The mere occurrence of an accident in connection with the use of a product does not necessarily make the product defective and unreasonably dangerous. Shultz v. Linden-Alimak, Inc., 734 P.2d 146, 148-49 (Colo.Ct.App. 1986) (citing Kysor Industrial Corp. v. Frazier, 642 P.2d 908 (Colo. 1982)). "[A] manufacturer has no duty to produce the safest product possible, but rather has a duty merely to avoid placing on the market a product which presents an unreasonable risk of harm to others."
Strict liability, however, is not the equivalent of absolute liability, and the fact that an accident may occur in connection with the use of a product does not necessarily mean that the manufacturer is liable. Kysor Indus. Corp. v. Frazier, 642 P.2d 908, 911 (Colo. 1982). While some courts have eliminated the "unreasonably dangerous" requirement, it is well established that under Colorado law a plaintiff must prove both that the product was defective and that it was unreasonably dangerous in order to prevail under Section 402A.
"Strict liability, however, is not the equivalent of absolute liability, and the fact that an accident may occur in connection with the use of a product does not necessarily mean that the manufacturer is liable." McHargue v. Stokes Div. of Pennwalt, 686 F. Supp. 1428, 1434, (D. Colo. 1988) (citing Kysor Indus. Corp. v. Frazier, 642 P.2d 908, 911 [Colo. 1982]).
In its reply, Target argues that “the fact that an individual was injured in relation to use of a product ‘does not establish that the product was defective or unreasonably dangerous.'” Docket No. 56 at 8 (quoting Colo. Jury Instr., Civil § 14:7 and citing Kysor Indus. Corp. v. Frazier, 642 P.2d 908, 911 (Colo. 1982); Shultz v. Linden-Alimak, Inc., 734 P.2d 146, 148-49 (Colo.App. 1986); Kern v. Gen. Motors Corp., 724 P.2d 1365, 1366 (Colo.App. 1986); Davis v. Caterpillar Tractor Co., 719 P.2d 324, 327 (Colo.App. 1985)).
Indeed, our research has revealed no Colorado cases specifically adopting or rejecting this defense. We agree with plaintiffs that Kysor Indus. Corp. v. Frazier, 642 P.2d 908 (Colo. 1982), more nearly supports their position on this issue than Firestone's. The Kysor court stated that although a user is an expert in the field that "does not preclude a finding of a defective and unreasonably dangerous product due to a failure to warn or instruct as to the safe and proper method" of using the product.
1983)).See also Kysor Indus. Corp. v. Frazier, 642 P.2d 908, 910 (Colo. 1982); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983, 987 (1975). Section 402A of the Restatement provides as follows:
In addition to evidence of a defect, which Mr. Pettit's statement provides, the plaintiff also must present some evidence that the product "was defective at the time it was sold by the defendant or left [its] control." CJI-Civ. 14:1 (2011) at ¶4; Kysor Industrial Corp. v. Frazier, 642 P.2d 908, 911(Colo. 1982)(stating that "[t]he burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured party; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained"). The plaintiff has offered no evidence to establish this element of a strict product liability claim. Nor is the mere occurrence of an accident in connection with the use of a product sufficient to establish that the product was defective at the time it left the defendant's control.
Still others suggest that government regulations may furnish a proper standard by which to measure feasibility. See, e.g., Frazier v. Kysor Indus. Corp., 43 Colo. App. 287, 293, 607 P.2d 1296, 1301 (1979), rev'd on other grounds, 642 P.2d 908 (Colo. 1982). We believe evidence on any one or all of these factors would be relevant and material on the question of whether a state of the art defense has been sufficiently established to warrant submission to the jury.
Therefore, it is the law of this case that misuse of the product is an affirmative defense, which we perceive to be the appropriate rule in any event. We perceive this case to be similar to Kysor Indus. Corp. v. Frazier, 642 P.2d 908 (Colo. 1982). The jury apparently concluded the stair treads only were dangerous because of the way in which Anderson used them, and the failure to warn of the alleged product defect did not result in any dangerous condition in this case, absent the manner in which Anderson used the stair treads.
Instead, the scope of liability under section 402A is limited. See Kysor Indus. Corp. v. Frazier, 642 P.2d 908, 911 (Colo. 1982). To establish liability under section 402A, a plaintiff is required to establish that a product is defective and unreasonably dangerous.