Barton v. Adams Rental, Inc.

• Decision Date: 02 June 1997
• Docket Number: No. 95SC722,95SC722
• Citation: 938 P.2d 532
• Parties: Prod.Liab.Rep. (CCH) P 14,975, 21 Colorado Journal 755 Steven L. BARTON, Petitioner, v. ADAMS RENTAL, INC., d/b/a Adams Rental and Sales, Respondent.
• Court: Colorado Supreme Court

Page 532

938 P.2d 532

Prod.Liab.Rep. (CCH) P 14,975, 21 Colorado Journal 755

Steven L. BARTON, Petitioner, v. ADAMS RENTAL, INC., d/b/a Adams Rental and Sales, Respondent.

No. 95SC722.

Supreme Court of Colorado,

En Banc.

June 2, 1997.

Edward L. Volpe, P.C., Edward L. Volpe, Denver, for Petitioner.

Godfrey & Associates, P.C., Peter Moyson, Denver, Gallo & Godfrey, Brett Marshall Godfrey, Denver, for Respondent.

Justice SCOTT delivered the Opinion of the Court.

This case involves a question of first impression: must a defendant present evidence of a designated nonparty manufacturer's liability before the defendant is entitled to a jury instruction regarding the nonparty's liability? ¹ We conclude that a defendant must offer sufficient evidence of the nonparty's liability before a trial court is obligated to instruct the jury as to nonparty liability. Hence, we answer the question in the affirmative.

This dispute between the parties arises out of an accident in which petitioner, Steven L. Barton (Barton), was seriously injured while operating an electric sewer auger he rented from respondent, Adams Rental, Inc. (Adams Rental). Barton filed an action against Adams Rental based on theories of negligence and strict liability. Pursuant to section 13-21-111.5, 6A C.R.S. (1987 & 1996 Supp.), Adams Rental designated the purported manufacturer of the auger, Burton Power Snake (Burton Power), as a nonparty tortfeasor. At the close of the evidence, however, the trial court refused to instruct the jury on nonparty fault, concluding that insufficient evidence had been presented to establish the liability of Burton Power. Therefore, without considering nonparty liability, the jury returned a verdict in favor of Barton based upon negligence, and apportioned the fault between Adams Rental and Barton.

Adams Rental appealed the trial court's refusal to instruct the jury as to the liability of Burton Power, the designated nonparty. The court of appeals reversed and remanded for a new trial on the negligence claim. See Barton v. Adams Rental, Inc., No. 94CA0870, slip op. (Colo.App. Sept. 21, 1995) (not selected for official publication). The court of appeals held that sufficient evidence had been presented for the jury to conclude that Burton Power's design of the auger and its failure to provide a warning label contributed to Barton's injury. See Barton, No. 94CA0870, slip op. at 4. On Barton's petition, we granted certiorari. Based on our review of the record and evidence submitted at trial, we conclude that the trial court did not err in excluding Adams Rental's requested instruction as to nonparty liability. Accordingly, we reverse the judgment of the court of appeals.

I.

On May 11, 1992, Adams Rental leased an electric 100-foot auger to Barton to clear a domestic sewer line. A sewer auger is a motor-powered device that consists of a cone-shaped wire cage and a long cable with a cutting bit affixed at one end. When not in use, the cable is fully coiled inside the cone-shaped wire cage. When the auger is in use, the wire cage rotates at the rate of approximately two cycles-per-second, which also causes the cable and the cutting bit to rotate. To clear a pipe or a sewer line, the operator of the auger extends the cable by pulling it manually out of the wire cage and threading it into the pipe. While Barton was operating the auger and feeding cable into a household pipe, a length of cable came loose from the wire cage, hit the ground, and then struck him in the face and mouth, causing serious injuries.

Barton filed a civil action alleging negligence, failure to warn, and strict liability on the part of Adams Rental. In defending against Barton's claims, Adams Rental designated Burton Power as a nonparty at fault pursuant to section 13-21-111.5, 6A C.R.S. (1987), which states in relevant part:

(1) In an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant....

.... (3) (a) Any provision of the law to the contrary notwithstanding, the finder of fact in a civil action may consider the degree or percentage of negligence or fault of a person not a party to the action, based upon evidence thereof, which shall be admissible, in determining the degree or percentage of negligence or fault of those persons who are parties to such action.

(Emphasis added.)

Based on this pro-rata liability statute, Adams Rental alleged that Burton Power was liable for the injuries to Barton due to defects in the manufacturing process and the failure of Burton Power to warn of the dangers. ² After both sides had presented their evidence, the trial court refused to include in its charge to the jury an instruction related to the fault of a nonparty, Burton Power.3 Instead, the trial court dismissed Burton Power as a nonparty stating:

the Court is of the opinion that there has been no sufficient showing that there is any evidence that the original manufacturer of the [auger], Burton Power Snake, gave it--or rather, manufactured the product in any way before it was given to or arrived in the hands of the defendant that would show that the product was defective whatsoever.

The jury returned a verdict in favor of Barton on the negligence claim for $230,000, assessing 70% of the fault to Adams Rental and 30% to Barton. The jury found in favor of Adams Rental on the strict liability claim. Adams Rental appealed the judgment to the court of appeals, alleging that the trial court erred in ruling there was insufficient evidence presented as to the liability or fault of Burton Power.

The court of appeals reversed, holding that the trial court erred in refusing to instruct the jury as to the possible responsibility of Burton Power, the designated nonparty, because there had been sufficient evidence presented "with respect to whether Burton Power's design of the machine and its failure to provide a warning label for it also contributed to that injury." Barton, No. 94CA0870, slip op. at 4. We disagree and now reverse the judgment of the court of appeals.

II.

Section 13-21-111.5 provides that in civil actions, plaintiffs and defendants may designate nonparties as being wholly or partially at fault, ⁴ and authorizes the finder of fact to consider the percentage of a nonparty's negligence or fault in apportioning ultimate liability. See Inland/Riggle Oil Co. v. Painter, 925 P.2d 1083, 1085 (Colo.1996). The adoption of this statute was intended to cure the perceived inequity under the common law concept of joint and several liability whereby wrongdoers could be held fully responsible for a plaintiff's entire loss, despite the fact that another wrongdoer, who was not held accountable, contributed to the result. See Hughes v. Johnson, 764 F.Supp. 1412 1413 (D.Colo.1991); W. Prosser & W. Keeton, Torts § 46, at 328 (5th ed. 1984).

Through section 13-21-111.5, the General Assembly abrogated this common law principle and codified the rule that each of several wrongdoers is liable for only a portion of plaintiff's injuries, according to each tortfeasor's percentage of fault. See Moody v. A.G. Edwards & Sons, Inc., 847 P.2d 215, 217 (Colo.App.1992); Hughes, 764 F.Supp. at 1413. Thus, a defendant in an action brought as a result of injury to person or property may reduce the amount of damages for which the defendant will be liable by demonstrating another person's fault, without that person necessarily being joined as a defendant. ⁵

According to the unambiguous terms of the statute and the foregoing policies that underlie it, liability may only be apportioned between a defendant and a designated nonparty when admissible evidence has been presented that the nonparty contributed to the plaintiff's injury. See § 13-21-111.5(3)(a) ("the finder of fact ... may consider the ... fault of a person not a party to the action, based upon evidence thereof ....") (emphasis added); see also FDIC v. Moll, 848 F.Supp. 145, 149 (D.Colo.1993) (applying Colorado law and holding that insufficient evidence had been presented to support the apportionment of fault under section 13-21-111.5). Indeed, similar to instructions regarding comparative fault, an instruction regarding nonparty liability should only be submitted to the jury when there is evidence in the record to support such a claim. See Gordon v. Benson, 925 P.2d 775, 778 (Colo.1996) (holding that an instruction to the jury on comparative negligence must be based on competent evidence appearing on the record).

Thus, where a defendant designates a nonparty at fault and presents no evidence of liability, the court should not submit that claim to the jury. See Moll, 848 F.Supp. at 149-50; Ramirez v. Mixsooke, 907 P.2d 617, 619 (Colo.App.1994) (holding that speculation regarding nonparty liability without evidence to support the claim is insufficient for purposes of section 13-21-111.5). Here, Adams Rental designated Burton Power as a nonparty at fault based on claims of "defects in the manufacturing process." While it is unclear whether Adam's Rental argues pursuant to principles of negligence or strict liability, ⁶ we conclude that under either theory, because defendant Adams Rental failed to submit evidence that Barton Power was the actual manufacturer, there was insufficient evidence presented at trial to support the liability of Burton Power for defective design or failure to warn.

III.

A. Design Defect

We first address the evidence presented by Adams Rental in support of its allegation of a design defect. In Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978), we reaffirmed our decision that Colorado law applies the strict liability principles set forth in the Restatement (Second) of Torts § 402A (1965), and enumerated the elements of a strict liability design defect claim as follows: (1) the product is in a defective condition...