Welch v. FR Stokes, Inc.

• Citation: 555 F. Supp. 1054
• Decision Date: 10 February 1983
• Docket Number: Civ. A. No. 81-K-1231.
• Parties: Thomas E. WELCH, Plaintiff, v. F.R. STOKES, INC., a California corporation, Defendant.
• Court: U.S. District Court — District of Colorado

555 F. Supp. 1054

Thomas E. WELCH, Plaintiff, v. F.R. STOKES, INC., a California corporation, Defendant.

Civ. A. No. 81-K-1231.

United States District Court, D. Colorado.

February 10, 1983.

Laird T. Milburn, Grand Junction, Colo., for plaintiff.

Richard Arnold & Jerry Tompkins, Grand Junction, Colo., Hanson, Bridgett, Marcus, Vlahos & Stromberg, San Francisco, Cal., for defendant.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is a products liability action based on Section 402A, Restatement (Second) of Torts, strict liability, § 13-21-401 et seq., C.R.S.1973 presents a question of first impression. Plaintiff is a Colorado resident;¹ defendant is a California corporation which manufactures, sells and designs ladders. On August 8, 1978 plaintiff was using one of defendant's ladders and claims that due to the defective and unreasonably dangerous condition of the ladder, it collapsed causing him extensive injury. Plaintiff contends that the ladder was not accompanied by any warnings or instructions that it was subject to failure during use, nor warnings as to how the ladder must be used to avoid failure during use. Defendant, in its answer, asserted ten affirmative defenses.² Plaintiff has filed a motion for summary judgment and a motion in limine seeking to bar defendant from asserting many of these defenses in the trial set for April 4, 1983 in Grand Junction, Colorado. Oral argument was had on these motions December 20, 1982.

Strict liability is liability without fault. The elements of a claim based on strict liability are:

1. the existence of an absolute duty on the part of the defendant to make safe;

2. a breach of that duty;

3. the breach was the proximate cause of plaintiff's injury(ies); and,

4. damage to the plaintiff's person or property.

There are historically three defenses to an action based on strict liability: contributory negligence, comparative negligence and assumption of risk. Contributory negligence which would bar plaintiff from recovery if he is to any degree negligent, has been rejected by Colorado. C.R.S.1973 § 13-21-111.

Among other arguments, plaintiff contends that a new Colorado statute, § 13-21-406, bars defendant from presenting any evidence of comparative fault. This statute says in part:

Comparative fault as a measure of damages. (1) In any product liability action, the fault of the person suffering the harm, as well as the fault of all others who are parties to the action for causing the harm, shall be compared by the trier of fact in accordance with this section. The fault of the person suffering the harm shall not bar such person ... but the award of damages to such person or the party bringing the action shall be diminished in proportion to the amount of causal fault attributed to the person suffering the harm.

This new statute, enacted July 1, 1981, has yet to be interpreted by the Colorado courts. Plaintiff argues that contributory negligence is not a defense to any claim based on strict liability because it would require consideration of the parties' "fault." Defendant argues that under this new statute, fault may be compared by the trier of fact and plaintiff would be allowed to recover for proven damages less the percentage attributed to him.

I believe that the parties have confused damages with liability. I interpret § 406 as relating only to damages, and not to liability. The title of the statute gives support to this interpretation. To apply the statute on the question of liability would disembowel the statute on strict liability. In a case of statutory construction such as this, the statute, if at all possible, must be read together with other statutes (particularly § 13-21-401 et seq.) and must be read in such a way as to vivify all. I must assume that the legislature knew what it was doing when it enacted the various statutes. To apply this section to the issue of liability would defeat the purposes of strict liability because it would improperly inject a determination of fault with the issue of liability. Any different construction would prohibit the efficacy or operation of one or another statute. Only under my interpretation of § 406's limited application to damages can the statute be meaningfully applied. I therefore hold that § 13-21-406 has no change at all on liability; it merely permits the jury to consider fault in arriving at the damage figure. The parties will be permitted to introduce evidence at trial of the...