Armentrout v. FMC Corp.

• Decision Date: 28 March 1991
• Docket Number: No. 88CA1404,88CA1404
• Parties: Prod.Liab.Rep. (CCH) P 13,039 Lynn ARMENTROUT and Tina Armentrout, Plaintiffs-Appellants, v. FMC CORPORATION, a Delaware Corporation, Defendant-Appellee. . V
• Court: Colorado Court of Appeals

Page 522

819 P.2d 522

Prod.Liab.Rep. (CCH) P 13,039

Lynn ARMENTROUT and Tina Armentrout, Plaintiffs-Appellants, v. FMC CORPORATION, a Delaware Corporation, Defendant-Appellee.

No. 88CA1404.

Colorado Court of Appeals,

Div. V.

March 28, 1991.

Rehearing Denied April 25, 1991.

Certiorari Denied Oct. 21, 1991.

Cross-Petition for Certiorari Granted

Oct. 21, 1991.

Sampson & Associates, P.C., Carolyn L. Sampson, Christopher B. Dominick, Golden, for plaintiffs-appellants.

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Hugh Q. Gottschalk, Denver, for defendant-appellee.

Williams Trine Greenstein & Griffith, P.C., J. Conard Metcalf, Boulder, for amicus curiae Colorado Trial Lawyers Ass'n.

Shook, Hardy & Bacon, Laura D. Stith, Walter L. Cofer, W. Edward Reeves, Kansas City, Mo., for amicus curiae The Product Liability Advisory Council, Inc.

Opinion by Judge NEY.

In this product liability action, plaintiffs, Lynn Armentrout and his wife, Tina Armentrout, appeal the trial court's judgment entered on a jury verdict in favor of defendant, FMC Corporation. We reverse and remand for a new trial.

While working as an oiler, plaintiff Lynn Armentrout was crushed between the stationary truck base and the rotating superstructure of a crane constructed by defendant. Plaintiffs asserted four product liability claims against defendant: strict liability for failure to warn, strict liability for design defect, negligent failure to warn, and negligent design defect. Under each theory, plaintiffs argue that existence of the crane's upper-to-lower "pinch point," where plaintiff was crushed, was a hazard FMC should have warned against or removed by altering the design of the crane.

I.

Plaintiffs assert the trial court erred by its failure to instruct the jury, as requested by them, that the negligence of third persons is not a defense. We agree.

Defendant is correct that the question is whether the instructions sufficiently apprise the jurors of the issues before them and of the legal principles to be applied. See Stephens v. Koch, 192 Colo. 531, 561 P.2d 333 (1977). However, we conclude that the trial court's failure here to give the requested instruction did leave the jury inadequately informed of the applicable law and that this omission "constitutes error of such proportion as to require a retrial of the matter." See Mendez v. Pavich, 159 Colo. 409, 412 P.2d 223 (1966).

Plaintiffs requested that the jury be instructed, consistent with CJI-Civ.2d 9:27 (1980), that the negligence of third persons is not a defense to defendant's negligence. The court refused to give this instruction but instructed that each act or failure to act which contributed to the injury may have been a cause of the injury. See CJI-Civ.2d 9:28 (1980).

The Notes on Use to the pattern instruction which was rejected by the trial court provide that this instruction should be given "when there might be a basis for contending that a third person, not a party to the action, was in whole or in part responsible for causing plaintiff's losses." Here, defendant's theory was that plaintiff and his employer and fellow workers, who were not parties to this action, were wholly responsible for plaintiff's injuries. Therefore, failure to give the instruction based on CJI Civ.2d 9:27 was prejudicial to plaintiffs, requiring reversal.

Defendant argues that any error in refusing this instruction was harmless when considered with another instruction which provided that defendant would be liable for plaintiff's injuries if "the defect in [the crane] was a cause of the plaintiff's injuries." We are not persuaded that this one reference in a list of six conditions found in that instruction would sufficiently apprise the jury that the acts of non-parties do not constitute a defense to defendant's negligence.

It should be noted that this action was commenced prior to July 1, 1986, when the statute was changed to provide for apportionment of negligence or fault between defendant and designated non-parties. See §§ 13-21-111.5(2) and (3)(b), C.R.S. (1987 Repl.Vol. 6A).

Therefore, we conclude that, under the facts here, it was reversible error to reject plaintiffs' requested instruction based on CJI-Civ.2d 9:27 and only give the instruction based on CJI-Civ.2d 9:28.

II.

Plaintiffs also assert that the trial court erred in its exclusion of reports of similar accidents to establish product defect because it determined that such reports constituted inadmissible hearsay. We again agree.

Evidence is hearsay if it is "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 801(c). Thus, the accident reports, when admitted for the limited purpose of establishing notice to the manufacturer, do not constitute hearsay.

Use of the reports to establish product defect, however, as desired by plaintiffs, does constitute hearsay. Nevertheless, plaintiffs argue that the accident reports should have been admitted under the business records exception of CRE 803(6) or under the residual exception of CRE 803(24). We agree to the extent that the trial court erred in failing to consider this evidence admissible as a business record. We conclude that Schmutz v. Bolles, 800 P.2d 1307 (Colo.1990), which was announced after the trial here, is dispositive of this issue.

In Schmutz, our supreme court, in very similar circumstances, concluded that accident reports may be admissible as business records under CRE 803(6) and that the trial court must consider accident reports individually and determine whether they qualify for admission under that rule. Hence, on retrial, the trial court should determine the admissibility of the reports under the criteria set out in Schmutz.

Relying on King v. People, 785 P.2d 596 (Colo.1990), defendant contends that the accident reports are irrelevant and unduly prejudicial and are therefore inadmissible. We agree that, on remand, the trial court must also make an individualized assessment of each report to determine its admissibility in accordance with CRE 401 and CRE 403.

We find plaintiffs' contention that the records maintained by defendant are admissions by a party-opponent under CRE 801(d)(2)(B) to be without merit. We do, however, agree with plaintiffs' contention that first-hand knowledge of similar accidents obtained by defendant's product liability coordinator is not hearsay and may be admitted unless inadmissible on other grounds.

III.

Because similar issues may be raised on retrial, we address plaintiffs' remaining contentions.

A.

Plaintiffs contend that the trial court erred by erroneously instructing the jury regarding their claim of strict liability for failure to warn adequately of an observable danger by posting appropriate signs. We disagree.

Plaintiffs objected to the instruction given, which was based on CJI-Civ.2d 14:20 (1980), and which states:

"A product is defective and unreasonably dangerous if it is not accompanied by sufficient warnings or instructions for use. To be sufficient, such warnings or instructions for use must adequately inform the ordinary user of any specific risk of harm which may be involved in any intended or reasonably expected use.

"However, if a specific risk of harm would be apparent to an ordinary user from the product itself, a warning of or instructions concerning that specific risk of harm is not required."

Plaintiffs assert that the second paragraph of this instruction erroneously excuses a manufacturer from all liability for failure to warn if the risk to be warned against is open and obvious and, further, that that paragraph should be deleted or modified to comply with Camacho v. Honda Motor Co., 741 P.2d 1240 (Colo.1987).

The Notes on Use of CJI-Civ.2d 14:20 (1980) acknowledge the effect of Camacho:

"Even though a risk may be 'open and obvious,' a product may nonetheless be defective for lack of an adequate warning, e.g., that an option is available for use with, or part of, the product which would make it safer. Camacho v. Honda Motor Co. Ltd., 741 P.2d 1240, n. 9 (Colo.1987), citing Pust v. Union Supply Co., 196 Colo. 162, 583 P.2d 276 (1978). In such cases, appropriate modifications may be required in the second paragraph of this instruction."

However, Camacho involved a defect in design which rendered a motorcycle unsafe when the addition of optional leg guards would have provided reasonable and cost-effective protection. In that case, the open and obvious nature of the defect was held not to be a defense to a claim of defective design. We do not find Camacho dispositive of the issue here when the defense that the risk of harm is open and obvious is asserted for a claim based on failure to warn.

Moreover, the second paragraph of this instruction is consistent with plaintiffs' position that the specific risk of harm (that of standing in the well of the "luggage carrier" where plaintiff was injured) was not apparent and allowed the jury to conclude that a warning was required, if the evidence so warranted.

We are not persuaded by plaintiffs' contention that the specific language of the instruction misled the jury as to unintended but reasonably foreseeable uses. See Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo.1986).

Therefore, we conclude that the instruction given by the trial court correctly states the law as to a claim for failure to warn by placement of appropriate signs and was properly given.

B.

Plaintiffs next contend that the trial court erred in its instruction to the jury regarding their claim of strict liability for defective design. We again disagree.

The jury was instructed that "a product is unreasonably dangerous because of a defect in its design if it creates a risk of harm to persons which is not outweighed by the benefits to be achieved from such design."

Plaintiffs assert that once they have proved defect and causation, the manufacturer is required to establish...