Chapter 34 - § 34.7 • DEFENSES

• Jurisdiction: Colorado

§ 34.7 • DEFENSES

§ 34.7.1—Assumption of Risk

Colorado law treats the doctrine of assumption of risk as a form of comparative negligence.⁴⁰

§ 34.7.2—Comparative Fault in Products Liability Actions

Comparative fault is an affirmative defense to strict liability misrepresentation and is governed by C.R.S. § 13-21-406.⁴¹ The statute requires that a plaintiff's recovery be diminished in proportion to the amount of fault attributable to the plaintiff's own conduct. Under § 13-21-406, "fault" attributable to the plaintiff can appear as misuse, "as well as a broad range of culpable behaviors, including negligence."⁴² However, where the plaintiff's "misuse of the product is the sole cause of damages, and thus, the alleged defect was not a cause thereof, then the plaintiff cannot recover under strict liability theory."⁴³

§ 34.7.3—Designation of Nonparty at Fault

Pursuant to C.R.S. § 13-21-111.5, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to the defendant.⁴⁴ C.R.S. § 13-21-111.5 applies in strict products liability cases involving manufacturing, design, and warning defects; thus, it is possible that it also applies to strict products liability misrepresentation under the appropriate facts.⁴⁵ Accordingly, a defendant may designate as a nonparty at fault an individual or entity who is either "wholly or partially at fault" for the damages alleged by the plaintiff.⁴⁶ An unidentified or unknown person may be designated as a nonparty pursuant to the statute.⁴⁷ To satisfy the statutory requirements to designate a nonparty at fault, within 90 days from the commencement of the action (unless the court determines a longer period is necessary), the defendant must provide the court: (1) the nonparty's name; (2) the nonparty's last-known address; and (3) a brief statement of the basis for the nonparty's fault.⁴⁸

§ 34.7.4—Failure to Mitigate

Failure to mitigate damages is an affirmative defense to strict liability misrepresentation, but it is rarely, if ever, a complete defense.⁴⁹ A plaintiff has a duty to take reasonable steps under the circumstances to mitigate or minimize his or her damages. Damages caused by the plaintiff's failure to take such reasonable steps cannot be awarded to the plaintiff. An instruction for failure to mitigate should only be given if it the defendant properly pleaded the duty and sufficient evidence supports the instruction.⁵⁰

§ 34.7.5—Failure to Satisfy the Elements

A strict liability misrepresentation claim under § 402B cannot succeed if:

• Someone other than the defendant made the alleged misrepresentation;⁵¹
• The alleged misrepresentation was not a representation of fact;⁵²
• The alleged misrepresentation, while possibly a representation of fact, did not represent the fact contended by the plaintiff;⁵³
• The alleged misrepresentation was actually a true statement;⁵⁴
• The alleged misrepresentation was made in a private, rather than in a public, communication;⁵⁵
• The alleged misrepresentation concerned a fact that was not "material" such that a reasonable person would not be influenced by the fact in deciding whether to buy or use the product;⁵⁶
• The defendant did not sell the product at any point in its chain of distribution;⁵⁷
• The defendant was not engaged in the business of selling products similar to the one that injured the plaintiff;⁵⁸
• The product that injured the plaintiff was not a "chattel";⁵⁹
• The plaintiff was not a "consumer" of the product at the time of the injury;⁶⁰
• The plaintiff (or the person who purchased (or leased) the product) did not actually rely on the defendant's alleged misrepresentation.⁶¹

§ 34.7.6—Misuse

Misuse has been described as a "causation concept which excuses the seller of an admittedly defective product from liability when the misuse and not the defect caused the injury."⁶² Misuse can result from either using the product for a purpose not intended or using it in a manner that could not reasonably be anticipated.⁶³ A manufacturer cannot raise misuse as a defense if it could reasonably foresee the possibility of the consumer's misuse.⁶⁴ Alternatively, an injured person cannot recover if misuse of the product alone caused the claimed damages. If, however the consumer misused the product and a product defect caused the injury, then the defendant can raise misuse in a comparative fault analysis under C.R.S. § 13-21-406.⁶⁵ A manufacturer can raise misuse as a defense to a strict liability misrepresentation claim.⁶⁶

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