Armentrout v. FMC Corp. ( 1992 )

Justice VOLLACK

specially concurring in part and dissenting in part:

I join in part II of Justice Erickson’s concurrence and dissent that in failure-to-warn cases the open and obvious doctrine can bar plaintiffs’ failure-to-warn claims even though a warning of a particular obvious danger may make a product safer. Accordingly, I find it unnecessary to reach the issues regarding the adequacy of instructions or the misuse defense because FMC owed no duty to Armentrout in this case.

I dissent from part III of the majority opinion which places on plaintiffs a burden of proving the unreasonable dangerousness of a product using risk-benefit analysis. Maj. at 181-83. Risk-benefit analysis should play no role in this case, which concerns the design of a mobile crane. As I stated in Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240, 1249 (Colo.1987) (Vollack, J., dissenting),

the risk-benefit test ... 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. A consumer of drugs cannot realistically be expected to foresee dangers in prescribed drugs which even scientists find to be complex and unpredictable.

Id. at 1251 (citing Ortho Pharmaceutical Corp. v. Heath, 722 P.2d 410, 414 (Colo. 1986). Like the motorcycle purchaser in Camacho, Armentrout had knowledge of the dangers of working on the crane’s platform while the crane was in operation. Id. I thus conclude, as I did in Camacho, that the risk-benefit test is not the proper test to employ in this case. Id.