Hoffman v. Kiefer Concrete, Inc.
| Decision Date | 20 November 1975 |
| Docket Number | No. 75--034,75--034 |
| Citation | 37 Colo.App. 138,546 P.2d 1275 |
| Parties | Charles HOFFMAN and Patricia Hoffman, Plaintiffs-Appellants, v. KIEFER CONCRETE, INC., a Colorado Corporation, Defendant-Appellee. . III |
| Court | Colorado Court of Appeals |
Hoffman, McDermott & Hoffman, Daniel S. Hoffman, Denver, Hill & Hill, Alden V. Hill, Fort Collins, for plaintiffs-appellants.
Fischer & Wilmarth, Elery Wilmarth, G. William Beardslee, Fort Collins, for defendant-appellee.
Charles Hoffman (Hoffman) instituted a negligence action against Kiefer Concrete Company (Kiefer) to recover damages for personal injuries he sustained while working on a construction site. Patricia Hoffman sued for the loss of her husband's consortium. The Hoffmans appeal from the judgment of dismissal entered upon the jury's special verdicts that neither Charles Hoffman nor Kiefer was negligent. We reverse and remand for a new trial on the issue of damages only.
On May 5, 1972, Hoffman was hired by Poudre Pre-Mix, Inc., (Poudre) to bolt together the upper and lower parts of a cement silo which Poudre was erecting on its property for its own use. He arranged for a crane owned by Reid Burton Co. to raise the upper part of the silo and to hold it in place atop the supporting assembly while he bolted the two parts together. He obtained an additional crane from Kiefer, an affiliate of Poudre, to lift him to the various locations where he would be working. After hooking up a cement bucket to the Kiefer crane, Hoffman got inside the bucket and, by use of hand signals to the crane operator, Richards, indicated where he wanted to be positioned. Richards hoisted the cement bucket carrying Hoffman some 20 feet into the air, and Hoffman began to work. As Hoffman was being maneuvered to a different position, the cable holding the cement bucket suddenly broke and the bucket fell to the ground. Hoffman suffered serious injuries.
The Hoffmans claimed that Richards was negligent in the operation of the crane and that his negligence was the proximate cause of the fall which injured Hoffman. They further contended that Richards was acting in the scope of his employment with Kiefer while performing his duties as a crane operator. Kiefer maintained that Richards was not negligent, that in any event Richards at the time of the accident was a loaned employee of Poudre, and that the acts of Hoffman led to his injuries.
At the conclusion of the evidence, the case was submitted to the jury under standard instructions on negligence and the loaned servant doctrine, and the special verdict form, Colorado Jury Instructions 4:17, was submitted to it. The first interrogatory therein was, 'Was the defendant, Kiefer Concrete, Inc., negligent?' The jury answered, 'No,' to this question and the same as to negligence of Hoffman. Accordingly, judgment was entered by the court for defendant.
On appeal, the Hoffmans' primary contention is that, pursuant to their motion, the court should have determined as a matter of law (1) that Richards was negligent, and (2) that Richards was not a loaned servant of Poudre.
The only reasonable conclusion to be drawn from the evidence was that the cable broke as a result of 'two-blocking' or 'booming out.' Both expressions denote a process whereby the boom of the crane is extended outward without corresponding extension of the cable, or, alternatively, the cable is reeled in without retraction of the boom. In either case, if the operation continues long enough, the hook and weight assembly at the end of the cable will jam against the pulley at the end of the boom, creating tension on the cable. If tension is increased sufficiently, the cable will break.
The manufacturer's instruction book for the Kiefer crane contained warnings in four different places that the boom extension and cable extension controls must be operated simultaneously. While none of the witnesses actually saw the cable break or saw Richards operating the crane controls improperly, there was testimony both by Richards and by the operator of the Reid Burton crane that they knew of no cause other than two-blocking which would explain how the cable could be broken as this one was. One witness testified that he saw the boom being extended shortly before the cement bucket fell; another stated that he heard the hook and weight assembly strike the end of the boom and heard the cable 'crunching in the drum'; a third said that he heard the engine of the Kiefer crane running 'under power' at the same time, indicating that the engine was straining. This witness, an experienced crane operator, also testified that the cable had broken at the point where maximum stress would occur in the event of two-blocking.
Kiefer did not refute the two-blocking theory. The president of Kiefer was asked if he knew of any other factors which might have caused the cable to part, to which he responded that there might be one or two other possible causes. But the direct and cross-examination ended without explanation of what the other factors might be.
The possibility that there may have been a latent defect in the cable...
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Kiefer Concrete, Inc. v. Hoffman
...Richman, Denver, Hill & Hill, Fort Collins, for respondents. ERICKSON, Justice. We granted certiorari to review Hoffman v. Kiefer Concrete, Inc., Colo.App., 546 P.2d 1275 (1975). We reverse and remand with directions to affirm the judgment of the trial On May 5, 1972, Charles Hoffman was hi......
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