Decided July 26, 1976.
Action by operator of forklift against owner and lessor of forklift to recover for injuries sustained as a result of machine overturning, crushing one of his legs. District court granted defendant's motion for a directed verdict and operator appealed. The Court of Appeals, 35 Colo. App. 299, 533 P.2d 941, affirmed and certiorari was granted.
1. EVIDENCE — Expert — Qualifications — Discretion of Court — Abuse. There is a discretion in the trial court in ruling upon the qualifications of an expert and, unless there is an abuse of discretion, the court's ruling will not be disturbed.
2. Forklift — Testimony of Physicist — Speculative — Conjectural — Hearsay — Exclusion — Proper. In action by operator of forklift against owner and lessor of forklift to recover for injuries sustained as a result of machine overturning, crushing one of his legs, trial court did not err in excluding as speculative, conjectural and based on hearsay testimony of physicist who examined forklift two months following accident and whose testimony concerned defects or possible defects which he found at that time and which might or might not have been in existence at the time of the accident.
3. PRODUCTS LIABILITY — Recovery — Forklift — Lack of Seat Belt — Negligence — Failure to Install. In order for operator of forklift to recover from owner and lessor of forklift on the basis of negligence, breach of implied warranty or strict liability for injuries sustained when forklift which was not equipped with a seat belt overturned, there must have been either negligence or a defect in the failure to install the seat belt.
4. Seat Belt — Forklift — Failure to Install — Negligence — Matter of Law — Negative. Absent any statutory requirement, failure to install seat belt on forklift which overturned and crushed operator's leg did not, as a matter of law, constitute negligence on the part of owner and lessor of forklift and did not constitute a defect.
5. APPEAL AND ERROR — Lack of Factual Basis — Absence of Adequate Warning — — Reviewing Court — Defect — Find — Prohibited. Where there was no factual basis in record for finding of absence of adequate warning, as a matter of law reviewing court should not find a defect by reason of lack of adequate warning.
Certiorari to the Colorado Court of Appeals
Marvin Dansky, P.C., for petitioner.
Yegge, Hall and Evans, John R. Trigg, for respondents.
This was an action for personal injuries. The plaintiff, Baird, was enrolled in a training program conducted by Colorado Laborers and Contractors Education and Training Fund, a school operated by unions and contractors to train young laborers in the construction industry. Baird was injured when he was operating a forklift as a part of this training program. The machine overturned, crushing one of his legs which later was amputated.
The forklift was owned by the defendant Jacmun, Inc. and was leased to the school by the defendant Power Equipment, Inc. Baird sought to predicate liability of the defendants upon their failure to have a seat belt installed on the forklift. At the conclusion of the plaintiff's evidence, the trial court entered a directed verdict in favor of the defendants.
Here, two questions are presented: (1) Was it error for the trial court to refuse to permit the introduction of certain expert testimony; and (2) was it error to refuse to submit the question of liability to the jury?
The experts whose testimony was excluded were Dr. Horace Campbell and Dr. Robert Reed. Dr. Campbell was a surgeon with special expertise in the use of human restraints in automobiles, farm tractors and airplanes. He had not driven nor closely examined the forklift, and he stated that his specialty was not in industrial trucks, but rather in automobiles, farm tractors and airplanes.
Dr. Reed was a physicist, who examined the particular forklift two months following the accident. His testimony concerned defects or possible defects which he found at that time and which might or might not have been in existence at the time of the accident. Some of his testimony was predicated upon hearsay.
The trial court ruled that Dr. Campbell's qualifications were not sufficient to qualify him as an expert to give an opinion on the question of whether a failure to install seat belts constituted a defect or negligence. The testimony of Dr. Reed was excluded because of the time lapse transpiring between time of the accident and that of his inspection and because of hearsay.
 The question is not before us as to whether, were we conducting the trial, we would admit the testimony of either of these witnesses. There is a discretion in the trial court in ruling upon the qualifications of an expert and, unless there is an abuse of that discretion, the court's ruling will not be disturbed. Hoffman v. Brown, 143 Colo. 587, 354 P.2d 599 (1960).
 We find no error in the conclusion of the trial court that Dr. Reed's testimony was speculative and conjectural and was based upon hearsay. Brayman v. National State Bank, 180 Colo. 304, 505 P.2d 11 (1973); Daugaard v. People, 176 Colo. 38, 488 P.2d 1101 (1971).
[3,4] The plaintiff would have had the case submitted to the jury on the questions as to whether there was negligence, breach of implied warranty or strict liability. In order for the plaintiff to recover, there must have been either negligence or a defect in the failure to install the seatbelt. Bradford v. Bendix-Westinghouse Auto Air Brake Co., 33 Colo. App. 99, 517 P.2d 406 (1973), as to which we denied certiorari in 1974. See Hiigel v. General Motors Corporation, 190 Colo. 57, 544 P.2d 983 (1975). Absent the testimony of Dr. Campbell, no factual basis was laid for a finding of negligence or defect. For us to reverse, therefore, we would be obliged to declare as a matter of law that, absent any statutory requirement, the failure to install a seatbelt on a forklift is negligence or constitutes a defect. This we decline to do.
The dissent mentioned the absence of a warning as a basis for the application of the doctrine of strict liability under Restatement (Second) of Torts § 402A. After the dissent was written, we announced Hiigel v. General Motors Corporation, supra, in which we for the first time expressly adopted § 402A. There we said:
"Where there is such a failure to comply with the duty to warn, the effect is that the product may be considered defective when the proximate cause of the injury is the breach of that duty."
 Lest it be thought that Hiigel supports the court of appeals' dissent, we direct attention to the fact that there was — as there must be — — a factual basis for the finding of absence of adequate warning. Here, there was no factual basis and, as a result, as a matter of law we should not find a defect by reason of lack of adequate warning.
MR. CHIEF JUSTICE PRINGLE AND MR. JUSTICE ERICKSON do not participate.