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Mile Hi Concrete Inc. v. Matz11/23/1992
I would find that the statutory presumption at issue in this case does constitute evidence.
So finding would enable this court to give some effect to the legislature's action in passing this statute, see In re United States Dist. Court for Dist. of Colo.,179 Colo. 270, 274-75,499 P.2d 1169, 1171 (1972) ("a statute should be given the construction which will render it effective in accomplishing the purpose for which it was enacted"); Colorado General Assembly v. Lamm,700 P.2d 508, 517, (Colo. 1985) ("When possible, every word of a statute must be given effect."), and thereby avoid a finding that the legislature passed a law which is utterly meaningless and ineffective, see Colorado State Civil Service Emp. Ass'n v. Love,167 Colo. 436, 450,448 P.2d 624, 630 (1968) ("Each clause and sentence of either a constitution or statute must be presumed to have purpose and use, which neither the courts nor the legislature may ignore."); McMillin v. State,158 Colo. 183, 188,405 P.2d 672, 674 (1965) (quoting 50 Am. Jur. Statutes ยงยง 400, 402 (1944)) ("In the interpretation of a statute, the legislature will be presumed to have inserted every part thereof for a purpose, and to have intended that every part of a statute should be carried into effect.") ; New York Indem. Co. v. Industrial Comm'n of Colo.,86 Colo. 364, 367,281 P. 740, 741 (1929) ("[Supreme Court] assumes a useless legislative enactment only when obliged to do so.")) In my opinion, this court should not declare laws passed by the legislature to be superfluous when clear legal precedent exists which could be relied on to render such laws meaningful.
Finding that the statutory presumption contained in section 13-21-403(3), 6A C.R.S. (1987), has some effect would enable this court to address the question on which certiorari was granted in this case:
Whether the court of appeals erred in concluding that the jury could not consider that concrete that had been in use for more than ten years for the purpose of a rebuttable presumption that warnings were adequate and the manufacturer or seller was not negligent, when Matz' own expert testified that the same product had been in construction use since the time of the Roman Empire.
I would find that the court of appeals erred in reversing the district court since sufficient evidence was presented at trial to instruct the jury on the ten-year presumption. I would base this finding on my understanding that the ten-year statutory period begins to run from the time at which an identifiable product line was first sold for use or consumption by the manufacturer (i.e., concrete), see Patterson v. Magna Am. Corp.,754 P.2d 1385(Colo. App. 1988), and not the time at which the particular product causing injury was first sold (i.e., the specific batch of concrete delivered to Matz), see Downing v. Overhead Door Corp.,707 P.2d 1027(Colo. App. 1985).
Therefore, I respectfully Dissent from Part III.
I am authorized to say that JUSTICE VOLLACK joins in this concurrence and Dissent.
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