The Colorado Product Liability Act of 1977
| Publication year | 1977 |
| Pages | 2122 |
1977, December, Pg. 2122. The Colorado Product Liability Act of 1977
All civil actions against a manufacturer or seller of a product for personal injury, death or property damage which accrue(fn1) on or after July 1, 1977, may be affected by the provisions of an act passed by the 1977 session of the legislature (the "Act").(fn2) The Act has four significant provisions: (1) a statute of limitations applicable to product cases; (2) a restriction on the number of potential defendants which are amenable to strict liability suits; (3) changes to the generally prevailing evidentiary rules regarding the admissibility, in product liability actions, of evidence related to post-accident modifications to a product; and (4) rebuttable presumptions for use in all product liability cases.
This article explores the Act's legislative history in an effort to provide some understanding of how the Act came to be enacted in the form in which it did, and attempts to explain the probable effects of the Act's provisions.
Colorado was only one of many states which in 1977 considered product liability legislation in some form or another.(fn3) Despite the wide divergence in approaches taken by these various bills, the impetus for all of them is the recent emergence of a nationwide problem regarding the cost and availability of product liability insurance.(fn4) The causes of this particular problem, like the causes of the somewhat similar medical and legal malpractice insurance "crises," are often the subject of heated debate.(fn5) However, whatever the true causes may be, the so-called "crisis" does indeed exist.(fn6)
Those most directly affected by the high cost and unavailability of product liability insurance (principally manufacturers) have tended, as has the medical profession, to place the primary blame for their "crisis" on what they perceive as certain inequities inherent in the existing tort litigation system.(fn7) Thus, as originally introduced, House Bill 1536 (the "Bill"), attempted to remedy legislatively these real or imagined "inequities" in the following ways:
(1) by creating a six-year statute of repose for product liability actions which would have commenced when a product was first sold for use or consumption;(fn8)
(2) by limiting the award of exemplary damages in most civil actions to an amount not to exceed $10,000 or the amount of actual damages, whichever
(3) by codifying the doctrine of strict liability in tort;(fn10)
(4) by creating "absolute" defenses to any product liability action if an alteration, modification, change or deterioration of the product had occurred and "to a reasonable probability," the injury, death or damage would not have occurred but for such action or if the product, at the time of its manufacture, complied with any applicable governmental (U.S. or Colorado) statutes, standards or regulations;
(5) by codifying the defense of assumption of the risk;(fn11)
(6) by prohibiting the introduction, for any purpose, of evidence of advancements in or changes to a product which occurs subsequent to the time a product was manufactured or sold;
(7) by creating a rebuttable presumption that a product which at the time of its manufacture complied with the prevailing "state of the art" or with the generally recognized and prevailing standards or practices in the industry was not defective and that the manufacturer or seller thereof was not in any way negligent with respect to the manufacture or sale of the product; and
(8) by enacting a "comparative responsibility" statute which would have basically applied the fundamentals of Colorado's comparative negligence statute(fn12) to all product liability actions, including those based on the theory of strict liability in tort.(fn13)
The Bill was first assigned to the House Judiciary Committee where it underwent several major revisions before being referred to the Committee of the Whole with a favorable recommendation. These revisions included elimination of the sections dealing with exemplary damages and codification of the doctrine of strict liability in tort. In addition, the Committee changed compliance with governmental standards from an absolute defense to a rebuttable presumption and changed the period of the proposed statute of repose from six to seven years. Before passing the full House, by a vote of 59 to 3, the Bill was again amended by insertion of provisions which would have prohibited strict liability actions against all sellers of a product other than the product's manufacturer and which specified that non-compliance with any applicable government standard concerning a product would create a rebuttable presumption that the product in question was defective.
The Bill was next referred for action to the Senate Judiciary Committee where it is fair to say that it received less than enthusiastic support.(fn14) In fact, had it been enacted with the amendments made by that Committee, it would have made it easier instead of more difficult for a plaintiff to maintain and recover damages in a product liability action. Of course, the Bill was not ultimately enacted in this form. What did finally emerge from the legislature and gain the Governor's signature was a compromise between the Bill as it passed the House and as it emerged from the Senate Judiciary Committee.(fn15)
The Act has four substantive provisions with which all practitioners should be familiar.
The Act created a new statute of limitations which is applicable to all actions for personal injury, death or property damage, other than those governed by Section 2-725 of the U.C.C., against a manufacturer or seller of an allegedly defective product.(fn16) This new section (which
However, because subsection 1 of this new statute begins with the words "notwithstanding any other statutory provisions to the contrary," a strong argument can be made that wrongful death product liability actions may now be brought within three years of the date of the occurrence of the injury causing the death in question instead of the two years provided in C.R.S. 1973, § 13-21-204. Similarly, executors or administrators will probably no longer be entitled to the "extra" one-year period provided in C.R.S. 1973, § 13-80-117 in which to bring an action which was not time barred at the time of a decedent's death but which may have otherwise become so after his death.
To continue reading
Request your trial