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13-21-402. Innocent seller

Text

(1) No product liability action shall be commenced or maintained against any seller of a product unless said seller is also the manufacturer of said product or the manufacturer of the part thereof giving rise to the product liability action. Nothing in this part 4 shall be construed to limit any other action from being brought against any seller of a product.

(2) If jurisdiction cannot be obtained over a particular manufacturer of a product or a part of a product alleged to be defective, then that manufacturers principal distributor or seller over whom jurisdiction can be obtained shall be deemed, for the purposes of this section, the manufacturer of the product.

History

History.
Source: L. 77: Entire part added, p. 820, 2, effective July 1. L. 2003: (1) amended, p. 1289, 1, effective September 1.

Annotations

ANNOTATION

Law reviews. For article, New Statutes Change Civil Litigation in Colorado, see 33 Colo. Law. 65 (May 2004). For article, Whats in the Package: Food, Beverage, and Dietary Supplement Law and Litigation Part I, see 43 Colo. Law. 77 (July 2014).

Issues under strict liability theory. Under a strict liability theory, the determination is whether the product is defective, or, if not defective, unreasonably unsafe, and whether, under an objective standard, after weighing the relevant costs and benefits, a warning was required. Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo. App. 1985).

Claims based upon negligence and breach of implied warranty of merchantability are not based on the doctrine of strict liability in tort; hence, action could proceed against seller even though the seller was not also the manufacturer. Wallman v. Kelley, 976 P.2d 330 (Colo. App. 1998).

Contract claims that seek only economic loss for a defective product without collateral damage or risk of harm to others do not constitute product liability actions. With the innocent seller statute, the general assembly intended to insulate sellers who did not manufacture a product from liability for harm caused by the product and not from the commercial obligation to stand behind the merchantability of a product the seller chooses to sell in the public market place. Carter v. Brighton Ford, Inc., 251 P.3d 1179 (Colo. App. 2010).

Strict liability is limited to claims against manufacture of an allegedly defective product. Potthoff v. Alms, 41 Colo. App. 51, 583 P.2d 309 (cause of action arose before effective date of section).

Strict liability on the part of manufacturer of component parts for injuries resulting from design defects does not equate to absolute liability. Shaw v. General Motors Corp., 727 P.2d 387 (Colo. App. 1986).

Electricity is a product for purposes of section 402 of the Restatement (Second) of Torts while the distribution system for electricity is a service. Smith v. Home Light & Power Co., 695 P.2d 788 (Colo. App. 1984) cause of action arose before effective date of section, affd, 734 P.2d 1051 (Colo. 1987).

Defense of misuse available. Uptain v. Huntington Lab, Inc., 685 P.2d 218 (Colo. App. 1984).

Generally, living things do not constitute products within the meaning of this section. Kaplan v. C Lazy U Ranch, 615 F. Supp. 234 (D. Colo. 1985).

Lack of a passive restraint system in automobiles held not actionable under unreasonable defect theory of restatement (second) of torts 402A. Kern v. General Motors Corp., 724 P.2d 1365 (Colo. App. 1986).

The absence of leg protection devices was not a defect that rendered the motorcycle unreasonably dangerous. Camacho v. Honda Motor Co., Ltd., 701 P.2d 628 (Colo. App. 1985), revd on other grounds, 741 P.2d 1240 (Colo. 1987), cert. dismissed, 485 U.S. 901, 108 S. Ct. 1067, 99 L. Ed. 2d 229 (1988).

Nor was the motorcycle in a defective condition unreasonably dangerous because defendants failed to warn the plaintiffs of the risk of harm of driving a motorcycle without crash bars or leg protection devices. Camacho v. Honda Motor Co., Ltd., 701 P.2d 628 (Colo. App. 1985), revd on other grounds, 741 P.2d 1240 (Colo. 1987), cert. dismissed, 485 U.S. 901, 108 S. Ct. 1067, 99 L. Ed. 2d 229 (1988).

A manufacturer of component parts may be held strictly liable for injuries as a result of design defects in the component when it is expected to and does reach the consumer without substantial change in condition. Union Supply Co. v. Pust, 583 P.2d 276 (1978); Shaw v. General Motors Corp., 727 P.2d 387 (Colo. App. 1986).

Dealership which sold truck that injured plaintiff was not a manufacturer and could not be held strictly liable for alleged defective and unreasonably dangerous condition in truck. Shaw v. General Motors Corp., 727 P.2d 387 (Colo. App. 1986).

The analysis for determining the liability of a manufacturer of component parts rests on whether the component parts or raw materials were unreasonably dangerous as a result of a failure to warn or other design defect existing at the time of delivery. Bond v. E.I. Du Pont De Nemours & Co., 868 P.2d 1114 (Colo. App. 1993).

For liability of successor corporations under the Colorado products liability act, see Ruiz v. ExCello Corp., 653 P.2d 415 (Colo. App. 1982); Florum v. Elliott Mfg. Co., 629 F. Supp. 1145 (D. Colo. 1986), affd in part and revd in part, 867 F.2d 570 (10th Cir.), rehg denied, 879 F.2d 801 (10th Cir. 1989).

The Colorado Products Liability Act does not address the liability of successor manufacturers or corporations in relation to the product line theory. Johnston v. Amsted Industries, Inc., 830 P.2d 1141 (Colo. App. 1992).

Product-line theory and continuity of enterprise theory exceptions to general rule of nonliability of successor corporation not adopted by court decision. Since such concepts existed prior to enactment of this act, their omission creates a negative inference that the general assembly considered these concepts and chose not to enact them. Florum v. Elliott Mfg. Co., 629 F. Supp. 1145 (D. Colo. 1986), affd in part and revd in part, 867 F.2d 570 (10th Cir.), rehg denied, 879 F.2d 801 (10th Cir. 1989); Johnson v. Amsted Indus., Inc., 830 P.2d 1141 (Colo. App. 1992).

Sale of product to defendant not found. Borroel v. Lakeshore, Inc., 618 F. Supp. 354 (D. Colo. 1985).

The crashworthiness doctrine is adopted for this jurisdiction so that a motor vehicle manufacturer may be liable in negligence or strict liability when the design or manufacturing defect caused or enhanced the injuries sustained. Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240 (Colo. 1987), cert. dismissed, 485 U.S. 901, 108 S. Ct. 1067, 99 L. Ed. 2d 229 (1988).

This doctrine requires motorcycle manufacturers to provide reasonable, cost-acceptable safety features to reduce the severity of injuries incurred in foreseeable motorcycle accidents. Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240 (Colo. 1987), cert. dismissed, 485 U.S. 901, 108 S. Ct. 1067, 99 L. Ed. 2d 229 (1988).

Installation of a windshield which includes preparation of component parts is a product prepared for sale to the consumer. Miller v. Solaglas California, Inc., 870 P.2d 559 (Colo. App. 1993).

Colorado will not hold a successor corporation liable under the product line theory of liability. The court will not follow the reasoning which holds a corporation liable merely because it is able to pay the plaintiffs damages. Johnston v. Amsted Industries, Inc., 830 P.2d 1141 (Colo. App. 1992).

The qualified immunity granted to sellers and distributors is an affirmative defense that must be raised in the defendants responsive pleading or answer. Stones Farm Supply, Inc. v. Deacon, 805 P.2d 1109 (Colo. 1991).

Once seller who is not manufacturer invokes the protections of this section, the burden of proof shifts to the plaintiff to show that jurisdiction could not be obtained over the manufacturer. Deacon v. Am. Plant Food Corp., 782 P.2d 861 (Colo. App. 1989), revd on other grounds sub nom. Stones Farm Supply, Inc. v. Deacon, 805 P.2d 1109 (Colo. 1991).

When claim against manufacturer is barred by expiration of limitation period, not by lack of jurisdiction, claim may not be asserted against seller under subsection (2). Halter v. Waco Scaffolding Equip. Co., 797 P.2d 790 (Colo. App. 1990).

Although the plaintiffs product liability suit against the manufacturer was automatically stayed by the manufacturers filing of a petition in bankruptcy, the court retained jurisdiction over the product liability suit. Bond v. E.I. Du Pont De Nemours Co., 868 P.2d 1114 (Colo. App. 1993).

Applied in Frazier v. Kysor Indus. Corp., 43 Colo. App. 287, 607 P.2d 1296 (1979); Am. Safety Equip. Corp. v. Winkler, 640 P.2d 216 (Colo. 1982); Shaw v. General Motors Corp., 727 P.2d 387 (Colo. App. 1986).