Under Colorado’s product liability laws a person or company who:
- manufactures, or
a defective product is strictly liable for injuries caused by that product. This means that even when a company is not negligent, it can be held financially responsible for a person’s injuries.
Strict liability means that the injured party (the plaintiff) does not have to prove that the party responsible for the product was negligent in any way.
In Colorado, strict liability applies to three types of product defects:
- manufacturing defects,
- design defects, and
- inadequate warning defects.
Understanding how each of these works can help you get compensation for your injuries.
Below, our Colorado personal injury attorneys address frequently asked questions about product liability cases in personal injury lawsuits and the injuries you may have suffered.
- 1. What do I have to prove in a Colorado products liability lawsuit?
- 2. What is strict liability and why does it matter in Colorado personal injury cases?
- 3. What does it mean for a Plaintiff to use a product in a “reasonably foreseeable way?”
- 4. What is a “design defect” lawsuit in Colorado?
- 5. What is a “manufacturing defect” lawsuit?
- 6. What is a “failure to warn” lawsuit in Colorado?
- 7. What damages can I win if I prove a products liability lawsuit?
1. What do I have to prove in a Colorado products liability lawsuit?
In Colorado, when a defective product enters the marketplace, courts will utilize either a negligence theory, or a products liability theory.
Generally speaking, to succeed on a products liability claim, a plaintiff must prove:
- that the defendant (the party being sued) designed, manufactured, or distributed or sold a defective product;
- that the product contained the defect when it left the defendant’s possession;
- that the plaintiff used the product in a reasonably foreseeable manner; and
- the plaintiff suffered harm as a result of the defect.1
2. What is strict liability and why does it matter in Colorado personal injury cases?
Most personal injury cases use a negligence standard when it comes to proving liability on the part of the defendant.2
With products liability lawsuits, a strict liability rather than a negligence standard is imposed. Strict liability means:
- an injured party does not have to prove
- a designer, manufacturer, or distributor of a defective product
- acted with intent or negligence.3
Strict liability can be applied to:
- food poisoning lawsuits;
- hernia mesh lawsuits;
- car defect lawsuits; or
- any other defective product that causes harm.
3. What does it mean for a Plaintiff to use a product in a “reasonably foreseeable way?”
Colorado law requires manufacturers to determine how the average consumer will use, and also misuse, its product.
If the person:
- uses or even misuses a product in a way that is foreseeable, and
- that use or misuse hurts someone,
- the defendant will be held strictly liable.
Manufacturers are not expected to anticipate every single possibility, as some people use products in very strange and unexpected ways. It is up to the Colorado jury to determine if the use by the plaintiff was reasonable and foreseeable.
4. What is a “design defect” lawsuit in Colorado?
A “design defect” occurs when the creator of the product designed a product:
- that is unreasonably dangerous; or
- if it does not perform as safely as reasonably expected;
- when a consumer uses it in its intended manner.
Two tests are used to determine whether a design is defective:
- the consumer expectation test; and
- the risk-benefit or danger utility test.
4.1 What is the consumer expectation test?
The consumer-expectation test:
- allows the court to instruct the jury
- that a product is defective in design
- if the plaintiff proves that the product failed to perform as safely as an ordinary consumer would expect
- when used in an intended or reasonably foreseeable manner.4
However, very complex products which are beyond a normal consumer’s comprehension, may not be subject to this test.
4.2 What is the risk benefit or danger utility test?
Under this test:
- the manufacturer or designer
- must prove that the product’s benefits
- outweigh its inherent risks.
This is the preferred method of determining a design defect in Colorado, although both tests can still legally be used.
5. What is a “manufacturing defect” lawsuit?
A manufacturing defect lawsuit can occur even when the product is designed in such a way to be safe, but its manufacture leads to defects that cause harm.
This can occur when:
- a tire is manufactured with a weakness and blows out, leading to an accident;
- a blender is built incorrectly, and overheats, causing a fire; or
- a car part is installed incorrectly, causing the airbag to deploy unexpectedly and for no reason.
These are just a few examples of the possibilities, and is by no means an exhaustive list.
6. What is a “failure to warn” lawsuit in Colorado?
A “failure to warn” lawsuit is also commonly called a “marketing defects” lawsuit.
It means that the product was:
- properly designed and properly manufactured;
- but was not accompanied by correct instructions or necessary warnings;
- to ensure consumer safety.6
The manufacturer of a product may have a duty to warn the consumer of the inherent risks of using the product.
6.1 Is the manufacturer responsible if the consumer failed to read the warnings?
If the manufacturer placed the proper warnings on the product, but the consumer simply did not read them, the manufacturer will not be responsible under a products liability “failure to warn” theory.7
The manufacturer is allowed to assume that proper instructions and warnings will be read by the consumer who purchased the product.
7. What damages can I win if I prove a products liability lawsuit?
An injured person could recover both economic and non-economic damages if he or she was injured as the result of a defective product lawsuit.
Economic damages include:
These damages are more easily identifiable through documentary evidence and usually have a defined value.
Non-economic damages are those which are not typical “out-of-pocket” expenses. These losses are more subjective and include:
- pain and suffering;9
- emotional distress;
- emotional distress;
- loss of enjoyment of life; and
- loss of consortium.
Call us for help…
For questions about product liability lawsuits in Colorado or to confidentially discuss your case with one of our skilled Colorado personal injury attorneys, do not hesitate to contact us.
We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.
- Walker v. Ford Motor Company, 406 P.3d 845 (2017).
- Lopez v. Trujillo, 399 P.3d 750 (Ct. App. Div. 1 2016). (To prove a prima facie negligence claim, the plaintiff must prove: (1) the defendant owed a legal duty of care; (2) the defendant breached that duty; (3) the plaintiff was injured; and (4) the defendant’s breach caused that injury. citing Vigil v. Franklin, 103 P.3d 322, 325 (Colo.2004). Of these elements, duty is the threshold element.)
- Minto v. Sprague, 124 P.3d 881 (2005).
- Ortho Pharmaceutical Corp. v. Heath, 722 P.2d 410, Prod. Liab. Rep. (CCH) P 11169 (Colo. 1986), overruled in part, Armentrout v. FMC Corp., 842 P.2d 175, Prod. Liab. Rep. (CCH) P 13356 (Colo. 1992); Kokins v. Teleflex, Inc., 621 F.3d 1290, Prod. Liab. Rep. (CCH) P 18508 (10th Cir. 2010).
- Armentrout v. FMC Corp., 842 P.2d 175, Prod. Liab. Rep. (CCH) P 13356 (Colo. 1992) (overruling Ortho Pharmaceutical Corp. v. Heath, 722 P.2d 410, Prod. Liab. Rep. (CCH) P 11169 (Colo. 1986)); Kokins v. Teleflex, Inc., 621 F.3d 1290, Prod. Liab. Rep. (CCH) P 18508 (10th Cir. 2010).
- 7A COPRAC 24:16 (Strict Liability under 402A – Failure to Warn)
- Uptain v. Huntington Lab, Inc., 723 P.2d 1322, Prod. Liab. Rep. (CCH) P 11170, 58 A.L.R.4th 49 (Colo. 1986).
- 17 COPRAC 5.13 (Payment of Medical Bills).
- COPRAC 38:8 (Pain and Suffering–when compensable).