Jackson v. Harsco Corp.

• Decision Date: 08 April 1982
• Docket Number: No. 78-789,78-789
• Citation: 653 P.2d 407
• Parties: Charles R. JACKSON and Alice L. Jackson, Plaintiffs-Appellants, v. HARSCO CORPORATION, and Patent Scaffolding Company, Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 407

653 P.2d 407

Charles R. JACKSON and Alice L. Jackson, Plaintiffs-Appellants, v. HARSCO CORPORATION, and Patent Scaffolding Company Defendants-Appellees.

No. 78-789.

Colorado Court of Appeals Div. III.

April 8, 1982.

Rehearing Denied April 29, 1982.

Certiorari Granted Nov. 1, 1982.

Law Offices of Peter Alan Shelley, Peter Alan Shelley, Boulder, for plaintiffs-appellants.

Madden & Strate, P.C., William J. Madden, Denver, for defendants-appellees.

BERMAN, Judge.

Plaintiffs, Charles R. and Alice L. Jackson, appeal from a jury verdict entered against them and in favor of defendants, Harsco Corporation and Patent Scaffolding Company, in a products liability action. We affirm.

The evidence revealed that on August 6, 1976, plaintiff, Charles Jackson, was working on a scaffolding about four or five feet above the floor. The scaffolding was placed a short distance from a railing. Beyond the railing there was a straight drop of about 60 to 70 feet. While working on the scaffold, the plaintiff fell four feet to the floor and was injured after the scaffolding fell over.

Plaintiffs brought this action under Restatement (Second) of Torts § 402A alleging that the scaffolding leg had collapsed because of a defective design. The design defect specified was that the manufacturer, Patent Scaffolding Company, had not placed a dust cap on the leg of the scaffold to prevent corrosive materials from entering the leg, thereby resulting in premature corrosion and weakening of the scaffolding leg.

Defendants did not dispute that the leg was corroded, but alleged that corrosion did not cause the injured plaintiff's fall. In support of their allegation, defendants asserted that the injured plaintiff had tipped the scaffold over first before the leg broke and that thus he, rather than the corroded leg, caused the fall. Defendants further contended that, whatever its cause, if the injured plaintiff had properly used outriggers, a safety device, the accident would not have happened.

I.

Plaintiffs first contend that the trial court erred in not excluding the evidence offered by the defendants in support of their defenses of assumption of risk and misuse because such defenses in this case amount to nothing more than contributory negligence. We disagree.

In light of the jury's verdict for the defendants, three possibilities are presented. The first is that the jury found that the scaffolding tipped first causing the leg to break and that therefore the leg did not cause the accident and the scaffolding was not defective. Secondly, the jury could have concluded that even though the leg may have broken first, the product nonetheless was not defective because of the length of time it had been used without incident. The jury could have also found that the leg broke first causing the scaffolding to fall, but that the injured plaintiff's failure to use outriggers to prevent the accident constituted either assumption of risk or misuse, thus barring the claim.

As to the first possible jury conclusion, the main dispute at trial centered on whether the scaffolding tipped over first or whether the leg broke first. As there was conflicting evidence on this issue, the cause of the accident was for the jury to determine and we will not disturb its finding on review. See Vigil v. Pine, 176 Colo. 384, 490 P.2d 934 (1971). The same result pertains as to the second possible jury conclusion, since the question of whether the product was defective was a jury question which we will not disturb as there was evidence to support either conclusion. See Vigil v. Pine, supra.

As to the third possible jury conclusion, plaintiffs contend that the trial court committed reversible error in allowing the jury to hear evidence of the injured plaintiff's failure to use outriggers when such conduct amounted to nothing more than negligence. Defendants contend, however, that the injured plaintiff's failure to use outriggers constituted misuse or assumption of risk, and that the jury was entitled to hear evidence on those issues.

At an in limine hearing the court held that it would defer any ruling on whether evidence in support of defendants' defense of assumption of risk and misuse could be relied on at trial until evidence was presented at trial in support of those defenses. Since the proper use of outriggers would have prevented the scaffolding from falling over, whatever the cause of the accident, the only remaining issue is whether the jury should have been permitted to hear evidence on the injured plaintiff's failure to use outriggers.

At trial, in support of their defense of assumption of risk, the defendants presented evidence that the injured plaintiff knew the scaffolding could tip over if outriggers were not attached and yet used the scaffolding the day of the accident without the outriggers being properly attached. In support of the defense of misuse, defendants introduced evidence that the scaffolding was not intended to be used without outriggers when the possible fall was 60 to 70 feet and that the manufacturer could not have anticipated that the scaffolding would not be used without outriggers at that height. The jury was instructed that if it found that defendants had established the affirmative defense of misuse or assumption of risk, its verdict must be for the defendants.

In a products liability case brought under § 402A, contributory negligence is not available as a defense. Kysor Industrial Corp. v. Frazier, Colo., 642 P.2d 908 (1982); Union Supply v. Pust, 196 Colo. 162, 583 P.2d 276 (1978). See Hensley v. Sherman Car Wash Equipment Co., 33 Colo.App. 279, 520 P.2d 146 (1974). However, "[a]ssumption of the risk as stated in § 402A is a defense to strict liability. (citation omitted) In this [context] it is defined as: 'voluntarily and unreasonably proceeding to encounter a known danger.' " Comment n, Restatement (Second) of Torts § 402A. Union Supply v. Pust, supra. See also Good v. A.B. Chance Co., 39 Colo.App. 70, 565 P.2d 217 (1977). Misuse is also available as a defense in a strict liability action. See Kinard v. Coats Co., 37 Colo.App. 555, 553 P.2d 835 (1976).

To establish the defense of assumption of risk a defendant must show that a plaintiff voluntarily and unreasonably encountered a known danger. See Kinard v. Coats Co., 37 Colo.App. 555, 553 P.2d 835 (1976). To establish the defense of misuse, a defendant must show that a plaintiff used the product in a manner not reasonably foreseeable by the manufacturer, such that the plaintiff became the cause of the accident. See Kinard v. Coats Co., supra.

Here, the evidence presented by the defendants was sufficient to raise a jury question as to whether the injured plaintiff voluntarily and unreasonably encountered a known danger, that of the scaffolding tipping over, when he failed to attach the outriggers properly. The evidence was also sufficient to go to the jury as to whether the injured plaintiff's failure to use outriggers when a fall of 60 to 70 feet was possible, was a misuse not reasonably anticipated by the manufacturer. See Roberts v. May, 41 Colo.App. 82, 583 P.2d 305 (1978) (whether defendant should have foreseen plaintiff's misuse is question of fact for jury). The trial court properly instructed the jury separately on the defense of assumption of risk and misuse and the jury returned a general verdict in favor of defendants.

As the evidence was sufficient to raise a jury question on both defenses, the court's denial of plaintiffs' motion in limine to bar evidence of...