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HomeMy WebLinkAbout2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 066 - Df's Resp And Objection To Proposed Jury Instructions1 DISTRICT COURT, LARIMER COUNTY, COLORADO Larimer County Justice Center 201 Laporte Avenue, Suite 100 Fort Collins, CO 80521-2761 (970) 498-6100 Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN v. Defendant: THE CITY OF FORT COLLINS, State of Colorado COURT USE ONLY Andrew W. Callahan, #52421 – acallahan@wicklaw.com Julie M. Yates, #36393 – jyates@wicklaw.com WICK & TRAUTWEIN, LLC 323 South College Avenue, Suite 3 Fort Collins, CO 80522 Phone & Fax Number: (970) 482-4011 John R. Duval, #10185 – jduval@fcgov.com Adam Stephens, #55637 – adstephens@fcgov.com Fort Collins City Attorney’s Office P.O. Box 580 Fort Collins, CO 80524 (970) 221-6520 Case No.: 2020 CV 30363 Division: 3C DEFENDANT’S OBJECTIONS AND STIPULATIONS TO PLAINTIFFS’ PROPOSED JURY INSTRUCTIONS The City of Fort Collins Responds to Plaintiffs’ Proposed Jury Instructions and submits its proposed Jury Instructions as follows: I. DISPUTED INSTRUCTIONS A. Plaintiffs’ instruction, page 23, CJI-Civ. 9:14, which reads: At the time of the occurrence in question in this case, the following statute of the State of Colorado was in effect; Colorado Revised Statute §42-4-1402, careless driving. 2 A person who drives a motor vehicle, bicycle, electrical assisted bicycle, electric scooter, or low-power scooter in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is in violation of Colorado Revised Statute §42-4-1402, and this violation constitutes negligence. If you find such a violation, you may only consider it if you also find that it was a cause of the claimed injuries, damages, and losses. Objection: Plaintiffs changed the wording of the form instruction. In addition, no evidence has been provided that suggests that the driver was operating a vehicle in a reckless or careless manner. The form instruction is as follows: 9:14 NEGLIGENCE PER SE — VIOLATION OF STATUTE OR ORDINANCE At the time of the occurrence in question in this case, the following (statute[s]) (ordinance[s]) of the [name of municipal corporation], State of Colorado (was) (were) in effect: (Insert quotation of applicable statute[s] or ordinance[s]). A violation of (this) (these) (statute[s]) (ordinance[s]) constitutes negligence. If you find such a violation, you may only consider it if you also find that it was a cause of the claimed (injuries) (damages) (losses). Any instruction in this regard should mirror the form instruction and its precise wording. The City of Fort Collins objects to the instruction based on the Colorado Supreme Court has held that instructions should not be given to a jury unless evidence is introduced to support that instruction. Converse v. Zinke, 635 P.2d 882, 889 (Colo. 1981), see also, Morgan v. Board of Water Works of Pueblo, 837 P.2d 300, 30 (Colo.App. 1992). The Colorado Rules of Evidence 51.1 states that “the court shall use such instructions as are contained in the Colorado Jury Instruction (CJI) as are applicable to the evidence and the prevailing law. B. Plaintiffs’ instruction, free-form instruction, page 24, which reads: 3 “Physical Impairment” is generally, any physiologic disorder or condition affecting the musculoskeletal system, including pain, which substantially limits, restricts or interferes with one or more of the major life activities of a person, such as walking, working, performing manual tasks, caring for oneself and other such similar types of major activities. Source and Authority: Colorado Civil Rights Commission v. North Washington Fire Protection Dist., 772 P.2d 70, at 76-77 (Colo. 1989) Objection: Plaintiffs miscite the caselaw and the statement of the Court in Colorado Civil Rights Commission. Plaintiffs blend two separate statements of the Court, one applicable to the definition of “handicap” under the Colorado Statutes and the other pertaining to “physical impairment,” both which are defined for the purposes of the application of the Colorado Civil Rights Act. The Court in Colorado Civil Rights Commission defined physical impairment in conjunction with major life activities as follows: a. “Physical impairment” means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems including, but not limited to: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive; genital-urinary; hemic and lymphatic; skin; and endocrine. b. “Major life activities” means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, touching, learning, and working. C. Plaintiffs’ instruction, free-form instruction, page 25, which reads: If the evidence supports an inference that the effects of an injury have persisted for a number of years and that the injury’s effects or pain will continue into the future, you may draw an inference that the injury, its effects, or pain will be permanent. Expert medical testimony is not required to establish this evidence. This instruction is not meant to suggest or imply you should or should not draw any particular inferences in this case. Whether or not you draw any inferences is up to you, the jury, to determine, based upon the sufficiency of the evidence presented. Source and Authority: Lawson v. Safeway, Inc., 878 P.2d 127, 130 (Colo. App. 1994); Morgan v. Board of Water Works of Pueblo, 837 P.2d 300 (Colo. App. 1992) 4 Lawson v. Safeway, Inc., later received negative treatment from the Court in Dedmon v. Continental Airlines, Inc. 2016 WL 471199, *3 (Colo.D. 2016), in which the Court stated that lay testimony is sufficient when causation is fairly obvious. In the present case, causation is not obvious. Unlike the plaintiff in Lawson v. Safeway who had no pre-existing injuries or pain the are in question, the Plaintiffs in this case both have pre-existing injuries which affected the areas of the body they now claim to have been injured in the accident. This instruction should be amended to take into consideration causation, causation as it relates to future impairment or pain, and pre-existing injuries. D. Plaintiffs’ Instruction on page, 26, free-form instruction regarding the exclusion of evidence regarding insurance. Plaintiffs cites to the California Civil Jury Instructions 1.04 as support for their instruction. California Civil Jury Instruction 1.04 does not relate to the admission of evidence regarding insurance coverage. The Colorado Supreme Court has determined that insurance coverage may not be admissible except for limited purposes. Prudential Property and Ca. Ins. Co. of America v. District Court In and For Seventeenth Judicial Dist., 617 P.2d 556, 559 (Colo. 1980), Volunteers of America Colorado Branch v. Gardenswartz, 242 P. 3d 1080, 1083-1084 (Colo. 2010). Objection: The City of Fort Collins objects to the wording and would request that the instruction be re-worded as follows: Whether any party to this matter has insurance has no bearing on this case. You must not discuss or consider it for any purpose. E. Plaintiffs’ instruction, page 20, CJI-Civ. 9:1, Elements of Liability – No Negligence of the Plaintiff. 5 Plaintiffs’ instruction reads as follows: For the Plaintiffs, Stuward Cross and Katrina Richman, to recover from the Defendant, The City of Fort Collins, State of Colorado, on their claim of negligence, you must find that all of the following have been proved by a preponderance of the evidence: 1. The Plaintiffs had injuries, damages, and losses; 2. The Defendant was negligent; and 3. The Defendant’s negligence was a cause of the Plaintiffs’ injuries, damages, and losses. 4. If you find that any one or more of these three statements has not been proved, then your verdict must be for the Defendant. On the other hand, if you find that all of the three statements have been proved, then your verdict must be for the Plaintiffs. Objection: Plaintiffs failed to include the full 9:1 instruction and failed to provide notation that it was not the form instruction in its entirety, eliminating that portion of the instruction which addresses comparative fault. The City of Fort Collins filed its answer to the complaint on September 10, 2020, in which Defendant asserted the affirmative defense of comparative fault/comparative negligence. Instruction 9:1 in its entirety reads as follows: A. NEGLIGENCE AND DUTY OF CARE 9:1 ELEMENTS OF LIABILITY — NO NEGLIGENCE OF THE PLAINTIFF For the plaintiff, (name), to recover from the defendant, (name), on (his) (her) claim of negligence, you must find that all of the following have been proved by a preponderance of the evidence: 1. The plaintiff had (injuries) (damages) (losses); 2. The defendant was negligent; and 3. The defendant’s negligence was a cause of the plaintiff’s (injuries) (damages) (losses). 6 If you find that any one or more of these (number) statements has not been proved, then your verdict must be for the defendant. On the other hand, if you find that all of these (number) statements have been proved, (then your verdict must be for the plaintiff) (then you must consider the defendant’s affirmative defense(s) of [insert any affirmative defense that would be a complete defense to plaintiff’s claim]). If you find that (this affirmative defense has) (any one or more of these affirmative defenses have) been proved by a preponderance of the evidence, then your verdict must be for the defendant. However, if you find that (this affirmative defense has not) (none of these affirmative defenses have) been proved, then your verdict must be for the plaintiff. Defendant objects to 9:1 being accepted as a jury instruction unless it is submitted in its entirety along with the affirmative defenses included. F. Plaintiffs’ instruction, page 21, Plaintiffs identify as CJI-Civ. 9:6, which states as follows: Negligence means a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect others from bodily injury. Objection: The above instruction is not the full CJI-Civ. 9:6. Civil Jury Pattern Instruction 9:6 reads as follows: NEGLIGENCE — DEFINED (INCLUDING ASSUMPTION OF THE RISK AND COMPARATIVE NEGLIGENCE CASES) Negligence means a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect (oneself or) others from (bodily injury) (death) (property damage) (insert any other appropriate description, e.g., “financial loss”). (Negligence may also mean assumption of risk. A person assumes the risk of injury or damage if the person voluntarily or unreasonably exposes [himself] 7 [herself] to such injury or damage with knowledge or appreciation of the danger and risk involved.) The City of Fort Collins requests that the instruction be given in its entirety to capture Defendant’s assertions of comparative fault and comparative negligence. G. Plaintiffs’ Proposed Instruction 3:15 and 3:16, Page 11: Objection: Defendant does not object to these instructions being given but objects only to Plaintiffs proposed combining of the instructions into one instruction. H. Plaintiffs’ Proposed Instruction 5:1 and 5:6, Page 16: Objection: Defendant does not object to these instructions being given but objects only to Plaintiffs proposed combining of the instructions into one instruction. I. Plaintiffs’ Proposed Instruction, page 19, 6:7. Objection: In all of the evidence provided by Plaintiffs in their disclosures, no evidence was presented to support the “thin skull” instruction, i.e, no evidence was provided suggesting that Plaintiffs were more susceptible to injuries or that there was a nexus between the accident causation of the Plaintiffs injuries. The Colorado Supreme Court has held that instructions should not be given to a jury unless evidence is introduced to support that instruction. Converse v. Zinke, 635 P.2d 882, 889 (Colo. 1981), see also, Morgan v. Board of Water Works of Pueblo, 837 P.2d 300, 30 (Colo.App. 1992). J. Plaintiffs’ Proposed Verdict Form: Objections: The City of Fort Collins objects to wording of the Plaintiffs’ form and will submit its alternative proposed form for the Court’s consideration. In Summation, Defendant objects to the instructions as follows: INSTRUCTION OBJECTION 8 A. Instruction 9:14, Page 23 Wording deviates from CJI-Civ 9:14 form language. Plaintiff objects to submitting a jury instruction for which no evidence has been provided. B Instruction Page 24, Free-Form Plaintiffs miscite the court holding in that case at it defines “handicap,” “physical impairment,” and “major life activities.” C Instruction Page 25, Free-Form Instruction is based on caselaw which later received negative treatment and refined the holding to take into consideration causation and pre-existing injuries. D Instruction, Page 26, Free-Form Objection to wording. E Instruction 9:1, Page 20 Plaintiff failed to include the entire instruction, eliminating the portion which addresses comparative fault. F Instruction 9:6, Page 21 Plaintiff failed to include the entire pattern jury instruction, G. Instructions 3:15 and 3:16, Page 11 Defendant objects to the instructions being combined into one instruction. H Instructions 5:1 and 5:6, Page 16 Defendant object to the instructions being combined into one instruction. I Instruction 6:7, Pages 19 Defendants object to this instruction being submitted to the jury when no evidence was provided that suggested that Plaintiffs were more vulnerable to injuries than a normal person in the population. J Verdict Form Defendants submits an alternative verdict form. III. STIPULATED INSTRUCTIONS Defendant stipulates to the following instructions proposed by Plaintiffs: CJI –Civ. 1:13 CJI –Civ. 3:1 9 CJI –Civ. 3:4 CJI –Civ. 3:8 CJI –Civ. 3:9 CJI –Civ. 3:12 CJI –Civ. 3:14 CJI –Civ. 3:15 (if separated from 3:16) CJI –Civ. 3:16 (if separated from 3:15) CJI –Civ. 4:1 CJI –Civ. 4:1A CJI –Civ. 4:2 CJI –Civ. 4:2A CJI –Civ. 5:5 (If separated out from 5:6) CJI –Civ. 5:6 (If separated out from 5:5) CJI –Civ. 6:1 CJI –Civ. 9.8 CJI –Civ. 1:13 CJI –Civ. 1:13 CJI –Civ. 1:13 Respectfully submitted this 7th day of January, 2022. WICK & TRAUTWEIN, LLC By: s/Julie M. Yates Andrew W. Callahan #52421 Julie M. Yates, #36393 Attorneys for Defendant And John R. Duval, #10185 Adam Stephens, #55637 Fort Collins City Attorney’s Office 10 CERTIFICATE OF ELECTRONIC FILING The undersigned hereby certifies that a true and correct copy of the foregoing DEFENDANT’S OBJECTION TO PLAINTIFFS’ JURY INSTRUCTIONS was filed via the Colorado Courts E-Filing System and served this 7th day of January, 2022, on the following: W. Clayton Harris Laura Browne The Sawaya Law Firm 1600 Ogden Street Denver, CO 80218 s/ Jody L. Minch