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 appropri*1250ate 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 *1251dangerous ‘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.