Statute text
(1) In any product liability action, it shall be rebuttably presumed that the product which caused the injury, death, or property damage was not defective and that the manufacturer or seller thereof was not negligent if the product:
(a) Prior to sale by the manufacturer, conformed to the state of the art, as distinguished from industry standards, applicable to such product in existence at the time of sale; or
(b) Complied with, at the time of sale by the manufacturer, any applicable code, standard, or regulation adopted or promulgated by the United States or by this state, or by any agency of the United States or of this state.
(2) In like manner, noncompliance with a government code, standard, or regulation existing and in effect at the time of sale of the product by the manufacturer which contributed to the claim or injury shall create a rebuttable presumption that the product was defective or negligently manufactured.
(3) Ten years after a product is first sold for use or consumption, it shall be rebuttably presumed that the product was not defective and that the manufacturer or seller thereof was not negligent and that all warnings and instructions were proper and adequate.
(4) In a product liability action in which the court determines by a preponderance of the evidence that the necessary facts giving rise to a presumption have been established, the court shall instruct the jury concerning the presumption.
History
Source: L. 77: Entire part added, p. 820, 2, effective July 1. L. 2003: (4) added, p. 1289, 3, effective September 1.
Annotations
ANNOTATION
Annotations
Law reviews. For comment, "Liability Without Fault and the AIDS Plague Compel a New Approach to Cases of Transfusion-Transmitted Disease", see 61 U. Colo. L. Rev. 81 (1990). For article, "New Statutes Change Civil Litigation in Colorado", see 33 Colo. Law. 65 (May 2004). For article, "What's in the Package: Food, Beverage, and Dietary Supplement Law and Litigation Part I", see 43 Colo. Law. 77 (July 2014).
Presumption as to "unavoidably unsafe" product. The presumption in subsection (1)(a) does not apply in the case of a product which is claimed to be unavoidably unsafe. Belle Bonfils Mem. Blood Bank v. Hansen, 665 P.2d 118 (Colo. 1983).
Evidence showing compliance with applicable statutes and regulations may be controverted by evidence sufficient to warrant a reasonable inference of noncompliance (evidence of lack of odorization of propane gas). Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo. 1984) (cause of action arose before effective date of section).
Subsection (3) presumption inapplicable within 10 years of first sale. An injury complained of must have occurred within 10 years of the date the product was first sold for use or consumption, otherwise the rebuttable presumption in subsection (3) will be applicable. Fraley v. Am. Cyanamid Co., 570 F. Supp. 497 (D. Colo. 1983).
The ten-year period runs from the sale of the individual product or item which causes the personal injury, death, or property damage, not from the first sale of the particular model to the public. Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo. App. 1985).
For the purposes of subsection (3), the date that "a product is first sold for use or consumption" refers to the time when a product line of a particular design is first sold to the public and not the date on which the particular product was sold. Patterson v. Magna Am. Corporation, 754 P.2d 1385 (Colo. App. 1988) (holding contrary to Downing v. Overhead Door Corp. annotated above).
Implicit in subsection (3) is assumption that no other strict liability claims have been established against product during the ten-year period. Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo. 1986).
The phrase "the necessary facts giving rise" in subsection (4) is not ambiguous. Subsection (4) simply refers back to the preceding subsections, directing courts to issue an instruction on a rebuttal presumption once the facts in the relevant subsections have been demonstrated. Looking to subsection (3), the plain language states that the presumption is triggered when more than ten years have passed since the product was first sold on the market. Helmer v. Goodyear Tire & Rubber Co., 828 F.3d 1195 (10th Cir. 2016).
Nothing in the plain language of subsection (3) or (4) suggests courts must consider a product's useful safe life. Helmer v. Goodyear Tire & Rubber Co., 828 F.3d 1195 (10th Cir. 2016).
Error to instruct jury concerning the presumption. Where the evidence demonstrated only that the manufacturer began manufacturing the model of garage opener involved in the incident in October, 1967, and that by its serial number, the product in this case was allegedly manufactured in September, 1968, the jury was without sufficient evidence reasonably to conclude by a preponderance of the evidence, that the basic facts giving rise to the presumption existed. Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo. App. 1985).
This statute inapplicable to suit of subrogee since subrogor's cause of action accrued before the effective date of the statute. Union Insurance Co. v. RCA Corp., 724 P.2d 80 (Colo. App. 1986).
Presumption may be rebutted by a preponderance of the evidence to the contrary. Based upon language in Hawkinson v. A.H. Robins Co., Inc. (595 F. Supp. 1290 (D. Colo. 1984)) and Union Ins. Co. v. RCA, (724 P.2d 80 (Colo. App. 1986)), the trial court's application of the preponderance of the evidence standard was the proper standard to use when rebutting a presumption under this section. Tafoya v. Sears Roebuck and Co., 884 F.2d 1330 (10th Cir. 1989).
Expert testimony showing compliance with federal standards is admissible to show that the product is not defective. States v. R.D. Werner Co., 799 P.2d 427 (Colo. App. 1990).
Instruction not warranted. Where plaintiff has presented sufficient evidence to defeat a motion for a directed verdict, he has necessarily rebutted the presumption of subsection (3), and there is no reason for judge to issue instruction. Matz v. Mile Hi Concrete, Inc., 819 P.2d 530 (Colo. App. 1991), aff'd in part and rev'd in part on other grounds, 842 P.2d 198 (Colo. 1992) (decided prior to 2003 amendment); Perlmutter v. U.S. Gypsum Co., 4 F.3d 864 (10th Cir. 1993) (decided prior to 2003 amendment).
It was error to instruct the jury regarding the statutory presumption where warnings regarding concrete had been given within the last ten years, there was testimony that concrete had caused injuries within the last ten years, and there had been lawsuits during the last ten years alleging that concrete was unreasonably dangerous without warnings. Matz v. Mile Hi Concrete, Inc., 819 P.2d 530 (Colo. App. 1991), aff'd in part and rev'd in part on other grounds, 842 P.2d 198 (Colo. 1992) (decided prior to 2003 amendment).
Once a showing by a preponderance has been made concerning the facts giving rise to subsection (3)'s presumption, an instruction regarding the presumption must be given. Kokins v. Teleflex, Inc., 621 F.3d 1290 (10th Cir. 2010).
The presumption in subsection (3) is to be considered by the jury along with traditional forms of evidence, so long as the trial court determines by a preponderance of the evidence that the necessary facts giving rise to the presumption have been established. Kokins v. Teleflex, Inc., 621 F.3d 1290 (10th Cir. 2010).
Applied in Welch v. F.R. Stokes, Inc., 555 F. Supp. 1054 (D. Colo. 1983); Uptain v. Huntington Lab, Inc., 685 P.2d 218 (Colo. App. 1984); Hawkinson v. A.H. Robins Co., Inc., 595 F. Supp. 1290 (D. Colo. 1984); Squires v. Goodwin, 829 F. Supp. 2d 1041 (D. Colo. 2011).