Chapter 3 - § 3.6 • ELEMENT FOUR: SALE

• Jurisdiction: Colorado

§ 3.6 • ELEMENT FOUR: SALE

The sale element of a strict liability claim requires that "the defendant sold the product and is engaged in the business of selling products."¹⁴⁷ Although usually referred to as a single element,¹⁴⁸ there are two subparts to this element, each of which must be shown. First, the defendant must have sold the product, and second, the defendant must have been engaged in the business of selling the product. Each item is addressed in turn, below.

§ 3.6.1—Sale Of The Product

A long line of cases assert that the plaintiff must first show that the defendant sold the product.¹⁴⁹ Thus, the plaintiff cannot prevail without evidence that the defendant manufactured and sold the product.¹⁵⁰ However, multiple cases have discussed the product being placed "into the stream of commerce."¹⁵¹ Thus, the Colorado Supreme Court has noted that "a literal 'sale' of the product is not required. Rather, it is enough that the product has been cast 'into the stream of commerce.'"¹⁵² This element is related to the issue of distinguishing a service from a sale of a product, which is addressed in § 2.3.2. This rule has particular applicability to issues involving product liability actions against contractors and construction companies. Construction of an item is insufficient to demonstrate a sale.¹⁵³

§ 3.6.2—Engaged In Business Of Selling The Product

The second part of the sale element is that the manufacturer "is engaged in the business of selling products."¹⁵⁴ This derives from comment f of the Restatement (Second) of Torts § 402A, which provides that strict liability is limited: "to any person engaged in the business of selling products for use or consumption."¹⁵⁵ Strict liability

does not, however, apply to the occasional seller of food or other such products who is not engaged in that activity as a part of his business. Thus it does not apply to the housewife who, on one occasion, sells to her neighbor a jar of jam or a pound of sugar. Nor does it apply to the owner of an automobile who, on one occasion, sells it to his neighbor, or even sells it to a dealer in used cars, and this even though he is fully aware that the dealer plans to resell it. The basis for the rule is the ancient one of the special responsibility for the safety of the public undertaken by one who enters into the business of supplying human beings with products which may endanger the safety of their persons and property, and the forced reliance upon that undertaking on the part of

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