Nelson v. Caterpillar Tractor Co., 82CA0275
| Citation | 694 P.2d 867 |
| Decision Date | 16 August 1984 |
| Docket Number | No. 82CA0275,82CA0275 |
| Parties | Cornelius NELSON, Plaintiff-Appellant, v. CATERPILLAR TRACTOR COMPANY, a California corporation, and Towmotor Corporation, an Ohio corporation, Defendants-Appellees. . III |
| Court | Court of Appeals of Colorado |
Zarlengo, Mott & Zarlengo, Albert E. Zarlengo, Jr., Denver, for plaintiff-appellant.
Holland & Hart, Harry L. Hobson, William W. Maywhort, Denver, for defendants-appellees.
Plaintiff, Cornelius Nelson, appeals from an adverse judgment in this products liability case, contending that the trial court erred in instructing the jury on the defenses of assumption of risk and misuse and in refusing several of his tendered instructions. We affirm.
Nelson was injured at a Denver area chemical plant while operating a forklift manufactured by defendant Towmotor Tractor Co., a wholly owned subsidiary of Caterpillar Tractor Co. Nelson was using the forklift to empty 55-gallon drums of chemical sludge into 8-foot high vats by means of a special attachment to the forks which made it possible to grasp and invert the drums over the vats.
The forks on the lift were raised and lowered by two vertical chains supported at the top by two grooved pulley wheels, or sheaves. A small chain guard was mounted above each sheave to keep the chain from escaping from the groove. A red safety decal was displayed on a horizontal bar between the driver and lift mechanism.
There was evidence that the sludge frequently was too viscous to flow freely from the drums, and that to dislodge the sludge forklift operators commonly knocked the drums against the sides of the vats or shook the drums by rapidly moving the lift control lever back and forth. The evidence was conflicting as to whether Nelson had been shaking or knocking any drums on the night of the accident.
The accident occurred after Nelson, working with a newly hired assistant, had finished emptying a drum. As Nelson was backing away from the vat and lowering the forks, the forks suddenly stopped when one of the chains became jammed between the raised edge of the sheave and the chainguard. Nelson stopped the forklift, stood up from the driver's seat, reached across the horizontal bar, and struck the chain with his fist. One of Nelson's fingers was caught as the chain fell back into the groove. Nelson shouted to his assistant to raise the forks to release his finger, but in confusion the assistant moved the lift control lever in the wrong direction, resulting in severe injury to Nelson's hand.
Nelson brought suit in strict liability alleging that the forklift was defective in that: (1) the channel in the sheave was too shallow and the chainguard too short, making the chain dangerously prone to slip out of the channel; (2) the symbols on the lift control lever were dangerously confusing; and (3) there were inadequate warnings of the dangers posed by the forklift. At the conclusion of trial, the jury entered a general verdict for defendants.
On appeal, Nelson first contends that the trial court erred in instructing the jury on the affirmative defenses of assumption of risk and misuse of the product. We disagree.
In general, a party is entitled to an instruction on a legal theory when it is supported by some competent evidence. Federal Insurance Co. v. Public Service Co., 194 Colo. 107, 570 P.2d 239 (1977).
The defense of assumption of risk is defined in strict liability cases as voluntarily and unreasonably proceeding to encounter a known danger. Jackson v. Harsco Corp., 673 P.2d 363 (Colo.1983); see Restatement (Second) of Torts 402A comment n (1965). For such defense to be applicable, the plaintiff must have had actual knowledge of the specific danger posed by the defect, and not just a general knowledge that the product could be dangerous. Jackson v. Harsco, supra; Culp v. Rexnord & Booth-Rouse Equipment Co., 38 Colo.App. 1, 553 P.2d 844 (1976).
Nelson contends that there was no evidence that he was aware of the forklift's alleged design defect, and that the requirement of actual knowledge was therefore not satisfied. However, the specific danger posed by...
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