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Armentrout v. FMC Corp.3/28/1991
Caterpillar Tractor Co., 694 P.2d 869 (Colo. App. 1984). However, on retrial, the jurors must be instructed that unless they determine that the misuse was unforeseeable, that misuse may not be considered as a defense.
E.
Plaintiffs further contend that the trial court erred by admitting irrelevant evidence of the fault of third persons. We disagree.
Over plaintiffs' objections, the trial court admitted into evidence the following Occupational Safety and Health Act (OSHA) regulation:
"Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from becoming struck or crushed by the crane." 29 C.F.R. ยง 1926.550(a)(9) (1990).
Plaintiffs argue that the barricades are not designed to keep oilers outside the barricaded area and, thus, to allow the jury to hear this OSHA directive, which was violated by the employer, was prejudicial and irrelevant to the issues of defendant's strict liability or negligence. Plaintiffs requested that the court instruct the jury that the barricades are not directed to the oiler, who must have access to the crane, but rather to the employer, who was not a party, and that the evidence be considered only on the limited issue of notice of the hazard.
We are unpersuaded that the instruction requested by plaintiffs differs significantly from that given by the trial court.
Plaintiffs also contend that evidence of the lack of barricades had no connection with the accident and was thus inadmissible under CRE 404(b) as evidence of other wrongs. Here this evidence was not admitted for the purpose of showing that plaintiff acted negligently on other occasions, as plaintiffs contend, but rather in support of defendant's theory that negligence by plaintiff and others, not the defendant, was the sole cause of this accident.
Similarly, plaintiffs object to the admission of evidence of fault of the crane operator. Plaintiffs contend that the conduct of third persons, not parties to the action, is irrelevant to the issue of causation, and they correctly state that the focus in a products liability action is on the product and the product's impact on the injured plaintiff. Union Supply v. Pust, supra.
Nevertheless, if, as defendant contends, conduct of the third parties and not the defendant caused the damages, that conduct is not irrelevant, and defendant must be allowed to present the evidence which supports its claim. Hence, we perceive no abuse of the trial court's discretion in admitting this evidence. However, on retrial, the jury must be instructed that if defendant is found to be negligent, the fact that third parties were also negligent is not a defense to defendant's conduct.
The judgment is reversed, and the cause is remanded for a new trial.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS.
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