*1 concurring specially Justice VOLLACK CONCRETE, INC., Petitioner, dissenting part: in part
in MILE HI Erickson’s part II of Justice join in I in failure-to- dissent that concurrence MATZ, Respondent. Richard doctrine open and obvious cases the
warn No. 91SC333. claims failure-to-warn plaintiffs’ can bar Colorado, warning particular Supreme of a obvi- Court of though a even product safer. make a En Banc. danger may ous unnecessary to reach Accordingly, I find Nov. adequacy of in- regarding the the issues misuse defense because or the structions in this duty to Armentrout owed no
FMC
case. majority part III of the
I dissent plaintiffs a burden
opinion places on which dangerousness proving the unreasonable analysis. using risk-benefit analysis
Maj. at 181-83. Risk-benefit case, play in this which
should no role As design of a mobile crane.
concerns the Co.,
I Motor stated Camacho v. Honda (Colo.1987)(Vol
Ltd., 741 P.2d
lack, J., dissenting), applied risk-benefit test ... Ortho appropriate products
is an test for drugs, danger “is de- because their technical, in- primarily by
fined scientific
formation,” drugs are and because some
unavoidably respect. unsafe in some drugs realistically
consumer of cannot
expected prescribed to foresee
drugs which even scientists find to be
complex unpredictable. (citing
Id. at 1251 Ortho Pharmaceutical Heath,
Corp. (Colo.
1986). motorcycle purchaser Like the
Camacho, knowledge Armentrout had dangers working plat- on the crane’s
form operation. while crane was in Id. conclude,
I Camacho, thus as I did in proper
the risk-benefit test is not the test employ in this case. Id. *2 Matz, statutory presump-
Richard 13-21-403(3), 6A created section tion (1987), primary issues C.R.S. part, part, appeal. We affirm reverse *3 case to court of and return this to remand to the district with directions for a new trial. I Carpet of Perfection Matz was the owner carpet decid- as a installer. He and worked enlarge a concrete slab Bremer, P.C., ed to extend and Watson, Nathan & Mark provide place park his home Dumm, Mayer, Douglas A. Ta- his H. Ellis J. any prior experi- bor, Denver, Matz did not have boat. petitioner. for in a working wet concrete either ence with P.C., Harding Ogborn, & Steven A. Sha- professional capacity, con- personal but Edwards, Denver, re- piro, M. for James that he could build the forms and cluded spondent. the concrete.1 level Green, Jarvis, Montgomery, Kolodny & purchase from Matz chose to concrete Markusson, Smith, L. E. Karen Michael Hi he Mile based on information obtained P.C., Oldham, Fogel, Keating Wagner, and yellow pages from an advertisement in the Polidori, Keating, L. R. William Steven telephone directory. The advertise- Denver, Struthers, for amicus curiae David obtaining for ment was focused on orders Lawyers Trial Colorado Ass’n. ready-mixed business from small concrete contractors and homeowners.2 Justice ERICKSON delivered Opinion Court. from Mile Hi Matz ordered the concrete Hi Saturday morning. and on a When Mile negligence products
This is
afternoon,
granted
action. We
certiorari
to review delivered
concrete later
given by
began
it
instructions
the district Matz
to level with shovel. When
experienced difficulty
up
keeping
returned a
the Matz
court.
verdict for
defendant,
being
appeals re-
of concrete
released
and the court of
with
flow
truck, Mile
driver
versed and ordered a
trial.
from the
Hi’s
showed
new
Matz
Concrete, Inc.,
(Colo.
how to
the concrete more effec-
Mile Hi
Matz
level
App.1991).
two-by-four. The
did
tively
instructions on the
with a
driver
petitioner,
dangers
by
care
Hi
warn Matz of
associated
owed
Mile
Concrete,
(Mile Hi),
respondent,
working
Inc.
in wet concrete.3
commonly
TO SMALLCONTRAC-
Concrete
understood to mean
SPECIALATTENTION
HOMEOWNERS,
passes
concrete
TORS &
ON-SITE-
hardened concrete.
ALWAYS FRESH
through
phases
production;
MIXED—THEREFORE
several
its
(ce
ingredients standing
CONCRETE
the individual
ment,
alone
sand,
rock,
water);
right
your job
quantity—
gravel
...
the
large
mix for
and
crushed
formulation;
you only pay
you
for
finally,
what
a "wet”
its com
small—
metered,
... all deliveries are
delivered
monly known and understood hardened or set
your
...
... weekend deliveries
convenience
form.
Hi,
Ray Spykstra,
owner of Mile
testified
that,
During the
Matz testified
in his
advertising
targeted
its
at smaller
layer,
go
carpet
as
"when we
business
...
concrete,
homeowners,
including
users of
done,
plumbing is
concrete is done and the
percent
80 to
his customers were
up.”
he
walls are
Matz testified that
had never
homeowners.
poured concrete or "done concrete sidewalk
work.”
3.Nearly
composed
all
cement
concrete
material,
sand, rock,
grav-
other
pages
yellow
2.The
advertisement stated:
mixture,
When
is added to the
calci-
el.
water
hydroxide (commonly
lye)
pro-
ANY
um
duced,
known
1 YARD TO
SIZE DELIVERED
highly
caustic and corrosive
DAYS WEEK
which is
Matz,
potential dangers
mixtures
to create the
unaware
Because the
used
significantly
in-
vary
concrete,
can
between
working
concrete
suffered
in wet
sec-
mixes,
dangers
batches and
dividual
working
ond-degree
after
on his
burns
necessarily
concrete
differ.4
created
wet
in the
hands and knees
wet concrete for
Moreover,
among con-
these
differ
forty-five
It
twenty-five
minutes.
is un-
supplier
re-
suppliers
each
crete
because
disputed
the burns were caused
control of how formulates
tains exclusive
working
Matz
in the wet concrete.
product.5
prepares
its own
damages
sued Mile Hi to recover
home,
leaving
Mile Hi’s
Before
Matz’s
injuries
for his
and asserted two claims for
driver added more water
concrete
relief. Matz’s first claim was
Mile Hi
prevent
mixture
order
*4
him a
negligently failed to warn
of
known
hardening
setting
or
so that Matz
The
claim
risk.
second
was based
strict
have additional
time to level and
would
supplying
for
concrete that was
the wet concrete.
work
dangerous
unreasonably
defective and
be-
delivered, Matz
When the concrete was
provide
of
a
cause
Mile Hi’s failure to
given
receipt.
the
and
a
paid
driver
was
warning.
receipt
any warnings of
The
did not contain
jury
The
in
of
returned
verdict
favor
working
dangers
wet concrete
the
of
with
appeal,
Mile Hi. On
Matz claimed that
though
Hi
invoices contain-
even
Mile
used
jury
improperly
was
instructed on Mile Hi’s
warnings
for
of its
ing such
some
custom-
dangers
to warn him
duty
about
of
warnings
ers and had received numerous
working in
also
suppliers.6
from its
cement
wet concrete. Matz
assert-
own
characteristics,
hydration
compound.
dangers
concrete occur
burn
and heat of
of
of wet
substantially
Ency-
See 5
because of the exothermic chemical reaction
which are
different.
(1951) (listing
clopedia
occurs
water
added to the mixture.
that
when
Britannica 109-10
vari-
by
cements).
Depending
types
on the formulation chosen
of
ous
mixer,
may
wet concrete
harden as
concrete
minutes,
case,
Ready-mix
suppliers
or,
use different
concrete
quickly as
as in this
as
five
delivering
techniques
product. Spyks-
in
their
slowly
forty-five
minutes.
by
sold
Hi
testified that the concrete
Mile
tra
Burning
only
irritation of the skin occurs
and
larger
by
different
that sold
their
com-
was
than
stage prior
when
is in the
to the
concrete
"wet”
job
petitors
at the
site
because it was mixed
Therefore,
time when the concrete sets.
that:
He testified
rather than before.
potential
period
harm exists
for a short
for
partic-
time and the burn
of
characteristics
any
does
wa-
not receive
Hi's] concrete
[Mile
vary significant-
batch
can
ular
of wet concrete
job,
so our concrete
ter until we’re
ly-
coming
dehydrate until it’s
out
doesn’t start to
Ready-Mix would send
chute.
If Denver
our
dangerous
of each
4.The
characteristics
batch
out
took
hour and a half to
a truck
and it
an
vary
wet concrete
with the chemical reactions
job,
rejected
get
might
that load
be
to
that occur
water
added to the cement
when
jobs
already
up.
it’s
certain
because
heated
gravel
in the
and
or crushed rock used
concrete
concrete,
estimation,
my
We had better
Popovics,
mixture.
Sandor
Fundamentals
See
When the
because we had fresh concrete.
Quantitative
Cement
Portland
Concrete:
it,
got
it
better
for
homeowner
him,
was
(1982) (stating
Approach
undesirable
wasn’t
familiar with fin-
because he
property
is that its characteristics
of concrete
ishing
up
and it
set
as fast. In
concrete
didn’t
properties
than the
of metal or
fluctuate more
really
temperature,
very
it’s
hot.
terms
generic products,
differ from batch to
other
and
you got
and it hit the
batch,
If
a hot load
concrete
batch,
though
may
there
within a
even
ground, it
Our
would flash set.
concrete was
apparent change
composition).
be no
fresh,
easy
for
homeowner work.
was
depend solely upon
type
These variances
are
cement
the admixtures that
included
and
warning
listed on some of
invoices
mixed,
and the amount of
when
concrete
provided:
Mile
used
Hi
mixture which will
water which is added
cement, mortar,
Freshly
lengthen
the concrete
CAUTION:
mixed
the amount
time before
concrete,
may
injury.
grout
ce-
cause skin
There is no standard combination of
sets.
ment;
sand,
water;
possible
gravel, or
rock
Avoid contact with skin where
and
crushed
exposed
prepare
promptly
wash
skin areas
with water.
that is used
firms or individuals
get
eyes,
While
cement is the
If
cement mixtures
into
rinse
concrete for sale.
Portland
concrete,
repeatedly
ingredient
many
immediately
oth-
water and
most common
produce
get prompt
KEEP
types
medical attention.
OUT OF
er
of cement
also used
strengths,
product;
properties,
REACH OF CHILDREN.
tions,
Hi
to Matz if the
instruct-
Mile would
liable
ed
erred in
district court
dangers working
ing
jury
Hi was entitled
that the
jury
that Mile
found
if the
ordinary
non-defectiveness
concrete were not obvious to
sold for the
jury
duty
found that concrete was
Mile Hi breached the
user and
consumption
ten
first time for use
by failing
care
warn Matz of
reasonable
injured.
more
before Matz was
dangers associated with concrete.
determining
duty
of reason-
whether
and or-
The court of
reversed
breached,
able
the instructions
care
(1)
jury
new
because
dered a
to consider whether
allowed
Hi had a
not instructed that Mile
The in-
injuries incurred
foreseeable.
were
concrete,
dangers of
warn Matz of the
wet
also
structions
advised
(2) the district court erred in instruct-
required
of the dan-
Hi was
to warn Matz
ing
that had been
if
gers concrete Mile
knew or
wet
consumption or more
sold for use or
ten
should have known that its
could
presumed
years prior
injury was
determined
injury,
cause
unless
warnings
and all
were
be not defective
to the final
adequate.
were obvious
proper
product.
user
*5
II
entirety,
proper-
In
the
their
instructions
of
Mile Hi contends that the court
that Mile Hi
to
ly
jury
informed
owed
concluding
in
erred in
obligation
Matz the
to exercise reasonable
negligent
failure to warn
structions
selling,
marketing,
labeling
care in
and
its
were insufficient. Mile Hi asserts that
product. The
instructions informed
jury
properly
district court
instructed the
negligent if
fail-
jury that Mile Hi was
its
duty
on the
use reasonable care warn
to
to
a failure to
ure warn Matz constituted
dangers
ing
possible
associated with the
of
care and that Mile
exercise reasonable
concrete and that the instructions
of
damages
if Mile Hi’s
was liable Matz for
properly
jury
left for
the fac
determination
injuries.
negligence caused his
question
tual
of
Hi had
whether Mile
duty.7
breached that
determine,
a
A trial court should
law,
scope
existence and
of
dis- matter of
jury
given by
The
instructions
is to
held.
duty
duty
to which a defendant
be
trict court
this case set forth a
of
Serv.,
Metropolitan
Repair
Inc. v.
Gas
reasonable care. Based on the instruc-
19:
relevant
instructions are:
Instruction number
Defendant,
any,
negligence, if
of
Instruction number 17:
damages
not
cause of
losses to
a
and/or
Plaintiff,
Matz, to
In order for the
Richard
Plaintiff,
Matz,
damage
Richard
unless
Defendant,
Con-
recover from the
crete, Inc.,
Mile Hi
person
loss
a
in the Plaintiffs situation was
you
negligence,
on his claim of
reasonably
consequence
a
of that
foreseeable
following
must find all of
have been
damage
negligence.
precise
The exact or
by
proved
preponderance
of the evidence:
foreseeable,
loss
been
but it is
need
have
reasonably
person,
if a
careful
un-
sufficient
negligent
2. The Defendant was
in manu-
circumstances,
der the same or similar
would
facturing
that it
to exer-
the concrete in
failed
anticipated
damage
to a
have
loss
prevent
cise reasonable care to
the concrete
might
person in the
result
Plaintiffs situation
creating an unreasonable risk of harm
from the Defendant’s conduct.
might reasonably
expected
be
to one who
use,
20:
Instruction number
concrete,
by
be
consume or
affected
product
seller
knows or in the
If a
of
being
while it was
used in the manner that
exercise of reasonable care should know
might reasonably
expected;
Defendant
have
product may
the use of the
be harmful or
persons
3. The Plaintiff was one
those
injurious
danger
and
obvi-
would
reasonably
expect-
the Defendant should
have
user,
use,
obligat-
ous
then the seller is
final
consume
be affected
ed
concrete;
ed to use reasonable care to warn the user
and
danger,
negligent
injuries, damages
and
if he fails to do
he
4. The Plaintiff incurred
losses,
duty
give warning
discharged
if
so. This
and
which were caused
the Defen-
negligence,
he labels his
in a manner which
dant's
while the
was be-
ing
reasonably
manner
would
inform the user
the dan-
used in a
the Defendant should
reasonably
expected.
ger.
have
concrete,
(Colo.1980).
working
then
with Mile Hi’s
Kulik,
P.2d 313
with
correctly
instructing
on the reasonable care
of appeals
that the court
claims
appropriate
instructions
standard was
failed
held that
instructions
higher
neither
regarding a
standard were
precise
specifically define the
nature
view,
required
permissible.
nor
In our
scope
duty.
determining
Mile Hi’s
disputed
amount of
there are
facts on the
injured party,
to an
what
is owed
Mile Hi’s
working
involved in
risk
These
several factors.
must consider
therefore conclude that
concrete. We
likeli
foreseeability
include the
factors
correctly
district court
instructed
weighed
the so
injury
against
hood
on the reasonable care standard.
conduct,
mag
utility
cial
of the actor’s
placed
the defen
nitude of the burden
dispute
A factual
as to whether
existed
against injury, and the conse
guard
dant to
Mile Hi could foresee that a reasonable
de
quences
placing that
burden
person
position
in Matz’s
work
would
University
v. Whit
fendant.
Denver
forty-five
minutes or
wet concrete
lock,
(Colo.1987).
When
dangers
to a
whether those
were obvious
or should
manufacturer or seller knows
pre-mixed
It
user of
concrete.
reasonable
dangers
know
unreasonable
associated
person
may have been foreseeable that a
dangers
with the use of its
dangers
of con-
who was unaware
users,
a manu
not obvious to
in the
wet
work
tact with
concrete would
obligation
has an
to warn of the
facturer
injured.
the evi-
concrete and be
obligation
and a breach
in conflict
Matz’s
dence is
as to whether
negligence.
v. A.H.
constitutes
Palmer
or whether
conduct
foreseeable
(Colo.1984).
Co., 684 P.2d
Robins
per-
dangers were obvious to a reasonable
working
The dis-
son
with wet concrete.
*6
there was
of the
Whether
a breach
puted
for
properly
factual issue was
left
duty
key
to exercise reasonable care is the
Similarly, whether
jury
to determine.
negligence
issue
consti
in a
case. What
sell
market and
or not it is reasonable to
necessarily
tutes
care
varies
reasonable
warning
to homeowners
concrete
without
degree
depends upon
of risk associ
is
inherent in wet concrete
ated
particular activity.
with a
Blueflame
resolved
also a factual determination to be
Gas,
Hoose,
579, 587
Inc. v.
Van
jury.
disputed
It was
by the
also
(Colo.1984).
may
jury
A court
instruct
customary
it was
in the
whether
higher
on a
standard of care if all minds
warnings. Mile
industry
provide
activity
high
is
risk
concur that the
one of
warning,
containing a
a sales invoice
used
or
v.
danger. Denver Consol. Elec. Co.
Matz,
users, including
give
all
but did
371, 377,
Simpson, 21 Colo.
41 P.
501
containing
warning.
an invoice
(1895).8 However, where the facts lead
evidence,
minds
equally intelligent persons to different
Based
reasonable
degree
risk associ-
degree
required,
differ as to the
views of the
care
could
con-
lay
prescrib
marketing
and sale of
court should not
down a rule
ated with
Be-
ing
degree
an individual such as Matz.
any specific
of care.
Id.
crete to
conflict, the dis-
Therefore,
differing
evidentiary
if the facts lead to
cause of
degree
duty
owed
views
to the
of risk associated
trict court’s instruction on
appeals
allegation
product or
an
8.
Hi contends that
court of
where there is
Services,
misapplied Imperial
inherently dangerous
v.
activity
Inc.
or ul-
Distribution
involved is
Forrest,
(Colo.1987),
only
was repose insulates a ute limitations consumption years ten or more before if defendant by the injuries were incurred claimed consumption than ten sold use more con- plaintiff, presumes the law then prior injury.11 13-21- Section warnings presump crete was not defective and all rebuttable 403(3) creates ade- proper were tion and instructions prevail will the absence quate. Bell Sexton contrary. evidence to the Helmets, Inc., (4th Cir.1991), F.2d 331
You must consider statute, construing similar held that together all the other evidence proposed by re- harm caused after the tion arises that the instruction expired. moves from determination the issues had This useful safe life danger may only whether the was obvious to the reason- tion be rebutted clear con- injuries vincing able user or were foresee- whether evidence. *7 by instructing (1983 Supp.); able manufacturer & 1991 § Kan.Stat.Ann. 60-3303 a to that manufacturer of concrete has Liability "[a] Products Act see also Model Uniform danger 31, warn the user of that concrete of the 1979). 110(B), (October Fed.Reg. 62714 44 § exposure that of concrete to continued the wet proper use The Kansas statute illustrates the clothing directly to the cause wet or skin could going presumption of of a to shift the burden added.) injuries.” (Emphasis burns or plaintiff. with evidence to the Under forward statute, Kansas a defendant must show that 13-21-403(3) provides Section that: life” harm after the “useful safe was caused years product is ten a first sold for after liability product expired in to bar a claim. order rebuttably pre- consumption, or it shall be way satisfy this burden One for a defendant product sumed was not defective and that the by showing the harm caused more is that was thereof was that manufacturer seller delivery. years ten the time Once than after of negligent warnings that all and in- not product a defendant has shown that the has proper adequate. structions were statutory period, "presump- existed for the Moreover, imposes plaintiff] 13-21-403(3) upon the burden of [a tion a stat- section is not going repose employs presumption. with evidence to rebut or meet of a forward ute that by showing adopted ten-year repose presumption” the "useful has a of that Kansas statute liability employs pre- expired. product actions a life" not See CRE 301. To for that safe has presumption, plaintiff may sumption. stat- a show Section 60-3303 of the Kansas rebut the provides product that: safe life" of at issue utes that "useful by showing years. a exceeded ten a product subject shall not be to liabil- seller [A] plaintiff merely product was ity product liability product in a if the claim defective presumption. will not rebut the proves by preponderance a of the evi- seller 13-21-403(3) was to create If section intended after the dence that the harm caused repose repose a statute of statute of that product’s expired. a "useful safe life" had Assembly employs presumption, a the General modify according- amend or statute In claims involve harm caused more than should ly- that delivery, presump- after time of a ten
205 301; City County for an based on CRE see also there is no need instruction 219, 223, a presumption.12 such 190 DeLong, Denver Colo. 545 154, (Colo.1976)(holding pre- P.2d 157 plaintiff liability, a To establish sumption need to does eliminate the claim each for prove must element case); facie prima establish a American by preponderance a of the evidence. relief 34, 40, 101 Colo. Naylor, Ins. Co. Sparkman, Exchange Nat’l Bank v. See 534, 538, (1937)(holding pre- P.2d 1092 352 191 Colo. rebuttable (1976). per has plaintiff the burden sumptions per- do not shift burden suasion as to the defective condition of a suasion). plain- precisely It is because the product product. Regardless of a whether (the party against tiff whom the grounded negligence action is directed) already is tion has the burden plaintiff prove liability, strict a must going evidence in this case forward with Page W. Kee- was defective. statutory that an instruction based al., et ton Prosser and Keeton Law 13-21-403(3) presumption is of section 683, 103, (5th at ed. Torts § § meaningless.13 1984); (Second) of Torts Restatement plaintiff present fails suf If a 402A. § defective, ficient a evidence that is provide rules of evidence Colorado satisfy persuasion cannot he burden of presumption that a does not shift bur- facie prima or establish a case and a provides: persuasion. den of CRE 301 direct for the On will a verdict defendant. proceedings In all civil actions and hand, plaintiff present the other has a who provided otherwise statute a motion ed sufficient evidence defeat rules, imposes presumption upon these a necessarily for a has directed verdict rebut against is directed the party whom it presumption 13-21- ted section going burden of forward with evidence 403(3).14 Therefore, no exists for a reason presumption, meet rebut or but judge trial to instruct statuto party does not shift burden 13-21-403(3). section ry presumption of proof in the sense of the risk non- Helmets, Inc., 926 F.2d See Sexton v. Bell throughout persuasion, which remains (4th Cir.1991) (holding that district upon party on whom it failing instruct
originally cast. court did not err 13-21-403(3) sumption meaningless. 12.Although unique v. Bell section See Sexton statute, Kentucky Helmets, (4th Cir.1991) (hold- adopted ap- Inc., has a similar 926 F.2d proach and is the other state has failing ing did that district court not err enacted a 411.310(1)). instruct based on section passage not defective based on the time. Kentucky pro- statutes Section 411.310 presumption in example how 13. For an vides: *8 can the burden of favor of defendant shift the action, (1) any product liability it In shall be going plaintiff supra note 11 see forward to presumed, by preponderance until rebutted a repose). (discussing statute of Kansas contrary, to the that the the evidence sub- ject injury, product not if the was defective not be 14. directed verdict should motion for property damage death or occurred either granted compels conclu- evidence unless the (5) years the date of more than five to years after sale disagree jurors that not sion reasonable could eight (8) consumer than the first or more has been and that or inference no evidence the date after of manufacture. against upon received which a verdict at trial action, (2) any product liability shall be moving party Smith v. the Denver, could be sustained. presumed, by preponderance until a rebutted 1125, (Colo.1986); P.2d 1128 726 contrary, that the of evidence to 50(a). judge that a C.R.C.P. If a trial concludes design, defective if methods of was not manufacture, jury verdict in the reasonable could return a testing conformed favor, plaintiffs verdict generally recognized prevailing a defendant’s directed standards granted. reach state of the art in existence at the time motion In order to cannot design prepared, conclusion, necessarily judge and the was a trial must manufactured. plaintiff presented has first determine that the 1992). Ky.Rev.Stat.Ann. (Michie § 411.310 prima evidence a facie sufficient establish We the view of the Fourth Circuit that share case. statutory pre- based on a instruction 206 Inc., Sys., v. Schenk Minolta sion); statutory presumption).15 on similar
based
Office
1131,
(same).
(Colo.App.1990)
P.2d
1133
802
case, the district court denied Mile
In this
By pre-
re
motion for a directed verdict.
The district
court committed
Hi’s
improper
giving an
in
senting sufficient evidence to overcome the
error
versible
presumption
verdict,
statutory
necessari-
con
for directed
struction
motion
13-21-403(3).
Cooper
See
tained in section
ly
presumption
rebutted
246, 248,
559,
Newmyer, 80
250
13-21-403(3)
P.
concrete was
Colo.
section
(1926) (stating
judgment
based on
retained
559
Because Matz
not defective.
given
should
improperly
instructions
be set
persuasion,
jury
could have
burden of
Co.,
aside);
70
Hise Romeo Stores
Colo.
on the dis-
properly
party
found for either
483,
(1921)
249, 253,
(reversing
199 P.
485
puted issues.16
given
improperly
in
judgment
based on
giving
district court erred in
The
Jackson,
struction);
454,
Walsh v.
33 Colo.
instruction,
though
tendered
even
Hi’s
456-57,
258,
(1905) (reversing
P.
81
258-59
con-
in the record that
there was evidence
instruction).
erroneous
judgment based on
consumption
sold for use or
crete had been
prejudicial
give
error to
an erroneous
It is
years prior
injury,
ten
to the
because
appellate
court has
instruction because
presumption
the statutory
Matz rebutted
way
knowing
extent
no
to what
DeLong,
13-21-403(3).
See
190
section
Colo,
Hise,
253,199
at
misled.
70
P. at
Colo,
223,
(holding
at
207 pre- acknowledge question statutory presumption of sec based on i.e., 13-21-403(3) status, as that which is or given sumption’s not be when should tion contrary. only evidence, ample is is a close one—with there is evidence of sec statutory presumption position supporting effect of either authority —I 13-21-403(3) impose the burden tion statutory presumption that the find would against party whom going forward on the evi- in this case does constitute issue See CRE 301.18 it is directed. dence. appeals proper- Accordingly, the court of finding this would enable court So ly giving instruction found legislature’s give effect to the action some 13-21-403(3) constituted based on section statute, see In re United in this passing error. reversible Colo., Dist. Dist. Court 179 States 270, 274-75, 1169, 499 P.2d 1171 Colo. (1972) (“a given statute be the con- IV should in render effective struction which will properly instructed the The district court accomplishing purpose for which it was duty of care Mile Hi owed jury on Assembly v. enacted”); Colorado General district court commit- Matz. (Colo.1985) Lamm, 508, 517 by instructing reversible error ted (“When possible, every word of a statute 13- presumption on the section effect.”), given thereby and avoid must be 21-403(3). Accordingly, we affirm the passed legislature a law finding appeals judgment part, in utterly meaningless and ineffec- which this part, in and return case to reverse State Civil Service tive, see Colorado remand court of with directions to Love, 436, 450, 448 Emp. Ass’n 167 Colo. opinion. for a new consistent this 624, (1968) (“Each clause and sen- P.2d 630 or statute tence of either a constitution ROVIRA, C.J., part in and concurs presumed purpose to have must be VOLLACK, J., part, joins dissents legis- nor use, neither the courts which dissent. the concurrence and State, McMillin v. ignore.”); may lature 672, QUINN, J., participate. 183, (1965) 188, does not P.2d 674 405 158 Colo. 400, 402 (quoting 50 Am.Jur. Statutes §§ concurring part Chief Justice ROVIRA statute, (1944)) (“In interpretation dissenting part: presumed have will legislature holding majority’s I concur with the every part purpose, for a thereof inserted properly instructed every part of a to have intended of care owed effect.”); into carried statute should be I Part respectfully Concrete. dissent from Co. Industrial New York Indem. majority opinion. III 364, 367, P. Colo., 86 Colo. 281 Comm’n of (1929) (“[Supreme assumes Court] finding statutory presumption In legislative enactment when a useless 13-21-403(3), (1987), 6A section C.R.S. so.”)) my opinion, this obliged to do ineffective, majority wholly makes the passed by the laws court should declare presumption central determination that superfluous when clear Maj. op. Though legislature at 206. I to be is not evidence. Co., (D.Colo.1984) of Evi- F.Supp. on Federal Rule 18. CRE 301 based ins (suggesting presumptions established seems McCormick has noted that "it dence 301. section 13-21-403 are considered to be evidence unlikely highly instruction to the that an Bonfils)-, of non-defectiveness based Belle referring as evidence would be to a Corp., 724 Union Ins. Co. v. RCA P.2d during proper under the Federal Rule” because pre- (Colo.App.1986) (finding that the rebuttable congressional the Federal consideration 13-21-403(l)(a) sumption of section is to be Rules, presumptions as a version that treated Bonfils); based on considered evidence Belle rejected 2 McCor- as "ill-advised.” evidence *10 Co., Tafoya & F.2d see also v. Sears Roebuck 344, at 467 n. 34. §mick (10th Cir.1989) (quoting Union Ins. Co.). relied legal precedent exists which could be meaningful. such laws
on render FIDELITY & GUAR UNITED STATES COMPANY, Subrogee ANTY of Jew statutory presumption Finding that the Community Center and Fran Ster ish 13-21-403(3), 6A contained in section Petitioner, ling, (1987), effect C.R.S. has some would enable question this to address which granted this case: certiorari was SYSTEMS, RENT-A-CAR BUDGET appeals the court of erred Whether INC., Respondent. consid- concluding that the could not No. 91SC739. had er been that concrete purpose for the more than ten Colorado, Supreme Court warnings presumption that rebuttable En Banc. adequate were manufacturer negligent, seller when Matz’ own Dec. expert testified same Rehearing Denied Jan.
had in construction use since been Empire. time Roman erred
I would find that the court reversing the district court since suffi- presented trial to
cient evidence was ten-year
instruct the my finding
tion. I would base ten-year
understanding
period from the begins to run time at which line first sold identifiable consumption by
for use manufactur- (i.e., concrete), Magna
er see Patterson v. Corp., (Colo.App.1988),
Am.
Matz), Downing v. Door see Overhead
Corp., (Colo.App.1985).
Therefore, respectfully I dissent from
Part III. say
I am authorized Justice VOL- joins
LACK in this and dis- concurrence
sent.