Matz v. Mile Hi Concrete, Inc.

• Decision Date: 28 March 1991
• Citation: 819 P.2d 530
• Docket Number: 89CA1792
• Parties: Prod.Liab.Rep. (CCH) P 13,038 Richard MATZ, Plaintiff-Appellant, v. MILE HI CONCRETE, INC., a Colorado corporation, Defendant-Appellee. . IV
• Court: Colorado Court of Appeals

Page 530

819 P.2d 530

Prod.Liab.Rep. (CCH) P 13,038

Richard MATZ, Plaintiff-Appellant, v.MILE HI CONCRETE, INC., a Colorado corporation, Defendant-Appellee.

No. 89CA1792.

Colorado Court of Appeals Div. IV.

March 28, 1991.

Rehearing Denied May 2, 1991.

Certiorari Granted Oct. 21, 1991.

Radetsky & Shapiro, P.C., James M. Edwards, Steven A. Shapiro, Denver, for plaintiff-appellant.

Watson, Nathan & Bremer, P.C., Ellis J. Mayer, Mark H. Dumm, Denver, for defendant-appellee.

Opinion by Judge MARQUEZ.

Plaintiff, Richard Matz, appeals from a jury verdict in favor of defendant, Mile Hi Concrete, Inc., on claims of negligence and products liability.We reverse and remand for a new trial.

Plaintiff is a self-employed carpet installer who operates his business out of his residence.Plaintiff testified that, although he was inexperienced in dealing with wet concrete, he decided to square off a slab of concrete that was on his land, and he built forms around the slab for that purpose.He then looked in the phone book to select a company to supply the concrete.Because he had to purchase only as much concrete as was necessary for the job, plaintiff decided to buy concrete from defendant, a company that directed its advertisements to small contractors and homeowners.

The concrete was delivered to plaintiff's property in November 1987.Plaintiff used a shovel to spread the wet concrete until the truck driver showed him how to move it using a piece of wood.Working in the concrete on his hands and knees, plaintiff then finished leveling it off in the forms and went to work spreading the leftover amount in a small gully located on his property.Plaintiff continued working in the wet concrete for 25 to 45 minutes after the truck driver left.At that point, plaintiff's knees began to feel "hot" and "cold" and he noticed that his knees were getting red and were burning.

Plaintiff sought medical attention, and his treating physician's final diagnosis was deep and superficial second degree burns caused by kneeling in the concrete.

The record reflects that no oral or written warnings were given to plaintiff regarding the possible dangers of wet concrete.

In August 1988, plaintiff filed suit.The first of two claims submitted to the jury was based on defendant's negligent failure to warn, and the second was a products liability claim alleging that the concrete was defective and unreasonably dangerous because of a lack of warnings.The jury returned a verdict on both claims in favor of defendant.

I.

Plaintiff now argues that the trial court erred regarding the giving of certain jury instructions.Specifically, plaintiff contends that the trial court erred in not finding a duty to warn as a matter of law and in not properly instructing the jury regarding that duty.We agree.

The existence and scope of a duty are matters of law for the court to determine.Imperial Distribution Services v. Forrest, 741 P.2d 1251(Colo.1987).Whether the law should impose a duty requires consideration of many factors including the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor.University of Denver v. Whitlock, 744 P.2d 54(Colo.1987).

When a manufacturer or seller knows or should know of unreasonable dangers associated with the use of its product and not obvious to product users, it has a duty to warn of these dangers; and a breach of this duty constitutes negligence.Palmer v. A.H. Robins Co., 684 P.2d 187(Colo.1984).

No Colorado case has discussed the issue of a concrete manufacturer's duty to warn.However, in cases such as here in which a ready-mix concrete company delivers concrete to a "do-it-yourselfer,"courts in other jurisdictions have held that manufacturers do have a duty to warn the user of the danger that continued exposure to wet concrete can cause burns or injuries.SeeJowers v. Commercial Union Insurance Co., 435 So.2d 575(La.App. 3rd Cir.1983);Young v. Elmira Transit Mix, Inc., 52 A.D.2d 202, 383 N.Y.S.2d 729(1976);Sams v. Englewood Ready-Mix Corp., 22 Ohio App.2d 168, 259 N.E.2d 507(1969).But seeBaker v. Stewart Sand & Material Co., 353 S.W.2d 108(Mo.App.1961);Katz v. Arundel-Brooks Concrete Corp., 220 Md. 200, 151 A.2d 731(1959).Cf.Gary v. Dyson Lumber & Supply Co., Inc., 465 So.2d 172(La.App. 3rd Cir.1985)(No duty to warn since plaintiffs knew concrete could cause burns);Huff v. Elmhurst-Chicago Stone Co., 94 Ill.App.3d 1091, 50 Ill.Dec. 453, 419 N.E.2d 561(1981)(Duty to warn concrete laborer did not arise because of general knowledge in the industry and actual knowledge on behalf of plaintiff).We conclude that such a rule is appropriate in this case.

Here, defendant's president and owner testified that Mile Hi Concrete had been in business about a year at the time of this incident and that he knew that if one were exposed to wet concrete without washing it off for a long period of time it could burn.

Also, there is no evidence that defendant had any reason to believe plaintiff knew of the dangers of wet concrete.

In addition, there was testimony that warnings were common in the industry and that they had been in place since at least the mid-1980's.And, at the time of plaintiff's injury, defendant had a form of receipt which read as follows:

"CAUTION: Freshly mixed cement, mortar, concrete, or grout may cause skin injury.Avoid contact,...