Chapter 4 - § 4.1 • BACKGROUND ON NEGLIGENCE CLAIMS

• Jurisdiction: Colorado

§ 4.1 • BACKGROUND ON NEGLIGENCE CLAIMS

Negligence claims are often plead in conjunction with strict liability claims. While there are numerous overlapping concepts and elements between the two, and often the evidence in support of the two types of claims are close to the same, conceptually they are different types of claims. In negligence, the primary focus is on the reasonableness of the manufacturer's conduct. In strict liability, on the other hand, the primary focus is on the condition of the product itself, regardless of the manufacturer's conduct.¹

Practice Pointer
While strict liability and negligence claims differ in important aspects, there is substantial overlap between the two claims, and lawsuits often involve claims of both strict liability and negligence.

Prior to delving into the elements and details of a product liability negligence claim, there are a few initial matters worth noting. First, regardless of whether a product liability action is grounded in negligence or strict liability, a plaintiff must prove that the product was defective² and unreasonably dangerous. Walker v. Ford Motor Co., 2017 CO 102, ¶ 23, 406 P.3d 845, 852. Second, a plaintiff is not required to plead a strict liability claim against a manufacturer, and a plaintiff can proceed only on a negligence claim.³ Third, and similar to strict liability claims, the occurrence of injury following the use of a product does not raise a presumption of negligence.⁴ Finally, as negligence is a broad category — and numerous non-product liability cases involve claims of negligence — courts deciding product liability negligence claims often look at general negligence concepts. While this book will review negligence law regarding product liability actions, this book does not and cannot cover all aspects of negligence law.

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Notes:

^[1] See, e.g., Belle Bonfils Mem'l Blood Bank v. Hansen, 665 P.2d 118, 126 (Colo. 1983), superseded on other grounds by statute as stated in United Blood Servs. v. Quintana, 827 P.2d 509 (Colo. 1992); Downing v. Overhead Door Corp., 707 P.2d 1027, 1032 (Colo. App. 1985).

^[2] Perlmutter v. U.S. Gypsum Co., 54 F.3d 659, 663 (10th Cir. 1995); Bartholic v. Scripto-Tokai Corp., 140 F. Supp. 2d 1098, 1117 (D. Colo. 2000); Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 205 (Colo. 1992), superseded by statute on other grounds as stated in Kokins v. Teleflex, Inc., 621 F.3d 1290...