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Attorney: Mom in Spice lawsuit has valid complaints

By Rana Novini, Anchor/Reporter, r.novini@krdo.com
Published On: Sep 24 2013 07:06:04 PM CDT

David McDivitt with the McDivitt Law Firm in Colorado Springs says the lawsuit filed against a convenience store that sold synthetic marijuana to a teenager who died from using it will be a tough case to prove.

COLORADO SPRINGS, Colo. -

A Colorado Springs personal injury lawyer says a convenience store could be held accountable for the death of a teenager.

19-year-old Nicholas Colbert died in 2011 after using a form of synthetic marijuana, commonly known as Spice, that he bought from Kwik Stop in the 1100 block of South Chelton Road.

A lawsuit was filed against Kwik Stop on behalf of Nicholas' mother, Stephane Colbert, by the Denver law firm Hillyard, Wahlberg, Kudla, Sloane and Woodruff.  Colbert's lawyers allege that Kwik Stop employees knowingly sold Nicholas an illegal drug.  Banned substances were found in Colbert's autopsy report, according to the lawsuit.

David McDivitt with the McDivitt Law Firm in Colorado Springs spoke with KRDO NewsChannel 13 about the lawsuit.

McDivitt said that Kwik Stop may be protected under Colorado's "innocent seller" statute.  However, since the Spice packaging didn't name a manufacturer, the store could be liable.

"It generally protects a seller if they sell something that causes harm to somebody else; (but) there's a carve out in Colorado law that allows the seller to be on the hook if they're selling something where the identity of the manufacturer is obscured, is hidden or is unknown."

The "Mr. Smiley" packaging sold to Colbert also bears the label, 'Not for human consumption.'  Colorado law states that liability action may not be maintained against a manufacturer or seller of a product that caused injury, death or property damage if the product was used in a manner other than that which was intended.  But McDivitt says that may not matter.

"One of the defenses is going to be, 'Listen, buyer beware. This said on its face, 'Not meant for human consumption,''" McDivitt said.  "But it's sold with this implicit, if not explicit, understanding between the seller and the buyer or between the users and the manufacturers that it is going to be used for human consumption."

McDivitt said it's too soon to say who has the upper-hand in the case, and it will come down to who can prove the most facts.  The plaintiffs will have to prove that Kwik Stop employees knowingly sold Colbert something he would use as a drug.  If they can prove that, they may be able to prove a "felonious killing."

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