holding that where there is a failure to comply with a duty to warn, the effect is that the product may be considered defective
How later courts described this case
- holding that where there is a failure to comply with a duty to warn, the effect is that the product may be considered defective
- business losses not recoverable under strict liability
- limiting application of strict liability to physical harm caused to person or property
- adopting the doctrine of strict liability in tort as set forth in section 402A
Written by the judges who cited it.
Distinguished
Distinguished by In re Myford Touch Consumer Litig., 291 F. Supp. 3d 936 (2018)
Plaintiffs cite two cases to argue that Hiigel is good law, but they are distinguishable because they both involved a product defect which also caused damage to other property, and therefore could have proceeded even if the economic loss rule applied.
The opinion
MR. JUSTICE LEE
dissenting.
On petition for rehearing, I now respectfully dissent.
While I agree with the adoption by this court of the doctrine of strict liability, set forth in Restatement (Second) of Torts, 402A, and with the concept that a product may be defective and unreasonably dangerous to the user where there is a failure to adequately warn as to its proper maintenance and use, I disagree with the court’s extension of the doctrine of strict liability to allow recovery for damages resulting to the property *67 which is the subject of sale and proves to be defective and unreasonably dangerous. I consider this to be an unnecessary enlargement of the strict liability doctrine in duplication of available appropriate remedies.
In my view, Santor v. Karagheusian, 44 N.J. 52 , 207 A.2d 305 , 16 A.L.R.3d 670 , which was essentially a breach of warranty case, sets forth no compelling reason to extend the application of strict liability to the property which is the subject of the sale. The following cases, which I consider more persuasive, take the opposite view: Seely v. White Motor Co., 63 Cal. 2d 9 , 403 P.2d 145 , 45 Cal. Rptr. 17 ; Brewer v. Reliable Automotive Co., 240 Cal. App. 2d 173 , 49 Cal. Rptr. 498 ; TWA v. Curtiss-Wright Corp., 1 Misc. 2d 477 , 148 N.Y.S.2d 284 , aff'd 2 App. Div. 2d 666, 153 N.Y.S.2d 546 See also R. Hursh & H. Bailey, American Law of Products Liability (2d ed. 1974) § 4:21; 63 Am. Jur. 2d Products Liability § 140.
While the strict liability theory may legitimately be used to allow recovery for injuries to persons and property (other than property covered by warranty), I feel that to apply the rationale of section 402A to the product itself would unduly confuse an already uncertain area of the law involving tort and contract theories of recovery.
Remedies in the instant situation are better left to the UCC warranty provisions, specifically section 4-2-318, C.R.S. 1973, which extends warranties to “any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured by breach of the warranty.” The privity obstacle that was formerly a problem in warranty cases appears to be effectively eliminated by this provision, and should not in and of itself prevent recovery in this case on remand for a new trial.
I would, therefore, affirm the ruling of the district court, denying recovery on the theory of strict liability, and would reverse and remand for a new trial on the warranty issues.
I am.authorized to say that MR. JUSTICE KELLEY and MR. JUSTICE ERICKSON join in this dissent.