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Hoffman v. Kiefer Concrete, Inc. - 37 Colo. App. 138, 546 P.2d 1275 (1975)

Rule:

A resort to mere conjecture or possibilities will not take the place of direct or circumstantial evidence. No number of mere possibilities will establish a probability. This principle, one of the few reins on a jury's almost unlimited authority to make factual judgments, must be adhered to.

Facts:

On May 5, 1972, Hoffman was hired by Poudre Pre-Mix, Inc., (Poudre) to bolt together the upper and lower parts of a cement silo which Poudre was erecting on its property for its own use. He arranged for a crane owned by Reid Burton Co. to raise the upper part of the silo and to hold it in place atop the supporting assembly while he bolted the two parts together. He obtained an additional crane from Kiefer, an affiliate of Poudre, to lift him to the various locations where he would be working. After hooking up a cement bucket to the Kiefer crane, Hoffman got inside the bucket and, by use of hand signals to the crane operator, Richards, indicated where he wanted to be positioned. Richards hoisted the cement bucket carrying Hoffman some 20 feet into the air, and Hoffman began to work. As Hoffman was being maneuvered to a different position, the cable holding the cement bucket suddenly broke and the bucket fell to the ground. Hoffman suffered serious injuries.

The Hoffmans claimed that Richards was negligent in the operation of the crane and that his negligence was the proximate cause of the fall that injured Hoffman. They further contended that Richards was acting in the scope of his employment with Kiefer while performing his duties as a crane operator. Kiefer maintained that Richards was not negligent, that in any event Richards at the time of the accident was a loaned employee of Poudre, and that the acts of Hoffman led to his injuries.

At the conclusion of the evidence, the case was submitted to the jury under standard instructions on negligence and the loaned servant doctrine, and the special verdict form, Colo. J.I. 4:17, was submitted to it. The first interrogatory therein was, "Was the defendant, Kiefer Concrete, Inc., negligent?" The jury answered, "No," to this question and the same as to the negligence of Hoffman. Accordingly, judgment was entered by the court for defendant.

Issue:

Was Richards, the crane operator, negligent, and therefore, liable to Hoffman for injuries sustained?

Answer:

Yes.

Conclusion:

On appeal, the court stated that the only reasonable conclusion to have been drawn from the evidence was that the cable broke as a result of two blocking, a process where the boom of the crane was extended outward. The court stated that it should have been determined as a matter of law that the operator was negligent and that his negligence was the proximate cause of the worker's damages. The court stated that the issue of whether the operator was a loaned employee of the company was controlled by prior case law and that under the standard established by that case law the operator could not have been found to have been a loaned employee.

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