Product Liability Answer and Affirmative Defenses - Colorado

ANSWER, AFFIRMATIVE DEFENSES, AND JURY DEMAND — COLORADO PRODUCT LIABILITY

TABLE OF CONTENTS

1. Caption
2. General Response and Admissions / Denials
3. Response to Specific Allegations
4. Affirmative Defenses
5. Reservation of Rights
6. Designation of Nonparties at Fault (Notice)
7. Prayer for Relief
8. Demand for Trial by Jury
9. Signature and Service Blocks
10. Certificate of Service
11. Colorado Practice Notes
12. Sources and References

1. CAPTION

DISTRICT COURT, [COUNTY NAME] COUNTY, COLORADO

Court Address: [________________________________]

Case Number: [________________________________]

Division: [____] Courtroom: [____]

DEFENDANT [DEFENDANT NAME]'S ANSWER, AFFIRMATIVE DEFENSES, AND JURY DEMAND

Defendant [DEFENDANT NAME] ("Defendant"), by and through undersigned counsel, hereby responds to Plaintiff's Complaint as follows:

2. GENERAL RESPONSE AND ADMISSIONS / DENIALS

Except as expressly admitted herein, Defendant denies each and every allegation contained in Plaintiff's Complaint and demands strict proof thereof. Any allegation not specifically admitted is denied. Defendant further denies that Plaintiff is entitled to any of the relief sought.

3. RESPONSE TO SPECIFIC ALLEGATIONS

Paragraphs 1.1 – 1.X (Parties, Jurisdiction, and Venue): [ADMITTED / DENIED / RESPONSE].

Paragraphs 2.1 – 2.X (Background Facts): [RESPONSE — admit only what is documented; deny all characterizations of the Product as defective].

Paragraphs 3.1 – 3.X (Count I — Manufacturing Defect): Defendant denies all allegations of defect, breach, causation, and damages. To the extent Paragraph 3.1 incorporates prior allegations, Defendant incorporates its responses thereto.

Paragraphs 4.1 – 4.X (Count II — Design Defect): Denied. Defendant specifically denies that the Product was defectively designed under the risk-utility test articulated in Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240 (Colo. 1987), and avers that the Product conformed to the state of the art at the time of sale.

Paragraphs 5.1 – 5.X (Count III — Failure to Warn): Denied. Defendant avers that all warnings and instructions accompanying the Product were adequate, conspicuous, and consistent with applicable standards and regulations.

Paragraphs 6.1 – 6.X (Count IV — Negligence): Denied. Defendant exercised reasonable care in all aspects of the design, manufacture, testing, marketing, and distribution of the Product.

Paragraphs 7.1 – 7.X (Count V — Breach of Implied Warranty): Denied.

Paragraphs 8.1 – 8.X (Damages): Denied as to the existence, nature, extent, and causation of any damages alleged.

Prayer for Relief: Denied. Plaintiff is not entitled to any relief.

4. AFFIRMATIVE DEFENSES

For its affirmative defenses, and without assuming any burden Defendant does not otherwise bear, Defendant alleges:

FIRST DEFENSE — Failure to State a Claim

The Complaint, in whole or in part, fails to state a claim upon which relief can be granted under Colo. R. Civ. P. 12(b)(5).

SECOND DEFENSE — Statute of Limitations (C.R.S. § 13-80-106)

Plaintiff's claims are barred, in whole or in part, by the two-year statute of limitations of C.R.S. § 13-80-106 because the action was not commenced within two years after the claim accrued.

THIRD DEFENSE — Statute of Repose (C.R.S. § 13-80-107)

To the extent the Product constitutes "new manufacturing equipment" within the meaning of C.R.S. § 13-80-107, Plaintiff's claims are barred because the action was not commenced within seven (7) years after the equipment was first used for its intended purpose by a person not engaged in the business of manufacturing, selling, or leasing it.

FOURTH DEFENSE — Ten-Year Presumption Against Defect (C.R.S. § 13-21-403(3))

Defendant is entitled to the rebuttable presumption under C.R.S. § 13-21-403(3) that the Product was not defective and that Defendant was not negligent because more than ten (10) years passed between the first sale of the Product for use or consumption and the alleged Incident.

FIFTH DEFENSE — State-of-the-Art Presumption (C.R.S. § 13-21-403(1))

Defendant is entitled to the rebuttable presumption under C.R.S. § 13-21-403(1) that the Product was not defective and that Defendant was not negligent because the Product conformed to the state of the art, as distinguished from industry standards, applicable to the Product at the time of manufacture and sale.

SIXTH DEFENSE — Government Compliance Presumption (C.R.S. § 13-21-403(2))

Defendant is entitled to the rebuttable presumption under C.R.S. § 13-21-403(2) that the Product was not defective and that Defendant was not negligent because the Product complied with all applicable codes, standards, and regulations adopted or promulgated by the United States, the State of Colorado, or any agency thereof, in effect at the time of sale, including without limitation [CITE STANDARD — e.g., FMVSS 208, ANSI Z535, 16 C.F.R. Part 1500, FDA 510(k) clearance, UL 94, OSHA 1910.212].

SEVENTH DEFENSE — Innocent Seller / Nonmanufacturing Seller (C.R.S. § 13-21-402)

To the extent Defendant is a nonmanufacturing seller within the meaning of C.R.S. § 13-21-402(1), Plaintiff's "product liability action" is barred because no exception under § 13-21-402(2) applies. The actual manufacturer is identified, is subject to the personal jurisdiction of this Court, and is solvent and able to satisfy any judgment.

EIGHTH DEFENSE — Comparative Fault (C.R.S. § 13-21-406)

Plaintiff's recovery, if any, is reduced or barred by the comparative fault of Plaintiff and others under C.R.S. § 13-21-406. Plaintiff's "fault," including without limitation negligence, assumption of risk, misuse, alteration, and failure to follow warnings or instructions, was a substantial cause of Plaintiff's alleged injuries.

NINTH DEFENSE — Modified Comparative Negligence (C.R.S. § 13-21-111)

As to Plaintiff's negligence claim, recovery is barred under C.R.S. § 13-21-111 to the extent Plaintiff's negligence was as great as the combined negligence of all defendants (the 50% bar), and is reduced in proportion to Plaintiff's negligence in any event.

TENTH DEFENSE — Product Misuse (C.R.S. § 13-21-402.5)

Plaintiff's claims are barred or reduced because Plaintiff or another person misused the Product in a manner that was neither intended nor reasonably foreseeable, and such misuse was a cause of the alleged injuries. See C.R.S. § 13-21-402.5.

ELEVENTH DEFENSE — Post-Sale Alteration or Modification (C.R.S. § 13-21-405)

Plaintiff's claims are barred or reduced because the Product was substantially altered, modified, or maintained improperly after it left Defendant's control, and such alteration was a substantial cause of the alleged injuries. See C.R.S. § 13-21-405.

TWELFTH DEFENSE — Assumption of Risk

Plaintiff's claims are barred or reduced because Plaintiff voluntarily and knowingly assumed the risk of the conduct and conditions that allegedly caused the alleged injuries.

THIRTEENTH DEFENSE — Lack of Causation

Plaintiff's alleged injuries were not caused, in fact or proximately, by any act, omission, defect, or breach attributable to Defendant. The alleged injuries were caused, in whole or in part, by intervening or superseding causes for which Defendant is not responsible.

FOURTEENTH DEFENSE — Open and Obvious Danger / Sophisticated User

Any risk associated with the Product was open and obvious, or known to Plaintiff as a sophisticated or trained user, such that no further warning was legally required.

FIFTEENTH DEFENSE — Learned Intermediary Doctrine

To the extent the Product is a prescription drug, medical device, or other product subject to the learned-intermediary doctrine, Defendant's duty to warn ran to the prescribing or supervising professional, and not directly to Plaintiff. Adequate warnings were provided to that professional.

SIXTEENTH DEFENSE — Bulk Supplier / Component Part Doctrine

To the extent applicable, Defendant supplied a bulk material or component to a sophisticated downstream manufacturer who was responsible for design integration and end-user warnings, and Defendant's duty to warn was discharged accordingly.

SEVENTEENTH DEFENSE — Failure to Mitigate Damages

Plaintiff failed to take reasonable steps to mitigate the alleged damages, and any recovery must be reduced accordingly.

EIGHTEENTH DEFENSE — Collateral Source / Pre-Existing Conditions

Any damages recoverable by Plaintiff must be reduced by amounts received from collateral sources to the extent permitted by C.R.S. § 13-21-111.6 and by the extent the alleged injuries are attributable to pre-existing conditions or unrelated subsequent events.

NINETEENTH DEFENSE — Statutory Caps on Damages (C.R.S. § 13-21-102.5)

Any award of noneconomic damages is subject to the cap in C.R.S. § 13-21-102.5; any award of exemplary damages is subject to the cap and procedural prerequisites of C.R.S. § 13-21-102; and pre-judgment interest is governed by C.R.S. § 13-21-101.

TWENTIETH DEFENSE — Several Liability and Designation of Nonparties (C.R.S. § 13-21-111.5)

Liability is several, not joint, under C.R.S. § 13-21-111.5. Defendant reserves the right to designate nonparties at fault within ninety (90) days after the case is at issue, and any judgment must be apportioned accordingly.

TWENTY-FIRST DEFENSE — Federal Preemption

Plaintiff's claims are barred or limited, in whole or in part, by federal preemption, including under [STATUTE — e.g., the Federal Food, Drug, and Cosmetic Act; the Medical Device Amendments; the Federal Hazardous Substances Act; the Consumer Product Safety Act; the Federal Boat Safety Act; the National Traffic and Motor Vehicle Safety Act].

TWENTY-SECOND DEFENSE — Lack of Personal Jurisdiction / Improper Service / Improper Venue

To the extent applicable, Defendant preserves objections under Colo. R. Civ. P. 12(b)(1)–(4) regarding personal jurisdiction, sufficiency of process, sufficiency of service of process, and venue.

TWENTY-THIRD DEFENSE — No Defect at Time of Sale

The Product was not in a defective condition unreasonably dangerous to the user when it left Defendant's control, and any condition complained of arose after the Product left Defendant's control.

TWENTY-FOURTH DEFENSE — No Damages / Speculative Damages

Plaintiff has not suffered the damages alleged, or the damages are speculative, remote, or otherwise not legally cognizable.

TWENTY-FIFTH DEFENSE — Reservation of Additional Defenses

Defendant reserves the right to assert additional affirmative defenses, including those revealed through discovery, pursuant to Colo. R. Civ. P. 15.

5. RESERVATION OF RIGHTS

Defendant reserves all rights to amend this Answer, file counterclaims and cross-claims, designate nonparties at fault, and assert further defenses as discovery may reveal, in accordance with Colo. R. Civ. P. 13 and 15.

6. DESIGNATION OF NONPARTIES AT FAULT (NOTICE)

Defendant gives notice of its intent to designate nonparties at fault pursuant to C.R.S. § 13-21-111.5(3)(b). A separate Designation will be filed within ninety (90) days after the case is at issue, identifying each nonparty by name and last-known address (if known) and stating the basis for believing the nonparty to be at fault. Anticipated designations include, without limitation:

• [NONPARTY 1 — e.g., upstream component supplier, downstream installer, modifier, employer, third-party tortfeasor];
• [NONPARTY 2];
• [NONPARTY 3].

7. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court enter judgment as follows:

• A. Dismissing the Complaint with prejudice;
• B. Awarding Defendant its costs, including expert-witness fees and other recoverable costs under C.R.S. § 13-16-122 and Colo. R. Civ. P. 54(d);
• C. Awarding reasonable attorney's fees as permitted by C.R.S. § 13-17-101 et seq. (frivolous claims) or any other applicable statute or contract;
• D. Apportioning fault among Plaintiff, Defendant, and designated nonparties pursuant to C.R.S. §§ 13-21-111, 13-21-111.5, and 13-21-406; and
• E. Granting such other and further relief as the Court deems just and proper.

8. DEMAND FOR TRIAL BY JURY

Defendant hereby demands a trial by jury on all issues so triable as a matter of right pursuant to Colo. R. Civ. P. 38 and C.R.S. § 13-71-104, to the extent not already demanded by Plaintiff.

☐ Six-person jury (default)

☐ Twelve-person jury requested (advise opposing counsel and tender additional fee)

9. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

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

Counsel for Defendant [DEFENDANT NAME]

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [________________________________]

Email: [________________________________]

10. CERTIFICATE OF SERVICE

I hereby certify that on this [____] day of [_______________], 20[____], I served (or caused to be served) the foregoing ANSWER, AFFIRMATIVE DEFENSES, AND JURY DEMAND on all counsel of record via the Colorado Courts E-Filing system, addressed as follows:

[SERVICE LIST WITH NAMES, FIRMS, AND EMAIL ADDRESSES]

[________________________________]

[ATTORNEY NAME]

11. COLORADO PRACTICE NOTES

• Time to answer. 21 days after service (Colo. R. Civ. P. 12(a)); 35 days for waiver-of-service signatories; 14 days after denial of a Rule 12 motion. The court rarely extends without stipulation.
• Affirmative defenses. Plead all conceivable defenses or risk waiver under Colo. R. Civ. P. 8(c). Anticipate scrutiny under recent appellate decisions requiring "fair notice" pleading of affirmative defenses; provide at least a one-line factual basis for each.
• Innocent seller motion. For nonmanufacturing seller clients, file a motion to dismiss or for summary judgment under C.R.S. § 13-21-402 once the manufacturer is in the case and amenable to suit. Negligence and breach-of-warranty counts may survive even if strict liability is dismissed.
• Statutory presumptions. Identify the strongest of the C.R.S. § 13-21-403 presumptions early. Develop expert support for state-of-the-art and government-compliance presumptions during disclosure. The 10-year presumption is a date-of-first-sale calculation — confirm by serial-number records.
• 7-year repose. Limited to "new manufacturing equipment" under § 13-80-107. Do not over-rely on this defense for consumer products.
• Designation of nonparties. Strict 90-day deadline from the date the case is at issue (§ 13-21-111.5(3)(b)). Identify by name and last-known address; conclusory designations are stricken. Prior to designation, gather facts showing the nonparty's causal connection to the injury.
• Comparative fault. Negligence count: § 13-21-111 (50% bar). Strict-liability and warranty counts: § 13-21-406 (pure comparative reduction; no bar). Different jury instructions and verdict forms apply to each — coordinate at the trial-management conference.
• Misuse. § 13-21-402.5 codifies misuse as an affirmative defense. The Colorado Supreme Court has emphasized that unforeseeable misuse is a complete defense, while foreseeable misuse goes to comparative fault.
• Subsequent remedial measures. § 13-21-404 limits but does not entirely bar admission. Object early at trial; consider motion in limine.
• Federal preemption. Particularly relevant for FDA-regulated medical devices (Riegel v. Medtronic), pesticides (FIFRA), motor vehicles (FMVSS, with Geier savings clause), and heavily regulated consumer products. Plead specifically.
• Punitive damages. Plaintiff cannot include in the original complaint; oppose any motion to amend that lacks prima facie evidence of "fraud, malice, or willful and wanton conduct" (§ 13-21-102(1.5)(a)).
• Damages caps. Verify the current § 13-21-102.5 noneconomic cap by date of injury and the current § 13-21-102 punitive cap. These figures are inflation-adjusted by statute.
• E-filing. All represented parties file via Colorado Courts E-Filing per C.R.C.P. 121 § 1-26.

12. SOURCES AND REFERENCES

• C.R.S. Title 13, Article 21, Part 4 (Product Liability) — https://leg.colorado.gov/colorado-revised-statutes
• C.R.S. § 13-21-401 (Definitions) — https://colorado.public.law/statutes/crs_13-21-401
• C.R.S. § 13-21-402 (Innocent seller) — https://colorado.public.law/statutes/crs_13-21-402
• C.R.S. § 13-21-402.5 (Misuse) — https://codes.findlaw.com/co/title-13-courts-and-court-procedure/
• C.R.S. § 13-21-403 (Presumptions) — https://colorado.public.law/statutes/crs_13-21-403
• C.R.S. § 13-21-404 (Subsequent remedial measures) — https://colorado.public.law/statutes/crs_13-21-404
• C.R.S. § 13-21-405 (Strict liability — alteration / alcohol-drugs) — https://colorado.public.law/statutes/crs_13-21-405
• C.R.S. § 13-21-406 (Comparative fault — products) — https://codes.findlaw.com/co/title-13-courts-and-court-procedure/co-rev-st-sect-13-21-406.html
• C.R.S. § 13-21-111 (Modified comparative negligence) — https://law.justia.com/codes/colorado/title-13/damages-and-limitations-on-actions/article-21/part-1/section-13-21-111/
• C.R.S. § 13-21-111.5 (Several liability; designation of nonparties) — https://leg.colorado.gov/colorado-revised-statutes
• C.R.S. § 13-80-106 (Two-year SOL — products) — https://colorado.public.law/statutes/crs_13-80-106
• C.R.S. § 13-80-107 (7-year repose — manufacturing equipment) — https://colorado.public.law/statutes/crs_13-80-107
• Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240 (Colo. 1987) — https://law.justia.com/cases/colorado/supreme-court/1987/85sc112-0.html
• Colorado Civil Jury Instructions, Chapter 14 (Product Liability) — https://www.coloradojudicial.gov/sites/default/files/2024-06/Chapter%2014_2.pdf
• Colorado Rules of Civil Procedure — https://www.coloradojudicial.gov/

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. Statutes, cases, court rules, and damages caps change frequently; verify all authorities and dollar caps before use.