"Kansas has adopted the consumer expectations test of Restatement (Second) of Torts § 402A comment i as the standard for design defects. See Barnes v. Vega Indus., Inc., 676 P.2d 761, 762 (Kan. 1984). A product is `unreasonably dangerous' only if it is `dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.' Restatement (Second) of Torts § 402A cmt. i. Some courts applying the consumer expectations test have held that, if a product user actually knew or should have known of an open or obvious danger, the product itself is not defective. See, e.g. Austin v. Clark Equipment Co., 48 F.3d 833, 836 (4th Cir. 1995) (applying Virginia law).

We believe the court abused its discretion in excluding Robinson's answers to the propounded questions, despite its correct appraisal that the consumer-expectation test governs in Kansas. See Magic Chef, 641 P.2d at 357, 361; Barnes v. Vega Indus., Inc., 234 Kan. 1012, 676 P.2d 761 (1984); Betts v. General Motors Corp., 236 Kan. 108, 689 P.2d 795, 801 (1984). Although the court properly intercepted Robinson's initial testimony which was based upon the wrong legal standard, see, e.g., Karns v. Emerson Electric Co., 817 F.2d 1452, 1459 (10th Cir. 1987) (expert's use of legal terms must not conflict with the court's instructions), we find no support for the continued rejection of Robinson's testimony since counsel corrected his questions, using the right legal standard.

Kansas has adopted the consumer expectations test as the standard for design defects. See Delaney v. Deere Co., 268 Kan. 769, 772-773, 999 P.2d 930, 934-35 (2000) (citing Barnes v. Vega Indus., Inc., 234 Kan. 1012, 1013, 676 P.2d 761, 762 (Kan. 1984)). A product is unreasonably dangerous only if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.

Strict liability was adopted by the Kansas Supreme Court in Brooks v. Dietz, 218 Kan. 698, 699-703, 545 P.2d 1104, 1107-09 (1976), after such adoption was forecast by Symons v. Mueller Co., 493 F.2d 972, 977 (10th Cir. 1974) and PIK Civ. 13.21 (1975 Supp.). Brooks adopted the doctrine of section 402A, Restatement (Second) of the Law of Torts (1965), imposing liability on a seller of a product that is defective and unreasonably dangerous to a user even though "the seller has exercised all possible care in the preparation and sale of his product." The Court reaffirmed that Kansas is a section 402A jurisdiction in Humes v. Clinton, 246 Kan. 590, 600, 792 P.2d 1032, 1039 (1990), Johnson v. Am. Cyanamid Co., 239 Kan. 279, 285, 718 P.2d 1318, 1323 (1986), and Barnes v. Vega Indus., Inc., 234 Kan. 1012, 1013, 676 P.2d 761, 762-63 (1984). Section 402A, Restatement (Second) of the Law of Torts (1965) provides:

At least two states have consistently followed an exclusive consumer expectation approach. Kansas, in Lester v. Magic Chef, 230 Kan. 643, 641 P.2d 353 (1982), adopted the approach as in accord with the Restatement's comment i. See also Betts v. General Motors Corp., 236 Kan. 108, 689 P.2d 795 (1984); Barnes v. Vega Indus., 234 Kan. 1012, 676 P.2d 761 (1984). Likewise, Nebraska has persisted in its exclusive use of the consumer expectation test, although there, it is referred to as a "user-contemplation" test.

According to defendants, Kansas cases addressing strict liability demonstrate that Kansas requires for design defect cases proof of some aspect of the design that could have been changed to make the product safer, and where the product could not be changed to make it safer, there is no design defect. Defendants cite Savina, 247 Kan. 105; Johnson, 239 Kan. 279; Betts v. General Motors Corp., 236 Kan. 108, 689 P.2d 795 (1984); Barnes v. VegaIndustries, Inc., 234 Kan. 1012, 676 P.2d 761 (1984); Siruta, 232 Kan. 654; and Lester, 230 Kan. 643. In Savina, this court gave comment k protection to the manufacturer of a contrast agent used in a medical procedure.

There the risk/utility balancing test was rejected. This decision was reaffirmed in Barnes v. Vega Industries, Inc., 234 Kan. 1012, 676 P.2d 761 (1984). The court has considered the contention of the plaintiffs in this case that the risk/utility test should be adopted.