Good v. A. B. Chance Co.

• Decision Date: 03 March 1977
• Docket Number: No. 74-551,74-551
• Citation: 565 P.2d 217,39 Colo.App. 70
• Parties: Suzanne M. GOOD, Individually and as parent, next friend and natural guardian of her minor children, Terry E. Good, Sandra K. Good and Kelly Jo Good, on their behalf, Plaintiffs-Appellees, v. A. B. CHANCE CO., a corporation, Pitman Manufacturing Co., a corporation, Elder Equipment Leasing, Inc., a corporation, and Elder Trailer and Body, Inc., a corporation, Defendants-Appellants. . I
• Court: Colorado Court of Appeals

Page 217

565 P.2d 217

39 Colo.App. 70

Suzanne M. GOOD, Individually and as parent, next friend and

natural guardian of her minor children, Terry E.

Good, Sandra K. Good and Kelly Jo Good, on their behalf, Plaintiffs-Appellees, v. A. B. CHANCE CO., a corporation, Pitman Manufacturing Co., a

corporation, Elder Equipment Leasing, Inc., a

corporation, and Elder Trailer and Body,

Inc., a corporation,

Defendants-Appellants.

No. 74-551.

Colorado Court of Appeals, Div. I.

March 3, 1977.

Rehearing Denied March 24, 1977.

Certiorari Denied May 31, 1977.

Carrigan & Bragg, P. C., Jim R. Carrigan, Boulder, for plaintiffs-appellees.

Wood, Ris & Hames, Eugene S. Hames, Denver, for defendants-appellants A. B. Chance Co. and Pitman Mfg. Co.

Long & Jaudon, James A. Dierker, Joseph C. Jaudon, Jr., Denver, for defendants-appellants Elder Equipment Leasing, Inc., and Elder Trailer and Body, Inc.

KELLY, Judge.

A. B. Chance Co. and Pitman Manufacturing Co., a division of Chance, appeal a judgment finding them liable to Suzanne Good and her three children for damages for the wrongful death of Robert Good, their husband and father, respectively. Chance also appeals the adverse judgment on a cross-claim of Elder Equipment Leasing, Inc., and Elder Trailer and Body, Inc., retailers for Pitman.

Good, an electrical lineman for Hamlin Company, was electrocuted while working in the basket of an aerial boom device, the "Pitman Hotstik," designed and manufactured by Pitman. The accident occurred when current from an energized line passed or arced through a brass bonding screw on the lower face of the Hotstik boom, then through a concealed metal braid running to the metal control mechanism in the basket, and through Good's body to a grounded line.

The complaint, based on products liability, alleged the inherently dangerous design of the Pitman Hotstik. In addition to its denials, Chance asserted the affirmative defenses of contributory negligence and "assumption of the risk." Elder answered, and cross-claimed against Chance for strict liability in tort.

Chance's numerous assignments of error may be grouped into four major divisions: (1) Those relating to the plaintiffs' motion in limine and the rulings of the trial court thereon; (2) those relating to the admission, exclusion and sufficiency of evidence of liability; (3) the admission and exclusion of evidence on damages issues and the amount of the damages; and (4) the propriety of the directed verdict in favor of Elder on its cross-claim against Chance. We treat these divisions in this order and conclude that the judgment must be affirmed.

I. THE MOTION IN LIMINE ¹

Prior to the commencement of trial, the court entertained lengthy argument and testimony on the plaintiffs' motion in limine to exclude evidence of contributory negligence or assumption of the risk. Chance contends that this procedure resulted in numerous reversible errors. We do not agree.

We have previously approved the use of motions and orders in limine to forestall introduction of potentially prejudicial evidence until the court has ruled on its admissibility outside the presence of the jury. Bruckman v. Pena, 29 Colo.App. 357, 487 P.2d 566 (1971). Other states have also recognized the efficacy and importance of a procedure which restrains parties from referring to prejudicial matters of questionable legal relevance prior to a decision regarding admissibility. ²

Specific statutes are not required to authorize a motion in limine. The underlying power of the trial court to pass on the admissibility of evidence is inherent, see Bruckman v. Pena, supra; Burrus v. Silhavy, supra note 2, and is reflected in the rules governing trial procedure. See, e.g., C.R.C.P. 16(a) and C.R.C.P. 43.

A motion in limine allows the trial court to consider the exclusion of evidence which may be logically, but not legally, relevant. See Dickson v. Bober, supra note 2; Davis, The Motion in Limine A Neglected Trial Technique, supra note 2. Because a motion in limine shortens trial, simplifies issues, and reduces the possibility of mistrial, its function is not unlike the pre-trial conference, and it may accomplish similar ends. See C.R.C.P. 16(a)(8); Wagner v. Larson, 257 Iowa 1202, 136 N.W.2d 312 (1965). Nevertheless, the procedures to resolve questions of the admissibility of evidence, and the determinations themselves, are subject to review.

The plaintiffs, by their motion, sought to shield the jury from evidence which would have prejudiced their case, but which lacked a legal basis for admission. Chance contends that the trial court erred in reviewing evidence supportive of its affirmative defenses at the hearing on the motion in limine, and also that the court's rulings on the admissibility of the evidence, during the hearing, were improper and resulted in an erroneous ruling on the motion itself.

Here, the purpose of the motion and the nature of the affirmative defenses asserted by Chance rendered an evidentiary hearing on the in limine issues essential to an informed ruling on the questions presented. Only after hearing the evidence could the trial court determine whether a proper foundation existed and whether the evidence was legally relevant.

This becomes more apparent in view of Chance's specific arguments. Initially, Chance argues that when the trial court granted the motion in limine it improperly excluded evidence that Good failed to use rubber gloves and line covers contrary to industry practice and Hamlin's safety rules. This evidence, which might otherwise have come before the jury related, at least in part, to Good's asserted negligence. Insofar as the evidence was excluded for this purpose, the ruling was proper. Kinard v. Coats Co., Inc., Colo.App., 553 P.2d 835 (1976). Reception of or reference to such evidence during trial clearly would have been prejudicial to the plaintiffs' case.

Chance also asserted the affirmative defense of "assumption of the risk." Again it was necessary that the trial court determine Chance's evidentiary foundation for such a defense and ascertain its relevance, lest reference before the jury to legally inadequate and fatally prejudicial evidence result in a mistrial.

An affirmative defense in a products liability case exists when it can be shown that the injured party knew of the dangerous defect in the product and voluntarily and unreasonably encountered the known danger it presented. Hiigel v. General Motors Corp., Colo., 544 P.2d 983 (1976); Restatement (Second) of Torts § 402A, Comment n. The Comment n defense focuses on the subjective knowledge of the injured party, Pust v. Union Supply Co., Colo.App., 561 P.2d 355 (1976), and the burden of establishing the elements of this defense is on the party asserting it. Hiigel v. General Motors Corp., supra. Absent evidence of Good's subjective knowledge of the specific defect, and the danger it posed, Chance's evidence in support of the defense would have supported conjectural inferences only. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972).

During the evidentiary hearing on the plaintiffs' motion in limine, Chance offered in support of its Comment n defense evidence of a Hotstik sales demonstration and of a movie shown during training sessions for users. However, unless Chance could show, by way of foundation, that Good saw the movie or attended the sales demonstration and that they included information about the product defects, such as the connection between the brass bonding screws and the metal controls in the basket, this evidence was irrelevant to the defense. Similarly, without a showing of Good's knowledge of the defects, evidence of his failure to use rubber gloves or protective line covers would have no bearing on the Comment n defense.

Accordingly, the trial court properly required Chance to supply the requisite foundation evidence. In no other way could it determine the propriety of this highly prejudicial evidence. See Bridges v. City of Richardson, supra note 2; C.R.C.P. 43(e); Comment, Motion in Limine, 29 Ark.L.Rev. 215 (1975).

Nevertheless, Chance argues that it would have been able to establish a foundation for this evidence but for the erroneous admission of evidence during the hearing. To rebut Chance's contention that Good was present at the Hotstik sales demonstration, the plaintiffs offered testimony of Good's crew leader and time cards for the day in question, which showed that Good's crew spent the entire day on a job site, and was not at the demonstration. While Chance is correct that these cards, and the writings contained thereon, were hearsay, they were nonetheless admissible under recognized exceptions to the hearsay rule.

The crew leader testified to the procedures for making entries on the time cards and to their subsequent use by the City of Longmont, Good's then employer. The cards, as records kept in the regular course of business, were admissible. Empire Diesel, Inc. v. Brown, 146 Colo. 477, 361 P.2d 964 (1961). The record also supports their admission as a recorded past recollection of the witness, Jordan v. People, 151 Colo. 133, 376 P.2d 699 (1962), cert. denied, 373 U.S. 944, 83 S.Ct. 1553, 10 L.Ed.2d 699 (1963), and their use to refresh the witness's memory. Mingo v. People, 171 Colo. 474, 468 P.2d 849 (1970).

Chance also complains of the trial court's exclusion of the Hotstik parts manual and the training movie. However, although the parts manual movie explain the proper methods for operating the Hotstik, they make no reference to the inherently dangerous nature of the product, and were therefore properly excluded. Hiigel v. General Motors Corp., supra.

While the trial court properly concluded that Chance did not lay a sufficient foundation at the evidentiary hearing for its Comment n defense, Chance asserts that it was deprived of the opportunity to establish such a foundation later, during the course of the trial, because the order was not expressly made conditional by the...