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Armentrout v. FMC Corp.3/28/1991
In this product liability action, plaintiffs, Lynn Armentrout and his wife, Tina Armentrout, appeal the trial court's judgment entered on a jury verdict in favor of defendant, FMC Corporation. We reverse and remand for a new trial.
While working as an oiler, plaintiff Lynn Armentrout was crushed between the stationary truck base and the rotating superstructure of a crane constructed by defendant. Plaintiffs asserted four product liability claims against defendant: strict liability for failure to warn, strict liability for design defect, negligent failure to warn, and negligent design defect. Under each theory, plaintiffs argue that existence of the crane's upper-to-lower "pinch point," where plaintiff was crushed, was a hazard FMC should have warned against or removed by altering the design of the crane.
I.
Plaintiffs assert the trial court erred by its failure to instruct the jury, as requested by them, that the negligence of third persons is not a defense. We agree.
Defendant is correct that the question is whether the instructions sufficiently apprise the jurors of the issues before them and of the legal principles to be applied. See Stephens v. Koch, 192 Colo. 531, 561 P.2d 333 (1977). However, we conclude that the trial court's failure here to give the requested instruction did leave the jury inadequately informed of the applicable law and that this omission "constitutes error of such proportion as to require a retrial of the matter." See Mendez v. Pavich, 159 Colo. 409, 412 P.2d 223 (1966).
Plaintiffs requested that the jury be instructed, consistent with CJI-Civ. 2d 9:27(1980), that the negligence of third persons is not a defense to defendant's negligence. The court refused to give this instruction but instructed that each act or failure to act which contributed to the injury may have been a cause of the injury. See CJI-Civ. 2d 9:28 (1980).
The Notes on Use to the pattern instruction which was rejected by the trial court provide that this instruction should be given "when there might be a basis for contending that a third person, not a party to the action, was in whole or in part responsible for causing plaintiff's losses." Here, defendant's theory was that plaintiff and his employer and fellow workers, who were not parties to this action, were wholly responsible for plaintiff's injuries. Therefore, failure to give the instruction based on CJI Civ. 2d 9:27 was prejudicial to plaintiffs, requiring reversal.
Defendant argues that any error in refusing this instruction was harmless when considered with another instruction which provided that defendant would be liable for plaintiff's injuries if "the defect in [the crane] was a cause of the plaintiff's injuries." We are not persuaded that this one reference in a list of six conditions found in that instruction would sufficiently apprise the jury that the acts of non-parties do not constitute a defense to defendant's negligence.
It should be noted that this action was commenced prior to July 1, 1986, when the statute was changed to provide for apportionment of negligence or fault between defendant and designated non-parties. See ยงยง 13-21-111.5(2) and (3)(b), C.R.S. (1987 Repl. Vol. 6A).
Therefore, we conclude that, under the facts here, it was reversible error to reject plaintiffs' requested instruction based on CJI-Civ. 2d 9:27 and only give the instruction based on CJI-Civ. 2d 9:28.
II.
Plaintiffs also assert that the trial court erred in its exclusion of reports of similar accidents to establish product de
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