Baird v. Power Rental Equipment, Inc.

• Decision Date: 11 February 1975
• Docket Number: No. 73--321,73--321
• Parties: Terry J. BAIRD, Plaintiff-Appellant, v. POWER RENTAL EQUIPMENT, INC., a Colorado Corporation, and Jacmun, Inc., a Colorado Corporation, Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 941

533 P.2d 941

35 Colo.App. 299

Terry J. BAIRD, Plaintiff-Appellant, v. POWER RENTAL EQUIPMENT, INC., a Colorado Corporation, and Jacmun, Inc., a Colorado Corporation, Defendants-Appellees.

No. 73--321.

Colorado Court of Appeals, Div. I.

Feb. 11, 1975.

Rehearing Denied March 4, 1975.

Certiorari Granted April 21, 1975.

Marvin Dansky, P.C., Denver, for plaintiff-appellant.

Yegge, Hall & Evans, John R. Trigg, Denver, for defendants-appellees.

KELLY, Judge.

Plaintiff Baird appeals from the judgment of the trial court dismissing his complaint for damages for personal injury. The court granted defendants' motion for directed verdict at the close of plaintiff's case. We affirm.

Baird, a 19-year-old youth, was severely injured when a forklift he was operating rolled over on its side and crushed his leg, resulting in its amputation. At the time of the injury, Baird was enrolled in a training program conducted by Colorado Laborers and Contractors Education and Training Fund, a school organized by unions and contractors to train young laborers in the construction industry. The forklift was owned by defendant Jacmun, Inc., and was leased to the school by defendant Power Rental Equipment, Inc.

Baird contends that the trial court erred in granting defendants' motion for directed verdict. He argues not only that the defendants had a 'legal duty' to install human restraints in the forklift, but that their failure to do so prior to its delivery to the school, as bailee, resulted in a 'defect' in the equipment making the doctrines of breach of implied warranty or strict liability in tort available as grounds for Baird's recovery. We do not agree with these contentions.

To support his theory that the forklift was delivered with a defect, Baird sought to introduce the testimony of two expert witnesses to show that he would not have been injured had restrains been installed and in use. The trial court rejected this testimony. Baird contends that the trial court abused its discretion. We disagree.

Dr. Horace Campbell, one of the proffered experts, was a surgeon with special expertise in the use of human restraints in automobiles. He admitted to no special knowledge of the use of such safety devices in industrial equipment, and he had neither driven nor closely examined a forklift. The witness's lack of knowledge of industrial equipment was sufficient reason for rejection of his testimony. Whether a witness offered as an expert has the qualifications and knowledge to make his opinion testimony admissible is a preliminary question for the trial court, and its decision is conclusive unless shown to be erroneous. Atencio v. Torres, 153 Colo. 507, 385 P.2d 659; Oglesby v. Conger, 31 Colo.App. 504, 507 P.2d 883.

The deposition of Dr. Robert Reed, a physicist who was absent from the jurisdiction, was rejected by the trial court on the grounds that his opinions were based on hearsay and were conjectural, since there was a two-month delay between the accident and Reed's examination of the forklift, and since there was no showing that the forklift was in the same condition it had been at the time of the accident. It is proper to reject testimony reconstructing an accident which is based on hearsay and is speculative or conjectural in nature. Brayman v. National State Bank, 180 Colo. 304, 505 P.2d 11.

The general rule is that there can be no recovery under the theories of breach of implied warranty or strict liability without proof of a defect. See 63 Am.Jur.2d Products Liability § 9, Bradford v. Bendix-Westinghouse Auto Air Brake Co., Colo.App., 517 P.2d 406. Since the proffered expert testimony was properly rejected, Baird failed to establish any defect in the forklift as a matter of fact. And there being neither a Colorado statute requiring owners and lessors of industrial equipment to install human restraints in such equipment prior to delivery to a lessee, nor any Colorado cases imposing such a requirement, the absence of such restraints is not a defect as a matter of law. See 63 Am.Jur.2d Products Liability § 113. There was, therefore, no basis for recovery on these theories and the trial court properly granted defendants' motion for directed verdict.

Furthermore, even though the doctrines of implied warranty and strict liability are available in this state in a proper case, proximate causation must be established. See Peterson v. Nevada Motor Rentals, Inc.,28 Colo.App. 102, 470 P.2d 905. The issue of proximate cause is generally for the trier of facts, but where the facts are not only undisputed, but reasonable minds could draw but one inference from them, this issue should be taken from the jury and decided by the court as a matter of law. See Richardson v. Pioneer Construction Co., 164 Colo. 270, 434 P.2d 403. Here, there was no evidence that the absence of human restraints was a proximate cause of the accident.

Baird also argues that the trial court erred in ruling that the failure of defendants to supply the forklift with human restraints was not negligence as a matter of law. We disagree. Owners and lessors of industrial equipment have no legal duty to persons using the equipment to install human restraints in such equipment. Cf. Fischer v. Moore, Colo., 517 P.2d 458. In the absence of a legal duty, there could be no negligence, and the trial court properly directed a verdict for defendants. Roessler v. O'Brien, 119 Colo. 222, 201 P.2d 901. See Arapahoe Land Title, Inc. v. Contract Financing, Ltd., 28 Colo.App. 393, 472 P.2d 754.

In view of our disposition of the foregoing issues, it is unnecessary to consider Baird's assertion that the trial court erred in finding him contributorily negligent as a matter of law.

Judgment affirmed.

COYTE, J., concurs.

BERMAN, J., dissents.

BERMAN, Judge (dissenting).

Respectfully, I dissent.

First, in my view, the trial court abused its discretion in refusing to admit the opinion testimony of Dr. Campbell.

The substance of Dr. Campbell's testimony was that while the primary emphasis in his studies had been on automobiles, farm tractors, and airplanes, he was familiar with forklifts as a result of having attended persons who were injured while using them when he was a physician for a large department store. He also testified in the offer of proof made that he had studied industrial forklift accidents to determine the effect upon the operator that the lack of seat belts would cause in a simple tipover of a forklift; that, as a result of his studies the group he was associated with had recommended to a major manufacturer of tractors and forklifts that operators wear seat belts.

Further, his testimony showed that the forklift could have been outfitted with human restraints which have been available since the year 1955 or 1957, and that the cost of installation was approximately $10 and could be done locally. He discussed the alternative to seat belts, which was installation of a gate to be installed to keep the operator in the vehicle in the event of a tip-over, although stating that this was more trouble to install.

He compared tractors and forklifts as being quite unstable vehicles, both of which 'upset quite a lot,' testified that tractors and forklifts are very much the same in that t...