To support the construction of the "innocent seller" statute in Colorado regarding causation, specifically that the causation element of a plaintiff’s claim is a failure to execute recall services with reasonable care, and is not founded on the defect in a product, the reasoning and findings of the Blossman court are helpful:
we find that the record contains evidence authorizing a finding that [plaintiffs’] injuries were a foreseeable consequence of appellant's failure to complete its voluntarily assumed duties with regard to the ... recall program. The jury could have found that appellant offered to distribute the recall information, and then could have concluded either that appellant received the shipment of recall notices ... but never mailed them to its customers, or that appellant did not receive the requested notices, but having assumed the duty to notify its customers a reasonably prudent dealer would have contacted [the manufacturer] when the notices failed to appear.
Additionally, the jury was authorized to infer that had the notices been mailed to [defendant’s] customers, "this would have produced a chain of events resulting in [replacement of the defective thermostat] at the time [the water heater] was sold...."
The evidence further authorized the jury to find that the explicit language in the recall notices regarding the risk of explosion from leaking gas would have led a gas dealer of ordinary prudence to foresee that users of appliances equipped with the defective Emerson thermostat could be injured in explosions if they were not notified of the danger, and that [defendant’s] negligence in executing its obligation to so notify its customers, . . . was a direct and proximate cause of [plaintiffs’] injuries.
Blossman, 375 S.E.2d at 120-21 (defendant’s “negligent failure to complete its voluntarily assumed duty to distribute the recall notices was the proximate cause of [plaintiffs’] injuries”).
Further, although research indicates that no Colorado appellate court has expressly adopted Restatement (Third) of Torts: Products Liability § 11 (1998), the principles articulated therein are instructive and authoritative:
One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to recall a product after the time of sale or distribution if:
(a)(1) a governmental directive issued pursuant to a statute or administrative regulation specifically requires the seller or distributor to recall the product; or
(a)(2) the seller or distributor, in the absence of a recall requirement under Subsection (a)(1), undertakes to recall the product; and
(b) the seller or distributor fails to act as a reasonable person in recalling the product.
This shows that the evolution of law recognizes that culpable conduct can be the failure to recall with reasonable care, completely apart from any liability for the defective product itself. Consider requesting a jury instruction reflecting the foregoing principles.
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