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Matz v. Mile Hi Concrete Inc.3/28/1991
ruling on the instruction was the testimony of plaintiff's expert that concrete has been used since Roman times and the court's question whether general warnings, if one is generally given in the industry, were directed towards plaintiff's specific injury.
Here, a number of factors lead us to conclude that the presumption does not apply and the instruction should not have been given. These include: (1) warnings have been given within the last ten years regarding concrete; (2) defendant had such a warning but did not give it to plaintiff; (3) there was testimony that wet concrete had caused injuries in the last ten years; and (4) there have been lawsuits during the last ten years under the theory of strict liability alleging that concrete was unreasonably dangerous without warnings. See Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo. 1986).
In our view, these facts further demonstrate that concrete is a defective product if no warnings of its dangers are given to the unknowing user, and accordingly, it is not a product within the scope of the presumption established by the statute.
The judgment is reversed, and the cause is remanded for a new trial in accordance with this opinion.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
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