Argued December 7, 1977, Reversed and remanded April 18, 1978 Petition for rehearing denied May 23, 1978 See 282 Or. 411, 579 P.2d 1287 In Banc

Union Supply, 196 Colo. at 171, 583 P.2d at 282 n. 5. Because the determination of whether a product is "unreasonably dangerous" is made through a risk-benefit analysis, we find that the plaintiffs also bear the burden of proving that the risks outweigh the benefits of the design. In Wilson v. Piper Aircraft Corp., 579 P.2d 1287 (Or. 1978), the Supreme Court of Oregon rejected the allocation of the burden of proof set forth by the Supreme Court of California in Barker, 573 P.2d 443. The Oregon court reasoned: "In recent years California's law of products liability and our own have developed along different lines. We regard the Barker decision as additional evidence of those differences.

These jurisdictions hold that initially the plaintiff has the onus of presenting evidence of the existence of substantial likelihood of harm and that when the product was manufactured, it was feasible to employ an alternative safer design. Voss v. Black Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983); Wilson v. Piper Aircraft Corp., 282 Or. 61, 577 P.2d 1322 (1978) rehearing denied, 282 Or. 411, 579 P.2d 1287 (1978); Nerud v. Haybuster Mfg., Inc., 215 Neb. 604, 340 N.W.2d 369 (1983). This showing must be more than a "technical possibility [of the existence] of a safer design."

When the utility of the product is great and the magnitude of the risk is limited, one of the most crucial factors in determining what a reasonably prudent manufacturer would do is whether it is possible to eliminate the unsafe characteristic of the product without impairing its usefulness or making it too expensive. Wilson v. Piper Aircraft Corporation, 282 Or. 61, 577 P.2d 1322, rehearing denied 282 Or. 411 (1978). In such cases, the plaintiff must show that an alternative safer design, practicable under the circumstances, was available.

1992) (same); Kallio v. Ford Motor Co., 407 N.W.2d 92, 95-96 (Minn. 1987) (same); Wilson v. Piper Aircraft Corp., 282 Or. 411, 579 P.2d 1287, 1287-88 (1978) (same); Ray v. BIC Corp., 925 S.W.2d 527, 532-33 (Tenn. 1996) (same), with Keogh v. W.R. Grasle, Inc., 816 P.2d 1343, 1346 (Alaska 1991) (following Barker); Ontai v. Straub Clinic Hosp. Inc., 66 Haw. 237, 659 P.2d 734, 739-40 (1983) (same). The rationale articulated for this burden shifting is that "most of the evidentiary matters which may be relevant to the determination of the adequacy of a product's design under the 'risk-benefit' standard e.g., the feasibility and cost of alternative designs . . . involve technical matters peculiarly within the knowledge of the manufacturer."

Although the Johnsons presented no other evidence concerning the adequacy of the warnings, the jury could infer from Johnson's testimony that the warning provided was insufficient. In Wilson v. Piper Aircraft Corp., 282 Or. 61, 577 P.2d 1322, aff'd on rehearing, 282 Or. 411, 579 P.2d 1287 (1978), the Supreme Court of Oregon ruled that in defective design cases involving uncomplicated products or simple design features, the question of the practicability of a proposed design change could be weighed on the basis of inference and common knowledge of the jury. We agree with this reasoning.

In this regard, California presents a more plaintiff-friendly forum than other states. See, e.g., Wilson v. Piper Aircraft Corp., 579 P.2d 1287, 1287 (Or. 1978) (en banc) (rejecting the test first enunciated by the California Supreme Court in Barker on the basis that "a design defect case will always go to the jury if only the plaintiff can show that the product caused the injury"). Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b).

See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S Ct 2890, 77 L Ed 2d 490 (1983) ("In deciding whether a federal law pre-empts a state statute, our task is to ascertain Congress' intent in enacting the federal statute at issue."); Wilson v. Piper Aircraft Corporation, 282 Or. 61, 80, 577 P.2d 1322, on recons 282 Or. 411, 579 P.2d 1287 (1978) (Linde, J., concurring) ("The question of federal preemption is essentially one of statutory interpretation or, if one prefers, of Congressional intent." (internal quotation marks omitted)).

1978); Tenney v.Seven-Up Co., 92 N.M. 158, 584 P.2d 205, 206 (Ct.App. 1978); Rudisaile v. Hawk Aviation Inc., 92 N.M. 578, 592 P.2d 175, 177 (1979); Temple v. Wean United Inc., 50 Ohio St.2d 317, 364 N.E.2d 267, 270-71 (1977); Stuckey v. Young ExplorationCo., 586 P.2d 726, 730-31 (Okla. 1978); Wilson v. PiperAircraft Corp., 282 Or. 411, 579 P.2d 1287, 1288 (1978) (rejects Barker in favor of 402A language approved for Oregon in Roach v. Konoven, supra); Kennedy v. Custom Ice Equip.Co., 246 S.E.2d 176, 178 (S.C. 1978); Community TelevisionServices, Inc. v. Dresser Ind. Inc., 435 F. Supp. 214, 216 (S.D.S.D. 1977); Wyatt v. Winnebago, 566 S.W.2d 276, 279 (Ct.App.Tenn. 1977); Hamilton v. Motor Coach Ind. Inc., 569 S.W.2d 571, 574 (Ct.Civ.App.Tex. 1978); Kinney v. Goodyear Tire Rubber Co., 367 A.2d 677, 679 (Vt. 1976); Lamon v. McDonnell DouglasCorp., supra, 576 P.2d at 428-29 (Ct.App.Wash.

us); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 591-592 (Colo. 1984) (compliance with government regulations constitutes evidence of no defect, although not conclusive); Rucker v. Norfolk Western Ry., 77 Ill.2d 434, 438-439 (1979) (evidence of compliance with Federal standards relevant and admissible on whether product defective and unreasonably dangerous but not conclusive); Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727, 734-735 (Minn.), cert. denied sub nom. Riegel Textile Corp. v. Gryc, 449 U.S. 921 (1980) (compliance with Federal safety standards relevant and admissible on issue of punitive damages but does not preclude them as matter of law); Cepeda v. Cumberland Engr. Co., 76 N.J. 152, 192-193 (1978), overruled on other grounds sub nom. Suter v. San Angelo Foundry Mach. Co., 81 N.J. 150 (1979) (government safety codes in existence when product marketed admissible but not conclusive as to defectiveness); Wilson v. Piper Aircraft Corp., 282 Or. 61, 64-65 (1977), reh'g denied, 282 Or. 411 (1978) (compliance with government safety standards not complete defense as to defective design). See, e.g., Ark. Stat. Ann. § 34-2804(a) (Supp.