Defendants who are "sellers" of defective products, that is, who sell products with design defects, manufacturing defects, or which fail to provide adequate warnings or instructions on use to minimize the risk of injury or property damage, will typically invoke the Colorado statute, 13-21-401 et seq.
The statute provides that an action cannot be maintained against a "seller" of an allegedly defective product unless:
(1) the seller also manufactured the product,
(2) the manufacturer of the product is not subject to the Court’s jurisdiction, or
(3) the seller had actual knowledge of the defect at the time of sale.
Apart from those three exceptions, however, an action against a defendant may not be on account of the defendant's status as a "seller." Yet, defendants who are also "sellers" will argue that they can only be sued as a "seller" if in fact they sold the defective product which allegedly caused personal injury or damage. With that strategy, defendants will then loudly proclaim themselves as "innocent sellers" in order to invoke the immunity to liability provided by the statute.
Not so fast. Nothing in the statute precludes a suit against a defendant, otherwise also the "seller" of the defective product in question, who is allegedly negligent in some other capacity, for example, on account of their status as a service provider with regard to the defective product in question.
Let's say the innocent seller is also an allegedly culpable "recaller," that is, the seller is a link in the chain of a product recall initiated by the manufacturer or ordered by a regulatory entity (for example, the National Highway Traffic Safety Administration), because of a defect in the product. What then?
Come back soon for the answer.
