Culp v. Rexnord & Booth-Rouse Equipment Co.
| Decision Date | 13 May 1976 |
| Docket Number | No. 75--631,BOOTH-ROUSE,75--631 |
| Citation | 38 Colo.App. 1,553 P.2d 844 |
| Parties | Francis L. CULP, Jr., and Martha Culp, Plaintiffs-Appellees, v. REXNORD ANDEQUIPMENT CO., Defendants-Appellants. . III |
| Court | Colorado Court of Appeals |
Pferdsteller, Vondy, Horton & Worth, P.C., Anthony L. Worth, Denver, for plaintiffs-appellees.
Sheldon, Bayer, McLean & Glasman, P.C., George M. Allen, Gary Palumbo, Denver, for defendants-appellants.
In an action for personal injuries allegedly suffered in an accident involving a concrete mixer manufactured by defendant, Rexnord, judgment was entered for plaintiff, Francis Culp, and defendant appeals. We affirm.
We heard this case in conjunction with Kinard v. Coats, Colo.App., 553 P.2d 835, announced this day. Rexnord's first contention is that the concept of comparative negligence as embodied in § 13--21--111, C.R.S.1973, should have been applied in this products liability action. That argument was rejected in Kinard, and we need not consider it in further detail here.
Rexnord also argues, however, that, as distinguished from Kinard, here the trial court erred in refusing to submit an instruction based on the asserted defense that Culp voluntarily and unreasonably proceeded to encounter a known danger in his utilization of the Rexnord concrete mixer. See COLO. J.I. 14:7. We find no error in the refusal of the instruction.
Culp was injured when, while standing on the side of the mixer and striking it with a hammer to loosen accumulated debris, in accordance with standard procedure for the necessary cleaning of this machinery, he lost his footing and fell towards the moving drum. His arm then became caught between the drum and the stationary hopper, causing him severe injury. Culp's allegation pertaining to the Rexnord mixer was that, due to various defects in the design of the mixer, the product was unreasonably dangerous to users in that there was a failure to provide necessary safeguards to prevent the occurrence of such accidents. Recovery was sought under Restatement (Second) of Torts § 402A.
There was no evidence that Culp had knowledge of the specific dangers arising out of the precise defects asserted, or that he voluntarily and unreasonably proceeded to encounter those dangers despite his awareness of the defects. See Restatement (Second) of Torts § 402A, comment n. See also Hensley v. Sherman Car Wash Equipment Co., 33...
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