error was harmless.

CONCLUSION

The trial court erred when it instructed on the consumer expectations test for design defect, and when it refused GM's special instruction on causation. However, neither error caused actual prejudice. Accordingly, the judgment of the Court of Appeal, upholding the trial court judgment in favor of plaintiff, is affirmed.

KENNARD, GEORGE, WERDEGAR and BOREN,^[*] JJ., concur.

MOSK, Acting Chief Justice, concurring.

While I agree with the conclusion of the majority in this case, I cannot approve an opinion that purports to "take guidance" (maj. opn., ante, p. 623 of 34 Cal.Rptr.2d, p. 314 of 882 P.2d) from People v. Cahill (1993) 5 Cal.4th 478, 20 Cal.Rptr.2d 582, 853 P.2d 1037.

Cahill, an opinion that deemed coerced confessions to be harmless, was and remains a cruel aberration in the law. It casts doubt on our devotion to justice and perpetuates a medieval concept that convictions can be obtained by any means and at any cost to integrity.

Unnecessarily citing Cahill for "guidance" reflects unfavorably on the otherwise satisfactory analysis of this opinion.

ARABIAN, Justice, concurring and dissenting.

I concur in the majority's holding that the trial court committed instructional error in two respects, incorrectly charging the jury on the "consumer expectations" component of design defect liability, and improperly refusing defendant General Motors' requested instruction on legal causation. I cannot agree, however, with the conclusion that the latter error was harmless.

"It is hornbook law that each party to a lawsuit is entitled to have the jury instructed on all of his theories of the case that are supported by the pleadings and the evidence. It is incumbent upon the trial court to instruct on all vital issues involved." (Phillips v. G.L. Truman Excavation Co. (1961) 55 Cal.2d 801, 806, 13 Cal.Rptr. 401, 362 P.2d 33.) Furthermore, a trial court may not compel a litigant to rely on "abstract generalities in presenting its legal theory of the case to the jury, but should instruct the jury on vital issues in terms that relate to the particular case before it." (Self v. General Motors [8 Cal.4th 584] Corp. (1974) 42 Cal.App.3d 1, 10, 116 Cal.Rptr. 575; see also Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 543, 138 Cal.Rptr. 705, 564 P.2d 857; Borenkraut v. Whitten (1961) 56 Cal.2d 538, 545-546, 15 Cal.Rptr. 635, 364 P.2d 467; Phillips v. G.L. Truman Excavation Co., supra, 55 Cal.2d at p. 806, 13 Cal.Rptr. 401, 362 P.2d 33.)

The trial court here refused General Motors' requested instruction on one of its two primary defense theories, to wit, that any design defect could not have been a "substantial" or "contributing" cause of plaintiff's "enhanced" injuries if they would have occurred even with a nondefective design.^[1] The proposed instruction, as the majority concede, was correct in form and substance. If the force of the collision was so severe that plaintiff's injuries would have occurred notwithstanding any abstract "defect" in the vehicle's safety design, the defect cannot be considered a substantial factor or legal cause in bringing them about. (See Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 862-864, 275 Cal.Rptr. 715; Self v. General [34 Cal.Rptr.2d 629] [882 P.2d 320] Motors Corp., supra, 42 Cal.App.3d at p. 10, 116 Cal.Rptr. 575.)

As the majority further acknowledge, the proposed instruction encapsulated a "major thrust" of the defense theory at trial. General Motors presented substantial evidence that the force of the collision was the sole cause of plaintiff's injuries, wholly apart from the existence of any defect. Its expert testified extensively in support of this theory, supporting his opinion with references to crash tests and voluminous documentation, and applying the data to the particular circumstances of the collision between plaintiff and the other driver. Thus, the proposed instruction set forth a correct statement of law and was amply supported by the evidence at trial. The trial court's refusal to instruct the jury pursuant to its terms was plainly erroneous.

Was the error prejudicial? Viewed in the light of the relevant prejudicial-error standard and the pertinent analytical factors, I must conclude that it was. When the jury receives an improper instruction in a civil case, prejudice will be found " '[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction....' " (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875, 148 Cal.Rptr. 355, 582 P.2d 946, quoting Robinson v. Cable (1961) 55 Cal.2d 425, 428, 11 Cal.Rptr. 377, 359 P.2d 929.) In assessing that probability, we look to several factors, including the degree of conflict in the evidence, counsels' [8 Cal.4th 585] arguments, the effect of other instructions, and any indication from the jury that it was confused or misled. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069-1070, 232 Cal.Rptr. 528, 728 P.2d 1163.)

With respect to the potentially mitigating effect of other instructions, the standard definition of "legal cause" which the trial court read the jury plainly did not represent an adequate substitute for the requested pinpoint instruction. As the majority concede, the general instruction dealt only by "negative implication" (Self v. General Motors Corp., supra, 42 Cal.App.3d 1, 10, 116 Cal.Rptr. 575) with General Motors' theory that any defect could not have been a substantial factor because the injuries would have occurred in any event. "A trial court should not require a party to rely on abstract generalities in presenting its legal theory of the case to the jury, but should instruct the jury on vital issues in terms that relate to the particular case before it." (Self v. General Motors Corp., supra, 42 Cal.App.3d at p. 10, 116 Cal.Rptr. 575, italics added; see also Borenkraut v. Whitten, supra, 56 Cal.2d at p. 545, 15 Cal.Rptr. 635, 364 P.2d 467.) That is precisely what failed to occur here. The abstract definition of "legal cause"--a "difficult conceptual problem for jurors--and for trial judges and appellate judges, too, for that matter" (Self v. General Motors Corp., supra, 42 Cal.App.3d at p. 10, 116 Cal.Rptr. 575)--provided the jury no meaningful guidance in terms related to the particular case before it. Received in a factual vacuum and untethered to the specific causation theory proffered by General Motors, the general causation instruction failed to provide the tailored nexus between facts and law to which General Motors was entitled, and which the jury manifestly required. Hence, I am compelled to conclude that this factor weighs strongly in favor of a finding of prejudice.

The record evidence lends additional weight to this conclusion. The majority note that General Motors produced "voluminous evidence" to demonstrate that the force of the accident was so severe that plaintiff's injuries would have occurred regardless of any defect. We are apparently to infer, therefore, that the jury was adequately apprised--based on the evidence--of the law and logic underlying General Motors' theory of defense. I would suggest that the more reasonable inference is precisely the opposite. Given the voluminous documentary and testimonial evidence adduced at trial, the jury was all the more in need of a clear and unambiguous instruction to integrate and make sense of the conflicting evidence. Therefore, I must conclude that this factor supports a finding of prejudice, as well.

The majority note that counsel for General Motors explained its causation theory to the jury during closing argument. Contrary to the conclusion of the majority, however, I do not find that this represented an adequate [34 Cal.Rptr.2d 630] [882 P.2d 321] substitute for a proper legal instruction. Juries are generally instructed, as they were [8 Cal.4th 586] here, that "the court's instructions ... instruct you as to the applicable law," and that "statements of counsel are not evidence" but merely the statements of advocates. Thus, although pertinent to the prejudice calculation, the arguments of counsel "are not to be judged as having the same force as an instruction from the court." (Boyde v. California (1990) 494 U.S. 370, 384-385, 110 S.Ct. 1190, 1200, 108 L.Ed.2d 316.)

Counsel's argument was merely that--argument--unless and until a ratifying instruction from the trial court dignified it with the force of law. As the United States Supreme Court has well observed, "It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling." (Starr v. United States (1894) 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841, quoted with approval in Sanguinetti v. Moore Dry Dock Co. (1951) 36 Cal.2d 812, 819, 228 P.2d 557.) The omission of a critical charge may, of course, prove to be just as instrumental to the outcome. Thus, I am not prepared to say that the trial court's refusal to instruct on a theory at the heart of the defense, in terms pertinent to the circumstances of the case, was rendered harmless as a result of counsel's argument.

In view of these findings, it appears to me at the very least reasonably "probable" that the jury's verdict may have been based on the erroneous refusal to instruct on a critical theory of the defense. (LeMons v. Regents of University of California, supra, 21 Cal.3d at p. 875, 148 Cal.Rptr. 355, 582 P.2d 946.) Accordingly, I would reverse the judgment of the Court of Appeal.

[1] In its statement of facts, the Court of Appeal adopted testimony by an accident witness that at the moment of impact, the Datsun had slowed from 50 miles per hour to between 15 and 25 miles per hour, and the Camaro was traveling about 30 miles per hour. GM did not challenge this factual assumption in its petition for rehearing.

[2] Under the particular circumstances, use of the consumer expectations test alone was approved in Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 174 Cal.Rptr. 348. There, a 1972 Pinto was instantly engulfed in flames when another vehicle struck it from the rear at 28 to 37 miles per hour. There was evidence that Ford knew placement of the Pinto's fuel tank was unsafe. The theory of trial was consumer expectations. Two weeks before the case went to the jury, we decided Barker. Ford immediately requested a risk-benefit instruction, which the trial court refused. In a pre-Campbell appeal, the Court of Appeal affirmed. Noting both the timing and theory-of-trial problems, the court also observed that a risk-benefit instruction would actually have prejudiced Ford, because under Barker, it offered an additional means of recovery for design defect. (119 Cal.App.3d at pp. 802-803, 174 Cal.Rptr. 348.)

[3] For example, the ordinary consumers of modern automobiles may and do expect that such vehicles will be designed so as not to explode while idling at stoplights, experience sudden steering or brake failure as they leave the dealership, or roll over and catch fire in two-mile-per-hour collisions. If the plaintiff in a product liability action proved that a vehicle's design produced such a result, the jury could find forthwith that the car failed to perform as safely as its ordinary consumers would expect, and was therefore defective.

[4] Plaintiff insists that manufacturers should be forced to design their products to meet the "objective" safety demands of a "hypothetical" reasonable consumer who is fully informed about what he or she should expect. Hence, plaintiff reasons, the jury may receive expert advice on "reasonable" safety expectations for the product. However, this function is better served by the risk-benefit prong of Barker. There, juries receive expert advice, apply clear guidelines, and decide accordingly whether the product's design is an acceptable compromise of competing considerations.

On the other hand, appropriate use of the consumer expectations test is not necessarily foreclosed simply because the product at issue is only in specialized use, so that the general public may not be familiar with its safety characteristics. If the safe performance of the product fell below the reasonable, widely shared minimum expectations of those who do use it, perhaps the injured consumer should not be forced to rely solely on a technical comparison of risks and benefits. By the same token, if the expectations of the product's limited group of ordinary consumers are beyond the lay experience common to all jurors, expert testimony on the limited subject of what the product's actual consumers do expect may be proper. (See, e.g., Lunghi v. Clark Equipment Co., supra, 153 Cal.App.3d 485, 496, 200 Cal.Rptr. 387.)

[5] Plaintiff urges that any limitation on use of the consumer expectations test contravenes Greenman 's purpose to aid hapless consumers. But we have consistently held that manufacturers are not insurers of their products; they are liable in tort only when "defects" in their products cause injury. (E.g., Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 733, 144 Cal.Rptr. 380, 575 P.2d 1162; Cronin, supra, 8 Cal.3d 121, 133.) Barker properly articulated that a product's design is "defective" only if it violates the "ordinary" consumer's safety expectations, or if the manufacturer cannot show the design's benefits outweigh its risks.

In its amicus curiae brief, the California Trial Lawyers Association (CTLA) contends that because actions of the Legislature indicate an intent to leave Barker undisturbed, we should not now limit the consumer expectations theory of design defect set forth in that decision. CTLA notes post-Barker statutes which restrict or preclude strict liability for certain products whose dangers are notorious and intentional or unavoidable. (Civ.Code, §§ 1714.4, subd. (a) ["risk" that firearms or ammunition may discharge cannot outweigh "benefits" of these products], 1714.45, subd. (a) [no strict liability for inherent, commonly known dangers of certain products intended for personal consumption].). Each of these statutes recites that it is declaratory of "existing law." (Id., §§ 1714.4, subd. (d), 1714.45, subd. (c) [including specific reference to Cronin, supra ].) But even if we accept CTLA's assertion of general legislative acquiescence in Barker, its hypothesis begs the question of Barker 's actual meaning. As we have explained, Barker itself strongly implies that the consumer expectations test does not apply when the degree of safety a product should exhibit under particular circumstances is a matter beyond the common experience and understanding of its ordinary users.

[6] Contrary to GM's suggestion, ordinary consumer expectations are not irrelevant simply because expert testimony is required to prove that the product failed as marketed, or that a condition of the product as marketed was a "substantial," and therefore "legal," cause of injury. We simply hold that the consumer expectations test is appropriate only when the jury, fully apprised of the circumstances of the accident or injury, may conclude that the product's design failed to perform as safely as its ordinary consumers would expect.

[7] GM observes that some other states have rejected the consumer expectation test. (E.g., Prentis v. Yale Mfg. Co. (1984) 421 Mich. 670, 365 N.W.2d 176, 185-186 [adopting pure negligence theory for product injury]; Turner v. General Motors Corp. (Tex.1979) 584 S.W.2d 844, 851.) But a substantial number of jurisdictions expressly recognize, consistent with Barker, that a product's design is defective if it either violates the minimum safety expectations of an ordinary consumer or contains dangers which outweigh its benefits. (E.g., Masaki v. General Motors Corp. (1989) 71 Haw. 1, 780 P.2d 566, 578-579; Dart v. Wiebe Mfg., Inc. (1985) 147 Ariz. 242, 709 P.2d 876, 878-880; Knitz v. Minster Machine Co. (1982) 69 Ohio St.2d 460, 432 N.E.2d 814, 818; see Palmer v. Avco Distributing Corp. (1980) 82 Ill.2d 211, 45 Ill.Dec. 377, 380, 412 N.E.2d 959, 962, 965.)

[8] In a separate argument, raised for the first time in GM's brief on the merits, both GM and the Council urge us to reconsider Barker 's holding--embodied in the standard instruction received by this jury--that under the risk-benefit test, the manufacturer has the burden of proving that the utility of the challenged design outweighs its dangers. (Barker, supra, 20 Cal.3d at pp. 431-432, 143 Cal.Rptr. 225, 573 P.2d 443.) We explained in Barker that placement of the risk-benefit burden on the manufacturer is appropriate because the considerations which influenced the design of its product are "peculiarly within ... [its] knowledge." (Id., at p. 431, 143 Cal.Rptr. 225, 573 P.2d 443.) Furthermore, we observed, the "fundamental policies" of Greenman dictate that a manufacturer who seeks to escape design defect liability on risk-benefit grounds "should bear the burden of persuading the trier of fact that its product should not be judged defective...." (Id. at pp. 431-432, 143 Cal.Rptr. 225, 573 P.2d 443.)

GM argues that Barker unfairly requires the manufacturer to "prove a negative"--i.e., the absence of a safer alternative design. The Council suggests our "peculiar knowledge" rationale is unrealistic under liberal modern discovery rules. We are not persuaded. Barker allows the evaluation of competing designs, but it does not require proof that the challenged design is the safest possible alternative. The manufacturer need only show that given the inherent complexities of design, the benefits of its chosen design outweigh the dangers. Moreover, modern discovery practice neither redresses the inherent technical imbalance between manufacturer and consumer nor dictates that the injured consumer should bear the primary burden of evaluating a design developed and chosen by the manufacturer. GM and the Council fail to convince us that Barker was incorrectly decided in this respect.

[9] This principle is distinct from the defense of "superseding cause," which absolves a tortfeasor, even though his conduct was a substantial contributing factor, when an independent event intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible. (See Doupnik v. General Motors Corp., supra, 225 Cal.App.3d 849, 863, 275 Cal.Rptr. 715; 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, §§ 975-976, pp. 366-367; Rest.2d Torts, supra, § 440.) It is also distinct from the doctrine of "concurrent causes," which holds that when two or more tortious acts combine, each contributing significantly to a single ultimate harm, each act is deemed a substantial and legal cause of injury, making each concurrent tortfeasor fully liable. (See 6 Witkin, Summary of Cal.Law, supra, Torts, § 970, pp. 360-361; but cf. McGee v. Cessna Aircraft Co. (1983) 139 Cal.App.3d 179, 191, 188 Cal.Rptr. 542.)

[10] In Self, supra, an analogous case, the issue was whether the placement of a Chevrolet's fuel tank made the tank too vulnerable to the rupture and fire which occurred in a rear end collision. There the trial court wrongly refused GM's instruction that defective placement of the tank could not be a "substantial factor" in burn injuries suffered by the Chevrolet's passengers if the collision would have caused the same fire regardless of where the tank was located. Plaintiff argues that the instruction proffered by GM in this case was properly rejected because, unlike the Self instruction, it referred only to defects in the "subject vehicle" and did not focus on the specific defects at issue. We see no material distinction that justified rejection.

Plaintiff also urges that GM's proposed instruction might have misled the jury because, in contrast with Self, the instant lawsuit was only about "enhanced" injuries caused by a product defect. However, the proposed instruction made that clear. Again, plaintiff demonstrates no basis for refusing the instruction.

[11] Our adoption of this uniform test for civil instructional error disposes of GM's contention that we must find the erroneous consumer expectations instruction (ante, pp. 612-619 of 34 Cal.Rptr.2d, pp. 303-310 of 882 P.2d) prejudicial because it raises a mere possibility that the jury's verdict was based on an incorrect legal theory. (See, e.g., Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 591, 156 Cal.Rptr. 198, 595 P.2d 975; Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 671-674, 117 Cal.Rptr. 1, 527 P.2d 353; cf. People v. Green (1980) 27 Cal.3d 1, 69, 164 Cal.Rptr. 1, 609 P.2d 468.) The oft-repeated maxim that an appellate court may not "speculate" on the instructional basis of a general verdict cannot mean that a civil judgment must invariably be reversed unless the record explicitly shows that the jury did not rely on the erroneous theory. Such a rigid rule would be at odds with People v. Watson, supra, which sought to eliminate the notion that the "mere possibility" of prejudice from trial error warrants reversal under article VI, section 13. (46 Cal.2d 818, 836-837, 299 P.2d 243.) Indeed, our recent civil cases recognize that we must examine the evidence, the arguments, and other factors to determine whether it is reasonably probable that instructions allowing application of an erroneous theory actually misled the jury. (E.g., Pool v. City of Oakland, supra, 42 Cal.3d 1051, 1068-1073, 232 Cal.Rptr. 528, 728 P.2d 1163 [in false arrest action, issue of probable cause erroneously submitted to jury]; Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 770-774, 206 Cal.Rptr. 354, 686 P.2d 1158 [instructions erroneously permitted tort liability for good-faith denial of contract].) For reasons already stated (ante, pp. 619-620 of 34 Cal.Rptr.2d, pp. 310-311 of 882 P.2d), we conclude that no such reasonable probability exists in this case.

[12] Counsel explained: "So now think about causation. First of all, toe pan deformation doesn't even cause the ankle injury because it is a compression fracture and you don't have compression under plaintiff's theory. So we have nothing to say the toe pan deformation even caused the ankle injury. Put that together with the timing that the ankle broke before the toe pan deformation.... [p] ... Those are two reasons ... so far why the toe pan deformation was not any cause of [plaintiff's] ankle injuries. [p] There's a third reason. If the crash is so severe that you think that [plaintiff's] ankles would have broken anyway, then whether or not there is a defect ...[,] that defect isn't the cause of [plaintiff's] injuries. For example, you've got an elephant that drops on a car and somebody receives a neck injury from it. And you are saying, well, there is a defect in the car and the defect is what caused the neck injury. But if you find that the collision was so severe that she would have received a neck injury no matter what ..., then you can't blame the defect. If you have got a severe collision and you are going to get injuries, thenyou can't, even if you find a defect, you can't blame the car. Remember, auto manufacturers can't build [a] 100-percent safe foolproof car.... [p] We are to build a reasonably safe car for reasonably foreseeable injuries. [p] So if you have some severe collision where you think she would have received these injuries anyway, then you can't hold the auto manufacturer responsible for the defect."

__________

[*] Hon. Roger W. Boren, Presiding Justice, Court of Appeal, Second District, Division Two, assigned by the Acting Chairperson of the Judicial Council.

[1] The requested instruction was as follows: "If you find that the subject Camaro vehicle was improperly designed, but you also find that Terri Soule would have received enhanced injuries even if the design had been proper, then you must find that the design was a not a substantial factor in bringing about her injuries and therefore was not a contributing cause thereto."

[741 P.2d 1241] Roger T. Castle, P.C., Roger T. Castle, Denver, for petitioners.

Greengard & Senter, Richard D. Greengard, Holly E. Rebstock, Steven J. Dawes, Denver, for respondents.

Gerald P. McDermott, Waller, Mark & Allen, P.C., Denis H. Mark, Denver, for amicus curiae The Colorado Trial Lawyers Ass'n.

Holland & Hart, John C. Siegesmund, III, Denver, Skadden, Arps, Slate, Meagher & Flom, Malcolm E. Wheeler, Charlotte A. Lowell, Los Angeles, Cal., for amici curiae Product Liability Advisory Council, Inc. and Motor Vehicle Mfrs. Ass'n of the U.S., Inc.

KIRSHBAUM, Justice.

We granted certiorari to review the decision in Camacho v. Honda Motor Co., 701 P.2d 628 (Colo.App.1985), in which the Court of Appeals affirmed a trial court order dismissing claims filed by the petitioners, Jaime Camacho and Kathleen Camacho (the Camachos), against the respondents, Honda Motor Co., Ltd. and American Honda Motor Co., Inc. (Honda).^[1] The Court of Appeals held that the trial court properly granted a motion for summary judgment filed by Honda because the absence of leg protection devices could not as a matter of law render a motorcycle a defective and unreasonably dangerous product under the Restatement (Second) of Torts section 402A (1965). We reverse and remand with directions.

I

In March 1978, Jaime Camacho (Camacho) purchased a new 1978 Honda Hawk motorcycle, model CV400T2, from a Honda dealer.^[2] In May 1978, while driving the motorcycle through an intersection, Camacho collided with an automobile and sustained serious leg injuries. Camacho and his wife filed an action against Honda seeking damages for personal injuries, property losses, loss of consortium and exemplary [741 P.2d 1242] damages. The action was based on several theories, including strict liability.^[3] The Camachos alleged that the motorcycle was a defectively designed, unreasonably dangerous product under the Restatement (Second) of Torts section 402A because it was not equipped with "crash bars"--tubular steel bars attached to the motorcycle frame to protect the rider's legs in the event of a collision. They asserted that if such crash bars had been installed on the motorcycle, Camacho's leg injuries would have been mitigated.

Two mechanical engineers employed by the Camachos testified in depositions that, in light of their extensive research work on motorcycle crash bars, including testing conducted for the United States Department of Transportation, the state of the art in mechanical engineering and motorcycle design was such that effective injury-reducing, leg protection devices were feasible in March 1978 and that several manufacturers other than Honda had made such devices available as optional equipment;^[4] that, although room for further improvement of crash bars existed in March 1978, crash bars then available from manufacturers other than Honda provided some protection in low-speed collisions and, in particular, would have reduced or completely avoided the serious leg injuries suffered by Camacho; and that Honda itself had conducted some of the seminal research on crash bars in 1969, as the result of which Honda's engineers had concluded that injury-reducing crash bars could be manufactured by strengthening the steel bars which had been tested and providing strong bolts to attach the bars to the motorcycle frame.

Honda moved for summary judgment, arguing that as a matter of law a motorcycle lacking crash bars cannot be deemed unreasonably dangerous. The trial court granted the motion, concluding that (1) because the danger of leg injury was obvious and foreseeable, Honda had no duty to totally alter the nature of its product by installing crash bars; and (2) Honda had no duty under the crashworthiness doctrine to add a safety feature to its product to reduce the severity of injuries resulting from accidents.

In agreeing with the trial court's conclusions, the Court of Appeals held that the determination of whether a product is unreasonably dangerous because of a design defect is to be made on the basis of whether the extent of the danger "would have been fully anticipated by or within the contemplation of" the ordinary user or consumer. Camacho v. Honda Motor Co., 701 P.2d 628, 631 (Colo.App. 1985). Because the criteria applied by the trial court and the Court of Appeals are inconsistent with our decisions in Ortho Pharmaceutical Corp. v. Heath, 722 P.2d 410 (Colo.1986), and Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978), we reverse and remand for further proceedings.

II

In Roberts v. May, 41 Colo.App. 82, 583 P.2d 305 (1978), the Court of Appeals recognized the applicability of the "crashworthiness" doctrine in Colorado. Under this doctrine, a motor vehicle manufacturer [741 P.2d 1243] may be liable in negligence or strict liability 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. See generally 2 L. Frumer & M. Friedman, Products Liability § 3.03[f][v] (1987). The doctrine was first recognized in the landmark case of Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), in which the court noted that a manufacturer's duty encompassed designing and building a product reasonably fit and safe for its intended use, that automobiles are intended for use on the roadways and that injury-producing collisions are a frequent, foreseeable and statistically expectable result of such normal use. Incumbent upon the automobile manufacturer was a duty of reasonable care in the design and manufacture of its product, including a duty to use reasonable care to minimize the injurious effects of a foreseeable collision by employing commonsense safety features. Larsen v. General Motors Corp., 391 F.2d 495, 501-02. The crashworthiness doctrine has been adopted by the vast majority of courts in other jurisdictions which have considered the issue. E.g., Hermann v. General Motors Corp., 720 F.2d 414 (5th Cir.1983); Sours v. General Motors Corp., 717 F.2d 1511 (6th Cir.1983); Horn v. General Motors Corp., 17 Cal.3d 359, 131 Cal.Rptr. 78, 551 P.2d 398 (1976); Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976); Farmer v. International Harvester Co., 97 Idaho 742, 553 P.2d 1306 (1978); Smith v. Ariens Co., 375 Mass. 620, 377 N.E.2d 954 (1978); Hancock v. Paccar, Inc., 204 Neb. 468, 283 N.W.2d 25 (1979); McMullen v. Volkswagen of America, 274 Or. 83, 545 P.2d 117 (1976); see generally 1 R. Goodman, Automobile Design Liability § 1:4 (2d ed. 1983) (noting the nearly universal acceptance of the crashworthiness doctrine). We agree with the reasoning of those decisions, as did the Court of Appeals in its consideration of this case, and adopt the crashworthiness doctrine for this jurisdiction.

The crashworthiness doctrine has been applied to accidents involving motorcycles. E.g., Taylor v. American Honda Motor Co., 555 F.Supp. 59 (M.D.Fla.1983) (lack of leg protection devices); Stueve v. American Honda Motor Co., 457 F.Supp. 740 (D.Kan.1978) (inability of gas tank to withstand collision); Cota v. Harley Davidson, a Div. of AMF, Inc., 141 Ariz. 7, 684 P.2d 888 (Ariz.App.1984) (inability of gas tank to withstand collision); Nicolodi v. Harley-Davidson Motor Co., 370 So.2d 68 (Fla.Dist.Ct.App.1979) (lack of leg protection devices); O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo.1985) (inability of gas tank to withstand collision). Honda argues, however, that motorcycles are inherently dangerous motor vehicles that cannot be made perfectly crashworthy and, therefore, that motorcycle manufacturers should be free of liability for injuries not actually caused by a defect in the design or manufacture of the motorcycle. We find no principled basis to conclude that liability for failure to provide reasonable, cost-acceptable safety features to reduce the severity of injuries suffered in inevitable accidents should be imposed upon automobile manufacturers but not upon motorcycle manufacturers. The use of motorcycles for transportation over roadways is just as foreseeable as the use of automobiles for such purpose. The crashworthiness doctrine does not require a manufacturer to provide absolute safety, but merely to provide some measure of reasonable, cost-effective safety in the foreseeable use of the product. E.g., Larsen v. General Motors Corp., 391 F.2d 495, 501-02; Nicolodi v. Harley-Davidson Motor Co., 370 So.2d 68, 70-71; see generally 1 R. Goodman, Automobile Design Liability § 1:4 (2d ed. 1983). Honda acknowledges that motorcycle accidents are just as foreseeable as automobile accidents and that motorcycle riders face a much greater risk of injury in the event of an accident than do occupants of automobiles. In view of the important goal of encouraging maximum development of reasonable, cost-efficient safety features in the manufacture of all products, the argument that motorcycle manufacturers should be exempt from liability under the crashworthiness doctrine because serious injury to users of that product [741 P.2d 1244] is foreseeable must be rejected. Cota v. Harley Davidson, a Div. of AMF, Inc., 684 P.2d 888, 894; Nicolodi v. Harley-Davidson Motor Co., 370 So.2d 68, 70-71.^[5]

III

In determining the extent of liability of a product manufacturer for a defective product, this court has adopted the doctrine of strict products liability as set forth in the Restatement (Second) of Torts section 402A (1965). Smith v. Home Light & Power Co., 734 P.2d 1051 (Colo.1987); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo.1984); Anderson v. Heron Eng'g Co., 198 Colo. 391, 604 P.2d 674 (1979); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975). Section 402A provides:

Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Honda asserts that as a matter of law a motorcycle designed without leg protection devices cannot be deemed "in a defective condition unreasonably dangerous to the user" because the risk of motorcycle accidents is foreseeable to every ordinary consumer and because it is obvious that motorcycles do not generally offer leg protection devices as a standard item. In support of this argument Honda relies on comment i to section 402A, which states in pertinent part:

i. Unreasonably dangerous.

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.

The trial court and the Court of Appeals in essence applied this consumer contemplation test in dismissing the Camachos' claims.

In Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972), the California Supreme Court declined to require an injured person to establish that a product is unreasonably dangerous as a requisite to recovery for injuries in a strict liability design defect context. In Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978), this court rejected the Cronin rationale, recognizing that requiring a party who seeks recovery on the basis of an alleged defective [741 P.2d 1245] product to establish that the product is unreasonably dangerous appropriately places reasonable limits on the potential liability of manufacturers. However, we also held in Pust that the fact that the dangers of a product are open and obvious does not constitute a defense to a claim alleging that the product is unreasonably dangerous. We noted that adoption of such a principle would unfairly elevate the assumption of risk defense to a question of law.^[6] The obvious and foreseeable consumer contemplation test employed by the trial court and approved by the Court of Appeals is substantially similar to the open and obvious standard specifically rejected in Pust. It is not the appropriate standard in Colorado for measuring whether a particular product is in a defective condition unreasonably dangerous to the consumer or user.

A consumer is justified in expecting that a product placed in the stream of commerce is reasonably safe for its intended use, and when a product is not reasonably safe a products liability action may be maintained. See Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo.App. 99, 517 P.2d 406 (1973); accord, e.g., Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976); Putensen v. Clay Adams, Inc., 12 Cal.App.3d 1062, 91 Cal.Rptr. 319 (1970); Owens v. Allis-Chalmers Corp., 414 Mich. 413, 326 N.W.2d 372 (1982); Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo.1986); O'Brien v. Muskin Corp., 94 N.J. 169, 463 A.2d 298 (1983); Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983); Phillips v. Kimwood Mach. Co., 269 Or. 485, 525 P.2d 1033 (1974); Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978); Galvan v. Prosser Packers, Inc., 83 Wash.2d 690, 521 P.2d 929 (1974); see also W. Prosser The Law of Torts § 96 at 641, 644-45 (4th ed. 1971) (Dean Prosser, Reporter for Restatement (Second) of Torts § 402A, noting that the basis of strict liability for design defects is that reasonable care must be used to design a product that is reasonably safe for its intended or foreseeable uses). Of course, whether a given product is reasonably safe and, therefore, not unreasonably dangerous, necessarily depends upon many circumstances. Any test, therefore, to determine whether a particular product is or is not actionable must consider several factors. While reference to "reasonable" or "unreasonable" standards introduces certain negligence concepts into an area designed to be free from those concepts, e.g., Barker v. Lull Eng'g Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978); Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979); see generally J. Beasley, Products Liability and the Unreasonably Dangerous Requirement 21- [741 P.2d 1246] 35, 72-94 (1981); Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33 Vand.L.Rev. 593 (1980), that difficulty is much less troublesome than are the problems inherent in attempting to avoid dealing with the competing interests always involved in allocating the risk of loss in products liability actions, see generally W.P. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 99 (5th ed. 1984); Wade, On Product "Design Defects" and Their Actionability, 33 Vand.L.Rev. 551, 570-71 (1980). In this regard, comment c to section 402A contains the following pertinent observations:

c. On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.

These considerations strongly suggest that the consumer contemplation concept embodied in comment i, while illustrative of a particular problem, does not provide a satisfactory test for determining whether particular products are in a defective condition unreasonably dangerous to the user or consumer. In the final analysis, the principle of products liability contemplated by section 402A is premised upon the concept of enterprise liability for casting defective products into the stream of commerce. Jackson v. Harsco Corp., 673 P.2d 363 (Colo.1983). The primary focus must remain upon the nature of the product under all relevant circumstances rather than upon the conduct of either the consumer or the manufacturer. Smith v. Home Light & Power Co., 734 P.2d 1051; Jackson v. Harsco Corp., 673 P.2d 363; Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo.App. 99, 517 P.2d 406; Wade, On Product "Design Defects" and Their Actionability, 33 Vand.L.Rev. 551 (1980). Total reliance upon the hypothetical ordinary consumer's contemplation of an obvious danger diverts the appropriate focus and may thereby result in a finding that a product is not defective even though the product may easily have been designed to be much safer at little added expense and no impairment of utility.^[7] W.P. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on The Law of Torts § 99 at 66 (5th ed. 1984). Uncritical rejection of design defect claims in all cases wherein the danger may be open and obvious thus contravenes sound public policy by encouraging design strategies which perpetuate the manufacture of dangerous products. Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276; accord, e.g., McGowne v. Challenge-Cook Bros., Inc., 672 F.2d 652 (8th Cir.1982) (applying Missouri Law); Davis v. Fox River Tractor Co., 518 F.2d 481 (10th Cir.1975) (applying Oklahoma law); Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976); Byrns v. Riddell, Inc., 113 Ariz. 264, 550 P.2d 1065 (1976); Auburn Mach. Works Co. v. Jones, 366 So.2d 1167 (Fla.1979); Siruta v. Hesston Corp., 232 Kan. 654, 659 P.2d 799 (1983); Holm v. Sponco Mfg., Inc., 324 N.W.2d 207 (Minn.1982).

In Ortho Pharmaceutical Corp. v. Heath, 722 P.2d 410 (Colo.1986), we recently recognized that exclusive reliance upon consumer [741 P.2d 1247] expectations is a particularly inappropriate means of determining whether a product is unreasonably dangerous under section 402A where both 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 primarily by technical, scientific information.^[8] Moreover, manufacturers of such complex products as motor vehicles invariably have greater access than do ordinary consumers to the information necessary to reach informed decisions concerning the efficacy of potential safety measures. Harris, Enhanced Injury Theory: An Analytical Framework, 62 N.C.L.Rev. 643, 675 (1984). The principles that have evolved in the law of products liability have in part been developed to encourage manufacturers to use information gleaned from testing, inspection and data analysis to help avoid the "massive problem of product accidents." Palmer v. A.H. Robins Co, Inc., 684 P.2d 187 (Colo.1984) (quoting Owen, Punitive Damages in Products Liability Litigation, 74 Mich.L.Rev. 1257, 1258 (1976)).

A product may be unreasonably dangerous due to a manufacturing defect, a design defect or a failure to warn. See generally Walkowiak, Reconsidering Plaintiff's Fault in Product Liability Litigation: The Proposed Conscious Design Choice Exception, 33 Vand.L.Rev. 651, 654-56 (1980). The question in manufacturing defect cases is whether the product as produced conformed with the manufacturer's specifications. Id. Resolution of whether a particular product is unreasonably dangerous is more difficult in design defect or failure to warn cases, where the product has been manufactured exactly as intended. In Ortho we noted that the following factors are of value in balancing the attendant risks and benefits of a product to determine whether a product design is unreasonably dangerous:

(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 a 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 [741 P.2d 1248] setting the price of the product or carrying liability insurance.

Ortho Pharmaceutical Corp. v. Heath, 722 P.2d 410, 414 (relying on Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 837-38 (1973)). The factors enumerated in Ortho are applicable to the determination of what constitutes a product that is in a defective unreasonably dangerous condition. By examining and weighing the various interests represented by these factors, a trial court is much more likely to be fair to the interests of both manufacturers and consumers in determining the status of particular products.

The question of the status of the motorcycle purchased by Camacho involves in part the interpretation of mechanical engineering data derived from research and testing--interpretation which necessarily includes the application of scientific and technical principles. In addition, the question posed under the crashworthiness doctrine is not whether the vehicle was obviously unsafe but rather whether the degree of inherent dangerousness could or should have been significantly reduced. The record contains some evidence to support the conclusion that Honda could have provided crash bars at an acceptable cost without impairing the motorcycle's utility or substantially altering its nature and Honda's failure to do so rendered the vehicle unreasonably dangerous under the applicable danger-utility test. It is far from certain, however, that the ultimate answer to this question can be determined on the basis of the limited facts thus far presented to the trial court.

IV

Camacho also asserts that the failure to provide adequate warnings rendered the Honda Hawk motorcycle in a defective condition unreasonably dangerous. A manufacturer may be strictly liable to the user of a product when failure to provide adequate warnings renders the product defective and unreasonably dangerous. Palmer v. A.H. Robins Co, Inc., 684 P.2d 187 (Colo.1984); Anderson v. Heron Eng'g Co., 198 Colo. 391, 604 P.2d 674 (1979). The purpose of a warning is to ensure that an otherwise dangerous product is used in a reasonably safe manner. Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975); Bailey v. Montgomery Ward & Co., 690 P.2d 1280 (Colo.App.1984); Restatement (Second) of Torts section 402A comment j (1965). Presuming, without deciding, that the Honda motorcycle was unreasonably dangerous or was rendered unreasonably dangerous by a failure to warn, it is unclear on precisely what basis Camacho asserts that a warning would have rendered the product reasonably safe.^[9] Arguably, a warning that injury-reducing crash bars were available as optional equipment or as add-on equipment would render an otherwise unreasonably dangerous motorcycle reasonably safe. See, e.g., Wagner v. International Harvester Co., 611 F.2d 224, 231 (8th Cir.1979) (where motor vehicle could not be used as intended without a known risk of accidents involving rollovers, manufacturer's duty to supply safe product would have been fulfilled if rollover protection offered as option); cf. Height v. Kawasaki Heavy Indus., Ltd., 190 N.J.Super. 7, 461 A.2d 757 (where motorcycle rider burned by gasoline sprayed from relief valve following collision, refusal to instruct on failure to warn proper in absence of proof that warning would have made fuel system safer or that plaintiff could have done anything to prevent his burns other than avoid collision), cert. denied, 94 N.J. 615, 468 A.2d 244 (1983). We conclude that the efficacy of providing a warning is an appropriate issue for further inquiry by the trial court on remand.

V

Under C.R.C.P. 56(c), summary judgment is proper only when there is no [741 P.2d 1249] genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. E.g., Continental Airlines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987); Huydts v. Dixon, 199 Colo. 260, 606 P.2d 1303 (1980). The moving party has the burden of establishing the nonexistence of a genuine issue of material fact. Urban v. Beloit Corp., 711 P.2d 685 (Colo.1985); Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978).

The Camachos proffered evidence that the Honda Hawk motorcycle could have been equipped with crash bars which would mitigate injuries in low-speed, angled-impact collisions such as the one in which Camacho was involved. The Camachos' expert witnesses' interpretation of research and testing data indicated that the maneuverability of the motorcycle could be retained by making the crash bars no wider than the handlebars, that the stability of the motorcycle could be retained by mounting the crash bars relatively close to the center of gravity and that the addition of crash bars would not impair the utility of the motorcycle as a fuel efficient, open-air vehicle nor impair the safety of the motorcycle in accidents which varied in kind from the accident involving Camacho. These conclusions are all strenuously disputed by Honda. However, precisely because the factual conclusions reached by expert witnesses are in dispute, summary judgment as to whether the design strategies of Honda were reasonable is improper.^[10] Roberts v. May, 41 Colo.App. 82, 583 P.2d 305 (1978).

The judgment is reversed, and the case is remanded to the Court of Appeals with directions to remand the case to the trial court for further proceedings consistent with the views expressed in this opinion.

VOLLACK, J., dissents.

ERICKSON and ROVIRA, JJ., join in the dissent.

VOLLACK, Justice, dissenting:

Because I believe that the court of appeals correctly affirmed the trial court's order, I respectfully dissent.

The issue before the court is what test should apply in determining whether a product has a design defect causing it to be in a defective condition that is unreasonably dangerous. After arriving at the appropriate test, we must decide whether the court of appeals correctly affirmed the trial court's summary judgment order. The underlying factual issue is whether a manufacturer's failure to equip a motorcycle with crash bars or other leg protection devices is a design defect that renders the motorcycle in a defective condition unreasonably dangerous.

I.

Although some jurisdictions have deleted the "unreasonably dangerous" language, Colorado has expressly retained it. Union Supply Co. v. Pust, 196 Colo. 162, 171 n. 5, 583 P.2d 276, 282 n. 5 (1978); Pothoff v. Alms, 41 Colo.App. 51, 53, 583 P.2d 309, 311 (1978). A plaintiff must prove "that a product was both 'defective' and 'unreasonably dangerous' in order to sustain a cause of action in strict liability under section 402A." Kysor Indus. Corp. v. Frazier, 642 P.2d 908, 911 (Colo.1982).

II.

We have not before decided what test should apply in determining whether a product is "unreasonably dangerous" in a design defect case. I believe the appropriate [741 P.2d 1250] test is defined in Restatement (Second) of Torts § 402A comment i (1965). Comment i states: "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" [hereinafter the consumer contemplation test].

Some jurisdictions have adopted this test; others have adopted it in part or rejected it. See Nichols v. Union Underwear Co., 602 S.W.2d 429 (Ky.1980) ("Some seventeen jurisdictions adhere to this rule, eighteen have repudiated it, and sixteen, including Kentucky, have not addressed the issue." Id. at 432).

Some states using this test are the following:

Illinois applies a "consumer expectation" test whereby a defective condition of a product will be considered "unreasonably dangerous" when it is "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."

Riordan v. International Armament Corp., 132 Ill.App.3d 642, 650, 87 Ill.Dec. 765, 770, 477 N.E.2d 1293, 1298 (1985); Barnes v. Vega Indus., Inc., 234 Kan. 1012, 676 P.2d 761 (1984) (trial court did not err in giving jury instruction defining unreasonably dangerous in accord with the comment i consumer expectation test); Willamette Essential Oils v. Herrold & Jensen, 68 Or.App. 401, 683 P.2d 1374 (1984) (discussing Oregon's Uniform Jury Instruction, which states: " 'A product may be shown to be defective by proof of one (or more) of the following: ... 1. A defect in manufacture; 2. A defective design; 3. Failure to perform safely under circumstances in which, from common knowledge, the average user reasonably could have expected the product to perform safely.' " Id. 683 P.2d at 1377); Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 154, 542 P.2d 774, 779 (1975) (defective product not reasonably safe in products liability "means that it must be unsafe to an extent beyond that which would be reasonably contemplated by the ordinary consumer.").

Other jurisdictions have adopted a variation of the consumer expectation test. Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 709 P.2d 876 (1985) (where consumer expectation test is sufficient to resolve a case, that test is to be used; where that test "fails to provide a complete answer," application of risk/benefit factors is appropriate. 147 Ariz. at 245-46, 709 P.2d at 879-80); Nichols v. Union Underwear Co., 602 S.W.2d 429 (Ky.1980) (consumer expectation or knowledge is just one factor to be considered by a jury in determining whether a product is unreasonably dangerous. Id. at 433); Knitz v. Minster Machine Co., 69 Ohio St.2d 460, 432 N.E.2d 814 (1982) (product is of defective design "if (1) it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if the benefits of the challenged design do not outweigh the risk inherent in such design." Id. at 466, 432 N.E.2d at 818).

Other states have rejected the consumer expectation test. Prentis v. Yale Mfg. Co., 421 Mich. 670, 365 N.W.2d 176 (1984) ("[W]e adopt, forthrightly, a pure negligence, risk-utility test in products liability actions against manufacturers of products, where liability is predicated upon defective design." Id. at 691, 365 N.W.2d at 186); Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979) (risk-utility test will be applied "when the considerations of utility and risk are present in the state of the evidence." Id. at 851).

III.

The Colorado Court of Appeals has held that in a strict liability case the focus is "on the product itself and the consumer's expectations with regard to that product." Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo.App. 99, 110, 517 P.2d 406, 413 (1974). In a products liability action against a brake pedal manufacturer, the court applied the language of section 402A comment i: "[A] product is 'unreasonably dangerous' if it is [741 P.2d 1251] dangerous 'to an extent beyond that which would be contemplated by the ordinary consumer who purchases it....' " Id.

In Curtis v. General Motors Corp., the Tenth Circuit Court of Appeals applied Colorado law in a case involving an automobile manufacturer's alleged failure to provide adequate roll-over protection. 649 F.2d 808 (10th Cir.1981). The Tenth Circuit held that when a strict liability claim is predicated on a manufacturer's failure to install an added safety device, "liability will not attach simply because a feasible alternative would have rendered the product safer." 649 F.2d at 811, applied in Davis v. Caterpillar Tractor Co., 719 P.2d 324, 327 (Colo.App.1985).

The cases discussed demonstrate that states have taken a variety of approaches to resolve this question. Because of the nature of the product here, I believe the appropriate test is the consumer contemplation or consumer expectation test. The facts presented in this case differ from cases which involve the defective condition of products such as automobile brakes, prescription drugs, and gas tanks. With those types of products, the ordinary consumer is not capable of assessing the danger of the product. On the other hand, an ordinary consumer is necessarily aware that motorcycles can be dangerous. The plaintiff had the choice to purchase other motorcycles by other manufacturers which carried additional safety features, and instead elected to purchase this particular motorcycle and ride it without leg protection devices. The conclusion follows that the trial court's ruling and the court of appeals' decision were correct.

IV.

I believe the majority errs in applying the "crashworthiness" or "second collision" test to these facts. The "crashworthiness" test goes to injuries "usually caused by the so-called 'second collision' of the passenger with the interior part of the automobile, [which] are foreseeable." Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), quoted in Roberts v. May, 41 Colo.App. 82, 85, 583 P.2d 305, 308 (1978). This case does not involve additional or enhanced injuries suffered by the plaintiff's impact or "second collision" with the motorcycle itself.

I also believe the majority incorrectly relies on Ortho Pharmaceutical Corp. v. Heath, 722 P.2d 410 (Colo.1986). I believe the risk-benefit test cited by the majority and applied in Ortho is an appropriate test for products such as drugs, because their danger "is defined primarily by technical, scientific information," and because some drugs are unavoidably unsafe in some respect. Id. at 414. A consumer of drugs cannot realistically be expected to foresee dangers in prescribed drugs which even scientists find to be complex and unpredictable. On the other hand, the purchaser of a motorcycle knows that the purchase and use of "an economical, open-air, maneuverable form of transportation," maj. op. at 1247, n. 8, presents the risk of accidents and resulting injuries due to the open-air nature of the motorcycle.

Because I believe that the correct test under facts such as these is the consumer-contemplation test, I would affirm the court of appeals' decision. Accordingly, I respectfully dissent.

I am authorized to state that Justice ERICKSON and Justice ROVIRA join in this dissent.

[1] The Colorado Trial Lawyers Association, the Product Liability Advisory Council, Inc. and the Motor Vehicle Manufacturers Association of the United States, Inc. were granted leave to file briefs and participate in oral argument before this court.

[2] The motorcycle was manufactured by Honda Motor Co., Ltd. and distributed by American Honda Motor Co., Inc., a wholly owned subsidiary of Honda Motor Co., Ltd.

[3] The Camachos alternatively relied upon theories of negligence and implied warranty of merchantability. Because the only issue raised in the petition for certiorari concerns the appropriate test for strict liability under the Restatement (Second) of Torts § 402A, we do not address the negligence and implied warranty of merchantability issues. The Camachos also sought recovery from a third party, the driver of the automobile involved in the collision, based on a negligence theory. The order of summary judgment did not dispose of that claim, and we do not here address it.

[4] Some of these devices were denominated "engine protectors" or "engine guards," but, according to testimony of the Camachos' expert witnesses, would also mitigate leg injuries.

Although it is undisputed that in March 1978 Honda did not offer leg protection devices as original equipment, standard or optional, on any of its motorcycles sold in the United States, Honda did offer "bumpers" as optional equipment on motorcycles sold to police agencies in Japan. The record indicates that the "bumpers," consisting of tubular steel pipe attached to the frame of the motorcycle, were made available at the request of police officials, but the exact reasons for the request are not disclosed by the record.

[5] Under comment k of § 402A, an unavoidably unsafe product cannot be deemed unreasonably dangerous. However, for the rule precluding liability for unavoidably unsafe products to apply to a given product, the product's utility must greatly outweigh the risk created by its use, the risk must be a known one, the product's benefit must not be achievable in another manner and the risk must be unavoidable under the state of knowledge existing at the time of manufacture. Belle Bonfils Memorial Blood Bank v. Hansen, 665 P.2d 118 (Colo.1983). The exception to liability provided by comment k was intended to apply to drugs and medical products, as indicated by the illustrations accompanying comment k. Id.; Toner v. Lederle Laboratories, A Div. of Am. Cyanamid Co., 112 Idaho 328, 732 P.2d 297 (1987); Robb, A Practical Approach to Use of the State of the Art Evidence in Strict Products Liability Cases, 77 Nw.U.L.Rev. 1, 16 (1982). Honda concedes that its Honda Hawk motorcycle is not an unavoidably unsafe product.

[6] Where the obviousness of the danger inherent in the ordinary use of a product is not dispositive of whether the product is unreasonably dangerous, the plaintiff's appreciation of the danger may nonetheless rise to the level of assumption of the risk. Assumption of the risk is an affirmative defense to strict liability, requiring a showing of more than ordinary contributory negligence in that the plaintiff must have voluntarily and unreasonably proceeded to encounter a known danger the specific hazards of which the plaintiff had actual subjective knowledge. Jackson v. Harsco Corp., 673 P.2d 363 (Colo.1983); Anderson v. Heron Eng'g Co., 198 Colo. 391, 604 P.2d 674 (1979); Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975); Restatement (Second) of Torts section 402A comment n (1965). The question of whether a plaintiff had actual knowledge of the specific hazards comprising the danger is ordinarily a fact question which should be left for the jury and not precluded by the conclusion that the danger should have been obvious. See, e.g., Anderson v. Heron Eng'g Co., 198 Colo. 391, 604 P.2d 674; see also Curtis v. General Motors Corp., 649 F.2d 808 (10th Cir.1981) (purchaser of automobile with fiberglass roof made a conscious choice to forego purchase of other automobile available with steel roof, the latter of which would have provided greater safety); Cota v. Harley Davidson, a Div. of AMF, Inc., 684 P.2d 888 (plaintiff did not assume the risk, where he was aware of general propensity for injury in motorcycle accident, but was not aware of specific risk that motorcycle gas tank might rupture in low-speed accidents); Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44, 248 S.E.2d 15 (1978) (plaintiff assumed the risk where he had extensive experience riding motorcycles, both with and without crash bars, was aware of the purpose and utility of crash bars, inquired of their availability at the time of purchase, but failed to place a formal request for their installation at a subsequent date).

[7] Similarly, in accordance with one of the underlying goals of strict liability of easing the burden of proof for a plaintiff injured by a defective product, the plaintiff is relieved of the requirement of proving the manufacturer's negligence. See generally Keeton, Product Liability and the Meaning of Defect, 5 St. Mary's L.J. 30, 34-35 (1973).

[8] Honda asserts that the application of the consumer expectation test is particularly appropriate in the context of motorcycle design defect claims because the motorcycle purchaser who is injured in an accident has bargained for the condition about which he complains and because the element of conscious consumer choice is invariably present in contradistinction to those claims involving accidents occurring in the workplace. We cannot agree that the purchaser of a motorcycle bargains for the risk of serious leg injury; rather, the purchaser bargains for a motorized vehicle the purpose of which is to provide an economical, open-air, maneuverable form of transportation on the roadways. Cf. Wade, On the Nature of Strict Liability for Products, 44 Miss.L.J. 825, 839-40 (1973) (noting that a plaintiff who has cut his finger on a sharp knife should not be able to maintain a cause of action against the manufacturer of the knife on the theory that the knife was unsafe because it was sharp, because the very purpose of a knife is to cut); Page, Generic Product Risks: The Case Against Comment k and For Strict Tort Liability, 58 N.Y.U.L.Rev. 853, 857 (1983) (noting that the capacity of a knife to cut is essential to its intended use, whereas the capacity of a particular drug to cause cancer is not essential to the effectiveness of the drug). We also note that Honda's assertion that motorcycle design defect claims cannot involve accidents occurring in the workplace is contrary to common experience. See, e.g., Dawson v. Harley-Davidson Motor Co., No. 601-686 (Milwaukee, Wis. County Cir.Ct. June 8, 1984) (where ineffective crash bars provided on 1978 Harley-Davidson motorcycle, police officer awarded recovery for leg injuries incurred in motorcycle accident which occurred while officer on duty).

[9] Honda argues that it had no duty to warn where the danger was open and obvious. As this court has previously ruled, a duty to warn may exist where the danger is patent if such warning might reduce the risk of harm attendant upon use of the product. See Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276.

[10] The elements of a strict liability cause of action for manufacturing design defects are that the product is in a defective condition unreasonably dangerous to the user or consumer, that the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold, that the seller is engaged in the business of selling such products, that the design defect is the cause of the plaintiff's injury and that the plaintiff sustained damages as a result of the design defect. Belle Bonfils Memorial Blood Bank v. Hansen, 665 P.2d 118 (Colo.1983); Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978). Here, the summary judgment ruling dealt only with the narrow issue of whether, as a matter of law, a motorcycle without leg protection devices cannot be deemed unreasonably dangerous. To obtain a verdict in his favor, a plaintiff must, of course, ultimately prove all of the elements of a strict liability cause of action.

[909 F.2d 1151] Hugh C. Griffin, Chicago, Ill., for appellant.

William W. Francis, Jr., Springfield, Mo., for appellee.

Before ARNOLD and BOWMAN, Circuit Judges, and HEANEY, Senior Circuit Judge.

BOWMAN, Circuit Judge.

This action was brought as a products liability case and heard under the District Court's diversity jurisdiction. Armour of America, Inc. (Armour) appeals a judgment based on a jury verdict in favor of the widow and children of Jimmy Linegar, a Missouri State Highway Patrol trooper who was killed in the line of duty. The jury found that the bullet-resistant vest manufactured by Armour and worn by Linegar at the time of the murder was defectively designed, and it awarded his family $1.5 million in damages. We reverse.

On April 15, 1985, as part of a routine traffic check, Linegar stopped a van with Nevada license plates near Branson, Missouri. The van's driver produced an Oregon operator's license bearing the name Matthew Mark Samuels. Linegar ascertained from the Patrol dispatcher that the name was an alias for David Tate, for whom there was an outstanding warrant on a weapons charge. Linegar did not believe the driver matched the description the dispatcher gave him for Tate, so he decided to investigate further.

A fellow trooper, Allen Hines, who was working the spot check with Linegar, then approached the passenger's side of the van while Linegar approached the driver's side. After a moment of questioning, Linegar asked the driver to step out of the van. The driver, who was in fact David Tate, brandished an automatic weapon and fired at the troopers first from inside and then from outside the van. By the time Tate stopped firing, Hines had been wounded by three shots and Linegar, whose body had been penetrated by six bullets, lay dead or dying.^[1] None of the shots that hit the contour-style, concealable protective vest Linegar was wearing--there were five such shots--penetrated the vest or caused injury. The wounds Linegar suffered all were caused by shots that struck parts of his body not protected by the vest.

The Missouri State Highway Patrol issued the vest to Linegar when he joined the Patrol in 1981. The vest was one of a lot of various sizes of the same style vest the Patrol purchased in 1979 directly from Armour. The contour style was one of several different styles then on the market. It provided more protection to the sides of the body than the style featuring rectangular panels in front and back, but not as much protection as a wrap-around style. The front and back panels of the contour vest, held together with Velcro closures under the arms, did not meet at the sides of the wearer's body, leaving an area along the sides of the body under the arms exposed when the vest was worn. This feature of the vest was obvious to the Patrol when it selected this vest as standard issue for its troopers and could only have been obvious to any trooper who chose to wear it. The bullet that proved fatal to Linegar entered between his seventh and eighth ribs, approximately three-and-one-fourth inches down from his armpit, and pierced his heart.

[909 F.2d 1152] The theory upon which Linegar's widow and children sought and won recovery from Armour was strict liability in tort based on a design defect in the vest. On appeal, Armour challenges: (1) the sufficiency of the evidence to make a submissible case of strict liability in tort; (2) the District Court's refusal to allow proof of or submit to the jury Armour's government contractor immunity defense; (3) the court's refusal to allow evidence of or submit to the jury Armour's defense of contributory negligence; (4) the court's response to the jury's question concerning the phrase "defective condition" as used in the verdict director; and (5) various evidentiary rulings that Armour terms "inconsistent." Because we hold that, as a matter of law, the evidence was insufficient to present a submissible products liability case, we need not and do not reach any of Armour's other claims of error.

Our standard of review is well settled. In considering Armour's contention that the District Court erred in denying Armour's motions for directed verdict and judgment notwithstanding the verdict, we must "review[ ] the entire record in the light most favorable to the party opposing the motion." Laney v. Coleman Co., 758 F.2d 1299, 1303 (8th Cir.1985). And we must do so mindful of the requirements of the governing substantive law for the imposition of liability.

The parties agree that Missouri substantive law controls in this diversity case. Under Missouri products liability law, plaintiff potentially had available to her three theories of recovery: negligence, strict liability, and breach of warranty. Ragland Mills, Inc. v. General Motors Corp., 763 S.W.2d 357, 359 (Mo.Ct.App.1989). In 1969, the Missouri Supreme Court adopted section 402A of the Restatement (Second) of Torts, which imposes strict liability in tort upon sellers and manufacturers for selling "any product in a defective condition [un]reasonably dangerous to the user or consumer" that results in injury to the user or consumer. Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362, 364 (Mo.1969) (quoting Restatement (Second) of Torts Sec. 402A).^[2] The strict liability theory is further divided into liability for defective design of a product and liability for failure to warn of an inherent danger in the product. See, e.g., Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo.1977) (en banc) (defective design); Grady v. American Optical Corp., 702 S.W.2d 911 (Mo.Ct.App.1985) (failure to warn).^[3] Although here the first amended complaint stated claims against Armour on all of Missouri's products liability theories,^[4] plaintiff later elected to dismiss all claims except Count I, strict liability for defective design, Joint Appendix Vol. I at 8-22 (complaint), Vol. II at 556-59 (motion in limine including motion to dismiss all claims except Count I), and the case was submitted to the jury only on that theory.

To recover under a theory of strict liability in tort for defective design, Missouri law requires that a party prove the following elements:

(1) [the] defendant sold the product in the course of its business;

(2) the product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use;

(3) the product was used in a manner reasonably anticipated;

(4) [the] plaintiff was damaged as a direct result of such defective condition as existed when the product was sold.

[909 F.2d 1153] Fahy v. Dresser Indus., 740 S.W.2d 635, 637-38 (Mo.1987) (en banc), cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988). The jury instructions in this case tracked the applicable law.^[5]

While there is some dispute between the parties over various of the elements, we predicate our reversal on the dearth of plaintiff's evidence of element (2). We conclude that, as a matter of law, the contour vest Trooper Linegar was wearing when he was murdered was not defective and unreasonably dangerous.

Under the Missouri law of strict liability in tort for defective design, before a plaintiff can recover from the seller or manufacturer he must show that "the design renders the product unreasonably dangerous." Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 377 (Mo.1986) (en banc). Ordinarily, that will be a jury question, and "the concept of unreasonable danger, which is determinative of whether a product is defective in a design case, is presented to the jury as an ultimate issue without further definition," id. at 378, as it was here. In this case, however, there was simply no evidence that the vest's design made it unreasonably dangerous, and the District Court should have declared that, as a matter of law, the vest was not defective, and directed a verdict or granted judgment for Armour notwithstanding the verdict. See Racer v. Utterman, 629 S.W.2d 387, 394 (Mo.Ct.App.1981) ("Unless a court can say as a matter of law that the product is not unreasonably dangerous the question is one for the jury."), cert. denied, 459 U.S. 803, 103 S.Ct. 26, 74 L.Ed.2d 42 (1982).

The Missouri cases leave the meaning of the phrase "unreasonably dangerous" largely a matter of common sense, the court's or the jury's. The Missouri Supreme Court has stated, however, that a product is defectively designed if it "creates an unreasonable risk of danger to the consumer or user when put to normal use." Nesselrode, 707 S.W.2d at 375. Among the factors to be considered are "the conditions and circumstances that will foreseeably attend the use of the product." Jarrell v. Fort Worth Steel & Mfg. Co., 666 S.W.2d 828, 836 (Mo.Ct.App.1984). The conditions under which a bullet-resistant vest will be called upon to perform its intended function most assuredly will be dangerous, indeed life-threatening, and Armour surely knew that. It defies logic, however, to suggest that Armour reasonably should have anticipated that anyone would wear its vest for protection of areas of the body that the vest obviously did not cover.

Courts applying Missouri law also have applied what has become known as the "consumer expectation" test for unreasonable dangerousness: "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." Restatement (Second) of Torts Sec. 402A comment i (1965); accord id. comment g; see Cowens v. Siemens-Elema AB, 837 F.2d 817, 822 (8th Cir.1988) (applying Missouri law); Aronson's Men's Stores, Inc. v. Potter Elec. Signal Co., 632 S.W.2d 472, 474 (Mo.1982) (en banc). But see Nesselrode, 707 S.W.2d at 377 ("[W]e have not yet formally incorporated, in any meaningful way, the Restatement's [909 F.2d 1154] onsumer expectation test into the lexicon of our products liability law.").

The consumer expectation test focuses attention on the vest's wearer rather than on its manufacturer. The inherent limitations in the amount of coverage offered by Armour's contour vest were obvious to this Court, observing a demonstration from the bench during oral argument, as they would be to anyone with ordinary knowledge, most especially the vest's wearer. A person wearing the vest would no more expect to be shielded from a shot taken under the arm than he would expect the vest to deflect bullets aimed at his head or neck or lower abdomen or any other area not covered by the vest.

Plaintiff insists that the user's expectations should not be considered by us, since doing so would effectively afford Armour the benefit of the "open and obvious" defense, inappropriate, they say, in a defective design strict products liability action. We disagree. Although not conclusive, "[t]he obviousness of a defect or danger is material to the issue whether a product is 'unreasonably dangerous'." McGowne v. Challenge-Cook Bros., 672 F.2d 652, 663 (8th Cir.1982) (applying Missouri law in failure to warn case); accord Hylton v. John Deere Co., 802 F.2d 1011, 1015 (8th Cir.1986) (applying Missouri law in design defect case). Here, the vest's purported dangerous defect--its lack of closure at the sides--could not have been more open and obvious. An otherwise completely effective protective vest cannot be regarded as dangerous, much less unreasonably so, simply because it leaves some parts of the body obviously exposed.^[6] See Richardson v. Holland, 741 S.W.2d 751, 754 (Mo.Ct.App.1987) (no recovery in strict liability in tort against manufacturer of handgun because product was not defective and dangerousness was obvious); Aronson's Men's Stores, Inc., 632 S.W.2d at 474 (no recovery in strict liability in tort against manufacturer of burglar alarm because, although arguably defective, it was not unreasonably dangerous).

We have no difficulty in concluding as a matter of law that the product at issue here was neither defective nor unreasonably dangerous. Trooper Linegar's protective vest performed precisely as expected and stopped all of the bullets that hit it. No part of the vest nor any malfunction of the vest caused Linegar's injuries. See Richardson, 741 S.W.2d at 754 ("The cases uniformly hold that the doctrine of strict liability under the doctrine of 402A is not applicable unless there is some malfunction due to an improper or inadequate design or defect in manufacturing."). The vest was designed to prevent the penetration of bullets where there was coverage, and it did so; the amount of coverage was the buyer's choice. The Missouri Highway Patrol could have chosen to buy, and Armour could have sold the Patrol, a vest with more coverage; no one contests that. But it is not the place of courts or juries to set specifications as to the parts of the body a bullet-resistant garment must cover. A manufacturer is not obliged to market only one version of a product, that being the very safest design possible. If that were so, automobile manufacturers could not offer consumers sports cars, convertibles, jeeps, or compact cars. All boaters would have to buy full life vests instead of choosing a ski belt or even a flotation cushion. Personal safety devices, in particular, require personal choices, and it is beyond the province of courts and juries to act as legislators and preordain those choices.

In this case, there obviously were trade-offs to be made. A contour vest like the one here in question permits the wearer more flexibility and mobility and allows better heat dissipation and sweat evaporation, and thus is more likely to be worn than a more confining vest. It is less expensive than styles of vests providing more complete coverage. If manufacturers like Armour are threatened with economically devastating litigation if they market any vest style except that offering maximum coverage, they may decide, since one can [909 F.2d 1155] always argue that more coverage is possible, to get out of the business altogether. Or they may continue to market the vest style that, according to the latest lawsuit, affords the "best" coverage. Officers who find the "safest" style confining or uncomfortable will either wear it at risk to their mobility or opt not to wear it at all. See Transcript Vol. II at 333 (testimony of Missouri Highway Patrol Trooper Don Phillips that he continued to wear the Armour contour-style vest with his summer uniform, even though the Patrol had issued him a wrap-around vest). Law enforcement agencies trying to work within the confines of a budget may be forced to purchase fewer vests or none at all. How "safe" are those possibilities? "The core concern in strict tort liability law is safety." Nesselrode, 707 S.W.2d at 375. We are firmly convinced that to allow this verdict to stand would run counter to the law's purpose of promoting the development of safe and useful products, and would have an especially pernicious effect on the development and marketing of equipment designed to make the always-dangerous work of law enforcement officers a little safer.

The death of Jimmy Linegar by the hand of a depraved killer was a tragic event. We keenly feel the loss that this young trooper's family has suffered, and our sympathies go out to them. But we cannot allow recovery from a blameless defendant on the basis of sympathy for the plaintiffs. To hold Armour liable for Linegar's death would cast it in the role of insurer for anyone shot while wearing an Armour vest, regardless of whether any shots penetrated the vest. That a manufacturer may be cast in such a role has been soundly rejected by courts applying Missouri law. E.g., Laney, 758 F.2d at 1302; Nesselrode, 707 S.W.2d at 375; Baker v. International Harvester Co., 660 S.W.2d 21, 23 (Mo.Ct.App.1983); Brawner v. Liberty Indus., 573 S.W.2d 376, 377 (Mo.Ct.App.1978).

The judgment of the District Court is reversed. The District Court shall enter a final judgment in favor of Armour.

[1] After an intensive week-long manhunt, David Tate was arrested and later convicted of capital murder.

[2] Keener misquotes section 402A of the Restatement (Second) of Torts by substituting "reasonably" for "unreasonably." Subsequent Missouri cases reflect that the correct phrase, and the one adopted by Missouri, is in fact "unreasonably dangerous." See, e.g., Fahy v. Dresser Indus., 740 S.W.2d 635, 637 (Mo.1987) (en banc), cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988); Blevins v. Cushman Motors, 551 S.W.2d 602, 607 (Mo.1977) (en banc).

[3] Since this claim accrued, Missouri has codified the two strict liability causes of action. Mo.Rev.Stat. Sec. 537.760 (Supp.1989).

[4] The first amended complaint also alleged the same claims against the manufacturer of the automatic weapon Tate used in the murder. Plaintiff later dismissed that party. Joint Appendix Vol. I at 52.

[5] The relevant instructions were as follows:

Instruction No. 6

Your verdict must be for plaintiffs if you believe:

First, the soft body armor was, at the time it was manufactured and sold by Armour of America, Inc., in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and

Second, the soft body armor was used in a manner reasonably anticipated, and

Third, such defective condition directly caused or directly contributed to cause the death of Jimmie Linegar.

Instruction No. 7

Your verdict must be for defendant unless you believe:

First, the soft body armor was, at the time it was manufactured and sold by Armour of America, Inc., in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and

Second, such defective condition directly caused or directly contributed to cause the death of Jimmie Linegar.

[6] The wrap-around vest style advocated by appellees as preferable still must have an armhole that will be open some distance below the armpit to allow freedom of movement. See, e.g., Transcript Vol. II at 334 (testimony of Missouri Highway Patrol Trooper Don Phillips that his wrap-around-style vest left a four-inch opening beneath his armpit).

181 F.3d 608 (4th Cir. 1999)

WILSON M. HOOD, Plaintiff-Appellant, 
v.
RYOBI AMERICA CORPORATION; RYOBI NORTH AMERICA, INCORPORATED, Defendants-Appellees,

and

LOWE'S HOME CENTERS, INCORPORATED; RYOBI ELECTRIC TOOL MANUFACTURING, INCORPORATED; RYOBI MOTOR PRODUCTS CORPORATION, Defendants.

No. 98-2442

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

April 9, 1999, Argued 
June 23, 1999, Decided

[609] ARGUED: Charles Francis Fuller, MCCHESNEY & DALE, P.C., Bowie, Maryland, for Appellant. Philip Carlton Jacobson, ANDERSON, COE & KING, L.L.P., Baltimore, Maryland, for Appellees.

Before WILKINSON, Chief Judge, and WIDENER and KING, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Widener and Judge King joined.

OPINION

WILKINSON, Chief Judge:

Wilson M. Hood lost part of his thumb and lacerated his leg when he removed the blade guards from his new Ryobi miter saw and then used the unguarded saw for home carpentry. Hood sued Ryobi, alleging that the company failed adequately to warn of the saw's dangers and that the saw was defective. Applying Maryland products liability law, the district court granted summary judgment to Ryobi on all claims.

The saw and owner's manual bore at least seven clear, simple warnings not to operate the tool with the blade guards removed. The warnings were not required to spell out all the consequences of improper use. Nor was the saw defective -- Hood altered and used the tool in violation of Ryobi's clear warnings. Thus we affirm the judgment.

I.

Hood purchased a Ryobi TS-254 miter saw in Westminster, Maryland on February 25, 1995, for the purpose of performing home repairs. The saw was fully assembled at the time of purchase. It had a ten-inch diameter blade mounted on a rotating spindle controlled by a finger trigger on a handle near the top of the blade. To operate the saw, the consumer would use that handle to lower the blade through the material being cut.

Two blade guards shielded nearly the entire saw blade. A large metal guard, fixed to the frame of the saw, surrounded the upper half of the blade. A transparent plastic lower guard covered the rest of the blade and retracted into the upper guard as the saw came into contact with the work piece.

A number of warnings in the operator's manual and affixed to the saw itself stated that the user should operate the saw only with the blade guards in place. For example, the owner's manual declared that the user should "KEEP GUARDS IN PLACE" and warned: "ALWAYS USE THE SAW BLADE GUARD. Never operate the machine with the guard removed"; "NEVER operate this saw without all guards in place and in good operating condition"; and "WARNING: TO PREVENT POSSIBLE SERIOUS PERSONAL INJURY, NEVER PERFORM ANY CUTTING OPERATION WITH THE UPPER OR LOWER BLADE GUARD REMOVED." The saw itself carried several decals stating "DANGER: DO NOT REMOVE ANY [610] GUARD. USE OF SAW WITHOUT THIS GUARD WILL RESULT IN SERIOUS INJURY"; "OPERATE ONLY WITH GUARDS IN PLACE"; and "WARNING . . . DO NOT operate saw without the upper and lower guards in place."

The day after his purchase, Hood began working with the saw in his driveway. While attempting to cut a piece of wood approximately four inches in height Hood found that the blade guards prevented the saw blade from passing completely through the piece. Disregarding the manufacturer's warnings, Hood decided to remove the blade guards from the saw. Hood first detached the saw blade from its spindle. He then unscrewed the four screws that held the blade guard assembly to the frame of the saw. Finally, he replaced the blade onto the bare spindle and completed his cut.

Rather than replacing the blade guards, Hood continued to work with the saw blade exposed. He worked in this fashion for about twenty minutes longer when, in the middle of another cut, the spinning saw blade flew off the saw and back toward Hood. The blade partially amputated his left thumb and lacerated his right leg.

Hood admits that he read the owner's manual and most of the warning labels on the saw before he began his work. He claims, however, that he believed the blade guards were intended solely to prevent a user's clothing or fingers from coming into contact with the saw blade. He contends that he was unaware that removing the blade guards would permit the spinning blade to detach from the saw. But Ryobi, he claims, was aware of that possibility. In fact, another customer had sued Ryobi after suffering a similar accident in the mid 1980s.

On December 5, 1997, Hood sued several divisions of Ryobi in the United States District Court for the District of Maryland. Hood raised claims of failure to warn and defective design under several theories of liability. On cross-motions for summary judgment the district court entered judgment for the defendants on all claims, finding that in the face of adequate warnings Hood had altered the saw and caused his own injury. Hood v. Ryobi N. Am., Inc., 17 F. Supp. 2d 448 (D. Md. 1998). Hood appeals.

II.

A manufacturer may be liable for placing a product on the market that bears inadequate instructions and warnings or that is defective in design. Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11, 15 (Md. 1975); Simpson v. Standard Container Co., 72 Md. App. 199, 527 A.2d 1337, 1339-40 (Md. Ct. Spec. App. 1987). Hood asserts that Ryobi failed adequately to warn of the dangers of using the saw without the blade guards in place. Hood also contends that the design of the saw was defective. We disagree on both counts.^[1]

A.

Hood first complains that the warnings he received were insufficiently specific. Hood admits that Ryobi provided several clear and conspicuous warnings not to operate the saw without the blade guards. He contends, however, that the warnings affixed to the product and displayed in the operator's manual were inadequate to alert him to the dangers of doing so. In addition to Ryobi's directive "never" to operate a guardless saw, Hood would require the company to inform of the actual consequences of such conduct. Specifically, Hood contends that an adequate warning would have explained that removing the guards would lead to blade detachment.

We disagree. Maryland does not require an encyclopedic warning. Instead, "a warning need only be one that is reasonable [611] under the circumstances." Levin v. Walter Kidde & Co., 251 Md. 560, 248 A.2d 151, 153 (Md. 1968). A clear and specific warning will normally be sufficient -"the manufacturer need not warn of every mishap or source of injury that the mind can imagine flowing from the product." Liesener v. Weslo, Inc., 775 F. Supp. 857, 861 (D. Md. 1991); see Levin, 248 A.2d at 154 (declining to require warning of the danger that a cracked syphon bottle might explode and holding "never use cracked bottle" to be adequate as a matter of law). In deciding whether a warning is adequate, Maryland law asks whether the benefits of a more detailed warning outweigh the costs of requiring the change. Moran, 332 A.2d at 15.

Hood assumes that the cost of a more detailed warning label is minimal in this case, and he claims that such a warning would have prevented his injury. But the price of more detailed warnings is greater than their additional printing fees alone. Some commentators have observed that the proliferation of label detail threatens to undermine the effectiveness of warnings altogether. See James A. Henderson, Jr. & Aaron D. Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn, 65 N.Y.U. L. Rev. 265, 296-97 (1990). As manufacturers append line after line onto product labels in the quest for the best possible warning, it is easy to lose sight of the label's communicative value as a whole. Well-meaning attempts to warn of every possible accident lead over time to voluminous yet impenetrable labels -- too prolix to read and too technical to understand.

By contrast, Ryobi's warnings are clear and unequivocal. Three labels on the saw itself and at least four warnings in the owner's manual direct the user not to operate the saw with the blade guards removed. Two declare that "serious injury" could result from doing so. This is not a case where the manufacturer has failed to include any warnings at all with its product. See Moran, 332 A.2d at 13-14. Ryobi provided warnings sufficient to apprise the ordinary consumer that it is unsafe to operate a guardless saw -- warnings which, if followed, would have prevented the injury in this case.

It is apparent, moreover, that the vast majority of consumers do not detach this critical safety feature before using this type of saw. Indeed, although Ryobi claims to have sold thousands of these saws, Hood has identified only one fifteen-year-old incident similar to his. Hood has thus not shown that these clear, unmistakable, and prominent warnings are insufficient to accomplish their purpose. Nor can he prove that increased label clutter would bring any net societal benefit. We hold that the warnings Ryobi provided are adequate as a matter of law.

B.

Hood's defective design claim is likewise unpersuasive. Hood's injuries were the direct result of the alterations he made to the saw-alterations that directly contravened clear, unambiguous warnings. And such alterations defeat a claim of design defect.^[2]

This rule has been expressed alternatively as one of duty and one of causation. First, a manufacturer is only required to design a product that is safe for its reasonably foreseeable uses. If that duty is met, the product is simply not defective. Banks v. Iron Hustler Corp., 59 Md. App. 408, [612] 475 A.2d 1243, 1255 (Md. Ct. Spec. App. 1984). Second, if a consumer alters a product in a way that creates a defect, the consumer's conduct rather than the manufacturer's is the proximate cause of any ensuing accident. See 475 A.2d at 1253-55; Singleton v. Manitowoc Co., 727 F. Supp. 217, 222 (D. Md. 1989), aff'd, 931 F.2d 887 (4th Cir. 1991) (table). Under either rationale, a post-sale product alteration will defeat a design defect claim if that alteration leads directly to the plaintiff's injury.

Hood admits that he altered the table saw by removing the blade guards from the unit's frame, and he acknowledges that the alteration led directly to his injuries. Hood asserts, however, that Ryobi should have foreseen that consumers might operate its saws with the guards removed. Hood notes that the operation of equipment without safety guards is a frequently cited OSHA violation. And, as noted, Ryobi itself has faced litigation on one other occasion for the same type of accident that befell Hood. In short, Hood contends that Ryobi should have designed its saw to operate equally well with the guards in place or removed.

We disagree. Maryland imposes no duty to predict that a consumer will violate clear, easily understandable safety warnings such as those Ryobi included with this product. For example, a manufacturer need not foresee that a consumer might store a gasoline can in his basement in contravention of clear warning labels. Simpson, 527 A.2d at 1341 ("'Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.'" (quoting Restatement (Second) of Torts 402A cmt. j)). Nor must a manufacturer foresee that a worker will shove his arm into a conveyor machine to repair it without first shutting the machine down, again in violation of "explicit written warnings." Kline v. ABCO Engineering Corp., 991 F. Supp. 747, 750-51 (D. Md. 1997). When a consumer injures himself by using a product -- or, as in this case, by altering it -- in violation of clear, unmistakable, and easy-to-follow warnings, it is the consumer's own conduct that causes the injury. Id.; see Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167-68 (4th Cir. 1988). The manufacturer is not liable under a design defect theory.

We recognize that the American Law Institute has recently underscored the concern that comment j of the Second Restatement, read literally, would permit a manufacturer of a dangerously defective product to immunize itself from liability merely by slapping warning labels on that product. See Restatement (Third) of Torts: Prod. Liab. 2 cmt. l & Reporter's Note. We are all afflicted with lapses of attention; warnings aimed simply at avoiding consumer carelessness should not absolve a manufacturer of the duty to design reasonable safeguards for its products. See id. cmt. 1, illus. 14 (when warning could not eliminate the possibility of accidental contact with a dangerous shear point, decal declaring "keep hands and feet away" does not bar a design defect claim).

The Maryland courts have already made clear, however, that warnings will not inevitably defeat liability for a product's defective design. See Klein v. Sears, Roebuck & Co., 92 Md. App. 477, 608 A.2d 1276, 1282-83 (Md. Ct. Spec. App. 1992) (such warnings as "never leave tool running unattended" and "do not place fingers or hands in the path of the saw blade" are too vague to defeat manufacturer's liability for failing to include blade guards on its saws). Maryland has thus sought to encourage manufacturers to rid their products of traps for the unwary, while declining to hold them responsible for affirmative consumer misuse.

This case involves much more than a consumer's inevitable inattention. Rather, Hood took affirmative steps to remove the safety guards from his saw and -- in contravention of warnings which were "clear, [613] direct, simple, unequivocal, unmistakable, definite, and easy to understand and obey" -- then used the saw to cut several pieces of wood. Klein, 608 A.2d at 1282. Hood's own conduct thus caused his injury and defeats any claim that the saw is defective in design.

III.

Warned never to operate his miter saw without the blade guards in place, Hood nonetheless chose to detach those guards and run the saw in a disassembled condition. We hold that Ryobi is not liable for Hood's resulting injuries under any of the theories of recovery raised here. The judgment of the district court is therefore AFFIRMED.

[1] Hood raises these claims under three theories of recovery: strict liability, negligence, and breach of warranty. The principles of Maryland law governing these three theories, at least as relevant to this case, are virtually identical.

[2] Although this rule is effected through different defenses to strict liability and negligence claims, those defenses are functionally equivalent in this case. Strict liability is "conditioned upon the product reaching the user 'without substantial change in the condition in which it is sold.'" Banks v. Iron Hustler Corp., 59 Md. App. 408, 475 A.2d 1243, 1255 (Md. Ct. Spec. App. 1984) (quoting Restatement (Second) of Torts 402A). Similarly, a manufacturer is not liable in negligence if an "intervening alteration of the product was the superseding cause of [a consumer's] injuries." 475 A.2d at 1254 (internal quotation marks omitted). On each claim Hood's alterations defeat recovery.

[450 S.E.2d 672] [264 Ga. 739] Robert E. Shields, Doffermyre, Shields & Canfield, Atlanta, Richard A. Childs, Columbus, for Banks et al.

Susan D. Burnell, Rogers & Hardin, Atlanta, M. Stephen Hyles, Hagler & Hyles, Columbus, Phillip S. McKinney, Rogers & Hardin, Atlanta, for ICI Americas, Inc.

Jerry J. Phillips, Knoxville, TN, Francis H. Hare, Jr., Ass'n of Trial Lawyers, Birmingham, Charles A. Mathis, Jr., Mathis, Jordan & Adams, Milledgeville, Elizabeth B. Bunce, Franklin, Taulbee, Rushing & Bunce, Statesboro, Walter H. Beckham III, Kirwan, Gager, Chesin & Parks, Atlanta, Anne W. Bloom, Trial Lawyers for Public Justice, P.C., Brian Wolfman, Public Citizen Litigation Group, Washington, DC, for amicus appellant.

[264 Ga. 732] HUNSTEIN, Justice.

The parents and administrator of the estate of Marlo Strum brought suit against a local boy's club, a pest control company, and ICI Americas, Inc., the manufacturer of a rodenticide called "Talon-G," alleging that nine-year-old Marlo died after ingesting an unknown amount of Talon-G, which he had found in a cabinet in an unmarked container at the boy's club serviced by the pest control company. As to ICI, plaintiffs alleged under both negligence and strict liability theories [264 Ga. 733] that Talon-G was defectively designed and that the product had been inadequately labelled. The case proceeded to trial, during which the boy's club and pest control company settled with plaintiffs. The jury found against ICI and awarded plaintiffs, in addition to compensatory damages (set off against amounts received from the other defendants), punitive damages in the amount of $1 million. The Court of Appeals reversed the judgment on the bases that the evidence was not sufficient to support a finding that Talon-G was defectively or negligently designed and that plaintiffs' failure to warn claim was preempted by Federal law. ICI Americas v. Banks, 211 Ga.App. 523, 440 S.E.2d 38 (1993). Writ of certiorari was granted to consider the Court of Appeals' opinion.

1. There are three general categories of product defects: manufacturing defects, design defects, and marketing/packaging defects. See Maleski, Ga. Products Liability (2nd ed.), § 5-1. In the seminal case in Georgia, Center Chemical Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975), this Court held that OCGA § 51-1-11 imposes strict liability for defective products and concluded that a product that is "properly prepared, manufactured, packaged and accompanied with adequate warnings and instructions ... can not be said to be defective." Id. at 870(4), 218 S.E.2d 580. Parzini addressed manufacturing and packaging defects and did not recognize the existence of design defects,^[1] [450 S.E.2d 673] i.e., those cases where it is not possible to ascertain whether a product is "defective" by simply comparing it to a properly manufactured item from the same product line. See Maleski, supra at § 6-1. This Court nevertheless followed Parzini when directly presented with a defective design claim in Mann v. Coast Catamaran Corp., 254 Ga. 201, 326 S.E.2d 436 (1985). In Mann, the Court rejected evidence of alternative safer designs to hold that where a product was "reasonably suited for its intended purpose" and where the presence or absence of a design feature did not prevent the product "from functioning properly in its intended use, such cannot be considered defective design." Id. at 202(1), 326 S.E.2d 436.

The Court in Mann failed to recognize that the Parzini manufacturing defect analysis was not applicable to a design defect case. Unlike a manufacturing defect case, wherein it is assumed that the design of the product is safe and had the product been manufactured in accordance with the design it would have been safe for consumer use, in a design defect case the entire product line may be called into [264 Ga. 734] question and there is typically no readily ascertainable external measure of defectiveness. It is only in design defect cases that the court is called upon to supply the standard for defectiveness: the term "defect" in design defect cases is an expression of the legal conclusion to be reached, rather than a test for reaching that conclusion. Wade, On Product Design Defects and Their Actionability, 33 Vand.L.Rev. 551, 552 (1980); 2 American Law of Products Liability 3d (1987), § 28:1.

Because neither Parzini nor Mann addresses the appropriate test for reaching the legal conclusion that a product's design specifications were partly or totally defective, we hold that the analysis therein will henceforth not be utilized in products liability design defect cases.^[2]

To arrive at the appropriate test for reaching the legal conclusion that a product's design specifications were partly or totally defective, this Court has conducted an exhaustive review of foreign jurisdictions and learned treatises. That review has revealed a general consensus regarding the utilization in design defect cases of a balancing test whereby the risks inherent in a product design are weighed against the utility or benefit derived from the product. See, e.g., 1 Am.L.Prod.Liab., § 1:49; Preliminary Draft No. 1 (April 20, 1993) Restatement (Third) of Torts: Products Liability, § 101, Reporters' Notes to Comment G; O'Reilly & Cody, The Products Liability Resource Manual (General Practice Section of the American Bar Association 1993) § 6.04, p. 66. This risk-utility analysis incorporates the concept of "reasonableness," i.e., whether the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk.

When a jury decides that the risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be), it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have. Conceptually and analytically, this approach bespeaks negligence. Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33 Vand.L.Rev. 593, [264 Ga. 735] 610 (1980).

[450 S.E.2d 674] The balancing test that forms the risk-utility analysis is thus consistent with Georgia law, which has long applied negligence principles in making the determination whether a product was defectively designed.^[3] Accord Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44(4), 248 S.E.2d 15 (1978), in which it was noted that "[a]lthough the benefits of safer products are certainly desirable, there is a point at which they are outweighed by the cost of attaining them." (Emphasis supplied.) See also Maleski, supra at §§ 5-5 and 6-2. Therefore, because the risk-utility analysis is consistent with Georgia law and represents the overwhelming consensus among courts deciding design defect cases, 1 Am.L.Prod.Liab., supra at § 1:50, we conclude that the better approach is to evaluate design defectiveness under a test balancing the risks inherent in a product design against the utility of the product so designed. Hence, we hereby adopt the risk-utility analysis.

Numerous lists of factors to be considered by the trier of fact in balancing the risk of the product against the utility or benefit derived from the product have been compiled by various authorities. One factor consistently recognized as integral to the assessment of the utility of a design is the availability of alternative designs, in that the existence and feasibility of a safer and equally efficacious design diminishes the justification for using a challenged design. O'Brien v. Muskin Corp., 94 N.J. 169, 463 A.2d 298, 305 (1983). See 78 ALR4th 154. The alternative safer design factor reflects the reality that

[i]t often is not possible to determine whether a safer design would have averted a particular injury without considering [264 Ga. 736] whether an alternative design was feasible. The essential inquiry, therefore, is whether the design chosen was a reasonable one from among the feasible choices of which the manufacturer was aware or should have been aware.

2 Am.L.Prod.Liab., supra at § 28:14, p. 28. Indeed, the reasonableness of choosing from among various alternative product designs and adopting the safest one if it is feasible is considered the "heart" of design defect cases,^[4] 78 ALR4th 154 § 2, since it is only at their most extreme that design defect cases reflect the position that a product is simply so dangerous that it should not have been made available at all. See O'Brien, supra, 463 A.2d at 306; Prosser and Keeton, The Law of Torts (5th ed.) § 96, pp. 688-689.

We agree with the importance placed on the alternative safer design factor and now hold that in determining whether a product was defectively designed, the trier of fact may consider evidence establishing that at the time the product was manufactured, an alternative design would have made the [450 S.E.2d 675] product safer than the original design and was a marketable reality and technologically feasible.^[5]  Rix v. General Motors Corp., 222 Mont. 318, 723 P.2d 195, 202(II) (1986). Anything to the contrary in Mann is disapproved. 

We recognize that in setting forth a test under the risk-utility analysis for the determination whether a manufacturer should be liable for an entire product line, no finite set of factors can be considered comprehensive or applicable under every factual circumstance, since such matters must necessarily vary according to the unique facts of each case. Such diverse matters as competing cost trade-offs, tactical market decisions, product development and research/testing demands, the idiosyncrasies of individual corporate management styles, and federal and other regulatory restrictions can enter into a consideration of the reasonableness of a manufacturer's decision-making process. However, for the benefit of bench and bar, we have set forth in the accompanying footnote a non-exhaustive list of general factors derived from numerous sources.^[6]

[264 Ga. 737] We reaffirm that under Georgia law a manufacturer is not an insurer that its product is, from a design viewpoint, incapable of producing injury. Greenway v. Peabody Int'l Corp., 163 Ga.App. 698(1), 294 S.E.2d 541 (1982); Hunt, supra at (4), 248 S.E.2d 15. However, we can no longer accept the position that a manufacturer cannot be liable for injuries proximately caused by a product that functions for its intended use, regardless of the risks associated with the product and its utility to the public or the plaintiff's ability to adduce evidence that a feasible alternative design, which could have prevented or minimized the plaintiff's injury, was available at the time the manufacturer made its design, manufacturing, and marketing decisions.

2. Because the Court of Appeals based its holding on Parzini and Mann, its judgment is reversed. Likewise, a review of the record reveals that the evidence, the parties' objections thereto, and the arguments made during trial, as well as certain rulings of the trial court and the instructions given to the jury regarding its consideration of the evidence, were governed in reliance upon holdings of this Court using a legal analysis we now determine to be inapplicable to design defect claims. Hence, plaintiffs are entitled to a new trial on their claim that ICI's rodenticide was defectively designed, consistent with the appropriate test for design defect claims set forth in this opinion. Therefore, the case is remanded to the Court [450 S.E.2d 676] of Appeals with direction that a new trial be granted unless a new trial is precluded by the Court of Appeals' resolution of the remaining enumerations of error.

3. We affirm the holding in Division 2 of the Court of Appeals' opinion that the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136-136y, preempts plaintiffs' claim that ICI inadequately or inaccurately labelled the Talon-G it sold to the pest control operator. [264 Ga. 738] Papas v. Upjohn Co., 985 F.2d 516 (11th Cir.1993).

Judgment affirmed in part and reversed in part and remanded with direction to the Court of Appeals.

All the Justices concur, except HUNT, C.J., and FLETCHER, J., who concur specially and dissent in part and CARLEY, J., who concurs in part and dissents in part.

FLETCHER, Justice, concurring in part and dissenting in part.

I concur in Division 3 and I concur that a risk-utility analysis is appropriate in a design defect case. I cannot fully agree, however, with the majority's formulation of the standard to be applied.

I write to emphasize that an essential element of a plaintiff's cause of action is proof that the "seller ... failed to adopt a reasonable, safer design that would have reduced the foreseeable risks of harm presented by the product." See Preliminary Draft No. 1 (April 20, 1993) Restatement (Third) of Torts: Products Liability, § 101, comment g (cited at footnote 4 of the majority opinion). Requiring the plaintiff to prove that, at the time of manufacture of the product, an alternative safer design existed is consistent with the majority of jurisdictions that have adopted this analysis. See O'Reilly & Cody, The Products Liability Resource Manual, § 6.06 at 67 (General Practice Section of the American Bar Association 1993) ("the great majority of case precedents require that the plaintiff prove the existence of an alternative design"). Furthermore, by suggesting that a safer feasible alternative is a mere factor to be considered, rather than an essential element, the majority endorses a standard that is inconsistent with the reality that although "[m]any products can not be made completely safe for use and some can not be made safe at all.... such products may be useful and desirable." Center Chemical Co. v. Parzini, 234 Ga. 868, 870, 218 S.E.2d 580 (1975).

I also write to emphasize that a manufacturer may be held liable only when the product's "condition when sold is the proximate cause of the injury sustained." OCGA § 51-1-11(b)(1). In order to demonstrate proximate cause, proof that the alternative design provides a "materially significant increase in safety" that would have prevented or reduced the plaintiff's injury is required, rather than evidence that the alternative design merely "could have" prevented the injury, as the majority suggests. See Restatement, supra, comment g.

I dissent to Division 2, because I agree with Justice Carley that remand for a new trial is not appropriate. The record below and the briefs before this Court demonstrate that the plaintiffs' theory of liability at trial was that the rat poison was defective because a safer alternative was feasible. ICI defended on the basis that at the time of manufacture no safer alternative was feasible. Thus, the parties have already presented their best case under the standard that the Court now adopts. To require the parties to redo what they have already [264 Ga. 739] done is simply a waste of resources. Either this Court or the Court of Appeals should review the evidence to determine whether, in light of the new rule, the evidence is sufficient to uphold the jury's verdict. If the evidence is sufficient to uphold the jury's verdict, the Court of Appeals should then consider ICI's remaining enumerations of error, which it did not address previously.

I am authorized to state that Chief Justice HUNT joins in this opinion.

CARLEY, Justice, concurring in part and dissenting in part.

I fully concur in Divisions 1 and 3 of the majority opinion, but cannot concur in Division 2. I agree with adoption of the risk-utility analysis for design defect claims and with the disapproval of the analysis in Mann [450 S.E.2d 677] v. Coast Catamaran Corp., 254 Ga. 201, 326 S.E.2d 436 (1985). However, the Court of Appeals correctly applied the law as it existed at the time of its decision. Now that the rule has been changed on certiorari, I would remand this case to the Court of Appeals to allow it to apply the new rule to the record and to enable the parties properly to address the record in light of the new rule. At such time, the Court of Appeals would also need to consider ICI's remaining enumerations of error, which it did not address in its original opinion. Accordingly, I respectfully concur in part and dissent in part.

[1] Although the plaintiff argued that the drain cleaner that injured him was defective because it was composed of nearly 100% sulfuric acid, the Court did not address the design issue and instead focused exclusively on "the question ... whether the product was defective in its manufacture, its packaging, or the failure to adequately warn of its dangerous propensities." Id. at 871, 218 S.E.2d 580.

[2] The analysis in Parzini will continue to apply to inadvertent design errors, which, as distinguished from conscious design choices, are treated in the same way as manufacturing defects "not because they are both unintended, but because they are both subject to measurement against a built-in objective standard or norm of proper manufacture or design." Bowman v. General Motors Corp., 427 F.Supp. 234, 241 (E.D.Pa.1977).

[3] As noted in the Court of Appeals' opinion, "'only semantics distinguishes the cause of action for negligence and a cause of action pursuant to OCGA § 51-1-11 (claiming strict liability for defective design).' [Cit.]" ICI Americas, supra, 211 Ga.App. at 524, 440 S.E.2d 38. See also Mann, supra at (2), 326 S.E.2d 436, in which this Court held that the "claims of negligence ... are but re-statements of the claims relative to defective design."

While we recognize that the determination of whether a product was defective (involving the reasonableness of a manufacturer's design decisions), which is a basic inquiry for strict liability purposes, generally will overlap the determination of whether the manufacturer's conduct was reasonable, which is a basic inquiry for negligence purposes, we cannot agree that the use of negligence principles to determine whether the design of a product was "defective" necessarily obliterates under every conceivable factual scenario the distinction Georgia law has long recognized between negligence and strict liability theories of liability. See Ford Motor Co. v. Carter, 239 Ga. 657, 659-662, esp. fn. 3, 238 S.E.2d 361 (1977); Ford Motor Co. v. Stubblefield, 171 Ga.App. 331, 334(2) and fn. 1 therein, 319 S.E.2d 470 (1984). See also OCGA § 51-1-11(b)(2) and (c) (creating exceptions to statute of repose in negligence claims not applicable to strict liability claims). Hence, we see no reason to conclude definitively that the two theories merge in design defect cases. Compare Prentis v. Yale Mfg. Co., 421 Mich. 670, 365 N.W.2d 176 (1984); Jones v. Hutchinson Mfg. Inc., 502 S.W.2d 66 (Ky.1973). See also Henderson & Twerski, A Proposed Revision of Section 402A of the Restatement (Second) of Torts, 77 Cornell L.Rev. 1512, 1531-1532 (1992).

[4] In the preliminary draft for the Restatement (Third) of Torts: Products Liability, § 101, comment g, "[l]iability for defective design attaches only when the plaintiff proves that the seller ... failed to adopt a reasonable, safer design that would have reduced the foreseeable risks of harm presented by the product." (Emphasis supplied.)

[5] "It is important to distinguish evidence of what safety features were feasible at the time a product was designed, from evidence of what safety features were known to be desirable at that time." Habecker v. Clark Equip. Co., 942 F.2d 210, 215 (3rd Cir.1991). As to feasibility, see Prosser and Keeton, supra, at § 96, p. 700.

[6] These factors include: the usefulness of the product; the gravity and severity of the danger posed by the design; the likelihood of that danger; the avoidability of the danger, i.e., the user's knowledge of the product, publicity surrounding the danger, or the efficacy of warnings, as well as common knowledge and the expectation of danger; the user's ability to avoid danger; the state of the art at the time the product is manufactured; the ability to eliminate danger without impairing the usefulness of the product or making it too expensive; and the feasibility of spreading the loss in the setting of the product's price or by purchasing insurance. We note that a manufacturer's proof of compliance with industry-wide practices, state of the art, or federal regulations does not eliminate conclusively its liability for its design of allegedly defective products. See Elliott v. Brunswick Corp., 903 F.2d 1505, 1508 (11th Cir.1990); O'Brien, supra, 463 A.2d at 305.

Alternative safe design factors include: the feasibility of an alternative design; the availability of an effective substitute for the product which meets the same need but is safer; the financial cost of the improved design; and the adverse effects from the alternative.

In regard to the benefits aspect of the balancing test, factors that could be considered include the appearance and aesthetic attractiveness of the product; its utility for multiple uses; the convenience and extent of its use, especially in light of the period of time it could be used without harm resulting from the product; and the collateral safety of a feature other than the one that harmed the plaintiff. See O'Reilly & Cody, The Products Liability Resource Manual, supra at § 6.05.

This list has been culled from such sources as Maleski, supra at § 5-3; 2 Am.L.Prod.Liab., supra at §§ 28:11-28:21; Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 237, 573 P.2d 443, 455 (1978); and Bowman, supra, 427 F.Supp. at 244-245 fn. 18 (listing factors proposed by Professors Wade and Fisher).