The majority also rejects FMC's argument that Armentrout's conduct while working on the HC-238A mobile crane was unforeseeable. FMC argues that the warning provisions in the operators manual entitles them to the presumption of unforeseeability that we articulated in Uptain. In rejecting FMC's argument, the majority distinguishes Uptain from the present case by finding that, unlike Uptain where an adequate warning reached the user, in this case, there "is evidence that Armentrout did not receive the warnings in the manual and such evidence places in question the adequacy of the warnings provided the users of the crane." Maj. at 188. The majority reasons that there is no warning which Armentrout could have read or heeded and thus, the presumption set forth in Uptain does not apply. Id. I disagree.Our decision in Uptain held that "the question of whether it was foreseeable that a user of [a caustic cleaning compound] would wring out a cloth with her bare hands was properly reserved for jury determination...." Uptain, 723 P.2d at 1326. In Uptain, we stated that where a user of a product receives a warning, he is presumed to heed that warning. Whether Armentrout actually received the warnings in the manual is not dispositive of the question of the adequacy of warnings for purposes of the Uptain presumption. It is undisputed that Armentrout knew the dangers of working on the truck's platform on the mobile crane while the crane was being operated. In this case, an adequate warning of the danger of injury by being crushed at the crane's pinch points was provided by Armentrout's employer, his past work on the crane and truck, hiscurrent work on the crane and truck, and by plain view of the crane in operation. In my view, Schmutz does not stand for the proposition that any manufacturer that is *196 on
notice of prior incidents of product misuse, or warns against product misuse, cannot defend against a product liability claim on the basis of that misuse when the danger confronted by the consumer is open and obvious. Rather, in open and obvious danger cases, the jury could rationally decide that a manufacturer should be able to rely on the user to take reasonable precautions to protect himself against a harm which is obvious to a reasonable person, and the jury should receive an appropriate instruction.At trial, FMC presented substantial evidence that Armentrout's work on the HC-238A mobile crane violated generally accepted operating procedures and was an unsafe practice. Accordingly, whether or not Armentrout's conduct of working on the HC-238A mobile crane was misuse, and if it was, whether that misuse was foreseeable to FMC are questions for the jury. See Uptain v. Huntington Lab, Inc., 723 P.2d 1322(Colo.1986); Brown v. Sears, Roebuck & Co., 136 Ariz. 556, 667 P.2d 750 (1983).
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- Fall '19
- Supreme Court of the United States, Appellate court, Product liability