Armentrout v. FMC Corp., No. 91SC312

Docket NºNo. 91SC312
Citation842 P.2d 175
Case DateNovember 23, 1992
CourtSupreme Court of Colorado

Page 175

842 P.2d 175
Prod.Liab.Rep. (CCH) P 13,356
Lynn ARMENTROUT and Tina Armentrout, Petitioners,
FMC CORPORATION, a Delaware corporation, Respondent.
No. 91SC312.
Supreme Court of Colorado,
En Banc.
Nov. 23, 1992.
As Modified on Denial of Rehearing Dec. 14, 1992.

Page 178

Carolyn L. Sampson, Stewart B. Grant, Sampson & Associates, P.C., Golden, for petitioners.

Laura D. Stith, Walter L. Cofer, W. Edward Reeves, Shook, Hardy & Bacon, Kansas City, Mo., and Alfred T. McDonnell, Arnold & Porter, Denver, for amicus curiae The Product Liability Advisory Council, Inc.

Hugh Q. Gottschalk, Kristen L. Mix, Terence M. Ridley, Elizabeth Savage, Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Denver, for respondent.

James L. Gilbert, Stuart A. Ollanik, James L. Gilbert & Associates, P.C., Arvada, and Susanna Meissner-Cutler, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.

Justice MULLARKEY delivered the Opinion of the Court.

This case arises from an accident in which Lynn Armentrout was crushed between a stationary truck base and the rotating superstructure of a crane manufactured by FMC Corporation (FMC). Armentrout incurred severe injuries as a result of the accident and, with his wife, Tina Armentrout, filed an action against FMC seeking damages on theories of strict liability for failure to warn, strict liability for defective design, negligence in warning, and negligence in design. The jury returned a verdict in favor of FMC, and the trial court entered judgment accordingly.

The court of appeals reversed the judgment and remanded for retrial on two separate grounds not discussed in this opinion. Armentrout v. FMC Corporation, 819 P.2d 522 (Colo.App.1991). In addition, the court of appeals addressed four other issues which will occur on retrial. We denied FMC's petition for certiorari and left standing the court of appeals' judgment ordering a new trial. We granted certiorari to consider the four issues challenged by the Armentrouts in their cross-petition. We reverse in part, affirm in part and remand for further proceedings consistent with this opinion.


Armentrout was injured when he was struck by the rotating upper of a crane manufactured by FMC. The accident occurred while he was working as a crane oiler for Derr-Gruenewald Construction Company, which owned and operated the crane. Armentrout's job was to monitor and maintain the fluid levels of the crane and to keep the surfaces of the crane clean. When Armentrout was struck by the rotating upper, he was cleaning the deck of the crane's stationary base. The facts indicate that he was standing either in the area known as the "forward luggage carrier" 1 or on the deck of the stationary base. When the superstructure of the crane moved, Armentrout was trapped in the area known as the "pinch point," where the space between the superstructure and the base of the crane is closed off during the rotation of the superstructure. He was not aware that the superstructure of the crane was moving until it struck him.

Thereafter, Lynn Armentrout and his wife Tina Armentrout filed an action against FMC asserting claims of strict liability for failure to warn, strict liability for design defect, negligent failure to warn and negligent design defect. The Armentrouts requested relief under the theory that the existence of the crane's "pinch point" was a hazard which FMC should have

Page 179

warned against or removed by altering the design of the crane.

There was no bell or other audible warning to give notice that the superstructure was moving. 2 No warnings were posted on the crane itself which would advise persons working on the crane to stay out of the crane area while it was moving. 3 However, an FMC manual supplied with the crane at the time of sale provided the following warning: "Keep clear of rotating upper or moving parts. Pinch points which result from relative motion between moving parts can cause injury."

Although the cleaning and maintenance of the crane may be done while the superstructure was not in motion, 4 testimony at trial established that it was routine practice among the oilers to work on the crane while it was being operated. The trial court allowed the Armentrouts to introduce evidence, for the limited purpose of showing notice to FMC of the crane's hazard, that FMC possessed numerous accident reports involving incidents in which workers were injured in the "pinch point" of the crane.

FMC's defense was based on the argument that Armentrout's injuries were caused by his own misuse and the negligence of the crane operator, rather than by a defect in the crane. FMC presented evidence showing that the accident was a result of the continuing unsafe work habits of the crane operator and Armentrout. The jury returned a verdict in favor of FMC.

The Armentrouts appealed to the court of appeals. The court of appeals reversed the judgment and remanded the case for retrial. FMC filed a petition for writ of certiorari with this court and the Armentrouts cross-petitioned for writ of certiorari. We granted certiorari to consider the issues presented in the Armentrouts' cross-petition.


The first issue involves the Armentrouts' claim of strict liability for failure to warn. We granted certiorari to consider whether the open and obvious nature of a risk is a defense to a strict liability failure-to-warn claim. Although the obviousness of the risk is not necessarily a complete defense to such a claim, we affirm the court of appeals' ruling on the facts.

The Armentrouts argued that FMC's crane was defective for lack of adequate warning because there was no warning decal on the machine to remind the user of the possibility of injury if the superstructure were in motion. 5 The oilers testified that the presence of a warning label on the crane would have reminded them of the danger. Furthermore, the evidence indicates that prior to Armentrout's accident, FMC had begun installing a warning decal on new cranes depicting a human figure being crushed in the same manner as Armentrout, and stating "!DANGER--Keep clear of swinging upper to prevent serious bodily injury."

There was also evidence that FMC gave warnings of the crane's pinch points in the

Page 180

manuals provided with the crane. In addition, testimony at trial indicated that, although the crane operators and oilers were aware of the danger of working on the crane while it was operating, they routinely did so despite the known danger. Furthermore, Lynn Armentrout himself testified that a warning label would not have affected the way he did his job.

The trial court instructed the jury to consider this evidence in the following context:

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.

Jury Instruction No. 27. 6 The Armentrouts assert that the second paragraph of this instruction should have been deleted from the jury instruction.

The court of appeals rejected the Armentrouts' argument on alternate grounds. First, it distinguished Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240 (Colo.1987), and held that Camacho did not require that the pattern jury instruction be modified as the Armentrouts requested. Armentrout, 819 P.2d at 525. Second, it found that the second paragraph of the instruction was consistent with the Armentrouts' theory of the case:

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.

Id. We will consider the court of appeals' holdings in reverse order.

Initially, we agree with the court of appeals that the instruction given was consistent with the Armentrouts' theory at trial and, for that reason, the second paragraph of the pattern instruction was properly included in Instruction No. 27. Whether the danger was "open and obvious" was hotly disputed at trial. The Armentrouts claimed that Lynn Armentrout was standing in or near the forward luggage carrier when he was crushed and that the danger of being trapped in the forward luggage carrier was not apparent. The court of appeals' conclusion that Instruction No. 27 was consistent with the Armentrouts' trial presentation is buttressed by the Armentrouts' treatment of their negligence claim for failure to warn. The Armentrouts stipulated to Instruction No. 20 which required the jury to find that the danger was not obvious to the final user in order to hold FMC liable. Instruction No. 20 stated:

If a seller of a crane knows or in the exercise of reasonable care should know that the use of the crane may be harmful or injurious and such danger would not be obvious to the final user, then the seller is obligated to use reasonable care to warn the user of the danger, and he is negligent if he fails to do so. This duty to give warning is discharged if he labels his crane in a manner which would reasonably inform the user of the danger.

Based on the facts of this case, Instruction No. 27 was not improper. However, we do not agree that the court of appeals correctly interpreted Camacho.

In this regard, FMC argues that the court of appeals' decision in affirming the trial court's application of the open and obvious doctrine is properly based on the well-recognized distinction between failure-to-warn claims and design-defect claims in product liability cases and that the same reasons for rejecting the doctrine in...

To continue reading

Request your trial
80 cases
  • White v. Mazda Motor of Am., Inc., No. 19088.
    • United States
    • Supreme Court of Connecticut
    • September 23, 2014
    ...a product's risks outweigh its utility. See, e.g., French v. Grove Mfg. Co., 656 F.2d 295, 297 (8th Cir.1981) ; Armentrout v. FMC Corp., [842 P.2d 175, 185 (Colo.1992) ]; Sumnicht v. Toyota Motor Sales, U.S.A., Inc., supra, 121 Wis.2d at 371, 360 N.W.2d 2.“Furthermore, we emphasize that our......
  • Branham v. Ford Motor Co., No. 26860.
    • United States
    • United States State Supreme Court of South Carolina
    • November 17, 2010
    ...Motor Co., 975 S.W.2d 147, 154 (Mo.1998)). 12 Gen. Motors Corp. v. Jernigan, 883 So.2d 646, 662-63 (Ala.2003); Armentrout v. FMC Corp., 842 P.2d 175, 183-84 (Colo.1992); Banks v. ICI Ams., Inc., 264 Ga. 732, 450 S.E.2d 671, 674-75 (1994); Wright v. Brooke Group Ltd., 652 N.W.2d 159, 169 (Io......
  • Calles v. Scripto-Tokai Corp., No. 101089.
    • United States
    • Illinois Supreme Court
    • February 16, 2007
    ...App'x 266 (6th Cir.2001); Dart v. Wiebe Manufacturing, Inc., 147 Ariz. 242, 245-46, 709 P.2d 876, 879-80 (1985); Armentrout v. FMC Corp., 842 P.2d 175, 184 n. 10 (Colo.1992); Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 213 n. 10, 694 A.2d 1319, 1330 n. 10 (1997); Tabieros v. Clark ......
  • El Bouamri v. City of New Haven, CV176069792S
    • United States
    • Superior Court of Connecticut
    • August 10, 2018
    ...apply only a risk-utility test in determining whether a manufacturer is liable for a design defect. See, e.g., Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992); Radiation Technology, Inc. v. Ware Construction Co., 445 So.2d 329, 331 (Fla. 1983); Thibault v. Sears, Roebuck & Co., 118 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT