Opinion
No. 73-056
Decided January 15, 1974.
Trial court dismissed complaint premised on theory of strict liability and plaintiffs appealed.
Reversed
1. STRICT LIABILITY — Warranties — UCC — Not Exclusive — Means of Recovery — Without Negligence — Not Preclude — Judicial Adoption — Theory of Recovery. In tort action against manufacturer and distributor of electric fork lift truck, the warranties provided by the Uniform Commercial Code are not the exclusive means of recovery available without a showing of negligence or fault; and thus the legislative adoption of the UCC does not preclude judicial adoption of the theory of strict liability in tort.
Appeal from the District Court, Jefferson County, Honorable Ronald J. Hardesty, Judge.
Williams, Trine Greenstein, Morris W. Sandstead, Jr., and R. Jerry Russell for plaintiffs-appellants.
Zarlengo, Mott Zarlengo, Richard T. Spriggs, for defendant-appellee Clark Eqpt.
Dosh, DeMoulin, Anderson Campbell, Charles M. Dosh, for defendant-appellee Apex.
Plaintiffs, Orville Larson and his wife, Jacqueline Larson, filed a complaint seeking damages for personal injuries incurred by Mr. Larson while he was operating an electric forklift truck manufactured by defendant Clark Equipment Company and distributed to Mr. Larson's employer by defendant Apex Liftruck and Supply Company. Mrs. Larson sought recovery for loss of consortium. The complaint alleged, in separate claims for relief, that each defendant was strictly liable to the plaintiffs under the theory of strict liability set forth in Restatement (Second) of Torts § 402A. Both defendants responded, defendant Clark by motion and defendant Apex by answer, alleging that the complaint failed to state a claim upon which relief could be granted. The trial court dismissed the complaint and entered judgment in favor of both defendants. Plaintiffs appeal. We reverse the judgment of the trial court and remand with directions to reinstate the complaint.
[1] Subsequent to the entry of judgment by the trial court in this case, this court has had the opportunity to consider and adopt the theory of strict liability set forth in section 402A of the Restatement. In Bradford v. Bendix Westinghouse Automotive Air Brake Co., 33 Colo. App. 99, 517 P.2d 406, we held that the trial court properly permitted the case to go to the jury on this formulation of strict liability in tort. Defendants here argue, however, that we should reconsider that holding. They contend that the legislative adoption of the Uniform Commercial Code warranties without a privity requirement, see C.R.S. 1963, 155-2-318, precludes the judicial adoption of strict liability in tort under section 402A. We reject his argument. The warranties provided by the UCC are not the exclusive means of recovery without a showing of negligence or fault. Markle v. Mulholland's Inc., 265 Ore 259, 509 P.2d 529.
It is undisputed that the complaint states claims for relief under the theory of strict liability adopted in Bendix. The judgment is reversed and the cause remanded with directions to reinstate the complaint.
JUDGE COYTE and JUDGE ENOCH concur.