Alaska

Colorado

 

 

 

Statutes of Limitations (COLORADO)

Personal Injury (arising out of use of motor vehicle) - 3 yrs.* [C.R.S.A. § 13-80-101]

Personal Injury (not arising out of use of motor vehicle) - 2 yrs.* [C.R.S.A. § 13-80-102]

Wrongful Death - 2 yrs. (from date of death) [C.R.S.A. § 13-80-102]

Property Damage (arising out of use of motor vehicle) - 3 yrs.* [C.R.S.A. § 13-80-101]

Property Damage (not arising out of use of motor vehicle) - 2 yrs.* [C.R.S.A. § 13-80-102]

Product Liability - 2 yrs.* [C.R.S.A. § 13-80-106] (except Breach of Warranty - 3 yrs.)

Contracts (Written and Oral) - 3 yrs. [C.R.S.A. § 13-80-101]

Contracts for Sale (goods) and Breach of Warranty - 3 yrs. (from tender of delivery) [C.R.S.A. § 4-2-725]

 

Caution: All actions accruing outside Colorado (if the limitation of the place where the action accrued is greater than that of Colorado) - 3 yrs. [C.R.S.A. § 13-80-101].

*”Discovery rule” applies (cause of action accrues on the date both the injury and its cause are known/discovered or should have been known/discovered by the exercise of reasonable diligence) [C.R.S.A. § 13-80-108].

Statute of Repose (Products) (COLORADO)

Manufacturing equipment only - 7 yrs.  "Manufacturing equipment" means equipment used in the operation or process of producing a new product, article, substance, or commodity for the purposes of commercial sale and different from and having a distinctive name, character, or use from the raw or prepared materials used in the operation or process [C.R.S.A. § 13-80-107].  Also, Rebuttable Presumption that a product was not defective 10 yrs. after the product was first sold [C.R.S.A. § 13-21-403].

 

.R.S. 13-80-107

Admissibility of Expert Testimony (COLORADO)

In determining admissibility of expert testimony, a trial court employs an analysis, which requires that: (1) the scientific principles underlying the testimony are reasonably reliable; (2) the expert is qualified to opine on such matters; (3) the expert testimony will be helpful to the jury; and (4) the evidence satisfies Colo. R. Evid. 403.  This inquiry is broad in nature and considers the totality of the circumstances of each specific case. Thus, the trial court may, but is not required to, consider a wide range of factors pertinent to the case at bar, including Daubert factors [People v. Rector, 248 P.3d 1196 (Colo. 2011)]. 

Causes of Action (COLORADO)

Product liability actions are covered by the Product Liability Act of 1977 (“Act”).

Under the Act, “Product liability action” means any action brought against a manufacturer or seller of a product, regardless of the substantive legal theory, on account of personal injury, death, or property damage caused by the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product [C.R.S.A. § 13-21-401].

The Act recognizes that product liability actions may take many forms premised on any one or more of numerous legal theories, including: (1) the negligent design, manufacture, or labeling of a product; (2) strict liability in tort for a defective product unreasonably dangerous to users by reason of a failure to provide directions or warnings as to its use; and (3) strict liability of a seller for misrepresenting a material fact concerning the character or quality of a chattel sold by the seller [Persichini v. Brad Ragan, Inc., 735 P.2d 168 (Colo. 1987)].

Breach of Warranty – Colorado has adopted the standard UCC express warranty [C.R.S.A. § 4-2-313]; implied warranty of merchantability [C.R.S.A. § 4-2-314]; implied warranty of of fitness for particular purpose [C.R.S.A. § 4-2-315].  A seller’s warranty (express or implied) extends to any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured by breach of the warranty [C.R.S.A. § 4-2-318].

Definition of “Defect” (COLORADO)

The defective product must be shown to be “unreasonably dangerous" [Potthoff v. Alms, 583 P.2d 309 (Colo. App. 1978)].

Liability of Sellers (COLORADO)

The definition of “Seller” includes wholesalers, distributors, and retailers, who are engaged in the business of selling or leasing any product for resale, use, or consumption [C.R.S.A. § 13-21-401].

Sellers are not liable [C.R.S.A. § 13-21-402].  However, if jurisdiction cannot be obtained over a particular manufacturer then that manufacturer’s principal distributor or seller over whom jurisdiction can be obtained shall be deemed, for the purposes of this section, the manufacturer of the product [C.R.S.A. § 13-21-402].

Defenses (COLORADO)      

Comparative Negligence – Colorado follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 50% at fault) [C.R.S.A. § 13-21-111].  Applies to any product liability action [C.R.S.A. § 13-21-406], including breach of warranty [Loughridge v. Goodyear Tire and Rubber Co., 207 F. Supp. 2d 1187 (D. Colo. 2002)].

Assumption of Risk – Affirmative defense to strict liability (defined as voluntarily and unreasonably proceeding to encounter a known danger [Union Supply Co. v. Pust, 583 P.2d 276, (Colo. 1978)].

Product Misuse – Complete defense (if the product was used in a manner or for a purpose other than that which was intended and which could not reasonably have been expected, and such misuse of the product was a cause of the injury) [C.R.S.A. § 13-21-402.5].

Product Alteration/Modification – If an alteration/modification is made to a product, Plaintiff will be unable to
prove that the product “reached the user without substantial change in the condition in which it was sold [Colo. Jury Instructions, 14:1]. 

Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (COLORADO)

As a general rule, ELD prevents recovery for negligence when the duty breached is a contractual duty and the harm incurred is the result of failure of the purpose of the contract [Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256 (Colo. 2000)].

In situations involving the existence of a duty independent of any contractual obligations, ELD has no application and does not bar Plaintiff’s tort claim because the claim is based on a recognized independent duty of care and thus does not fall within the scope of the rule.  [Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256 (Colo. 2000)].  Therefore, ELD may not apply in strict liability product cases because strict products liability imposes a duty on the manufacturer, outside any contractual duty, to act reasonably in the design/manufacture of the product [Loughridge v. Goodyear Tire and RubberCo., 192 F.Supp.2d 1175 (D. Colo. 2002)].

Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (COLORADO)

Inference may be used to show that the product was defective where direct proof of defect was impossible because the product was destroyed [Union Ins. Co. v. RCA Corp., 724 P.2d 80 (Colo. App. 1986)].

Design Defects (COLORADO)

The Act’s definition of “Product liability action” includes “design” [C.R.S.A. § 13-21-401]. 

 

The following factors are of value in balancing the attendant risks and benefits of a product to determine whether a product design is unreasonably dangerous: (1) the usefulness and desirability of the product; (2) the likelihood that it will cause injury and the probable seriousness of the injury; (3) the availability of a substitute product which would meet the same need and not be as unsafe; (4) the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; (5) the user’s ability to avoid danger by the exercise of care in the use of the product; (6) the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; (7) the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance [Camacho v. Honda Motor Co., 741 P.2d 1240 (Colo. 1987)].

It is rebuttably presumed that the product was not defective if the product: (1) conformed to the state of the art (as distinguished from industry standards) applicable to such product in existence at the time of sale; or (2) complied with any applicable government codes, standards, or regulations [C.R.S.A. § 13-21-403].  Noncompliance with a government code, standard, or regulation creates a rebuttable presumption that the product was defective or negligently manufactured.  [C.R.S.A. § 13-21-403].

Failure to Warn (COLORADO)

The Act’s definition of “Product liability action” includes “labeling,” “failure to warn or protect against a danger or hazard,” and “failure to provide proper instructions” [C.R.S.A. § 13-21-401]

The Act recognizes that a product liability action may be based on strict liability for a defective product unreasonably dangerous to users by reason of a failure to provide directions or warnings as to its use [Persichini v. Brad Ragan, Inc., 735 P.2d 168, (Colo. 1987)].

It is rebuttably presumed that the product was not defective if the product: (1) conformed to the state of the art (as distinguished from industry standards) applicable to such product in existence at the time of sale; or (2) complied with any applicable government codes, standards, or regulations [C.R.S.A. § 13-21-403].  Noncompliance with a government code, standard, or regulation creates a rebuttable presumption that the product was defective or negligently manufactured.  [C.R.S.A. § 13-21-403].

General “heeding presumption” has not been adopted. According to one court: “at least as to an obviously dangerous machine, whether the user of a product would have acted in the same manner had a proper warning been given is normally a question of fact on which a jury, unaided by presumptions and guided only by the evidence before it, is best qualified to speak” [Potthoff v. Alms, 583 P.2d 309 (Colo. App. 1978)].

Independent Cause of Action for Evidence Spoliation (COLORADO)

Not addressed/recognized.