Chapter 12 - § 12.2 • FIREARMS AND AMMUNITION STATUTE

• Jurisdiction: Colorado

§ 12.2 • FIREARMS AND AMMUNITION STATUTE

Colorado has a separate statutory scheme designed to protect firearm and ammunition manufacturers from lawsuits asserting liability based upon a person using the firearm to injure or kill himself or herself or another.² This statute was enacted in 1986,³ though case law predating the statutory scheme tended to find that a manufacturer of a firearm could not be held liable for a firearm performing as designed.⁴ The statute was amended in 1993 and in 2000 to strengthen its protection of manufacturers. There is scant published case law on the firearm and ammunition statute, and many of its provisions appear duplicative.

There is also a similar federal statute, the Protection of Lawful Commerce in Arms Act, though the federal statute does have some differences with the Colorado statute. 15 U.S.C. §§ 7901, et seq.; see also Phillips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216, 1222-28 (D. Colo. 2015) (applying both the state and federal statutes). While only the Colorado firearms and ammunitions statute will be discussed below, practitioners and courts should be mindful of the federal statute as well in cases against firearm and ammunition manufacturers and sellers.

The firearm and ammunition statute provides that there can only be liability for "an actual defect in the design or manufacture" of the firearm or ammunition, and "not upon the inherent potential of a firearm or ammunition to cause injury, damage, or death when discharged."⁵ As the court of appeals has explained, a firearm manufacturer cannot be held liable where

there was no defect in design or manufacture. The rifle performed exactly as it, and all other firearms, are designed to perform. Upon the pulling of a trigger, a bullet is propelled by the explosive charge in the cartridge out of the barrel into the object at which the firearm is pointed.⁶

The firearms and ammunition statute applies to (1) firearms manufacturers, (2) ammunition manufacturers, (3) their importers, and (4) their dealers/sellers.⁷ It defines a "product liability action" under the statute as a claim for damages brought against these entities for design defect or manufacturing defect.⁸ It prohibits any action in tort against manufacturers under any circumstances other than three claims: design defect, manufacturing defect, or negligence per se.⁹ This limitation includes any action brought by a public or private entity.¹⁰

§ 12.2.1—Design Defect Claims

In order to succeed on a design defect claim regarding a firearm, the plaintiff must prove, in addition to the common elements, that "the actual design was defective and that such defective design was the proximate cause of the injury, damage, or death."¹¹ If the plaintiff proves the proximate cause of the injury or death was a design defect such that the firearm or ammunition "did not function in the manner reasonably expected by the ordinary consumer of such product," the firearms and ammunition statute does not bar recovery.¹²

A design defect claim cannot be based on a firearm or...