Koehn v. R.D. Werner Co., Inc., 89CA0112

• Decision Date: 11 October 1990
• Docket Number: No. 89CA0112,89CA0112
• Citation: 809 P.2d 1045
• Parties: Patty Ann KOEHN, Plaintiff-Appellant and Cross-Appellee, and Hartford Accident and Indemnity Company, Plaintiff-Intervenor Appellant, v. R.D. WERNER CO., INC., a Foreign Corporation, Defendant-Appellee and Cross-Appellant. . III
• Court: Colorado Court of Appeals

Page 1045

809 P.2d 1045

Patty Ann KOEHN, Plaintiff-Appellant and Cross-Appellee and Hartford Accident and Indemnity Company Plaintiff-Intervenor Appellant, v. R.D. WERNER CO., INC., a Foreign Corporation Defendant-Appellee and Cross-Appellant.

No. 89CA0112.

Colorado Court of Appeals, Div. III.

Oct. 11, 1990.

Rehearing Denied Nov. 8, 1990.

Certiorari Denied April 22, 1991.

Kripke, Epstein & Lawrence, P.C., Kenneth N. Kripke, Scott W. Lawrence, Denver, for plaintiff-appellant and cross-appellee.

Anderson, Campbell and Laugesen, Michael W. Sutherland, Denver, for plaintiff-intervenor appellant.

Blunk, Johnson & Johnson, George E. Johnson, James D. Johnson, Bradford L. Geiger, Denver, for defendant-appellee and cross-appellant.

Opinion by Judge TURSI.

In this products liability action concerning an allegedly defective step ladder, plaintiff, Patty Ann Koehn appeals the judgment entered upon a jury verdict in favor of defendant, R.D. Werner Company, Inc. Hartford Accident and Indemnity Company intervened as a plaintiff. Plaintiff contends the trial court erred in: (1) excluding evidence of a similar post-accident step ladder failure; (2) instructing the jury on the affirmative defense of unforeseeable misuse; (3) instructing the jury on the manufacturer's right to assume that warnings will be read and followed; (4) instructing the jury on issues which were not contested; (5) admitting expert testimony and a videotape demonstration concerning the defendant's theory of how the step ladder collapsed; and (6) assessing costs. Defendant cross-appeals the trial court's assessment of costs following an order of mistrial. We reverse and remand for retrial.

On September 16, 1985, plaintiff was injured when she fell to the floor from her position on an aluminum step ladder manufactured by the defendant. She filed suit premised solely on Restatement (Second) of Torts § 402A, claiming that the ladder was defective and unreasonably dangerous in that it buckled and collapsed while she was using it, causing her to fall and suffer head, neck, and shoulder injuries. Defendant answered denying plaintiff's contention that the ladder was defective and unreasonably dangerous and asserting various affirmative defenses which included comparative fault, misuse of product, and assumption of the risk.

When the case first came on for trial and a jury had been selected, mistrial was declared by the trial court because of comments made by defendant's counsel during opening statements, and the trial was reset.

Plaintiff was unable to testify because of her head injuries, but in support of her theory of liability, she presented the testimony of witnesses in the general vicinity of the accident prior to the fall. None of these witnesses saw a use inconsistent with the warnings on the ladder. One witness stated he heard a noise, turned, saw plaintiff on the ladder as it rocked back and forth. He testified that as the ladder tipped, the right leg of the ladder bent and plaintiff fell. She did not, according to the witness, fall upon or strike the ladder as she fell.

Plaintiff also presented the testimony of an expert witness who opined that the ladder was defective and unreasonably defective in that it twisted while in use causing its front rails to bend and become unstable. Defendant, on the other hand, maintained that the ladder was not defective and presented expert testimony supporting that position and its theory that the accident could only have happened because of misuse. The jury returned a general verdict in favor of defendant.

I.

Plaintiff argues the trial court abused its discretion in excluding evidence of a similar aluminum step ladder collapse that occurred approximately eleven months after her accident. We agree.

Prior to trial, the defendant filed a motion in limine seeking to suppress the introduction of testimony concerning the later accident. This motion was granted by the trial court.

Subsequent to the testimony of defendant's experts that the ladder was without defect and that but for misuse by the plaintiff the accident could not have happened, plaintiff renewed her effort to introduce testimony of the second accident. She proffered testimony that after her fall her supervisor using an identical ladder (one of three purchased at the same time by plaintiff's employer) in an area similar to where plaintiff's fall had occurred, and using the ladder consistent with all warnings and directions upon it, suffered a fall when the ladder suddenly pitched to the side. The supervisor also testified that the ladder on which he suffered his fall was in the same condition as the ladder upon which plaintiff suffered her injuries.

Plaintiff further proffered testimony of an expert witness that the failure of the two ladders occurred in the same manner and that the failures were due to twisting of the front rail which was a function of inadequate metal, quantity of metal, and distribution of metal to provide the necessary stiffness.

The trial court held that because the testimony might tend to be confusing and misleading to the jury, the prejudice to the defendant outweighed probative value of the evidence. Thus, it adhered to its prior ruling. The trial court did not identify what confusion or unfair prejudice this evidence would cause.

Evidence of similar post-accident occurrences or injuries may be offered to refute testimony given by a defense witness that a given product was designed without safety hazards. See Wheeler v. John Deere Co., 862 F.2d 1404 (10th Cir.1988). Initially, the proponent of such evidence must demonstrate that the other accident occurred under circumstances and conditions the same or substantially similar to the one involved in the present case. See Johnson v. Colt Industries Operating Corp., 797 F.2d 1530 (10th Cir.1986).

Receptivity of evidence of similar transactions is heightened when the defendant contends that the alleged incident could not possibly have caused the injury complained of. See Ringelheim v. Fidelity Trust Co., 330 Pa. 69, 198 A. 628 (1938).

Here, the fact that the evidence of the subsequent accident was offered for a valid purpose and that it was relevant to material issue is not in dispute. Further, the trial court found that the evidence was probative, thus, impliedly finding adequate similarity. However, it ruled that it was not admissible because the prejudice outweighed its probative value.

For relevant and probative evidence to be excluded pursuant to CRE 403, its probative value must be substantially outweighed by the danger of unfair prejudice, and the opponent of its reception must overcome the presumption in favor of admissibility of relevant evidence. See CRE 401.

In weighing the probative value of evidence against the dangers and considerations enumerated in CRE 403, the general rule is that the balance should be struck in favor of admission. United States v. Dennis, 625 F.2d 782 (8th Cir.1980). See also United States v. David, 639 F.2d 239 (5th Cir.1981). Since all effective evidence is prejudicial in a sense of being damaging to the party against whom it is being offered, prejudice which calls for exclusion is given a specialized meaning: an undue tendency to suggest decision on an improper basis, commonly an emotional one, such as bias, sympathy, hatred, contempt, retribution or horror.

Here, plaintiff's proffered testimony was submitted for the legitimate purpose of rebutting the testimony of defendant's expert. See Gunnison v. McCabe Hereford Ranch, Inc., 702 P.2d 768 (Colo.App.1985). See also Dollar v. Long Manufacturing N.C., Inc., 561 F.2d 613 (5th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). Thus, it cannot be characterized as unfairly prejudicial to defendant, and we agree with plaintiff that the trial court used the incorrect standard in evaluating the admissibility of such evidence.

Because the trial court applied the wrong standard in excluding the testimony of the similar incident in this case, we review the trial court's decision within the framework of the correct standard. See Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986).

Although a detailed finding on the record by the trial court, conducting the balancing mandated by CRE 403, is to be encouraged, it is not required. M. Graham, Notebook on Federal Evidence § 403.1 (2nd ed. 1981). Nevertheless, because the evidence of the similar transaction here was relevant and probative, was not found to be substantially outweighed by unfair prejudice, and was legitimate rebuttal to crucial defense testimony, we conclude that its exclusion constitutes reversible error.

II.

Because retrial is required here, we address certain questions which will probably arise on retrial.

Plaintiff argues that the trial court erred in instructing the jury as follows:

"A manufacturer of a product is not legally responsible for injuries caused by a product if: (1) the product is used in a manner or for a purpose other than that which was intended and which could not reasonably have been expected by the manufacturer; (2) such use rather than a defect, if any, in the product caused the plaintiff's claimed injuries.

This is the affirmative defense of unforeseeable misuse."

She argues that this instruction should not have been given since there was absolutely no evidence to support this affirmative defense and that, even if there was, the instruction was improper since any misuse was not unforeseeable because all alleged acts of misuse were set forth on warning labels on defendant's ladders. We disagree.

A.

An instruction on misuse of a product in a products liability action should not be given to the jury unless there is some competent evidence to support that instruction. See Converse v. Zinke, 635 P.2d 882 (Colo.1981); Patterson v. Magna American Corp., 754 P.2d 1385 (Colo.App.1988).

Defendant presented the testimony of two expert witnesses who had examined and...