HomeMy WebLinkAbout2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 049 - Df's Resp To Mil To Preclude EvidenceDISTRICT 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 RESPONSE TO MOTION IN LIMINE
TO PRECLUDE EVIDENCE UNDER C.R.E. 401, 402, 403 AND 404
COMES NOW Defendant the City of Fort Collins, by and through counsel, and files its
response to the Motion In Limine to Preclude Evidence Under C.R.E. 401, 402, 403 and 404 as
follows:
I. BACKGROUND
On May 29, 2020, Plaintiffs filed their complaint alleging negligence by the City of Fort
Collins and its driver, and claimed damages for the following:
a. traumatic physical and emotional injuries, disabilities and economic losses and
injuries,
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b. pain and suffering, present and future, loss of enjoyment of life and/or capacity of
life,
c. loss of ability to engage in social and recreational activities normal to their lives
prior to the accident, and otherwise prevented from participating in and enjoying
the benefits of a full and complete life,
d. past, present and future economic losses,
e. medical expenses, past and future, and
f. permanent limitation, disfigurement, limitations and or disabilities of the body
and/or mind,
On June 2, 2021, the City of Fort Collins took the deposition of Plaintiff Katrina Richman.
Questions were asked of Ms. Richman for the purpose of determining the above alleged damages.
Ms. Richman confessed to having a long history of neck and back injuries, and questions were
asked about the causation of those injuries and the proximity in time of sustaining those past
injuries to the injuries claimed from the accident at issue. In addition, because Mr. Richman claims
a loss of income and loss of the ability to engage in her normal activities, her past work history
and activities were explored, revealing that she had not worked since 2007.
During the deposition, unsolicited, Ms. Richman made statements that she was “poor” and
had at one time been homeless. Ms. Richman disclosed that she sustained injuries to her neck and
back in a domestic violence incident in 2015 and sustained injuries to her neck and back when she
was attacked by her daughter in approximately 2016, both from which she continued to suffer as
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of the date of the accident. At the time of the accident, Ms. Richman was returning from a physical
therapy appointment for treatment for those previous injuries.
II. LEGAL STANDARD
A. Relevant Evidence - Colorado Rules of Evidence 401 defines provides:
‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.
B. Admissibility - Colorado Rules of Evidence 402 provides:
All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United State, by the Constitution of the State of
Colorado, by these rules, or by other rules prescribed by the Supreme Court,
or by the statutes of the State of Colorado. Evidence which is not relevant
is not admissible.
C. Probative Value - Colorado Rule of Evidence 403 provides:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
D. Character Evidence - Colorado Rules of Evidence 404 provides:
that the character of a person is generally inadmissible for the purpose of proving
that he or she acted in conformity therewith on a particular occasion.
E. Negligence and Proximate Causation and Burden of Proof
At trial, Plaintiffs will bear the burden to show that the Defendants’ alleged negligence was
the proximate cause of the injuries claimed. Reigel v. Sava Senior Care LLC, 292 P.3d 977, 985
(Colo. App. 2011). Plaintiffs will need to show the proximate cause of injuries by a preponderance
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of the evidence. Id. at 985-986, see also, Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d
714, 719 (Colo. 1987), Allen v. Martin, 203 P.3d 546, 565 (Colo. App. 2008).
A defendant, even if found negligent, cannot be held liable for any injuries unless plaintiff
proves by a preponderance of the evidence that defendant’s negligence is the proximate cause of
those injuries. Deines v. Atlas Energy Services, LLC., 484 P.3d 798, 802 (Colo. App. 2021).
III. ARGUMENT
To meet its burdens under Colorado laws, Plaintiffs must present evidence which allows
the fact-finder to determine which injuries and damages, if any, are associated with the accident
of June 7, 2017. Plaintiff’s assertion that a jury will be prejudiced if it learns that Plaintiff Richman
was the victim of an act of domestic violence, that she has not worked since 2007, that her daughter
physically attacked her, or that she is poor, is just as likely to prejudice the City of Fort Collins
and prompt the fact-finding jury to render an unfounded jury verdict out of compassion for the
Plaintiff’s plight. Regardless, those issues must be explored and any prejudice over which Plaintiff
is concerned can be managed or addressed through a jury instruction.
A. Jury Instructions
Plaintiffs’ concerns regarding the prejudicial effects should be addressed through a jury
instruction. Juries are presumed to follow instructions when it comes to the separation of issues
and mitigation of prejudice, and this case should be no different. Baros v. Sentry Ins., 2012 WL
846706 at *3; Bonham v. Geico Cas, Co., 2016 WL 26513 at *2.
Moreover, the Colorado courts have specifically addressed the issue of pre-existing injuries
and have held that consideration of those pre-existing issues should be managed through jury
instructions, not through attempts to exclude evidence. Brittis v. Freemon, 527 P.2d 1175, 1178
(Colo. App. 1974). Thus, where, as here, there is conflicting evidence on the damages issue, the
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questions of whether defendant's negligence was the proximate cause of plaintiff's injuries, and
the amount of plaintiff's damages, must be submitted to the jury for its determination. Id., at 1177.
The City of Fort Collins acknowledges the established legal principal that a defendant takes
its victim as it finds him/her. However, defendants have a fundamental right to present evidence
pertaining to what portion of the injuries for which defendant may or may not be responsible. Id.
at 1178. Colorado Civil Pattern Jury Instruction 6:7 and 6:8 were designed specifically to address
the current situation and should be given in their entirety to mitigate Plaintiff’s concerns.
B. Contributing Factors and Distinct Harms
The City of Fort Collins has the right to present evidence to show that distinct harms to
Plaintiff have occurred for the jury to then determine proportionality. The Colorado Rules of
Evidence, 401, 402, 403 and 404 were not intended as a conduit for limiting and excluding relevant
and valuable evidence nor to hinder defendants from being able to mount a defense to the claims.
Apportionment between two or more causes is appropriate where there are “distinct harms”
or there is a “reasonable basis for determining the contribution of each cause to a single
harm.” Restatement (Second) of Torts § 433A (1965). The Restatement also provides that there
may be apportionment between “harm which results from a pre-existing condition, for which the
defendant is no way responsible, and the further harm which his tortious conduct has
caused.” Id. at cmt. e.
Plaintiffs, by asserting loss of income/economic losses necessitate the exploration of earing
capacities of the Plaintiffs. The Court in Brittis v. Freemon specifically addressed the jury
instructions to manage proportionality and determination of economic losses, and it was not
through the exclusion of evidence. Id., at 1178. The same was true for physical or mental pain
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and suffering; a benchmark of preexisting conditions is necessary in order to determine the
proximate causation and damages from a specific incident. Id.
Evidence should not and cannot be excluded simply because it damages the case of a party.
People v. Salas, 902 P.2d 398 (Colo.App.1993).
IV. CONCLUSION AND REQUEST
It is the intention of the City of Fort Collins to treat Plaintiff with the utmost respect and
without any intention towards harassing, embarrassing or prejudicing the jury towards Plain tiff.
Plaintiff was the victim of domestic violence and has struggled with economic stability. The City
of Fort Collins believes that a jury will be sympathetic to being the victim of circumstances beyond
her control. However, under the laws of the State of Colorado, the City o f Fort Collins has the
right and should be permitted to ask questions that are genuinely designed to explore
proportionality of damages, pre-existing injuries and economic losses in order for the fact-finder
to assess the case appropriately.
Respectfully submitted this 25th day of October, 2021.
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Julie M. Yates, ##36393
Attorneys for Defendants
And
John R. Duval, #10185
Adam Stephens, #55637
Fort Collins City Attorney’s Office
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CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANT’S RESPONSE TO MOTION IN LIMINE TO PRECLUDE EVIDENCE UNDER
C.R.E. 401, 402, 403 AND 404 was served via the Colorado Courts E-Filing System this 25th day
of October, 2021, on the following:
Laura Michelle Browne
Ashley Fridovich
Wilhite, Rose, McClure & Sawaya, P.C.
1600 N. Ogden Street
Denver, CO 80218
Adam Stephens
John Duval
FORT COLLINS CITY ATTORNEY’S OFFICE
P.O. Box 580
Fort Collins, CO 80522
s/Jody L. Minch