![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]>
Thank You For Submiting Feedback!
An agreement releasing a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer's right to have or use the product, necessarily violates the public policy of Colorado and is void.
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." After entering the booth, several of Boles's fingers came in contact with an exhaust fan located at the top of the booth, partially amputating them. Savannah 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. The trial court agreed and granted Sun Ergoline's motion on the basis of the following undisputed facts. On direct appeal, the court of appeals affirmed.
Did the lower courts err in granting summary judgment?
Without fanfare or extended discussion, perhaps because it follows so inexorably from its policy justifications for recognizing this cause of action in the first place, the Second Restatement of Torts clearly indicated that exculpatory agreements between a manufacturer and an end-user can have no effect. And although the expanded and more sophisticated discussion of this matter in the Third Restatement distinguishes "the majority of users and consumers" from consumers "represented by informed and economically powerful consumer groups or intermediaries, with full information and sufficient bargaining power," who "contract with product sellers to accept curtailment of liability in exchange for concomitant benefits," the Third Restatement would even more emphatically prohibited "contractual exculpations" from barring or reducing otherwise valid products liability claims for personal injuries by ordinary consumers against sellers or distributors of new products. In order to resolve the case before the Court, it considered it unnecessary, and in fact unwise, to attempt a comprehensive description of the kind of "economically powerful consumer groups" or bargained-for consideration that might conceivably permit, consistent with public policy, a release from claims of strict products liability. It was enough here that the subject exculpatory agreement was void for violating public policy.