Strict Product Liability and Comparative Fault in Colorado
| Publication year | 1990 |
| Pages | 2081 |
| Citation | Vol. 19 No. 10 Pg. 2081 |
1990, October, Pg. 2081. Strict Product Liability and Comparative Fault in Colorado
Prior to the adoption of the Colorado Comparative Fault Act in 1981,(fn1) assumption of the risk and misuse of a product were complete defenses barring any award of damages in a strict product liability claim. Contributory negligence was not a defense to a strict liability claim under Restatement (Second) of Torts ("Restatement") § 402A when the plaintiff's conduct did not rise to the level of assumption of the risk (that is, the failure to discover the product defect or to guard against the possibility of its existence). However, adoption of comparative fault within the strict product liability context raised questions regarding its practical application to adjust recovery based on relative fault under strict liability claims.
The first question was how the concept of fault could apply in a context where liability is not based on fault. The second question was whether ordinary contributory negligence constitutes "fault" under the Comparative Fault Act when the common law development of strict liability precludes its application. These issues were addressed by the Tenth Circuit Court of Appeals in two recent cases, Huffman v. Caterpiller Tractor Co.(fn2) and Carter v. Unit Rig & Equipment Co.(fn3)
Although the Colorado Supreme Court has yet to interpret the Colorado comparative fault statute, these cases will impact significantly the practice of product liability litigation until such an interpretation is made. This article explores the issues raised by the use of comparative fault in strict product liability actions and discusses resolution of these issues by the Tenth Circuit in Huffman and Carter.
When a person is injured by a defective product, three main theories are available for recovery: negligence, warranty and strict liability.(fn4) The seminal case enabling a purchaser injured by a defective product to recover from the manufacturer is McPherson v. Buick Motor Co.(fn5) In McPherson, recovery was permitted on a showing that the defect in the product was caused by the defendant's failure to exercise due care.(fn6)
Thus, prior to the development of the theory of strict liability, if a plaintiff was injured by a defective product but the manufacturer was not negligent, the plaintiff could not recover. Liability in such a situation could be imposed alternatively only through express or implied warranty theories.(fn7) These warranties could be established by express or implied representations made about the product by the manufacturer or supplier.
If the product failed to satisfy these representations due to a defect and the plaintiff was injured as a result, the manufacturer or supplier was liable for the plaintiffs injuries arising out of this breach of warranty. Liability under a breach of warranty action was based not on the fault or conduct of the manufacturer, but on the failure of the product to meet the user's reasonable expectations. In most jurisdictions, warranty actions are governed by the Uniform Commercial Code, which may limit both the plaintiff's ability to bring the suit and the available recovery.(fn8)
A strict product liability action is similar to a warranty liability action. However, a strict product liability action lies solely in tort and may, therefore, expand the plaintiff's recovery by increasing available damages categories and by eliminating privity or notice requirements.(fn9) The common law principles and elements of a strict product liability action are set forth in Restatement§ 402A. The Restatement provides, in pertinent part, that a seller is strictly liable for harm caused by a defective product it put into the stream of commerce if the defect makes the product unreasonably dangerous to consumers. For the purpose of strict liability, product defects arise from manufacturing failures, design flaws and
the failure to provide adequate warnings or instructions.(fn10) The focus, for liability purposes, is on the defective condition of the product rather than on the conduct of the manufacturer.(fn11)
The doctrine of strict liability in tort was first applied in the 1963 California case of Greenman v. Yuba Power Products, Inc.(fn12) It was then adopted by the American Law Institute in 1965 as Restatement§ 402A.(fn13) In 1973, the Colorado Court of Appeals adopted the § 402A strict torts liability in Bradford v. Bendix-Westinghouse Auto Air Brake Co.(fn14) The Colorado Supreme Court expressly adopted § 402A in the 1975 case of Hiigel v. General Motors Corp.(fn15)
Under § 402A, strict liability is imposed on the seller of a defective product if it can be shown that:
1) the seller sold the product in a condition that was unreasonably...
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