American Safety Equipment Corp. v. Winkler

• Decision Date: 18 January 1982
• Docket Number: No. 79SC352,79SC352
• Citation: 640 P.2d 216
• Parties: AMERICAN SAFETY EQUIPMENT CORPORATION, a New York corporation, Petitioner, v. Donald WINKLER, Respondent.
• Court: Colorado Supreme Court

Page 216

640 P.2d 216

AMERICAN SAFETY EQUIPMENT CORPORATION, a New York corporation, Petitioner, v. Donald WINKLER, Respondent.

No. 79SC352.

Supreme Court of Colorado, En Banc.

Jan. 18, 1982.

Tilly & Graves, John W. Grund, Denver, for petitioner.

Holm & Dill, Kim H. Peterson, Denver, for respondent.

ERICKSON, Justice.

We granted certiorari to review the decision of the court of appeals in Winkler v. American Safety Equipment Corporation, 43 Colo.App. 241, 604 P.2d 693 (1979). In Winkler, the court of appeals expressly adopted the doctrine of strict liability for misrepresentation of a product under section 402B of the Restatement (Second) of Torts, and concluded that the trial court had erred in refusing to instruct the jury on a claim for relief under section 402B. The court of appeals ordered a new trial. For the reasons set forth in this opinion, we reverse and remand to the court of appeals with directions to reinstate the judgment entered in favor of American Safety Equipment Corporation by the district court.

I.

Petitioner, American Safety Equipment Corporation (American), is the designer and manufacturer of a wide variety of protective headgear. One type of helmet manufactured by American is a model # 1601 "general duty" helmet which was designed at the request of police agencies for exclusive police use. It was not designed or intended for use by police officers assigned to motorcycles. The model # 1601 helmet is designed with a special snap harness arrangement which permits quick release and easy removal to protect police officers in riot and crowd control situations. The quick snap release design of the chin strap prevents a police officer from being maneuvered or injured by someone pulling on his model # 1601 helmet. American also designs and manufactures a model # 1602 helmet for police officers using motorcycles. The model # 1602 helmet uses a D-ring harness arrangement which is not designed for quick release. Both models are packaged in the same type of box. The exterior of the box has artist illustrations of some of the uses of American's headgear, including illustrations of a motorcyclist wearing a helmet. The distinctive uses of both helmets, however, are indicated in American's brochures, which are distributed with the helmets upon delivery to the police departments. Neither model is sold to the general public.

The Denver Police Department purchased both types of helmets from American, and issued model # 1601 for general duty purposes and model # 1602 for use by motorcycle officers. In order that the two models could be readily distinguished, the model # 1601 helmets were painted blue and the model # 1602 helmets were painted white. In 1974, the Denver Police Department adopted a policy of giving the used, cosmetically-damaged, model # 1601 helmets to Denver police officers for their personal use. Under the giveaway program, the helmets were placed in a discard bin in the warehouse of the Denver Police Department, from which officers could select a helmet. According to the record, the chief supply officer at the Denver Police Department testified that he knew that the helmets would be used privately as motorcycle helmets. At no time, however, was American informed of the giveaway program.

The respondent, Donald Winkler, was a Denver police officer. Upon graduation from the police academy in 1971, he was issued a new model # 1601 helmet for general duty purposes, which was packaged in its original box. Early in 1975, after buying a motorcycle for recreational dirt bike riding, Winkler selected a used model # 1601 helmet from the discard bin at the Denver Police Department warehouse. Winkler did not receive a box when he selected the model # 1601 helmet from the discard bin.

On July 19, 1975, while off duty, Winkler was seriously injured when his motorcycle collided with a pickup truck. At the time of the accident, Winkler was wearing the used model # 1601 helmet he had obtained from the discard bin. When he collided with the truck, Winkler was thrown several feet into the air and, before he hit the ground, his helmet came off his head. Winkler suffered severe head injuries as a result of the accident.

On November 3, 1976, Winkler filed suit for damages against American. Winkler's complaint asserted four claims for relief: (1) strict liability for the manufacture of a defective product under section 402A of the Restatement (Second) of Torts (section 402A); (2) negligent manufacture of a product; (3) res ipsa loquitur ; and (4) strict liability for misrepresentation of a product under section 402B of the Restatement (Second) of Torts (section 402B). The claims for negligence and res ipsa loquitur were dismissed prior to trial. Winkler's claim for damages under section 402B was predicated on the following theory. Both model # 1601 and model # 1602 helmets are packaged in the same type of box, which has two artist illustrations depicting a motorcyclist wearing a helmet. Although Winkler did not receive a box with the model # 1601 helmet he was wearing at the time of the accident, he claimed to have used the helmet as a motorcycle helmet because of his reliance on the illustrations on the box he received with the model # 1601 helmet that was issued to him by the Denver Police Department in 1971.

At trial, Winkler tendered jury instructions relating to two claims of strict liability: (1) misrepresentation of a product under section 402B; and (2) manufacture of a defective product under section 402A. Further, because Winkler claimed recovery on two theories of strict liability, he tendered a proximate cause instruction which would have permitted the jury to consider concurrent causes in its determination of whether proximate cause existed. The trial judge refused to instruct the jury on Winkler's strict liability claim for misrepresentation of a product under section 402B, and limited instructions to the jury regarding proximate cause to strict liability arising out of the manufacture or design of a defective product (section 402A).

The case was then submitted to the jury on Winkler's claim of strict liability for the manufacture of a defective product under section 402A. On November 28, 1977, the jury returned a verdict in favor of American, and judgment was entered accordingly. Thereafter, Winkler filed a motion for a new trial which alleged, in pertinent part: (1) that the trial court's failure to instruct the jury regarding the strict liability claim for misrepresentation of a product under section 402B constituted error; and (2) that the instruction given to the jury on proximate cause was improper. The trial court denied Winkler's motion, and Winkler appealed to the court of appeals.

The court of appeals reversed the judgment of the trial court, and concluded that the trial court erred in refusing to instruct the jury on Winkler's section 402B claim. The court also concluded that, because the jury could have found that more than one cause was operative at the time of injury, the trial court failed to properly instruct the jury regarding proximate cause. In its decision, the court of appeals expressly adopted, for the first time in Colorado, the doctrine of strict liability for misrepresentation of a product under section 402B. Winkler v. American Safety Equipment Corporation, 43 Colo.App. 241, 604 P.2d 693 (1979).

II.

We first address the court of appeal's express adoption of section 402B for products liability actions in Colorado. We find section 402B to be applicable under the facts of this case.

A.

The imposition of strict liability in products liability cases is not foreign to Colorado. In Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975), we expressly adopted the doctrine of strict liability in tort under section 402A of the Restatement (Second) of Torts. ¹ However, while the strict liability action under section 402B is a corollary of the strict tort liability doctrine articulated in section 402A, it represents a unique and totally distinct cause of action. Section 402A imposes liability on the supplier or manufacturer of a defective product which is unreasonably dangerous for its intended or reasonably foreseeable uses to the user or consumer. See, e.g., Union Supply v. Pust, 196 Colo. 162, 583 P.2d 276 (1978); Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo.App. 99, 517 P.2d 406 (1973). In contrast, the representational theory of section 402B requires neither a defective product nor one that is unreasonably dangerous. Sales, The Innocent Misrepresentation Doctrine: Strict Tort Liability Under Section 402B, 16 Houston L.Rev. 239 (1979). Rather, the rule stated in section 402B stems from the concept of express warranty by advertising. See Restatement (Second) Torts § 402B, Comment d, at 360 (1965); 2A L. Frumer & M. Friedman, Products Liability 3C-2 (1981). Section 402B provides:

"One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though

(a) it is not made fraudulently or negligently, and

(b) the consumer has not bought the chattel from or entered into any contractual relation with the seller."

Section 402B, therefore, permits an action in strict liability for physical harm to the consumer, resulting from a misrepresentation to the public of the character or quality of the chattel sold, even though the misrepresentation is an innocent one and is not made fraudulently or negligently.

B.

The theory of recovery for misrepresentation in section 402B presents an unconventional hybrid between contract and tort law. At common law, an action grounded on breach of warranty sounded in tort rather than in contract. Hansen v. Firestone Tire & Rubber...