Opinion
No. 71-164 (Supreme Court No. 24373)
Decided November 23, 1971. Rehearing denied December 14, 1971. Certiorari granted February 7, 1972.
Personal injury action. Can of freon refrigerant which had exploded, injuring plaintiff, had been admittedly manufactured, packaged, and distributed by defendant. From jury verdict for defendant, plaintiff appealed.
Affirmed
1. EVIDENCE — Rebuttal Testimony — Could Not Have Misled — Jury — Admission — Not Improper. Where, at no stage of the trial, did defendant claim it was not liable because it was not responsible for the manufacture, packaging, or distribution of can of freon which had exploded and where court, by its instructions, and without objection, submitted the case to the jury on the theory of strict liability, rebuttal testimony which included the names of the supplier and the packager of the product could not have misled the jury, and its admission was not improper.
2. INSTRUCTIONS, CIVIL — Plaintiff's Tendered Instructions — Adequately Covered — Instructions Given — Refusal — Not Error. Since matters covered by plaintiff's tendered instructions were adequately covered by the instructions actually given, the trial court's refusal to give plaintiff's instructions was not error.
3. Personal Injury Action — Strict Liability Theory — "Mere Happening" Instruction — Superfluous — Not Error. Where personal injury action was submitted to the jury on theory of strict liability, jury instruction that "mere happening of an accident does not raise any presumption of legal liability against the defendant" may have been a superfluous instruction, but it was not error for the court to give it.
4. WITNESSES — Expert's Opinion — Hypothetical Question — How Posed. In posing hypothetical question for expert's opinion, it is the privilege of a party to assume, within the limits of the evidence, any statement of the facts which he claims the evidence justifies and have the opinion of the expert upon the facts assumed, subject to the limitation that the question shall not be unfair or misleading.
5. Qualifications — Express Opinion — Trial Court Determination — Conclusive — Unless — Clearly Erroneous. The sufficiency of the evidence to establish the qualification and knowledge of a witness to entitle him to express an opinion poses a question to be determined in the first instance, at least, by the trial court and its decision is conclusive, unless clearly shown to be erroneous.
Error to the District Court of the City and County of Denver, Honorable Merle R. Knous, Judge.
Kripke, Carrigan Dufty, P.C., Kenneth Kripke, for plaintiff in error.
Yegge, Hall Evans, Raymond J. Connell, for defendant in error.
This case was transferred from the Supreme Court pursuant to statute.
Plaintiff in error, Kaesik, plaintiff below, sought recovery for personal injuries he received when a can of freon refrigerant, manufactured, packaged and distributed by defendant in error, John E. Mitchell Company, Inc., (Mitchell) exploded while Kaesik was servicing an automobile air conditioning unit in a service station operated by Kaesik. Trial was to a jury which returned a verdict for defendant Mitchell. From the judgment entered on that verdict, Kaesik obtained writ of error. We affirm.
The record discloses that Kaesik was repairing a faulty air conditioning system in an auto. In order to do so he had to drain the freon from the system, make the necessary repairs, and then refill the system with new freon. He was in the process of refilling when the freon container exploded, injuring Kaesik. Kaesik had received training for this work in classes conducted by the defendant company.
The freon was under pressure in the can and also under pressure in the air conditioning system. In order to transfer it from the can to the system it was necessary to use a pump and a somewhat complex assembly of valves and tubes which ran from the can to the pump and to the auto. By opening and closing the various valves the pressure flow could be directed to or from the system in the auto.
Kaesik claimed the explosion occurred because of defects in the container or because the container had been overfilled. Mitchell claimed that the explosion was caused by Kaesik's negligence in improperly setting the valves on the tubing so that when the tubing was attached to the can the pressure in the can was increased from the pressure in the tubing and in the auto's system and that this caused the explosion. This was the basic factual issue before the jury.
Kaesik's first ground of error is that Mitchell was allowed to introduce evidence which contradicted facts admitted in the pleadings. This asserted error is based on the following circumstances. Kaesik alleged, and Mitchell admitted, that Mitchell "manufactured, packaged, sold and distributed" the refrigerant. In his opening statement Mitchell's attorney stated that the evidence would show that the freon was purchased from DuPont and packaged by Allstat Corporation. Kaesik objected on the ground that Mitchell had admitted that it manufactured and packaged the product. The court overruled the objection, stating that it was premature, and advised the jury that statements of counsel were not evidence and were not to be considered by them in their determination of the case.
During the trial, Kaesik presented testimony of an expert who stated that in his opinion the container was overfilled. To rebut this evidence Mitchell offered the testimony of one of its officials to show the entire process of manufacture, packaging, and distribution, which testimony included the name of the supplier and the company which packaged the product under the supervision of Mitchell. Kaesik objected solely on the ground that the evidence was irrelevant and immaterial. This objection was overruled.
[1] At no stage of the trial did Mitchell claim it was not liable because it was not responsible for the manufacture, packaging, or distribution of the product. In its instructions to the jury the court stated that Mitchell admitted it had manufactured, packaged, and distributed the freon refrigerant. By its instructions the court, without objection, submitted the case to the jury on the theory of strict liability. Thus the court imposed liability upon Mitchell if Kaesik proved that his injury was proximately caused by a defective or dangerous product, even though Mitchell may have exercised all possible care in the manufacture, packaging, selling, and distribution of the product.
The jury could not have been misled. The admission of the evidence objected to was not improper.
[2] Kaesik next asserts error in the failure to give two requested instructions. The matters covered by these tendered instructions were adequately covered by the instructions actually given and the court's refusal to give them was not error. Arapahoe Basin, Inc. v. Fischer, 28 Colo. App. 580, 475 P.2d 631.
Kaesik also asserts that the court erred in instructing the jury that "the mere happening of an accident does not raise any presumption of legal liability against the defendant."
[3] This is a correct statement of the law. To prove a prima facie case, the plaintiff had to prove — in addition to the happening of the accident — that the product was defective and that the defect was a proximate cause of the accident. Although the instruction may have been superfluous, it was not error for the court to give it.
Kaesik next asserts that the trial court erred in permitting defendant's expert to give an opinion in response to a hypothetical question on the grounds that the question was improper and that the expert did not have sufficient facts to form a basis for an opinion. The expert had been asked several hypothetical questions which had been objected to and to which the objections had been sustained. Finally he was asked,
". . .[A]ssuming that a can of freon had been overfilled and it had been placed in this 130 degree vat; do you have an opinion, based upon your experience, your background and your knowledge as to whether or not this can would have ruptured?"
Over objection the witness was allowed to express his opinion, and he stated, "My opinion is that when exposed to these high temperatures, if it was appreciably overfilled, it would at that point rupture."
[4,5] In view of the evidence previously presented, including testimony that, during the manufacture and testing of the cans of freon, they were each placed in a 130 degree vat, the quoted question conformed to the rule laid down in Enyart v. Orr, 78 Colo. 6, 238 P. 29, as follows:
". . . the governing consideration is only as to the existence of any evidence tending to prove the facts hypothesized and not as to the weight of the evidence, and therefore it is not necessary that the facts stated should be uncontroverted. . . . It is the privilege of a party in such cases to assume, within the limits of the evidence, any statement of the facts which he claims the evidence justifies, and have the opinion of experts upon the facts thus assumed, subject to the limitation that the question shall not be unfair or misleading."
Further, as was stated in Starkey v. Bryan, 166 Colo. 43, 441 P.2d 314,
"The general rule is that the sufficiency of the evidence to establish the qualification and knowledge of a witness to entitle him to express an opinion poses a question to be determined in the first instance, at least, by the trial court and its decision is conclusive, unless clearly shown to be erroneous."
The trial court's ruling was not erroneous.
We have considered the other errors urged by Kaesik and find them to be without merit.
Judgment affirmed.
JUDGE DWYER and JUDGE PIERCE concur.