Failure-to-Warn Product Liability Complaint - Colorado

COMPLAINT FOR STRICT PRODUCTS LIABILITY AND NEGLIGENCE — FAILURE TO WARN (COLORADO)

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Parties
4. Jurisdiction and Venue
5. Factual Allegations
6. Count I — Strict Liability: Failure to Warn (§ 402A)
7. Count II — Negligent Failure to Warn
8. Count III — Breach of Implied Warranty of Merchantability
9. Damages
10. Prayer for Relief
11. Demand for Jury Trial
12. Signature Block
13. Certificate of Service
14. Colorado Practice Notes
15. Sources and References

1. CAPTION

DISTRICT COURT, [________________________________] COUNTY, COLORADO

Court Address: [________________________________]

Case Number: [________________________________]

Division: [____] Courtroom: [____]

COMPLAINT AND JURY DEMAND

2. INTRODUCTION

2.1. This is a product liability action under C.R.S. § 13-21-401 et seq. Plaintiff [PLAINTIFF NAME] ("Plaintiff") seeks damages for personal injuries proximately caused by Defendants' failure to provide adequate warnings and instructions regarding the foreseeable dangers of the [PRODUCT TYPE] (the "Product") that Defendants designed, manufactured, distributed, and sold. Plaintiff alleges on personal knowledge as to matters pertaining to Plaintiff, and on information and belief as to all other matters, as follows.

3. PARTIES

3.1. Plaintiff [PLAINTIFF NAME] is, and at all relevant times was, an individual residing in [COUNTY] County, Colorado.

3.2. Defendant [MANUFACTURER NAME] ("Manufacturer") is, and at all relevant times was, a corporation organized under the laws of [STATE] with its principal place of business in [CITY, STATE], and is a "manufacturer" within the meaning of C.R.S. § 13-21-401(1), engaged in the business of designing, manufacturing, testing, labeling, marketing, and selling the Product.

3.3. Defendant [DISTRIBUTOR/SELLER NAME] ("Seller") is, and at all relevant times was, a [entity] with its principal place of business in [CITY, STATE], and is a "seller" within the meaning of C.R.S. § 13-21-401(3), engaged in the business of distributing and/or selling the Product in Colorado.

3.4. Plaintiff is informed and believes that Defendant Seller had actual knowledge of the defect described herein and/or exercised significant control over the labeling, warnings, or instructions accompanying the Product, such that Seller is treated as a manufacturer under C.R.S. § 13-21-401(1) and is not entitled to the innocent-seller protections of C.R.S. § 13-21-402.

3.5. The true names and capacities of Defendants sued as John Doe Manufacturers 1 through 10 are presently unknown to Plaintiff, who will amend this Complaint to allege their true names and capacities when ascertained.

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction pursuant to Article VI, § 9 of the Colorado Constitution.

4.2. This Court has personal jurisdiction over each Defendant because each Defendant transacts business in Colorado and/or committed tortious acts within Colorado by placing the Product into the stream of commerce with the expectation that it would be purchased and used in Colorado, consistent with C.R.S. § 13-1-124 (Colorado long-arm statute).

4.3. Venue is proper in this County under C.R.C.P. 98 because [the tort was committed / Plaintiff resides / a Defendant resides or transacts business] in this County.

5. FACTUAL ALLEGATIONS

A. The Product

5.1. The Product is a [YEAR / MAKE / MODEL / DESCRIPTION], identified by serial/lot number [________________________________], designed, manufactured, labeled, distributed, and sold by Defendants.

5.2. On or about [__/__/____], the Product was sold or supplied to [PLAINTIFF / PURCHASER] in [CITY], Colorado, for use as [INTENDED USE].

5.3. The Product reached Plaintiff without substantial change in the condition in which it was manufactured and sold.

B. The Foreseeable Risk and the Inadequate or Absent Warning

5.4. When used in its intended or reasonably foreseeable manner, the Product posed a risk of [DESCRIBE RISK / HAZARD].

5.5. Defendants knew or, in the exercise of reasonable care and in light of generally accepted scientific and technical knowledge available at the time of manufacture and sale, should have known of this risk because:

☐ Pre-market testing revealed the risk;
☐ Post-market surveillance or adverse-event reports identified the risk;
☐ Consumer or user complaints reported the risk;
☐ Scientific or technical literature documented the risk;
☐ Comparable products presented the same risk;
☐ A government agency had identified the risk;
☐ Other: [________________________________]

5.6. The risk was not open, obvious, or within the common knowledge of an ordinary user exercising reasonable care.

5.7. The warnings and instructions accompanying the Product were absent or inadequate in that:

☐ No warning was given regarding [________________________________];
☐ The warning failed to convey the nature or severity of the harm;
☐ The warning failed to explain how to avoid the risk;
☐ The warning was not conspicuous, legible, or durable;
☐ The instructions for safe use were incomplete or misleading;
☐ Other: [________________________________]

5.8. An adequate warning would have stated, in substance: [________________________________].

C. Plaintiff's Use and Injury

5.9. On or about [__/__/____], while Plaintiff was using the Product in a reasonably foreseeable manner, Plaintiff was injured when [DESCRIBE INCIDENT].

5.10. Had an adequate warning or instruction been provided, Plaintiff would have read and heeded it and would have avoided the injury.

5.11. As a direct and proximate result, Plaintiff suffered [INJURY DESCRIPTION], requiring medical treatment and causing the damages described below.

6. COUNT I — STRICT LIABILITY: FAILURE TO WARN (§ 402A)

(Against All Defendants)

6.1. Plaintiff incorporates the preceding paragraphs by reference.

6.2. Colorado has adopted the doctrine of strict products liability set forth in Restatement (Second) of Torts § 402A. A product is defective and unreasonably dangerous when it is sold without adequate warnings or instructions regarding a danger that is known or knowable in light of the scientific and technical knowledge available at the time of sale.

6.3. At all relevant times, Defendants were engaged in the business of manufacturing and/or selling the Product.

6.4. The Product was in a defective condition unreasonably dangerous to the user because it lacked adequate warnings or instructions concerning the risk described above.

6.5. The Product was expected to and did reach Plaintiff without substantial change in its condition.

6.6. The failure to provide adequate warnings was a cause of Plaintiff's injuries and damages.

7. COUNT II — NEGLIGENT FAILURE TO WARN

(Against All Defendants)

7.1. Plaintiff incorporates the preceding paragraphs by reference.

7.2. Defendants owed Plaintiff a duty to exercise reasonable care in warning of, and instructing as to, risks they knew or reasonably should have known were associated with the foreseeable use of the Product.

7.3. Defendants breached that duty by failing to test, monitor, warn, and instruct adequately, and by failing to provide post-sale warnings after learning of the risk.

7.4. Defendants' negligence was a cause of Plaintiff's injuries and damages.

8. COUNT III — BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

(Against All Defendants)

8.1. Plaintiff incorporates the preceding paragraphs by reference.

8.2. Pursuant to C.R.S. § 4-2-314 (Colorado U.C.C.), Defendants impliedly warranted that the Product was merchantable and fit for the ordinary purposes for which such goods are used.

8.3. The Product was not merchantable because, without adequate warnings or instructions, it was not fit for ordinary use and was unreasonably dangerous.

8.4. The breach was a cause of Plaintiff's injuries and damages. To the extent required, Plaintiff gave or is excused from notice of breach.

9. DAMAGES

9.1. Economic Damages. Past and future medical, hospital, and rehabilitative expenses; past and future lost earnings and impaired earning capacity; and other out-of-pocket losses, subject to C.R.S. § 13-64-302 and related provisions where applicable.

9.2. Noneconomic Damages. Past and future physical pain and suffering, mental anguish, inconvenience, emotional distress, impairment of the quality of life, and disfigurement, subject to the cap in C.R.S. § 13-21-102.5.

9.3. Physical Impairment and Disfigurement. Damages for permanent physical impairment and disfigurement, which under Colorado law are awarded separately and are not subject to the § 13-21-102.5 noneconomic cap.

9.4. Exemplary (Punitive) Damages. Pursuant to C.R.S. § 13-21-102, and subject to that statute's procedural prerequisites, Plaintiff will seek leave to amend to add a claim for exemplary damages upon a showing that Defendants' conduct was attended by circumstances of fraud, malice, or willful and wanton disregard of the safety of others.

10. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests judgment against Defendants, jointly and severally to the extent permitted by law, as follows:

• A. Economic and noneconomic damages in amounts to be proven at trial;
• B. Damages for physical impairment and disfigurement;
• C. Exemplary damages as permitted by C.R.S. § 13-21-102, upon proper amendment;
• D. Pre-judgment and post-judgment interest pursuant to C.R.S. § 13-21-101;
• E. Costs of suit and expert witness fees as allowed by law;
• F. Such other and further relief as the Court deems just and proper.

11. DEMAND FOR JURY TRIAL

Plaintiff demands a trial by jury on all issues so triable pursuant to C.R.C.P. 38. The applicable jury fee is submitted herewith.

12. SIGNATURE BLOCK

Dated: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Atty. Reg. No. [######]

Attorney for Plaintiff

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [(___) ___-____]

Email: [EMAIL]

13. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____] a true and correct copy of the foregoing COMPLAINT AND JURY DEMAND was served upon all parties via the Colorado Courts E-Filing system and/or by [method] at the addresses below:

[NAME / ADDRESS OF EACH PARTY OR COUNSEL SERVED]

[________________________________]

14. COLORADO PRACTICE NOTES

• Strict liability and negligence both available. Colorado recognizes strict products liability under Restatement (Second) of Torts § 402A alongside common-law negligence. A failure-to-warn claim may be pleaded under both theories; jury instructions track CJI-Civ. Chapter 14. The strict-liability warning standard incorporates knowability — liability attaches only for risks known or knowable at the time of sale.

• Statutory scheme. C.R.S. § 13-21-401 et seq. governs product liability actions and expressly includes "the failure to warn or protect against a danger or hazard" and "the failure to provide proper instructions." Confirm whether the Product is captured by the broad statutory definitions of "manufacturer" and "seller."

• Innocent-seller limitation. C.R.S. § 13-21-402 generally bars a product liability action against a seller that is not the manufacturer, subject to exceptions (e.g., seller had actual knowledge of the defect, exercised significant control, or the manufacturer is insolvent or beyond jurisdiction). Plead facts bringing a non-manufacturer seller within an exception, or focus the action on the manufacturer.

• Statutory presumptions — § 13-21-403. A rebuttable presumption of non-defectiveness arises where the Product complied with applicable government standards or industry custom in effect at the time of sale, and after ten years from sale a rebuttable presumption arises that the Product was not defective. Anticipate and plead facts to rebut these presumptions.

• Comparative fault and misuse. Recovery is reduced by the plaintiff's comparative fault and product misuse under C.R.S. § 13-21-406, and Colorado applies modified comparative negligence under C.R.S. § 13-21-111 — a plaintiff who is 50% or more at fault recovers nothing. Pro-rata, several liability generally applies (C.R.S. § 13-21-111.5).

• Learned intermediary. For prescription drugs and medical devices, Colorado follows the learned intermediary doctrine (O'Connell v. Biomet, Inc., 250 P.3d 1278 (Colo. App. 2010)); the duty to warn runs to the prescribing physician. Where the Product is a drug or device, plead the inadequacy of the warning to the prescriber.

• Statute of limitations. Two years against manufacturers and sellers of products under C.R.S. § 13-80-106, running from accrual (when the injury and its cause are or should have been discovered). (Motor-vehicle-related claims may carry a three-year period under § 13-80-101; verify.)

• Useful safe life / repose presumption. C.R.S. § 13-80-107 creates a rebuttable presumption that an injury occurring more than seven years (ten years for certain equipment) after first sale for use or consumption was not caused by a defect. This is a presumption, not an absolute repose bar; plead facts to rebut it for older products.

• Punitive damages cap. Exemplary damages under C.R.S. § 13-21-102 are generally capped at the amount of actual damages awarded (subject to a possible increase to three times actual damages in defined circumstances) and may not be pleaded in the initial complaint — they are added by amendment after a prima facie evidentiary showing.

15. SOURCES AND REFERENCES

• C.R.S. § 13-21-401 (definitions) — https://codes.findlaw.com/co/title-13-courts-and-court-procedure/co-rev-st-sect-13-21-401/
• C.R.S. § 13-21-402 (innocent seller); § 13-21-403 (presumptions); § 13-21-406 (comparative fault)
• C.R.S. § 13-80-106 (two-year limitation); § 13-80-107 (seven-year useful-safe-life presumption)
• C.R.S. § 13-21-102 (exemplary damages); § 13-21-102.5 (noneconomic cap); § 13-21-111 (comparative negligence)
• Camacho v. Honda Motor Co., 741 P.2d 1240 (Colo. 1987)
• Armentrout v. FMC Corp., 842 P.2d 175 (Colo. 1992)
• O'Connell v. Biomet, Inc., 250 P.3d 1278 (Colo. App. 2010) (learned intermediary)
• Colorado Jury Instructions — Civil (CJI-Civ.) Chapter 14 (Products Liability)
• Restatement (Second) of Torts § 402A

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in Colorado must review and customize this document before filing. Laws, citations, and court rules change frequently; verify all authorities before use.