Defendants will likey assert, erroneously, that as a matter of law, a seller cannot be subject to a product liability action unless it can be deemed a “manufacturer” under the Act. Let's take a closer look at the Act, with an emphasis on the clauses actually relevant to the claim of a culpable service provider:
“Product liability action” means any action brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from 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. § 13-21-401(2). Thus, the Act comprehends those product liability actions, and only those product liability actions, wherein the claim is predicated on damage, whether personal injury or death, caused by, or resulting from, a product. See Carter v. Brighton Ford, Inc., 2010 WL 4361379 (Colo. App. 2010)(“product liability actions are those tort actions which seek damages for injuries and collateral damage caused by defective products”) (underscoring added).
The clauses in the Act which delimit the scope of the Act cannot be ignored. Petron Dev. Co. v. Washington County Bd. of Equalization, 91 P.3d 408, 410 (Colo. App. 2003) (“when interpreting a constitutional, statutory, or regulatory provision, we look to the ordinary and common meaning of its language, giving effect to every word and term whenever possible”). When the words and terms on causation in the Act are given effect, the correct conclusion is that not every action, whether denominated as a products liability action or otherwise, is precluded by the Act.
Thus, when the causal allegation or element on the claims against a supposed innocent seller are not based on any allegation of a defective product as the cause of plaintiff’s damages, but on the failure, for example, to execute, effect, or implement a recall of a defective product in a reasonable manner or with ordinary care, as the cause, then the Act should not apply.
The firm is committed to ensuring that trial judges are apprised of this correct application of the law.