Mile Hi Concrete, Inc. v. Matz
| Decision Date | 23 November 1992 |
| Docket Number | No. 91SC333,91SC333 |
| Citation | 842 P.2d 198 |
| Parties | Prod.Liab.Rep. (CCH) P 13,353 MILE HI CONCRETE, INC., Petitioner, v. Richard MATZ, Respondent. |
| Court | Colorado Supreme Court |
Watson, Nathan & Bremer, P.C., Mark H. Dumm, Ellis J. Mayer, Douglas A. Tabor, Denver, for petitioner.
Harding & Ogborn, P.C., Steven A. Shapiro, James M. Edwards, Denver, for respondent.
Montgomery, Green, Jarvis, Kolodny & Markusson, Karen L. Smith, Michael E. Oldham, Fogel, Keating and Wagner, P.C., William L. Keating, Steven R. Polidori, David Struthers, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.
This is a negligence and products liability action. We granted certiorari to review the jury instructions given by the district court. The jury returned a verdict for the defendant, and the court of appeals reversed and ordered a new trial. Matz v. Mile Hi Concrete, Inc., 819 P.2d 530 (Colo.App.1991). The jury instructions on the duty of care owed by the petitioner, Mile Hi Concrete, Inc. (Mile Hi), to the respondent, Richard Matz, and the statutory presumption created by section 13-21-403(3), 6A C.R.S. (1987), are the primary issues on appeal. We affirm in part, reverse in part, and return this case to the court of appeals with directions to remand to the district court for a new trial.
Matz was the owner of Perfection Carpet and worked as a carpet installer. He decided to extend and enlarge a concrete slab at his home to provide a place to park his boat. Matz did not have any prior experience working with wet concrete either in a professional or personal capacity, but concluded that he could build the forms and level the concrete. 1
Matz chose to purchase concrete from Mile Hi based on information he obtained from an advertisement in the yellow pages of the telephone directory. The advertisement was focused on obtaining orders for ready-mixed concrete business from small contractors and homeowners. 2
Matz ordered the concrete from Mile Hi on a Saturday morning. When Mile Hi delivered the concrete later that afternoon, Matz began to level it with a shovel. When Matz experienced difficulty keeping up with the flow of concrete being released from the truck, Mile Hi's driver showed Matz how to level the concrete more effectively with a two-by-four. The driver did not warn Matz of the dangers associated with working in wet concrete. 3
Because the mixtures used to create the concrete can vary significantly between individual batches and mixes, the dangers created by wet concrete necessarily differ. 4 Moreover, these dangers differ among concrete suppliers because each supplier retains exclusive control of how it formulates and prepares its own product. 5
Before leaving Matz's home, Mile Hi's driver added more water to the concrete mixture in order to prevent the concrete from setting or hardening so that Matz would have additional time to level and work the wet concrete.
When the concrete was delivered, Matz paid the driver and was given a receipt. The receipt did not contain any warnings of the dangers of working with wet concrete even though Mile Hi used invoices containing such warnings for some of its customers and had received numerous warnings from its own cement suppliers. 6
Matz, unaware of the potential dangers of working in wet concrete, suffered second-degree burns after working on his hands and knees in the wet concrete for twenty-five to forty-five minutes. It is undisputed that the burns were caused by Matz working in the wet concrete.
Matz sued Mile Hi to recover damages for his injuries and asserted two claims for relief. Matz's first claim was that Mile Hi negligently failed to warn him of a known risk. The second claim was based on strict liability for supplying concrete that was defective and unreasonably dangerous because of Mile Hi's failure to provide a warning.
The jury returned a verdict in favor of Mile Hi. On appeal, Matz claimed that the jury was improperly instructed on Mile Hi's duty to warn him about the dangers of working in wet concrete. Matz also asserted that the district court erred in instructing the jury that Mile Hi was entitled to a presumption of non-defectiveness if the jury found that concrete was sold for the first time for use or consumption ten or more years before Matz was injured.
The court of appeals reversed and ordered a new trial because (1) the jury was not instructed that Mile Hi had a duty to warn Matz of the dangers of wet concrete, and (2) the district court erred in instructing the jury that a product that had been sold for use or consumption for ten or more years prior to the injury was presumed to be not defective and all warnings were proper and adequate.
Mile Hi contends that the court of appeals erred in concluding that the instructions on negligent failure to warn were insufficient. Mile Hi asserts that the district court properly instructed the jury on the duty to use reasonable care in warning of possible dangers associated with the use of concrete and that the instructions properly left for jury determination the factual question of whether Mile Hi had breached that duty. 7
The jury instructions given by the district court in this case set forth a duty of reasonable care. Based on the instructions, Mile Hi would be liable to Matz if the jury found that the dangers of working in concrete were not obvious to the ordinary user and Mile Hi breached the duty of reasonable care by failing to warn Matz of the dangers associated with concrete. In determining whether the duty of reasonable care was breached, the instructions allowed the jury to consider whether the injuries incurred were foreseeable. The instructions also advised the jury that Mile Hi was required to warn Matz of the dangers of wet concrete if Mile Hi knew or should have known that its product could cause injury, unless the jury determined that the dangers were obvious to the final user of the product.
In their entirety, the instructions properly informed the jury that Mile Hi owed to Matz the obligation to exercise reasonable care in marketing, selling, and labeling its product. The instructions informed the jury that Mile Hi was negligent if its failure to warn Matz constituted a failure to exercise reasonable care and that Mile Hi was liable to Matz for damages if Mile Hi's negligence caused his injuries.
A trial court should determine, 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). Matz claims that the court of appeals correctly held that the jury instructions failed to specifically define the precise nature and scope of Mile Hi's duty. In determining what duty is owed to an injured party, a court must consider several factors. These factors include the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden placed on the defendant to guard against injury, and the consequences of placing that burden on the defendant. University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo.1987). When a manufacturer or seller knows or should know of unreasonable dangers associated with the use of its product and the dangers are not obvious to product users, a manufacturer has an obligation to warn of the dangers and a breach of that obligation constitutes negligence. Palmer v. A.H. Robins Co., 684 P.2d 187, 198 (Colo.1984).
Whether there was a breach of the duty to exercise reasonable care is the key issue in a negligence case. What constitutes reasonable care necessarily varies and depends upon the degree of risk associated with a particular activity. Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587 (Colo.1984). A court may instruct the jury on a higher standard of care if all minds concur that the activity is one of high risk or danger. Denver Consol. Elec. Co. v. Simpson, 21 Colo. 371, 377, 41 P. 499, 501 (1895). 8 However, where the facts lead equally intelligent persons to different views of the degree of care required, a court should not lay down a rule prescribing any specific degree of care. Id. Therefore, if the facts lead to differing views as to the degree of risk associated with working with Mile Hi's concrete, then instructing the jury on the reasonable care standard was appropriate and instructions regarding a higher standard were neither required nor permissible. In our view, there are disputed facts on the amount of risk involved in working with Mile Hi's concrete. We therefore conclude that the district court correctly instructed the jury on the reasonable care standard.
A factual dispute existed as to whether Mile Hi could foresee that a reasonable person in Matz's position would work in wet concrete for forty-five minutes or whether those dangers were obvious to a reasonable user of pre-mixed concrete. It may have been foreseeable that a person who was unaware of the dangers of contact with wet concrete would work in the concrete and be injured. However, the evidence is in conflict as to whether Matz's conduct was foreseeable or whether the dangers were obvious to a reasonable person working with wet concrete. The disputed factual issue was properly left for the jury to determine. Similarly, whether or not it is reasonable to market and sell concrete to homeowners without warning of the dangers inherent in wet concrete is also a factual determination to be resolved by the jury. It was also disputed as to whether it was customary in the concrete industry to provide warnings. Mile Hi used a sales invoice containing a warning, but did not give all users, including Matz, an invoice containing the warning.
Based on the evidence, reasonable minds could differ as to the degree of risk associated with the marketing and sale of concrete to an individual such as Matz. Because of the evidentiary conflict, the district court's...
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