1972, December, Pg. 1. Trial of a Products Liability Case: Defendant's View.

• Author: by Don R. Evans

2 Colo.Law. 1

Colorado Lawyer

1972.

1972, December, Pg. 1.

Trial of a Products Liability Case: Defendant's View

1Vol. 2, No. 2, Pg. 1Trial of a Products Liability Case: Defendant's Viewby Don R. Evans and Gregory G. VernonDon R. Evans, Denver, is a partner in the firm of Yegge, Hall & Evans. Gregory G. Vernon, Denver, is an associate with the firm of Yegge, Hall & Evans.Theories of Products LiabilitySince the days of McPherson v. Buick(fn1) the plaintiff's attorney has enjoyed a marked increase in the number of theories under which he may recover under a cause of action sounding in products liability. Basically these theories are:I. Breach of warranty

A. Express warranty

B. Implied warranty

C. Warranty of merchantability

D. Warranty of fitness

II. Manufacturer's negligence

A. Design defect

B. Failure to provide adequate safety device

C. Defect of design with regard to inadequate strength or material used

D. Improper construction or assembly

E. Improper, defective or inadequate labeling

F. Improper or inadequate warnings

III. Strict liabilitySince this article is directed toward the defense view of a products liability case. only a cursory treatment will be given to the foregoing theories of products liability. An expanded and thorough treatment of the subject from the plaintiff's viewpoint is beyond the scope of this article.

Substantive DefensesTo establish a prima facie case under any theory of products liability, including the theory of strict liability pursuant to Section 402A of the Restatement of Torts (2nd), the plaintiff must prove the following elements:1. A defect must exist in the product.

2. That defect must have existed at the time the product left the control of the defendant.

3. The defect was the proximate cause of the injury complained of.

If the plaintiff fails to meet the foregoing requirements, he has not established a prima facie case. Even when the plaintiff has established the foregoing elements to the satisfaction of the court, this presents only a rebuttable presumption as to the negligence and consequential liability of the defendant---a presumption which may be defeated in a variety of ways.

First, let us consider those cases concerned with breach of warranty. The first question that the defense attorney should

2ask himself is, "Whose warranty is breached?" The manufacturer's warranty does not automatically become the warranty of the seller or other defendant further down the chain of sale.(fn2) A manufacturer issues a warranty in order to help effect a sale to the retailer. If the retailer makes no assertions by way of warranty about his product, the retailer should not be liable on the basis of the manufacturer's express warranty.(fn3) Therefore, unless a subsequent seller has adopted the manufacturer's warranty as his own, he may not be bound by it.Puffing and Sales Talk. To recover under the theory of breach of express warranty, the representation alleged must have been a representation of "material fact," and the plaintiff must have placed "justifiable reliance" upon that misrepresentation.(fn4) Comment g to Restatement of Torts (2nd), section 402B states that in order to fall into the category of a "material fact," the fact represented must be "of importance to the normal purchaser, by which the ultimate buyer may justifiably be expected to be influenced in buying the chattel."(fn5)

Section 402B, with respect to "justifiable reliance," states that in order to recover a plaintiff must show that physical harm results because of such reliance and because of the fact which is misrepresented. It does not apply where the misrepresentation is not known, or there is indifference to it, and it does not influence the purchase or subsequent conduct.(fn6)

If the above requirements are not met, then a tenable argument can be made that the alleged warranty is in fact nothing more than "sales talk" or "puffing." In addition, the alleged warranty must have been a "substantial inducement" to purchase the item in question.(fn7)

However, the reliance may be that of an ultimate purchaser who is ignorant of the misrepresentation, and the defendant can still be held liable.(fn8) The defense attorney must prepare thoroughly when presenting these defenses, as express warranties have been found from many forms of communicated averments such as radio advertisements,(fn9) statements in a catalog,(fn10) pictures,(fn11) technical literature(fn12) and a products label.(fn13)

Implied Warranties---Fitness. A defendant is not required to be able to read the plaintiff's mind.(fn14) Therefore, if a plaintiff buys an inferior rope without informing the seller that it will be used to hoist men, material and scaffolding, there will be no liability if the rope breaks, causing personal injury or property damage.(fn15) Although C.R.S. 155-2-315 (U.C.C.) provides for liability to be imposed against a seller on a theory of implied warranty of fitness, nevertheless it is a necessary requirement of the above section that the seller had reason to know at the time of contracting the particular purpose for which the goods are required, and furthermore, the buyer must rely on the skill and judgment of seller.(fn16) If the seller did not know the particular purpose for which the article was being purchased, or if the buyer relies upon his own skill and judgment and not that of the seller, the plaintiff cannot make out a prima facie case under this section of the U.C.C.

Trade Name. The Uniform Sales Act, which was superseded by the U.C.C., created an exception to the implied warrant of fitness rule. Section 15(4) of the Uniform Sales Act provided: "In the case...