Chapter 34 - § 34.6 • RESTATEMENT (THIRD) OF TORTS § 9

• Jurisdiction: Colorado

§ 34.6 • RESTATEMENT (THIRD) OF TORTS § 9

Restatement (Third) of Torts § 9 sets forth the provision for a commercial product seller's or distributor's liability for harm caused by misrepresentation. This update to misrepresentation in the strict liability context is more succinct than the previous version. It reads:

One engaged in the business of selling or otherwise distributing products who, in connection with the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation of material fact concerning the product is subject to liability for harm to persons or property caused by the misrepresentation.

Unlike Restatement (Second) of Torts § 402B, Restatement (Third) § 9 specifically applies to property damage as well as harm to a person. Additionally, § 9 does not require that the representation be made to the public at large.

To date, few cases nationally, and no Colorado cases, have cited to § 9. The Sixth Circuit implicitly adopted the rule in Morris Aviation, LLC v. Diamond Aircraft Indus., Inc.,³⁸ by quoting the language, but ultimately concluded that the plaintiff had failed to allege any affirmative misrepresentations of fact. Courts in other jurisdictions have declined to adopt the rule.³⁹

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Notes:

^[38] Morris Aviation, LLC v. Diamond Aircraft Indus., Inc., ...