Chapter 34 - § 34.4 • ELEMENTS DEFINED

• Jurisdiction: Colorado

§ 34.4 • ELEMENTS DEFINED

§ 34.4.1—The Defendant Sold the Product

A strict products liability action for misrepresentation under § 402B of the Restatement (Second) of Torts applies to any person engaged in the business of selling any type of product, including wholesalers, retailers, and other distributors who sell the product. (And, citing C.R.S. § 13-21-401(3), Colorado's Civil Jury Instructions indicate that the claim "may also be available against one who 'leases' rather than 'sells' products."¹³ ) Notably, § 402B does not apply to persons who are not engaged in the business of selling the product in question. For example, § 402B does not apply to a newspaper advertisement published by a private owner of a single automobile who offers the automobile for sale.¹⁴

§ 34.4.2—Defendant Misrepresented a Material Fact

The rule stated in Restatement § 402B and adopted in Winkler applies only to misrepresentations to the public of material facts concerning the character or quality of the product in question, and it applies even though the misrepresentation is an innocent one and is not made fraudulently or negligently. The misrepresentation need not be in the form of a writing; it may also take the form of a picture, drawing, or illustration.¹⁵ Importantly, an action for strict products liability misrepresentation under § 402B requires neither a defective product nor one that is unreasonably dangerous.¹⁶

To be material, the misrepresentation must be of importance to the normal purchaser so that the ultimate buyer may justifiably be expected to be influenced to buy the product.¹⁷ A misrepresentation is material if "a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question."¹⁸ Statements of opinion or loose, general praise of wares, which is considered "sales talk" or "puffing," do not constitute strict liability misrepresentations.¹⁹

A material misrepresentation is:

1) Any oral or written words, conduct, or combination of words and conduct that create an untrue or mistaken impression in the mind of another about the character or quality of a product; and
2) The untrue or mistaken impression is of a fact that would be important to a purchaser or user in determining his or her conduct.²⁰

Strict liability misrepresentation applies only to a manufacturer as defined in C.R.S. § 13-21-401(1).²¹

The form of the representation is not important — it may be made "by public advertising in newspapers or television, by literature distributed to the public through dealers, by labels on the product sold, or leaflets accompanying it, or in any other manner, whether it be oral or written."²² Further, as noted above it may take the form of a picture, drawing, or illustration.²³

§ 34.4.3—Misrepresentation Made to Consumers in the Public at Large

A claim for misrepresentation under Restatement § 402B is limited to strict liability for physical harm to consumers of the product.²⁴ Whether the rule applies to one who is not a consumer but suffers physical harm through his or her justifiable reliance on the misrepresentation is an open question.

"Consumer," in the broad sense, is one who makes use of the product in an expected manner. For example, an employee of a company that ultimately purchased the product, who is required to use the product for his...