Uptain v. Huntington Lab, Inc.

723 P.2d 1322, 58 A.L.R. 4th 49, 1986 Colo. LEXIS 604

• Court: Supreme Court of Colorado
• Decided: August 25, 1986
• Docket: 84SC136
• Status: Published

Opinions

KIRSHBAUM, Justice.

We granted certiorari to review the Court of Appeals’ decision in Uptain v. Huntington Lab, Inc., 685 P.2d 218 (Colo.App.1984), which decision affirmed a jury verdict in favor of the defendant, Huntington Lab, Inc. (Huntington), in a products liability case filed by the plaintiff, Tonya Uptain. We affirm the judgment of the Court of Appeals, but in so doing we affirm the trial court on grounds that differ from those relied upon by the Court of Appeals.

On September 5, 1979, the plaintiff began a new job as an employee in the housekeeping department of Southwest Memorial Hospital in Cortez, Colorado. On that day, her supervisor demonstrated the use of various cleaning compounds available for cleaning bathroom fixtures, including Sani-Tate, a twenty-three percent hydrochloric acid solution manufactured by Huntington. At that time, Sani-Tate containers had labels warning users to avoid contact with the product because of potential chemical burns and to wash the skin area well if such contact occurred.

The tasks to be performed by the plaintiff required use of a swab to apply Sani-Tate and periodic rinsing of the swab. At trial, the plaintiff testified that her supervisor neither wore gloves nor instructed the plaintiff to use gloves when using Sani-Tate. The supervisor testified at trial that she instructed the plaintiff to wear rubber gloves and that the plaintiff refused to do so.

After the demonstration, the plaintiff began cleaning bathrooms on her own. Although she initially followed the supervisor’s instructions, by September 7, 1979, the plaintiff had become so annoyed at the fact that water dripped continuously from the cleaning swab that she began to wring the swab out by hand after each rinse. The plaintiffs hand became red and blistered, however, and after washing it with soap and water the plaintiff reported to her supervisor. The supervisor told her to put on a rubber glove and continue to work. The plaintiff complied, but when her hand continued to hurt she removed the glove. Her hand appeared severely burned, and the plaintiff sought medical attention at once. The plaintiff subsequently had numerous skin graft operations, and her hand is permanently scarred.

The plaintiff filed a products liability action against Huntington, alleging that inadequate warnings on the Sani-Tate bottle rendered it a defective product. Huntington answered, claiming that the warning was adequate, that the plaintiffs failure to read and heed the printed warnings constituted a misuse of the product, and that the plaintiff assumed the risk. A jury returned a verdict in favor of Huntington, and the Court of Appeals affirmed. We accepted certiorari on the following issues: (1) whether the Court of Appeals’ definition of “misuse” is correct; (2) whether section 13-21-404, 6 C.R.S. (1985 Supp.), applies to new labeling not based on scientific advancement; and (3) whether a contemporaneous objection to proffered evidence is necessary to preserve the issue of the admissibility of the evidence when the precise issue had been previously determined by the trial court in a ruling on a motion in limine.

I

The plaintiff first argues that the definition of “misuse” adopted by the Court of Appeals in affirming the trial court’s instruction to the jury defining Huntington’s misuse defense is too broad. We agree, but conclude that the instruction itself was not erroneous.

The plaintiff argued to the Court of Appeals that the trial court erred in instructing the jury on Huntington’s defense of misuse because the plaintiff had used Sani-Tate for its intended purpose — cleaning toilet bowls. In rejecting this argument, the Court of Appeals defined “misuse” in the following manner:

Misuse is all possible types of product use, or conduct affecting product use, by the plaintiff or a third party which is improper in light of the qualities and characteristics of the product itself.

Uptain, 685 P.2d at 221 (citing Weinberger, Product Misuse in New York State, 53 N.Y.Bar J. 363 (1981)). The plaintiff contends that this definition of misuse introduces the concept of contributory negligence into this products liability case.

Because strict liability claims focus on the product itself rather than on any conduct of the manufacturer, contributory negligence is generally not recognized as a defense to such claims. See Jackson v. Harsco Corp., 673 P.2d 363 (Colo.1983); Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978). However, comment h to section 402A of the Restatement (Second) of Torts (1965) recognizes an exception to this general rule when unforeseeable abnormal handling of an otherwise safe product causes injuries. Comment h provides in pertinent part:

A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, as where a bot-tied beverage is knocked against a radiator to remove the cap, or from abnormal preparation for use, as where too much salt is added to food, or from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable. Where, however, he has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger ... and a product sold without such warning is in a defective condition.

In Jackson, 673 P.2d 363, we recognized this concept of misuse as a defense to a products liability case:

Misuse by an injured party which cannot reasonably be anticipated by the manufacturer can be utilized as a defense in a products liability case by showing that the conduct of the user, and not the alleged defect in a product, actually caused the accident.... Section 402A recognizes a defense for the manufacturer where the user mishandles or misuses a product and thereby creates a dangerous condition.... The usual situation in which the defense may be asserted is where the product is being used in a way other than that which was intended and which could not reasonably have been anticipated by the manufacturer.

Id. at 367 (citations omitted).

In this case, the trial court instructed the jury as follows concerning Huntington’s misuse defense:

A manufacturer of a product is not legally responsible for injuries caused by a product if: (1) the product is used in a manner or for a purpose other than that which was intended and which could not reasonably have been expected; and (2) such use rather than a defect, if any, in the product caused the plaintiffs claimed injuries.

This instruction parallels Colo. CJI-Civ. 14:22 and is based upon Jackson. Contrary to the broad test stated by the Court of Appeals, the defense of misuse in Colorado is a particularized defense requiring that the plaintiffs use of the product be unforeseeable and unintended as well as the cause of injuries. Such limitation on the availability of the defense strikes an appropriate balance between the policy that in strict liability cases the product, not the manufacturer, is on trial and the recognition that abuse of a product should not be encouraged.

Although the Court of Appeals’ characterization of the defense of misuse unduly broadens that defense, instruction No. 15, as given to the jury, correctly stated the law of misuse in Colorado.¹ Furthermore, there was sufficient evidence introduced at trial to establish a factual basis for tendering the defense of misuse to the jury. Thus, the conclusion of the Court of Appeals that instruction No. 15 was not erroneous is correct.

Misuse, as the jury was instructed, is a question of causation. Regardless of the defective condition, if any, of a manufacturer’s product, a manufacturer will not be liable if an unforeseeable misuse of the product caused the injuries. See Union Supply Co., 196 Colo. 162, 583 P.2d 276; Keeton, Products Liability and Defenses: Intervening Misconduct, 15 Forum 109 (1979). The plaintiff argues that Huntington was not entitled to any instruction on the defense of misuse because Sani-Tate was being used for its intended purpose. However, the concept of misuse includes use of a product in a manner other than that which was intended as well as use for an unintended purpose. The plaintiffs failure to read and heed the warnings printed on the product’s label and her act of wringing out the swab with her hand were arguably unforeseeable uses of Sani-Tate in a manner other than that intended.

The plaintiff argues that her failure to read the warnings printed on the label is foreseeable as a matter of law. The rule is to the contrary. Comment j to section 402A provides that “[w]here warning is given, the seller may reasonably assume that it will be read and heeded.” Adoption of the plaintiffs proposed rule would in effect reverse the policies supporting the requirement that manufacturers must provide adequate warnings of known hazards accompanying use of particular products. We reject the plaintiffs position and adopt comment j as the applicable rule in this jurisdiction. The question of whether it was foreseeable that a user of Sani-Tate would wring out a cloth with her bare hands was properly reserved for jury determination in this case. See Schwartz v. American Honda Motor Co., 710 F.2d 378 (7th Cir.1983); Brownlee v. Louisville Varnish Co., 641 F.2d 397 (5th Cir.1981); Brown v. Sears, Roebuck & Co., 136 Ariz. 556, 667 P.2d 750 (Ct.App.1983); Self v. General Motors Corp., 42 Cal.App.3d 1, 116 Cal.Rptr. 575 (1974); Falkenbury v. Elder Cadillac, Inc., 109 Ill.App.3d 11, 64 Ill.Dec. 628, 440 N.E.2d 180 (1982); Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo.1969); Smialek v. Chrysler Motors Corp., 290 Pa.Super. 496, 434 A.2d 1253 (1981). Accordingly, we conclude that instruction No. 15 was a correct statement of the law of misuse in Colorado and that under the circumstances of this case it was proper to tender the issue of misuse for jury determination.

II

The plaintiff asserts that the trial court erred in denying her request under CRE 407 to admit Exhibit N, a Sani-Tate label drafted by Huntington prior to September 7, 1979, to show the feasibility of such warning at the time of the plaintiffs use of Sani-Tate. At the time of trial, the label in question had not been approved by the appropriate federal regulating agency and was not on bottles of Sani-Tate then being sold. Although the trial court did not state the reasons for its ruling, it appears from the record as a whole that the trial court was concerned primarily with the fact that the new label was not in use.² The Court of Appeals concluded that section 13-21-404, 6 C.R.S. (1985 Supp.), rendered the new label inadmissible. We disagree with this interpretation of the statute, but agree that the trial court did not err in rejecting this evidence.

Section 13-21-404 provides as follows:

In any product liability action, evidence of any scientific advancements in technical or other knowledge or techniques, or in design theory or philosophy, or in manufacturing or testing knowledge, techniques, or processes, or in labeling, warnings of risks or hazards, or instructions for the use of such product, where such advancements were discovered subsequent to the time the product in issue was sold by the manufacturer, shall not be admissible for any purpose other than to show a duty to warn.

As we previously noted, the label used by Huntington at the time of the plaintiffs injuries warned against skin contact, warned of potential chemical bums from contact with the product, and advised users to wash the skin area well if external contact should occur. At the time of the events giving rise to the plaintiffs injuries, Huntington had used the same warning label for approximately twelve years. The proposed new label contained all of the prior warnings and, in addition, advised consumers to wear rubber gloves when using the product.

The plaintiffs chemical burns resulted from her contact with the hydrochloric acid contained in Sani-Tate. That a high concentration of hydrochloric acid would cause such injuries, and that the use of rubber gloves guarded against skin contact, were not matters of new “scientific advancements ... discovered subsequent to the time [Sani-Tate] was sold by the manufacturer.” During the trial neither party argued that the new label was the result of newly discovered scientific knowledge, and no evidence was introduced to support any such claim. By its plain language, section 13-21-404 is inapplicable to the facts of this case.³

The plaintiff next argues that the subsequent label was admissible pursuant to CRE 407. CRE 407, which is identical to FRE 407, provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

CRE 407 (emphasis added). The plaintiff argues that the new label was relevant to show the feasibility of using such a label prior to the time of the plaintiff's use of Sani-Tate. We disagree.

Although both parties apparently assume that CRE 407 applies to products liability cases, we have not heretofore decided that threshold issue. Courts are divided over the question of whether the prohibition of the admission of post-event corrective measures established by FRE 407 or similar state evidentiary rules apply to products liability cases. Compare Fish v. Georgia-Pacific Corp., 779 F.2d 836 (2d Cir.1985) (subsequent remedial measures are not admissible in a strict liability action); DeLuryea v. Winthrop Laboratories, 697 F.2d 222 (8th Cir.1983); Grenada Steel Industries, Inc. v. Alabama Oxygen Co., 695 F.2d 883 (5th Cir.1983); Werner v. Upjohn Co., 628 F.2d 848 (4th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 862, 66 L.Ed.2d 804 (1981), with Herndon v. Seven Bar Flying Service, Inc., 716 F.2d 1322 (10th Cir.1983), cert. denied, sub nom. Piper Aircraft Corp. v. Seven Bar Flying Service, 466 U.S. 958, 104 S.Ct. 2170, 80 L.Ed.2d 553 (1984) (subsequent remedial measures are admissible in a strict liability action); Unterburger v. Snow Co., 630 F.2d 599 (8th Cir.1980); Ault v. International Harvester Co., 13 Cal.3d 113, 117 Cal.Rptr. 812, 528 P.2d 1148 (1974); Burke v. Illinois Power Co., 57 Ill.App.3d 498, 15 Ill.Dec. 670, 373 N.E.2d 1354 (1978); Barry v. Manglass, 55 A.D.2d 1, 389 N.Y.S.2d 870 (1976). The majority of courts that have considered the issue have concluded that the federal rule was initially developed because of two concerns: (1) that in negligence cases, wherein questions of lack of reasonable conduct and duty were essential elements, such evidence was irrelevant; and (2) that a contrary rule would, as a matter of policy, discourage alterations in products that, if made, would prevent further injuries. Many decisions holding FRE 407 inapplicable to products liability cases simply conclude that products liability cases can never be equated to “fault” cases. This approach ignores the reality that the concepts of strict liability and negligence liability are often intertwined in duty to warn cases.

In DeLuryea v. Winthrop Laboratories, 697 F.2d 222, the Eighth Circuit Court of Appeals refused to make any such categorical distinction and, instead, considered the applicability of FRE 407 in terms of the nature of the particular issues and allegations of the particular lawsuit. In DeLu-ryea a claim of inadequate warning was deemed to involve primarily a question of whether the manufacturer conducted itself reasonably in communicating arguably known information about risks associated with the product, “Talwin,” a pain-killing drug. Although affirming earlier Eighth Circuit decisions holding that Rule 407 does not apply in most strict liability cases, the DeLuryea court concluded that insofar as the allegation of inadequate warnings was concerned, Rule 407 was applicable.

The DeLuryea distinction applies to the circumstances of this case. Sani-Tate can be deemed defective only if the warnings were not adequate. The test of adequacy includes a comparison of the conduct of the defendant to the conduct of a hypothetical “reasonable” entity in the defendant’s position at the time. Because this claim requires proof that the defendant’s conduct fell short of some objectively ascertainable minimal standard, any liability will be based on “fault” in the traditional tort sense of failure to exercise reasonable care in circumstances wherein one has a duty to exercise reasonable care. We thus conclude that, in the circumstances of this case, CRE 407 is applicable.

CRE 407 contains the following exceptions:

This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

The feasibility exception does not apply to cases wherein the defendant does not contest the feasibility of precautionary measures at the time of the incident. See, e.g., Herndon v. Seven Bar Flying Service, Inc., 716 F.2d 1322. Whether it is applicable in a particular case requires consideration of the legal and factual context of the case.

Here, in response to the trial court’s inquiry as to whether the feasibility of the new label was controverted, the following colloquy occurred:

[DEFENDANT’S ATTORNEY]: I don’t see how a label can be called feasible when you can’t use it because the government won’t let you use it, and this label was, in fact, produced in 1978, they are still trying to get the government to let them use it.

[PLAINTIFF’S ATTORNEY]: Well, they could have gotten the government’s permission back in 1955, they could have gotten it in 1960. That’s an E.P.A. label on that bottle right now that Tonya Up-tain used. I mean, the mere fact that they dillydally around in 1978 to apply for a proper label on their product and then come into court and say it’s not feasible — feasibility talks about the ability to design and put a label on the bottle.

[DEFENDANT’S ATTORNEY]: Which they don’t have.

[PLAINTIFF’S ATTORNEY]: If they applied for that permission back when they should have, that label would have been on this bottle ten years before this accident ever occurred....

Tr. at 31. It is thus apparent that Huntington controverted the feasibility of the new label.⁴ Therefore, CRE 407 does not require the exclusion of evidence of the new label.

In this case, however, the new label was submitted to the EPA for approval in 1978, one year prior to the date of the plaintiff’s injuries. Thus, the new label cannot be deemed a “subsequent” remedial measure. CRE 407 is expressly limited to measures taken “after an event.” The mere act of submitting a new Sani-Tate label to the EPA for approval would not have made the plaintiff’s injuries less likely to occur. Therefore, CRE 407 is not applicable to the plaintiff’s Exhibit N, which was not, even at the time of trial, a measure taken which would have made the plaintiffs injuries less likely to occur.

Because neither CRE 407 nor section 13-21-404 is applicable to the question of the admissibility of Exhibit N, we must turn to general guidelines of evidence admissibility. It is axiomatic that trial courts have broad discretion as to the admissibility of evidence. See KN Energy, Inc. v. Great Western Sugar Co., 698 P.2d 769 (Colo.1985), cert. denied, — U.S. -, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985); People v. Schwartz, 678 P.2d 1000 (Colo.1984). Although the record transmitted to this court does not include the trial court’s reasons for excluding the evidence of the label, the record supports the conclusion that the prejudicial effect of such evidence far outweighed its probative value. CRE 403. Considering the trial court’s concern with the fact that the new label was not yet in use and the plaintiff’s arguments that the new label would establish the defect in the old warning label, it is likely that the trial court based its ruling on this factor. In any event, the plaintiff has failed to establish that the exclusion of Exhibit N was an abuse of the trial court’s broad discretion in evidentiary matters. See People v. Lowe, 660 P.2d 1261 (Colo.1983). Accordingly, although we reject the conclusion of the Court of Appeals that Exhibit N was inadmissible because of section 13-21-404, we affirm the trial court’s decision to exclude that exhibit from the evidence.

III

The plaintiff finally argues that the Court of Appeals erred in concluding that because the plaintiff failed to object contemporaneously to the introduction of certain defense evidence, her pretrial objection to the introduction of that evidence by means of a motion in limine was lost for purposes of appeal. We agree, but conclude that the trial court did not err in admitting the evidence.

Anticipating that Huntington would seek to introduce evidence that it had never been sued for personal injuries resulting from the use of Sani-Tate, the plaintiff filed a motion in limine prior to trial to prevent the introduction of such evidence. After a hearing, the trial court concluded that the evidence was admissible and denied the motion.⁵ At the time Huntington elicited testimony on the subject, the plaintiff did not object.

CRE 103(a)(1) provides:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....

The question is whether a motion in limine constitutes a “timely objection” for purposes of CRE 103(a)(1). A survey of those jurisdictions which have considered the issue reveals a split of authority.⁶

Although the Colorado Rules of Evidence do not expressly authorize motions in li-mine, the Court of Appeals in Good v. A.B. Chance Co., 39 Colo.App. 70, 565 P.2d 217 (1977), noted that a trial court’s authority to rule on motions in limine is based on the trial court’s inherent authority to pass on questions of evidence admissibility and is reflected in the Colorado Rules of Civil Procedure.⁷ The court suggested that the purposes served by motions in limine were comparable to the purposes furthered by pretrial conferences, as authorized by C.R. C.P. 16(a)(8):⁸ to shorten trial time, to simplify the issues and to reduce the possibility of mistrial. In Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962), we noted that for purposes of appeal approval of a pretrial order by a party did not effect a waiver of that party’s objections to the trial court’s pretrial rulings. We held:

The purpose of the pre-trial conference is to narrow the issues and to simplify the actual conduct of the trial on the merits. Objections duly made at time of pre-trial have the same purpose and effect as objections made at time of trial.

Id. at 491, 375 P.2d at 687.

We find no meaningful distinction between the effect of a pretrial ruling on a specific objection to the admissibility of particular evidence made as a result of a pretrial conference and a similar pretrial ruling resulting from a motion in limine insofar as the non-prevailing party’s right to have that ruling reviewed on appeal is concerned. Presentation of issues by means of motions in limine offers opportunities to expedite trials, eliminate bench conferences, avoid juror annoyance and permit more accurate rulings. In Higgs v. District Court, 713 P.2d 840 (Colo.1985), we held that where the pretrial motion in limine was directed to a broad array of evidence, such motion in limine did not constitute a timely objection for purposes of CRE 103(a)(1). However, the circumstances in the present case, where the motion in limine contained specific objections to the admission of specific items of anticipated evidence, differ markedly from those in Higgs. When, as here, a specific evidentia-ry issue is presented to the trial court in advance of trial, the primary purposes of the contemporaneous objection rule — to permit the trial court to accurately evaluate the legal issues and to enable the appellate court to apprehend the basis of the objection — are satisfied. Requiring an additional formal objection and ruling in all cases would undermine the benefits provided by the motion in limine procedure. We conclude that under the circumstances of this case, where the issue of the admissibility of the specific evidence was fully argued to the trial court on the same grounds argued by the non-prevailing party on appeal, the plaintiffs motion in limine constituted a timely objection for purposes of CRE 103(a)(1).⁹ The Court of Appeals’ contrary conclusion is erroneous.

Although the selective transcript of the pretrial proceedings provided on appeal does not indicate the trial court’s reasons for admitting the evidence, the record does reveal that Huntington relied upon section 13-21-403(3), 6 C.R.S. (1985 Supp.), to support its position that evidence of no prior claims against its product was admissible. Section 13-21-403(3) provides as follows:

Ten years after a product is first sold for use or consumption, it shall be rebutt-ably presumed that the product was not defective and that the manufacturer or seller thereof was not negligent and that all warnings and instructions were proper and adequate.

Implicit in this statutory language is the assumption that no other strict liability claims have been established against the particular product.¹⁰ The evidence in this case established that Sani-Tate had been marketed for twenty-five years in its present form and that no suit had been filed against the product or against Huntington with respect to the product. This evidence was relevant to the question of whether Huntington was entitled to an instruction informing the jury of the presumption created by section 13-21-403(3) and, therefore, was properly admitted by the trial court.¹¹

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

QUINN, C.J., dissents. DUBOFSKY, J., does not participate.

1 . After concluding that jury instruction No. 15 was an appropriate instruction in the case, the Court of Appeals stated:

In the future, however, we believe the instruction should more clearly emphasize the element of foreseeability of a dangerous condition on the part of the manufacturer. Therefore, the phrase "by the manufacturer” should be added after the word "expected” in the above-quoted portion of the instruction. With this addition, the instruction conforms more closely to the elements of misuse set out in Jackson v. Harsco, supra.

Uptain, 685 P.2d at 221. Because we find that under the circumstances of the case before us there was no error in the giving of jury instruction No. 15, we deem it inappropriate to determine the general correctness of pattern jury instruction No. 14:22.

2 . In response to the plaintiffs argument that Good v. A.B. Chance Co., 39 Colo.App. 70, 565 P.2d 217 (1977), supported the admission of Exhibit N, the trial court stated: “Except it’s not quite the same. If [the new label] were on this new bottle, I would have no hesitancy.”

3 . Because we disapprove the Court of Appeals’ determination that section 13-21-404 barred the admission of Exhibit N, we need not decide whether "to show a duty to warn" applies to cases where only adequacy of the warning, not the duty to warn, is at issue.

4 . Whether the defendant's definition of feasibility — the practical ability of putting the new label on the bottle — is the definition of feasibility in the context of a duty to warn case is unnecessary to our resolution of this issue. The defendant’s belief that feasibility was controverted suffices for purposes of determining the threshold applicability of the feasibility exception to CRE 407.

5 . The record on appeal includes only the trial court’s summary ruling on the motion in limine and the reargument of the parties. The parties’ original arguments were not transcribed.

6 . Compare Rojas v. Richardson, 703 F.2d 186 (5th Cir.1983) (motion in limine does not preserve error for appeal); Northwestern Flyers, Inc. v. Olson Bro. Mfg. Co., 679 F.2d 1264 (8th Cir.1982); Collins v. Wayne Corp., 621 F.2d 777 (5th Cir.1980); United States v. Helina, 549 F.2d 713 (9th Cir.1977); People v. Stewart, 140 Cal.App.3d 11, 189 Cal.Rptr. 141 (1983); Douglas v. Lombardino, 236 Kan. 471, 693 P.2d 1138 (1985); Maricle v. Spiegel, 213 Neb. 223, 329 N.W.2d 80 (1983); State v. Leslie, 14 Ohio App.3d 343, 471 N.E.2d 503 (1984); Zehner v. Post Oak Oil Co., 640 P.2d 991 (Okla.App.1981); Dailey v. Wheat, 681 S.W.2d 747 (Tex.App.1984); State v. Lesley, 672 P.2d 79 (Utah 1983); with American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321 (3d Cir.1985) (motion in limine preserves error for appeal); Sheehy v. Southern Pacific Transportation Co., 631 F.2d 649 (9th Cir.1980); Reyes v. Missouri Pacific Railroad Co., 589 F.2d 791 (5th Cir.1979); United States v. Williams, 561 F.2d 859 (D.C.Cir.1977); Loof v. Sanders, 686 P.2d 1205 (Alaska 1984); State v. Lujan, 136 Ariz. 326, 666 P.2d 71 (1983); Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 260 S.E.2d 20 (1979); State v. Foster, 296 Or. 174, 674 P.2d 587 (1983); State v. Kelly, 102 Wash.2d 188, 685 P.2d 564 (1984).

In Wyoming, the Committee Note to Wyo. R.Ev. 103 states that objection at trial to evidence ruled admissible on a motion in limine is not necessary to preserve the issue for appeal. The Ninth Circuit in Burgess v. Premier Corp., 727 F.2d 826 (9th Cir.1984), noted that it was not clear whether a motion in limine was sufficient to preserve error for appeal absent a contemporaneous objection. The Second Circuit observed that the reasons for strict application of Rule 103 to a failure to object are less compelling where the court has made a pretrial ruling that the evidence will be admissible. Robinson v. Shapiro, 646 F.2d 734 (2d Cir.1981). In United States v. Guerrero, 650 F.2d 728 (5th Cir.1981), the court noted that although a motion in limine would preserve error for appeal in some circumstances, an objection to evidence at trial based on different grounds than those argued on the motion in limine did not preserve the motion in limine objections for appeal.

7 . FRE 103(c) has also been suggested as a basis for motions in limine. 21 Wright & Graham, Federal Practice and Procedure § 5037 at 194 (1977). CRE 103(c), which is identical to FRE 103(c), provides:

In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

8 . C.R.C.P. 16(a)(8) provides:

In every action in which a contested trial is to be held, the court may in its discretion direct the attorneys for the parties to appear before it for a conference:

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To consider any other matters that will simplify the issues and further aid in the disposition of the controversy.

9 . We do not suggest that a contemporaneous objection is never necessary to preserve an evi-dentiary question for appellate review. For example, a party might find at trial that a ground different from the grounds articulated in a preliminary motion in limine is appropriate to interpose at the time the evidence is offered. A failure to request the trial court to consider this new basis for objection to the evidence would in all probability result in the loss of any right to appellate review of the validity of the new basis for opposing admission of the evidence.

10 . Statutory presumptions in civil cases generally arise where there is a rational connection between the proved fact and the presumed fact. See generally McCormick on Evidence § 244 (1972). The mere fact that a product has been marketed for ten years or more does not, without more, lead to the natural inference that the product is not defective. However, evidence that a product marketed for more than ten years without any products liability lawsuits having been filed against it is rationally connected to the issue of whether the product is defective under § 402A.

11 .The Court of Appeals commented in its opinion that evidence of a lack of prior accidents is generally not admissible, relying upon our decision in Anderson v. Heron Engineering Co., 198 Colo. 391, 604 P.2d 674 (1979). However, in that strict products liability case the defendant introduced evidence of a lack of prior accidents to establish it had no knowledge of the product’s defect. Emphasizing that in strict liability cases the focus is on the condition of the product rather than on the reasonableness of the manufacturer’s conduct, we concluded that the proffered evidence was not relevant to prove knowledge because “the defendant’s knowledge of a defect that renders a product unreasonably dangerous is assumed in strict liability cases.” Id. at 398, 604 P.2d at 679. Anderson is distinguishable from the present case, where Huntington sought to introduce the evidence of lack of prior accidents to show the defect-free nature of Sani-Tate — an essential issue in the case. The broad statement that evidence of lack of prior accidents is not generally admissible is subject to the qualification here noted.