Chapter 34 - § 34.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 34.1 • INTRODUCTION

In American Safety Equipment Corp. v. Winkler,¹ the Colorado Supreme Court stated, "[i]t is sound policy to permit a consumer, who purchases a product on the strength of the manufacturer's representations, to obtain direct recovery from the manufacturer on a theory of strict liability." In our society, the court noted, it is the manufacturer who, through the design and testing of its products, knows of the products' qualities and capabilities; whereas the consumer knows only the information he or she can glean from the manufacturer's marketing materials. "Because of his superior knowledge, the manufacturer should not be permitted to avoid responsibility for his misrepresentations to the consumer, even though the misrepresentations were neither fraudulently nor negligently made." To further this policy, the court adopted strict liability for product-related misrepresentation based on the Restatement (Second) of Torts § 402B.²

There is a dearth of case law addressing product-related strict liability for misrepresentation in Colorado. That is likely because this cause of action is generally an alternative claim to negligence...