Chapter 4 - § 4.2 • ELEMENTS

• Jurisdiction: Colorado

§ 4.2 • ELEMENTS

Under Colorado law, in order to prove a negligence claim in product liability, a plaintiff must show:

1) The existence of a legal duty owed by the defendant to the plaintiff;
2) Breach of that duty;
3) Injury to the plaintiff; and
4) A sufficient causal relationship between the defendant's breach and the plaintiff's injuries.⁵

Of course, there are other requirements for a product liability negligence claim, although they are not always listed as elements. For example, the defendant must be the manufacturer of the product.⁶ The issues defining what entity is a manufacturer and thus amenable to suit are addressed in §§ 2.3.3 and 2.3.4. Similarly, the plaintiff must prove that the product was defective,⁷ but this is usually not listed separately but rather subsumed in the breach element. Each element is addressed in turn, below.

§ 4.2.1—Element One: Duty

The existence and scope of the manufacturer's legal duty is a question of law for the court to determine.⁸ But factual issues raised in a duty analysis may require factual findings by the trier of fact.⁹ And, as duty and breach are closely interrelated, courts (and sometimes this book) often refer to these two issues concurrently. Similarly, duty and proximate causation "are often interchangeable, and can be easily confused" under certain circumstances.¹⁰

A manufacturer has the duty "to act reasonably in the design, manufacture, and sale of the product," which "includes providing adequate warnings."¹¹ As becomes readily apparent from this description, the negligence standard mirrors the strict liability standard in that there are design, manufacture, and failure to warn subsets. These are not necessarily separate claims,¹² but prudent practitioners on the plaintiff's side will clearly identify the negligence legal theory or theories on which they are seeking relief — whether failure to warn, manufacturing defect, design defect, or some combination of them.¹³

Practice Pointer
Practitioners should identify early in the case whether a product liability claim is based upon the theory of manufacturing defect, design defect, or failure to warn (or some combination of them).

In its simplest form, a manufacturer owes users the duty to exercise reasonable care.¹⁴ That duty is to act how a reasonably prudent manufacturer would act under the same or similar circumstances.¹⁵ Negligence, thus, is the failure to do an act that a reasonably prudent manufacturer would do, or the doing of an act that a reasonably prudent manufacturer would not do, under the same or similar circumstances.¹⁶ Courts look to the "reasonably prudent" manufacturer in the same industry; therefore, if the defendant is a drug manufacturer, the question is what a reasonably prudent drug manufacturer would do or not do under the same or similar circumstances.¹⁷

This section of the book first examines the factors courts apply in considering the existence and scope of the duty. Next, this section examines the foremost of the factors — foreseeability. Then, this section addresses the duty to warn, the duty to test/inspect, and the duty to properly manufacturer/design the product. Next, this section examines issues involving component part manufacturers' duty. Finally, this section addresses the degree of care for dangerous and ultra-hazardous activities.

Factors to Consider in Finding Whether a Duty Exists

In assessing whether there is a duty, courts consider a variety of factors including, for example: (1) the risks involved, (2) the foreseeability and likelihood of injury, weighed against the social utility of the manufacturer's conduct, (3) the magnitude of the burden of guarding against injury or harm, and (4) the consequences of placing that burden upon the manufacturer.¹⁸

Foreseeability is the touchstone of any analysis, though the court should consider all factors and no one factor is controlling.¹⁹ Examples where courts concluded that a duty exists include a manufacturer's design of child-resistant features for lighters²⁰ and natural gas produced by the defendant causing a connector tube to deteriorate.²¹ On the other hand, as a matter of law, a tractor manufacturer owed no duty to warn plaintiff of the possibility that a beetle-killed tree might fall on him while operating the tractor,²² and a gasoline manufacturer/filling station owed no duty to the plaintiff as it was not reasonably foreseeable that a purchaser of gasoline would intentionally throw it on her, setting her on fire.²³

Foreseeability of the Harm

One of the key questions in any duty analysis is whether the risk of injury was foreseeable to the manufacturer. While the existence of a legal duty is question of law for the court to determine, when there is a disputed factual issue on foreseeability, it should be determined by the trier of fact.²⁴

Where a manufacturer "should reasonably foresee that his act, or failure to act, will involve an unreasonable risk of harm to another, there is a duty to avoid such harm."²⁵ Put another way, a "legal duty to use reasonable care arises in response to a foreseeable risk of injury to others."²⁶ The foreseeability concept is closely related to the proximate causation inquiry, and courts often analyze them together.²⁷ Also, a manufacturer may be held liable if its "negligence constituted a substantial factor in causing plaintiff's injury even where the actor did not and could not foresee the precise manner in which the injury would come about."²⁸

Duty to Warn

The most common product liability negligence claim is one of failure to warn. Courts look to strict liability failure to warn case law for guidance on negligent failure to warn.²⁹

A manufacturer has a duty to warn if three conditions are met. First, there must be an "unreasonable danger" associated with the use of the product.³⁰

Second, the unreasonable danger must be one of which the manufacturer "knew or should have known."³¹ This concept has some overlap with the issue of whether the warnings complied with the state of the art. As the Colorado Supreme Court has explained with regard to product liability negligence actions, "the defendant's state of the art evidence is one factor to consider in assessing the manufacturer's due care."³² Colorado courts have not carefully analyzed, at least in published case law, the interrelationship between the "knew or should have known" standard and the state of the art statutory presumption.

Third, the dangers associated with the use of the product must be ones that "are not obvious" to the user of the product.³³

If these conditions are met, the manufacturer has a duty to warn, and the breach of this duty constitutes negligence.³⁴

Duty to Test/Inspect

Depending upon the nature of the case, a manufacturer has a duty to test or inspect its product. There are two components to this duty. First, as described in the Colorado's Pattern Jury Instructions, a manufacturer has a duty to test/inspect the component parts of the manufacturer's final product.³⁵ A manufacturer can be held liable for injuries caused by component parts of the manufacturer's final product where the manufacturer failed "to properly inspect and discover inherent defects."³⁶

Second, courts have applied this duty to test or inspect to the manufacturer's finished product.³⁷ The breach of this duty may constitute negligence.³⁸ A brief review of a few cases helps to illuminate this duty to test.

For example, the Colorado Supreme Court found in Howard v. Avon Products, Inc., that as the defendant cosmetics manufacturer tested the cosmetics "among its employees and the wives of its executives, all with negative results," this was sufficient for the trier of fact to find that there was adequate testing of the product.³⁹

On the other hand, a Colorado federal district court found with regards to the manufacturer of the Dalkon Shield medical device, that a reasonably careful manufacturer should have tested, or if it did not do so, "disclose the depth of its ignorance."⁴⁰ In Blueflame Gas, Inc. v. Van Hoose, the Colorado Supreme Court reversed a jury verdict for a propane distributor, because, in part, the defendant failed to test the propane prior to selling it to the plaintiff.⁴¹ The court explained that even though the odorization chemical in the propane "has a known tendency to break down and dissipate under certain circumstances," there had been no testing to make sure there was still "effective odorization" prior to the sale to plaintiff.⁴² And the Colorado Supreme Court affirmed a negligence verdict against a defendant manufacturer of seeds in Webb v. Dessert Seed Co. because, among other things, the manufacturer "failed to follow its normal practice of testing all new varieties of seeds under likely growing conditions prior to placing them in the market."⁴³

Negligent Design and Manufacturing Defects

Most published Colorado cases that address...