Chapter 3 - § 3.4 • ELEMENT TWO: SUBSTANTIAL CHANGE

• Jurisdiction: Colorado

§ 3.4 • ELEMENT TWO: SUBSTANTIAL CHANGE

The second element of a strict liability claim is that the product was expected to and did reach the consumer without substantial change in the defective condition. Issues involving this element often arise with regard to component part manufacturers.¹³¹ A plaintiff must establish this element, i.e., that no substantial change to the defective condition occurred.¹³² However, a manufacturer is only relieved from liability if the change is "substantial; small changes and minor processing" do not constitute a substantial change.¹³³ And, of course, the substantial change has to be related to the defective condition. As the Colorado Supreme Court has explained, "even substantial changes which do not affect a pre-existing design defect in parts do not absolve the manufacturer of liability."¹³⁴

§ 3.4.1—Defective Condition When Product Left Manufacturer

A similar topic is whether the product was defective when it was sold by the manufacturer. According to Colorado's Pattern Jury Instructions, this is one of the elements of a strict liability claim —the product must have been defective when it was sold by the defendant or left the defendant's control.¹³⁵ In Blueflame Gas, Inc. v. Van Hoose, the Colorado Supreme Court found that since the "'typical consumer has no means of discovering whether the product of a remote manufacturer was defective when it left the factory,'" the burden on the plaintiff should be limited to whether the defect "occurred in the course of the distribution process and before the plaintiffs purchased the product."¹³⁶ The court went on to explain that for "a product sold in bulk, such as propane, this burden is satisfied by evidence showing that the product was defective and unreasonably dangerous when purchased or when put to use within a reasonable time after purchase."¹³⁷ Put another way, the removal of this burden on the plaintiff is particularly apt "in the case of a product sold in bulk that requires no processing or change by the consumer prior to its use."¹³⁸ The burden then shifts to the defendant to show the defect was not present when the product left its control.¹³⁹ Case law is unclear whether the rule set forth in Blueflame is limited just to bulk products, or to products more generally.¹⁴⁰

§ 3.4.2—Post-sale Duty To Warn

Under Colorado law, after a product is sold with a defect in design, and such defect comes to the manufacturer's attention, "the manufacturer has a duty either to remedy...