Halter v. Waco Scaffolding & Equipment Co.

• Decision Date: 03 May 1990
• Docket Number: No. 88CA1477,88CA1477
• Citation: 797 P.2d 790
• Parties: Susan B. HALTER, individually, and as sole surviving parent and next friend of Joshua Halter, Shawna Halter and Jenna Halter, Plaintiff-Appellant, v. WACO SCAFFOLDING & EQUIPMENT COMPANY, Colorado Scaffolding & Equipment Company, Inc., Thomas E. Reck, and Charles R. Duff, Defendants-Appellees. . V
• Court: Colorado Court of Appeals

Page 790

797 P.2d 790

Susan B. HALTER, individually, and as sole surviving parent and next friend of Joshua Halter, Shawna Halter and Jenna Halter, Plaintiff-Appellant, v. WACO SCAFFOLDING & EQUIPMENT COMPANY, Colorado Scaffolding &amp Equipment Company, Inc., Thomas E. Reck, and Charles R. Duff, Defendants-Appellees.

No. 88CA1477.

Colorado Court of Appeals Div. V.

May 3, 1990.

Rehearing Denied May 31, 1990.

Certiorari Denied Sept. 24, 1990.

Peter Smith & Susan Young Law Offices, Peter M. Smith, Susan Y. Young, Lakewood, Schaden, Heldman & Lampert, Bruce Lampert, Denver, for plaintiff-appellant.

Greengard, Senter, Goldfarb & Rice, Thomas S. Rice, Joel S. Babcock, Denver for defendant-appellee Waco Scaffolding & Equipment Co.

Halaby & McCrea, Leslie L. Schluter, Denver, for defendant-appellee Colo. Scaffolding & Equipment Co., Inc.

Cooper & Kelley, P.C., Bernard B. Sapp, Denver, for defendants-appellees Thomas E. Reck and Charles R. Duff.

Opinion by Judge DAVIDSON.

Plaintiff, Susan D. Halter, appeals the summary judgment entered against her and in favor of defendants, Waco Scaffolding & Equipment Co., Colorado Scaffolding Equipment Co., Inc., and Reck/Duff Architects, on her claims in negligence and strict liability for the death of her husband. We affirm in part and reverse in part.

The decedent, a mason employed by Columbine Masonry to help erect a brick wall at Faith Presbyterian Church, was killed when scaffolding near him collapsed and, in combination with brick being stored thereon, crushed him. The scaffolding had been erected to a height of about 40 feet and, to afford protection from winter weather, had been enclosed in a protective plastic known as visqueen. The visqueen, in turn, was secured on the scaffolding with a combination of wind/weather clips and wire.

Subsequent to the accident, it was determined that the scaffolding had been erected and enclosed in an unsafe manner. Contrary to OSHA regulations, the scaffolding had been neither anchored to an existing structure nor secured by cross-bracing or vertical locks. In addition, the visqueen, which had originally been attached by means of clips that would pop off in the wind, had been reattached in several places with wire. It appears that the accident occurred when a strong gust of wind whipped against the sail-like visqueen and blew down the structure.

Asserting that they knew or should have known of the dangerous propensities of the products and set up, plaintiff, individually and as next friend of her three children, filed a wrongful death suit against the following defendants: Snow Construction Co., the general contractor for the project; Max Katz Bag Co., the manufacturer of the visqueen; Waco International, the manufacturer of the scaffolding equipment; Waco Scaffolding & Equipment Co., the supplier of the scaffolding equipment; Colorado Scaffolding & Equipment Co., Inc., the supplier of the wind clips used to secure the visqueen; and Thomas Reck and Charles Duff, d/b/a Reck/Duff Architects, the architects who designed the project and, allegedly, "administered" construction.

The claims against Snow Construction Co. were dismissed, and discovery proceeded with respect to the remaining defendants. On November 16, 1987, the trial court granted summary judgment to all defendants except as to the negligence claims against Waco International and Max Katz Bag Co. Among other grounds for the ruling, the court held that only Waco International and Max Katz Bag Co., and not the remaining defendants, owed a duty of care to the decedent and his employer.

In preparation for trial, plaintiff, Waco International, and Max Katz Bag Co. conducted additional discovery. In the course thereof, Waco International produced an engineering manual which it had supplied to Waco Scaffolding prior to the accident. Although plaintiff had previously requested both Waco International and Waco Scaffolding to produce "[a]ll written literature produced by Waco International and/or Waco Scaffolding or its agents relating to the scaffolding it produces," this manual did not come to light until plaintiff deposed a particular officer of Waco International subsequent to the summary judgment orders. The manual included specific precautions to be taken when using enclosed scaffolding in the wind.

Alleging that the delinquently produced manual provided proof that Waco Scaffolding was aware of the dangers that caused her husband's death and that it was, therefore, negligent in failing to warn Columbine Masonry or decedent thereof, plaintiff moved for reconsideration of the summary judgment in favor of Waco Scaffolding. The trial court summarily denied plaintiff's motion as untimely.

Prior to the scheduled trial date, plaintiff settled with Waco International and Max Katz Bag Co., and final judgment was entered dismissing all claims against all defendants.

Plaintiff perfected this appeal to contest the summary judgment entered in favor of Waco Scaffolding, Colorado Scaffolding, and Reck/Duff, and the denial of her motion for reconsideration.

I.

Plaintiff first contends that the trial court erred in granting summary judgment in favor of Colorado Scaffolding on her strict liability claim against it. We disagree.

Section 13-21-402(1), C.R.S. (1987 Repl.Vol. 6A) sets forth that:

"No product liability action based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product ... unless said seller is also the manufacturer of said product or the manufacturer of the part thereof claimed to be defective."

Section 13-21-401(1), C.R.S. (1987 Repl.Vol. 6A), in turn, defines manufacturer. Finally, § 13-21-402(2), C.R.S. (1987 Repl.Vol. 6A) provides that: "If jurisdiction cannot be obtained over a particular manufacturer ... then that manufacturer's principal distributor or seller over whom jurisdiction can be obtained shall be deemed, for the purposes of this section, the manufacturer of the product."

The plaintiff has alleged no facts to demonstrate that Colorado Scaffolding, which distributes but does not manufacture the wind clips, falls within the definition of "manufacturer" under § 13-21-401(1). Instead, she asserts that her inability to learn the name and address of the manufacturer (which were provided by Colorado Scaffolding in its answers to plaintiff's first set of interrogatories) until after the statute of limitations had run deprived her and the court of jurisdiction. Therefore, she argues, Colorado Scaffolding is a manufacturer under § 13-21-402(2).

To the contrary, an expired statute of limitations does not deprive the court of jurisdiction. When asserted as an affirmative defense, it simply deprives the plaintiff of a remedy. In re Estate of Randall, 166 Colo. 1, 441 P.2d 153 (1968). Jurisdiction, on the other hand, relates to whether a court may subject a particular defendant, see Public Warranty Corp. v. Mullins, 757 P.2d 1140 (Colo.App.1988), or subject matter, see Gutierrez v. District Court, 183 Colo. 264, 516 P.2d 647 (1973), to its powers.

Therefore, we agree with Colorado Scaffolding that the plaintiff has presented no basis in fact for her strict liability claim against it and that summary judgment thereon was proper.

II.

Next plaintiff asserts that the trial court erred in granting the defendants summary judgment on her negligence claims. She argues that each defendant owed her husband a duty of care and that the question of whether that duty was breached by any of them is a question of fact that cannot be disposed of on summary judgment. Insofar as Waco Scaffolding's duty may not have been established on the summary judgment record, plaintiff asserts that it was established when the record was supplemented by the engineering manual and that the trial court abused its discretion in refusing to vacate the summary judgment in favor of Waco Scaffolding at that time. We agree that summary judgment was inappropriate with respect to the negligence claims against Colorado Scaffolding and Waco Scaffolding, but disagree with respect to Reck/Duff Architects.

Summary judgment is a drastic measure and should not be granted when the submissions on file present a genuine issue as to any material fact. Wheeler v. County of Eagle, 666 P.2d 559 (Colo.1983); see C.R.C.P. 56(c).

To recover under a negligence theory, a plaintiff must show that the defendant breached a duty of care owed to the plaintiff and thereby caused plaintiff's damages. Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984).

Whether the defendant owes the plaintiff a duty is a question of law to be determined by the court under the circumstances of each case. On the other hand, whether the defendant has breached such a duty and thereby caused damages to the plaintiff is a question of fact for the jury. Perreira v. State, 768 P.2d 1198 (Colo.1989).

An important factor in the court's analysis of the existence of a duty is foreseeability. Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987). Accordingly, if damage is to be foreseen, there may be a duty to act so as to avoid it. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo.1980).

A.

Here, plaintiff asserts that her husband's injuries were foreseeable and could have been avoided had defendants Colorado Scaffolding and Waco Scaffolding given warnings on how to use the scaffolding, clips, and visqueen in windy weather.

When a manufacturer or seller knows or should know of unreasonable dangers associated with the use of its product and not, as a matter of law, obvious to product users, it has a duty to warn of these dangers, and a breach of this duty constitutes negligence. See Palmer v. A.H. Robins Co., supra; Bailey v. Montgomery Ward & Co., 635 P.2d 899 (Colo.App.1981). It is consistent with the general foreseeability requirements of duty to impose the same duty-to-warn test on the immediate lessor of property. See Rinkleff v. Knox, 375 N.W.2d 262 (Iowa 1985); Clark v....