Chapter 34 - § 34.2 • DEFINITION

• Jurisdiction: Colorado

§ 34.2 • DEFINITION

A plaintiff may recover for physical injuries to persons caused by the plaintiff's justifiable reliance on a misrepresentation that a seller made to the public concerning the character or quality of a product. Specifically, Restatement (Second) of Torts § 402B³ provides:

One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a customer of the chattel caused by justifiable reliance upon the misrepresentation, even though

(a) it is not made fraudulently or negligently, and
(b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.⁴

Recovery under this section requires neither a defective product nor one that is unreasonably dangerous.⁵ Notably, this section specifically addresses physical harm to the consumer and does not mention harm to property.⁶ However, the Colorado Civil Jury Instructions contemplate that the section covers harm to property as well.⁷

Although misrepresentation in the strict liability context stems from the concept of express warranty, the two theories are distinguishable. A misrepresentation claim arises out of tort, whereas a warranty claim arises out of contract. Additionally, an express warranty action involves different elements of proof from those in a misrepresentation action. Specifically, C.R.S. § 4-2-313 states that a seller creates express warranties by "[a]ny affirmation of fact or promise" or by "(a)ny description of the goods." In contrast, § 402B applies more narrowly to misrepresentations of a "material fact concerning the character and quality" of the product upon which the customer must have justifiably relied.⁸

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Notes:

^[3] See id.

^[4] Restatement (Second) of Torts § 402B.

^[5] Winkler, 640 P.2d at 219.

^[6] Restatement (Second) of Torts § 402B; Westric Battery Co. v. Standard Elec. Co., 482 F.2d 1307, 1315 (10th Cir. 1973).

^[7] See ...