Chapter 10 - § 10.1 NATURE OF WRONGFUL ACT, NEGLECT, OR DEFAULT THAT WILL GIVE RISE TO ACTION UNDER C.R.S. § 13-21-202

• Jurisdiction: Colorado

§ 10.1 NATURE OF WRONGFUL ACT, NEGLECT, OR DEFAULT THAT WILL GIVE RISE TO ACTION UNDER C.R.S. § 13-21-202

C.R.S. § 13-21-202 provides that a cause of action for wrongful death arises when "the death of a person is caused by a wrongful act, neglect, or default of another . . . ." This portion of the statute has been construed to mean that any wrongful act, whether a tort or a breach of contract, will support a claim for wrongful death.

Ayala v. Joy Manufacturing Co., 580 F. Supp. 521 (D. Colo. 1984), was a wrongful death action arising out of a mine explosion that occurred on April 15, 1981, in which 15 miners died. One of the plaintiffs' claims was a claim for breach of warranty for sale of a continuous mining machine that allegedly caused the disaster. Claims for breach of express and implied warranty were brought against the manufacturer of the machine and its component parts. The defendants against whom these claims were asserted moved to dismiss the claims on the ground that the Colorado Wrongful Death Act does not recognize claims based upon breach of warranty.

The court denied this motion to dismiss and held that such claims were cognizable under the Act. The question before the court was whether "an asserted breach of warranty is a 'wrongful act,' 'neglect,' or 'default' which can provide the basis for a wrongful death action." Id. at 523. The court agreed with the plaintiffs that "the statute should be liberally construed, and the terms 'wrongful act' and 'default' are broad terms which encompass breaches of warranty." Id. In reaching this conclusion, the...