Imperial Distribution Services, Inc. v. Forrest

• Decision Date: 27 July 1987
• Docket Number: No. 85SC259,85SC259
• Parties: IMPERIAL DISTRIBUTION SERVICES, INC., A Delaware Corporation, and Paul F. Larned, Petitioners, v. Marion K. FORREST and Julia A. Forrest, Respondents.
• Court: Colorado Supreme Court

Page 1251

741 P.2d 1251

IMPERIAL DISTRIBUTION SERVICES, INC., A Delaware Corporation, and Paul F. Larned, Petitioners, v. Marion K. FORREST and Julia A. Forrest, Respondents.

No. 85SC259.

Supreme Court of Colorado En Banc.

July 27, 1987.

Rehearing Denied Sept. 8, 1987.

Greengard & Senter, William L. Senter, Mark C. Overturf, Denver, for petitioners.

William E. Myrick, P.C., William E. Myrick, Denver, for respondents.

VOLLACK, Justice.

The petitioners, Imperial Distribution Services, Inc. [hereinafter Imperial] and its employee, Paul F. Larned, seek reversal of the court of appeals' decision in Forrest v. Imperial Distribution Services, Inc., 712 P.2d 488 (Colo.App.1985). In reversing a judgment entered on a jury verdict in favor of the petitioners, the court of appeals held that the determination of whether the petitioners were required to exercise the highest degree of care or simply "reasonable care" was a question of fact for the jury. We granted certiorari and now reverse the judgment of the court of appeals and remand for reinstatement of the jury verdict.

I.

The events of this case occurred at the site of a waste dump in Adams County owned by Landfill, Inc. [hereinafter Landfill]. The respondent, Marion K. Forrest, was employed by Landfill to operate heavy equipment at the dump, and was injured on March 15, 1979, when he was splashed in the face with a caustic cleaning agent. He sued Imperial and Larned on the grounds of negligence and strict liability. At trial, the parties presented conflicting evidence of the events leading up to the accident. However, the facts relevant to our determination of whether the jury was properly instructed by the trial court are sufficiently clear.

Imperial is in the business of warehousing and distributing products for its customers. None of the products handled by Imperial are manufactured, sold or owned by it. One of its customers, Economic Laboratories, Inc. [hereinafter Economic], is a manufacturer of cleaning compounds, including a liquid cleaning agent supplied to restaurants, schools, and hospitals, known by the name "Super Trump." Super Trump is composed of approximately 50% potassium hydroxide, is highly alkaline in nature, and corrosive, capable of causing burns when it comes in contact with human tissue. Super Trump is a biodegradable material.

As part of the service Imperial provides to its customers, Imperial disposes of customers' merchandise when given instructions to do so. On March 15, 1979, Imperial instructed Larned to dispose of a load of merchandise at the Landfill dumpsite. The load consisted of numerous pallets of candy bars, together with miscellaneous items owned by Economic. The Economic items included various liquids, such as a cleaning compound called "Bowl Cleanse," containing hydrochloric (muriatic) acid, and five gallons of "Eco Klene," listed as an alkaline liquid, both described as corrosive material. Also included was Super Trump, which was contained in a fifteen-gallon cardboard barrel with a plastic bladder inside.

Larned was given directions to see that this load received a "special burial." A special burial is a service provided by Landfill for which customers pay extra to insure that the load being disposed of is destroyed and buried to prevent theft or salvaging. Imperial requested that an Adams County sheriff be present at the Landfill site when the materials were dumped to insure nothing was taken.

When Larned arrived at Landfill he presented invoices, listing the items being disposed, to a Landfill employee who signed and dated them. Three invoices pronounced that "hazardous materials" were present. When the sheriff arrived at Landfill, Larned proceeded to an area within the dump and unloaded his truck, throwing all the items, including the Super Trump, on the ground. There was conflicting evidence as to whether the Super Trump barrel had a sign indicating "corrosives." Larned and the sheriff stayed at the dumpsite long enough to see a large vehicle called a compactor run over and crush part of the Imperial load. They did not observe the accident.

The events immediately prior to Forrest's injuries are unclear. The petitioners contend that Forrest was looking at the load left by Imperial with the intent to salvage some of the items, which is against Landfill's policy. Forrest testified that the machine he was operating had become stuck in soft dirt and that he left his machine to get help from another employee. In any event, the respondent was approximately fifteen to twenty-five feet away from the load left by Imperial as it was being crushed. When the Super Trump barrel was crushed, it burst, spraying liquid on the respondent. Approximately one cup of the liquid was splashed onto the respondent's face, causing the loss of sight in the respondent's left eye, partial impairment of sight in his right eye, and facial burns.

The respondent brought this action against Imperial and Larned to recover damages for personal injuries; his wife sought damages for loss of consortium. A jury trial was held and judgment was entered on a jury verdict in favor of the defendants. The Forrests appealed the judgment to the court of appeals contending that the trial court erred in refusing their tendered instructions on inherently dangerous and ultrahazardous activities. The trial court rejected jury instructions tendered by the respondents which would have permitted the jury to determine whether the petitioners, in delivering the Super Trump, should have exercised the highest degree of care. ¹ The trial court instructed the jury that the petitioners were required to exercise reasonable care.

The court of appeals reversed the judgment, holding that "given the highly caustic nature of the cleaning compound, the jury could have reasonably determined that it was a dangerous substance and that the [petitioners], in delivering the material to the dumpsite, were engaged in an inherently dangerous activity." Forrest, 712 P.2d at 490. The petitioners contend that the court of appeals erred in holding that whether Imperial and Larned owed a duty to exercise the highest degree of care was a question of fact for the jury. We agree.

II.

The court determines, as a matter of law, the existence and scope of the duty to which a defendant is to be held. Metropolitan Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313 (Colo.1980); see Jefferson County School Dist. v. Justus, 725 P.2d 767 (Colo.1986); ² Restatement (Second) of Torts § 328B (1965). ³ The commentators to the Restatement note that "[o]nce the existence of a legal duty is found, it is the further function of the court to determine and formulate the standard of conduct to which the duty requires the defendant to conform." Restatement (Second) of Torts § 328B comment f (1965). The case law and the Restatement clearly define the functions of the court in determining the standard of care to be applied in negligence cases. To the extent that the language of the court of appeals can be read to assign any part of this determination to the jury, the court of appeals erred. ⁴

It is axiomatic that in engaging in a particular activity every person is "bound to exercise that reasonable care and caution which would be exercised by a reasonably prudent and cautious person under the same or similar circumstances." Denver Consol. Elec. Co. v. Simpson, 21 Colo. 371, 376, 41 P. 499, 501 (1895). Accord Blankette v. Public Serv. Co., 90 Colo. 456, 10 P.2d 327 (1932). We have also stated that under this reasonable person standard "the greater the risk, the greater the amount of care required to avoid injury to others." Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587 (Colo.1984). Thus, what constitutes reasonable care varies according to the degree of risk associated with the particular activity. "[G]reater care may be required of one who dispenses a product in the stream of commerce when the product itself, by virtue of its inherent character, poses a high risk of injury to others." Id. at 588.

In Simpson, a case involving the delivery of electricity, we held that a trial court may properly instruct a jury on the "highest degree of care" standard only "where all minds concur" that a business, by its inherent nature, is "fraught with peril to the public." Simpson, 21 Colo. at 377, 41 P. at 501. We went on to state that "[w]here the facts of a case naturally lead equally intelligent persons honestly to entertain different views as to the degree of care resting upon a defendant, the court ought not to lay down a rule prescribing any particular or specific degree in that case." Id. Only in limited circumstances have we held that an instruction on the highest degree of care is required. See Blueflame Gas, 679 P.2d 579 (distribution of propane); Federal Ins. Co. v. Public Serv. Co., 194 Colo. 107, 570 P.2d 239 (1977) (distribution of electricity). It is only where all minds concur that the defendant is engaged in an activity that poses a high risk of injury to others that the court, as a matter of law, may instruct the jury to hold the defendant to the highest standard of care. See Blueflame Gas, 679 P.2d at 587-89.

The enhanced standard of care theory holds that the reasonable or ordinary care in cases such as delivering electricity, which all must acknowledge to pose a high risk of injury to others, is "the highest care which human ingenuity can practically exercise, and that, as a matter of law, courts will hold every reasonably prudent and careful [person] to the exercise of the utmost care and diligence in protecting the public from the dangers necessarily incident to the carrying on of a hazardous business." Simpson, 21 Colo. at 377, 41 P. at 501 (emphasis added). In every case, the standard of care is always one of reasonable care. ⁵

In cases following our decision in Simpson, we have consistently focused on the inherently dangerous nature of the activity and the ability of the public to recognize...