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Mile Hi Concrete Inc. v. Matz11/23/1992
JUSTICE ERICKSON delivered the Opinion of the Court.
CHIEF JUSTICE ROVIRA concurs in part and Dissents in part, and JUSTICE VOLLACK joins in the concurrence and Dissent.
JUSTICE QUINN does not participate.
This is a negligence and products liability action. We granted certiorari to review the jury instructions given by the district court. The jury returned a verdict for the defendant, and the court of appeals reversed and ordered a new trial. Matz v. Mile Hi Concrete, Inc.,819 P.2d 530(Colo. App. 1991). The jury instructions on the duty of care owed by the petitioner, Mile Hi Concrete, Inc. (Mile Hi), to the respondent, Richard Matz, and the statutory presumption created by section 13-21-403(3), 6A C.R.S. (1987), are the primary issues on appeal. We affirm in part, reverse in part, and return this case to the court of appeals with directions to remand to the district court for a new trial.
I
Matz was the owner of Perfection Carpet and worked as a carpet installer. He decided to extend and enlarge a concrete slab at his home to provide a place to park his boat. Matz did not have any prior experience working with wet concrete either in a professional or personal capacity, but concluded that he could build the forms and level the concrete.
Matz chose to purchase concrete from Mile Hi based on information he obtained from an advertisement in the yellow pages of the telephone directory. The advertisement was focused on obtaining orders for ready-mixed concrete business from small contractors and homeowners.
Matz ordered the concrete from Mile Hi on a Saturday morning. When Mile Hi delivered the concrete later that afternoon, Matz began to level it with a shovel. When Matz experienced difficulty keeping up with the flow of concrete being released from the truck, Mile Hi's driver showed Matz how to level the concrete more effectively with a two-by-four. The driver did not warn Matz of the dangers associated with working in wet concrete.
Because the mixtures used to create the concrete can vary significantly between individual batches and mixes, the dangers created by wet concrete necessarily differ. Moreover, these dangers differ among concrete suppliers because each supplier retains exclusive control of how it formulates and prepares its own product.
Before leaving Matz's home, Mile Hi's driver added more water to the concrete mixture in order to prevent the concrete from setting or hardening so that Matz would have additional time to level and work the wet concrete.
When the concrete was delivered, Matz paid the driver and was given a receipt. The receipt did not contain any warnings of the dangers of working with wet concrete even though Mile Hi used invoices containing such warnings for some of its customers and had received numerous warnings from its own cement suppliers.
Matz, unaware of the potential dangers of working in wet concrete, suffered second-degree burns after working on his hands and knees in the wet concrete for twenty-five to forty-five minutes. It is undisputed that the burns were caused by Matz working in the wet concrete.
Matz sued Mile Hi to recover damages for his injuries and asserted two claims for relief. Matz's first claim was that Mile Hi negligently failed to warn him of a known risk. The second claim was based on strict liability for supplying concrete that was defective and unreasonably dangerous because of Mile Hi's failure to provide a warning.
The jury returned a verdict in favor of Mile Hi. On appeal, Matz claimed that the jury was improperly instructed on Mile Hi'
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