1975, January, Pg. 41. Colorado's Emerging Products Liability Law.

• Author: by Thomas H. Barrows

4 Colo.Law. 41

Colorado Lawyer

1975.

1975, January, Pg. 41.

Colorado's Emerging Products Liability Law

41Vol. 4, No. 1, Pg. 41Colorado's Emerging Products Liability Lawby Thomas H. BarrowsRecently state and federal courts for Colorado have begun to define a products liability law in decisions which have provided important reference points in this fast growing area of litigation. This article discusses the three most commonly pleaded theories of recovery in a products liability case---strict liability, breach of express and/or implied warranties, and negligence---and the required proof to sustain each theory and defenses thereto.

STRICT LIABILITY

The Colorado Court of Appeals delineated many principles of strict liability in Bradford v. Bendix-Westinghouse Automotive Air Brake Co.(fn1) and Schmaltz v. St. Luke's Hospital.(fn2) Strict liability was adopted as defined in the Restatement of Torts (2d),§ 402A:"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

"(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."(fn3)

It is important to understand the evidence required to permit or defeat recovery under this theory as the manufacturer, retailer, user or other defendant is not made an insurer of plaintiff's well being.(fn4) The injury or damage must have proximately resulted(fn5) from a product (1) in a defective condition which was (2) unreasonably dangerous to the user or consumer or to his property, (3) sold by a seller engaged in the business of selling such a product, and was (4) expected to and did reach the user or consumer without substantial change in the condition in which it was sold. These four evidentiary requirements dispel a common but erroneous belief that there is no escape from "strict liability."

42Defective ConditionA defective condition can result from an imperfection in manufacture, the use of a material which may not be safely used for the purpose intended, or an unsafe design under all the attendant circumstances.(fn6) However, the mere occurrence of an accident or failure of the product is insufficient to prove a product defect.(fn7)

Unreasonable DangerAn existing defect must render the product unreasonably dangerous. Many common household products possess potential dangers but are not unreasonably dangerous, e.g. a sharp pencil, a meat grinder, a pressing iron and the family automobile. Unfortunately the Bradford court deviated from well reasoned decisions by eliminating reasonable foreseeability of harm as an element of unreasonable danger.(fn8) A product such as an automobile is not unreasonably dangerous as the manufacturer markets the auto foreseeing that it will be driven by a licensed driver observing applicable traffic regulations. Reasonable foreseeability is an integral part of the design, manufacture, and sale of thousands of products intended for use by a definable group under restricted use conditions. To judge the reasonableness of any danger posed, a product's foreseeable use must be considered.

The court in Schmaltz(fn9) was confronted with a determination of whether a product was "unreasonably dangerous" within the meaning of the Restatement of Torts (2d)§ 402A. Plaintiff sought damages for contracting serum hepatitis after receiving a blood transfusion at the defendant hospital. The parties conceded that no proven method existed to detect the harmful serum hepatitis virus in whole blood. Comment (k) of § 402A exempts from strict liability products which, in the present state of human knowledge, are incapable of being made safe. The drafters of comment (k) stated that such a product properly prepared and accompanied by proper directions and warning, "... is not defective, nor is it unreasonably dangerous." Nonetheless, a majority of the judges decided this exemption did not apply, holding that blood containing the hepatitis virus "... was thereby a defective product, dangerous to all." The decision appears to overstep the bounds of § 402A and renders the seller an insurer. Judge Enoch's dissenting opinion, which would affirm the trial court's dismissal of plaintiff's warranty and strict liability claims, is the better result:

"The importance and necessity of the administration of blood transfusions to save human life is of such importance that certain risks must be assumed in hopes of...