Doyice Cotten

The Colorado Supreme Court recently addressed the question of whether a waiver of liability would protect a product manufacturer against a strict products liability claim (Boles v. Sun Ergoline, Inc., 2010 Colo. LEXIS 73). The case involved a lady who was injured while in a tanning booth. The district court had enforced the waiver as if the claim were  one for damages alleging simple negligence.

Savanah Boles brought suit against Sun Ergoline, Inc., asserting a strict products liability claim for personal injury. Sun Ergoline moved for summary judgment, countering that Boles’s claim was barred by a release she signed prior to using its product.

Executive Tans operated an upright tanning booth manufactured by Sun Ergoline. Prior to using the booth, Boles signed a release form provided by Executive Tans that contained the following exculpatory agreement: “I have read the instructions for proper use of the tanning facilities and  do so at my own risk and hereby release the owners, operators, franchiser, or manufacturers, from any damage or harm that I might incur due to use of the facilities.” While in the booth, several of Boles’s fingers were partially amputated when they came in contact with an exhaust fan located at the top of the booth. The court of appeals found that the waiver met the Jones (Jones v. Dressel, 623 P.2d 370 (Colo. 1981) four factor test for waivers and affirmed the trial court ruling that the waiver protected Sun Ergoline.

In addressing the case, the Supreme Court stated that the Jones factors applied to claims of simple negligence and would not be applicable to other kinds of tort claims i.e., products liability.  The court stated

“Strict products liability” has been described as a “term of art that reflects the  judgment that products liability is a discrete area of tort law which borrows from both negligence and warranty” but “is not fully congruent with classical tort or contract law.”   Restatement (Third) of Torts: Products Liability § 1 cmt. a (1998). Rather than resting on negligence principles, it “is premised on the concept of enterprise liability for casting a defective product into the stream of commerce.” In strict products liability, the focus is on the nature of the product rather than the conduct of either the manufacturer or the person injured. (citations omitted)

As such, strict products liability evolved to accommodate, and is driven by, public policy considerations surrounding the relationship between manufacturers and consumers in general, rather than any particular transaction or contract for sale. In addition to the inaccessibility of information and inequality of bargaining power inherent in any disclaimer or ordinary consumer’s agreement to release a manufacturer, a claim for strict products liability is also premised on a number of public policy considerations that would be flatly thwarted by legitimizing such disclaimers or exculpatory agreements. Not least among these is the deliberate provision of economic incentives for manufacturers to improve product safety and take advantage of their unique “position to spread the risk of loss among all who use the product.”

The court pointed out that the Second Restatement of Torts clearly indicates that exculpatory agreements between a manufacturer and an end-user can have no effect. (See Restatement (Second) of Torts § 402A cmt. m) The court also emphasized that there appears to be virtually universal agreement on this point among the other jurisdictions considering the question. It went on to cite court rulings in a number of jurisdictions.

The court overturned the district court ruling and held that the waiver did not relieve Sun Ergoline from strict products liability.

Photo Credit: Thanks to Travel Salem at Flickr.