Opinion
No. 73-321
Decided February 11, 1975. Rehearing denied March 4, 1975. Certiorari granted April 21, 1975.
Action to recover for personal injuries premised upon failure of owner and lessor of forklift truck to install human restraints in it. From directed verdict for defendants, plaintiff appealed.
Affirmed
1. WITNESSES — Expert — Examination of Forklift — Delayed — Testimony — Properly Rejected. In personal injury action arising out of accident in which forklift truck overturned, expert's testimony was properly rejected by the trial court on the grounds that his opinions were based on hearsay and were conjectural, since there was a two-month delay between the accident and expert's examination of the forklift, and since there was no showing that the forklift was in the same condition it had been at the time of the accident.
2. PRODUCTS LIABILITY — Human Restraints — Absence — Forklift Truck — Not — — Defect — No Recovery — Breach of Warranty — Strict Liability. In personal injury action arising out of accident in which forklift truck overturned, plaintiff failed to establish that the absence of human restraints was a defect in the forklift as a matter of fact, and the absence of human restraints in industrial equipment is not a defect as a matter of law; therefore, there was no basis for plaintiff to recover either on the theory of breach of implied warranty or strict liability, and the trial court properly granted defendants' motion for directed verdict.
3. Proximate Causation — Requirement — Absence — Human Restraints — Forklift — Properly Decided — Matter of Law. Even though the doctrines of implied warranty and strict liability are available in a proper case, proximate causation must be established. In personal injury action arising out of accident in which forklift truck being operated by plaintiff overturned, there was no evidence that the absence of human restraints in forklift was a proximate cause of the accident; thus, this issue was properly taken from the jury and decided by the court as a matter of law.
4. NEGLIGENCE — Human Restraints — Installation — Industrial Equipment — No Legal Duty. Owners and lessors of industrial equipment have no legal duty to persons using the equipment to install human restraints in such equipment, and thus the failure to install such restraints cannot constitute negligence.
Appeal from the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
Marvin Dansky, P.C., for plaintiff-appellant.
Yegge, Hall Evans, John R. Trigg, for defendants-appellees.
Plaintiff Baird appeals from the judgment of the trial court dismissing his complaint for damages for personal injury. The court granted defendants' motion for directed verdict at the close of plaintiff's case. We affirm.
Baird, a 19-year-old youth, was severely injured when a forklift he was operating rolled over on its side and crushed his leg, resulting in its amputation. At the time of the injury, Baird was enrolled in a training program conducted by Colorado Laborers and Contractors Education and Training Fund, a school organized by unions and contractors to train young laborers in the construction industry. The forklift was owned by defendant Jacmun, Inc., and was leased to the school by defendant Power Rental Equipment, Inc.
Baird contends that the trial court erred in granting defendants' motion for directed verdict. He argues not only that the defendants had a "legal duty" to install human restraints in the forklift, but that their failure to do so prior to its delivery to the school, as bailee, resulted in a "defect" in the equipment making the doctrines of breach of implied warranty or strict liability in tort available as grounds for Baird's recovery. We do not agree with these contentions.
To support his theory that the forklift was delivered with a defect, Baird sought to introduce the testimony of two expert witnesses to show that he would not have been injured had restraints been installed and in use. The trial court rejected this testimony. Baird contends that the trial court abused its discretion. We disagree.
Dr. Horace Campbell, one of the proffered experts, was a surgeon with special expertise in the use of human restraints in automobiles. He admitted to no special knowledge of the use of such safety devices in industrial equipment, and he had neither driven nor closely examined a forklift. The witness's lack of knowledge of industrial equipment was sufficient reason for rejection of his testimony. Whether a witness offered as an expert has the qualifications and knowledge to make his opinion testimony admissible is a preliminary question for the trial court, and its decision is conclusive unless shown to be erroneous. Atencio v. Torres, 153 Colo. 507, 385 P.2d 659; Oglesby v. Conger, 31 Colo. App. 504, 507 P.2d 883.
[1] The deposition of Dr. Robert Reed, a physicist who was absent from the jurisdiction, was rejected by the trial court on the grounds that his opinions were based on hearsay and were conjectural, since there was a two-month delay between the accident and Reed's examination of the forklift, and since there was no showing that the forklift was in the same condition it had been at the time of the accident. It is proper to reject testimony reconstructing an accident which is based on hearsay and is speculative or conjectural in nature. Brayman v. National State Bank, 180 Colo. 304, 505 P.2d 11.
[2] The general rule is that there can be no recovery under the theories of breach of implied warranty or strict liability without proof of a defect. See 63 Am. Jur. 2d Products Liability § 9, Bradford v. Bendix-Westinghouse Auto Air Brake Co., 33 Colo. 99, 517 P.2d 406. Since the proffered expert testimony was properly rejected, Baird failed to establish any defect in the forklift as a matter of fact. And, there being neither a Colorado statute requiring owners and lessors of industrial equipment to install human restraints in such equipment prior to delivery to a lessee, nor any Colorado cases imposing such a requirement, the absence of such restraints is not a defect as a matter of law. See 63 Am. Jur. 2d Products Liability § 113. There was, therefore, no basis for recovery on these theories and the trial court properly granted defendants' motion for directed verdict.
[3] Furthermore, even though the doctrines of implied warranty and strict liability are available in this state in a proper case, proximate causation must be established. See Peterson v. Nevada Motor Rentals, Inc., 28 Colo. App. 102, 470 P.2d 905. The issue of proximate cause is generally for the trier of facts, but where the facts are not only undisputed, but reasonable minds could draw but one inference from them, this issue should be taken from the jury and decided by the court as a matter of law. See Richardson v. Pioneer Construction Co., 164 Colo. 270, 434 P.2d 403. Here, there was no evidence that the absence of human restraints was a proximate cause of the accident.
[4] Baird also argues that the trial court erred in ruling that the failure of defendants to supply the forklift with human restraints was not negligence as a matter of law. We disagree. Owners and lessors of industrial equipment have no legal duty to persons using the equipment to install human restraints in such equipment. Cf. Fischer v. Moore, 183 Colo. 392, 517 P.2d 458. In the absence of a legal duty, there could be no negligence, and the trial court properly directed a verdict for defendants. Roessler v. O'Brien, 119 Colo. 222, 201 P.2d 901. See Arapahoe Land Title, Inc. v. Contract Financing, Ltd., 28 Colo. App. 393, 472 P.2d 754.
In view of our disposition of the foregoing issues, it is unnecessary to consider Baird's assertion that the trial court erred in finding him contributorily negligent as a matter of law.
Judgment affirmed.
JUDGE COYTE concurs.
JUDGE BERMAN dissents.