Simon v. Coppola

• Decision Date: 04 November 1993
• Docket Number: No. 91CA2101,91CA2101
• Citation: 876 P.2d 10
• Parties: James SIMON and Marilyn Simon, Plaintiffs-Appellees and Cross-Appellants, v. Rob COPPOLA, d/b/a Designer Spas and Hot Tubs, Defendant-Appellee and Cross-Appellee, and Eaton Corporation, Defendant-Appellant and Cross-Appellee. . II
• Court: Colorado Court of Appeals

Page 10

876 P.2d 10

James SIMON and Marilyn Simon, Plaintiffs-Appellees and Cross-Appellants, v. Rob COPPOLA, d/b/a Designer Spas and Hot Tubs Defendant-Appellee and Cross-Appellee and Eaton Corporation, Defendant-Appellant and Cross-Appellee.

No. 91CA2101.

Colorado Court of Appeals Div. II.

Nov. 4, 1993 As Modified on Denial of Petition for Rehearing of Plaintiffs-Appellees and Cross-Appellants Feb. 3, 1994. Petition for Rehearing of Defendant-Appellant and Cross-Appellee Denied Feb. 3, 1994. ^* Certiorari Denied as Improvidently Granted Feb. 21, 1995. Certiorari Granted June 27, 1994.

Pryor, Carney and Johnson, P.C., Elizabeth C. Moran, W. Randolph Barnhart, Mark D. Sullivan, Englewood, for plaintiffs-appellees and cross-appellants.

Kane, Donley & Shaffer, Jack E. Donley, Colorado Springs, for defendant-appellee and cross-appellee.

Fish & Coles, Kenneth R. Fish, Denver, for defendant-appellant and cross-appellee.

Fogel, Keating & Wagner, P.C., William L. Keating, Timothy F. Devereux, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.

Opinion by Chief Judge STERNBERG.

Defendant Eaton Corporation (manufacturer) appeals a judgment entered on a verdict finding it partially liable for the plaintiffs' injuries. Plaintiffs, James and Marilyn Simon (homeowners), cross-appeal. Defendant Rob Coppola, d/b/a Designer Spas and Hot Tubs, (Coppola) responds to both the appeal and cross-appeal. We affirm, but remand for allowance of costs.

In late 1987, the homeowners contracted with Tom and Bill Schnell, d/b/a Property Renovation Specialists, for the installation of a deck and a used hot tub. The Schnells in turn contracted with Coppola to inspect the tub's equipment pack and repair it as needed. The pack consisted of the heater, circulation equipment, and other controls. Greg Anderton, an employee of Coppola, installed new controls including a thermostat manufactured by Eaton.

Another Coppola employee, Jerry Wolf, installed the equipment pack in the tub at the home. Wolf set the thermostat at the half-way point. He told the Schnells and the homeowners that the tub would be warm enough to use that evening, but advised placing a solar blanket over it for the next few days to retain heat. He suggested cutting the blanket to fit the inside of the tub. The homeowners used the tub that evening and covered it with a solar blanket.

The next morning, Mrs. Simon went to the tub to cut the blanket. To do so, she rolled up her pants leg and started to step into the tub. As she did so, she realized the water was extremely hot and tried to pull back but lost her balance and fell into the tub immersing the lower half of her body in the water. She sustained second and third degree burns.

The homeowners filed suit against the manufacturer, Coppola, and two other defendants, alleging that the thermostat was defective. They brought claims founded in strict liability, breach of warranty, and breach of express and implied warranties of merchantability and fitness for a particular purpose. The homeowners alleged that Coppola was negligent in its installation of the thermostat and control pack in the tub.

When Coppola designated Tom and Bill Schnell, d/b/a Property Renovation Specialists, as nonparties at fault, the homeowners amended their complaint to add them as defendants. The homeowners subsequently settled with the Schnells before trial, but the Schnells remained designated nonparties at fault throughout the trial.

Coppola filed a petition in bankruptcy shortly after the suit was filed. An automatic stay was extended but later was lifted to the extent of his liability coverage. The homeowners again amended their complaint to include Anderton and Wolf as defendants.

The homeowners then entered into a covenant not to execute with Hawkeye Insurance Company on behalf of Coppola, Anderton, and Wolf. The homeowners accepted a $300,000 payment, dismissed their claims against Anderton and Wolf while retaining Coppola and Designer Spas as defendants and agreed not to execute on any judgment against Coppola personally in excess of $300,000.

After a three-week trial, the jury returned a verdict in favor of the homeowners on all four counts against the manufacturer. The verdict allocated 75% fault to the manufacturer and 12.5% fault each to nonparties Tom and Bill Schnell. The verdict found both Coppola and Mrs. Simon negligent but not liable, finding no causal connection between the negligence of either and the homeowners' damages. The jury awarded $850,000 to Mrs. Simon for economic and non-economic damages and $25,000 to Mr. Simon for loss of consortium.

After a hearing, the court reduced the verdicts by the 25% apportioned to the nonparties and awarded $637,500 to Mrs. Simon and $18,750 to Mr. Simon.

The manufacturer contends the court erred in several evidentiary rulings and in its calculation of damages with regard to the effect of the various pre-trial settlements. The homeowners cross-appeal, contesting the court's award of expert witness fees to Coppola. Coppola joins in the homeowners, response to the manufacturer's appeal and responds to the homeowners' cross-appeal.

I.

Contrary to the manufacturer's first contention, the trial court did not err in allowing a thermostat to be received in evidence for impeachment purposes.

The homeowners' theory against the manufacturer was that the thermostat installed in the tub had been defectively manufactured. The particular component of the thermostat claimed to be defective was known as an actuator. The homeowners contended that the defect in the actuator allowed the water to heat beyond the marked maximum of 115? F. Specifically, they alleged that the actuator, a metal bulb, had been defectively crimped during manufacture and that this defect altered the temperature sensing mechanism such that it allowed the water in the tub to heat to 180? F. The manufacturer maintained that any damage to the thermostat occurred after it left the factory.

The actuator involved was manufactured in 1985. The homeowners sought to introduce another thermostat manufactured in 1989 to impeach testimony of the manufacturer's expert who testified that it would be "bordering on [the] impossible" for the actuator bulb at issue to leave the factory in the condition alleged.

The manufacturer contends that the court erred in admitting the second thermostat, arguing that the differences between the two resulted in it not being substantially similar to the actuator at issue.

This second thermostat had been discovered by the homeowners shortly before trial was scheduled to begin. It had gone through quality control inspections at the factory, but it too overheated. An expert witness for the homeowners examined it and submitted an affidavit concluding that the actuator component of the thermostat was substantially similar to that in the homeowners' tub, even though the entire thermostat unit differed in several other ways.

The manufacturer moved in limine to exclude the second thermostat, arguing that it was not substantially similar and that, pursuant to CRE 403, any probative value was outweighed by the potential for unfair prejudice in its influence on the jury. The court denied the motion, ruling that the evidence was admissible as impeachment of the manufacturer's expert witness. It found that the CRE 403 argument went to factual issues, including the difference in the dates of manufacture and the differences in manufacture and materials. The court noted that the homeowners would still have to show at trial the substantial similarity between the actuators.

Evidence of other similar post-accident product failures is admissible upon a showing that the other accidents occurred under circumstances and conditions the same or substantially similar to the one involved in the present case. Such evidence is particularly relevant when the defendant contends that the alleged incident could not possibly have caused the complained-of injury. And, the court has discretion to determine the similarity and to weigh CRE 403 concerns implicated by such evidence. Koehn v. R.D. Werner Co., 809 P.2d 1045 (Colo.App.1990).

Any differences in the circumstances between the two occurrences goes to the weight to be given such evidence. Ponder v. Warren Tool Co., 834 F.2d 1553 (10th Cir.1987).

The court did not rule immediately on the motion in limine, preferring to wait until trial. Evidence concerning the second thermostat was introduced during testimony of the manufacturer's expert after he stated his opinion concerning the near impossibility for a thermostat to go through the manufacturer's testing procedures and still allow water to heat to 180? F and, his belief that the actuator at issue had not left the factory in the condition it was in at the time of the incident.

The record reflects that the court allowed substantial voir dire before permitting the introduction of the second thermostat, during which the manufacturer was afforded the opportunity to establish the differences between the two thermostats. We perceive no abuse of discretion in the court's decision. See Koehn v. R.D. Werner Co., supra. See also Wheeler v. John Deere Co., 862 F.2d 1404 (10th Cir.1988) (evidence of other incidents admissible to impeach if proponent first shows similarity to product at issue).

II.

We also disagree with the manufacturer's contention that the court erred in not directing a verdict on homeowners' claims of strict liability and breach of implied warranty of fitness for a particular purpose.

A motion for a directed verdict should be granted only if the evidence, considered in a light most favorable to the non-moving party, compels the conclusion that reasonable persons could not disagree, and when no evidence has been presented that could sustain a jury's verdict against the moving party. United Bank v. One Center Joint Venture, 773 P.2d 637 (Colo.App.1989).

To establish a prima facie case of strict liability...