Anderson v. Watson

• Decision Date: 23 February 1998
• Docket Number: No. 96SC505,96SC505
• Citation: 953 P.2d 1284
• Parties: Katrina L. ANDERSON, f/k/a Katrina Lee Gibson, Petitioner, v. Cindy S. WATSON, Respondent.
• Court: Colorado Supreme Court

Page 1284

953 P.2d 1284

62 A.L.R.5th 877

Katrina L. ANDERSON, f/k/a Katrina Lee Gibson, Petitioner, v. Cindy S. WATSON, Respondent.

No. 96SC505.

Supreme Court of Colorado,

En Banc.

Feb. 23, 1998.

Rehearing Denied March 16, 1998.

Cook & Lee, P.C., Stephen H. Cook, Deborah Kirschman, Boulder, for Petitioner.

White & Steele, P.C., John M. Lebsack, Denver, for Respondent.

Kidneigh & Kaufman, P.C., Stephen C. Kaufman, Denver, for Amicus Curiae the Colorado Trial Lawyers Association.

Patterson & Nuss, P.C., Craig S. Nuss, Franklin D. Patterson, Englewood, for Amicus Curiae Colorado Defense Lawyers Association.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari in Anderson v. Watson, 929 P.2d 6 (Colo.App.1996), to determine whether the court of appeals correctly upheld the trial court's entry of a jury verdict in this automobile accident case. The respondent, Cindy S. Watson (Watson), the defendant in the trial court, conceded that she was at fault in causing the accident. In turn, Katrina L. Anderson (Anderson), the petitioner, who was injured as a result of the collision, admitted that she was not wearing an available seat belt at the time of the accident. The trial court instructed the jury on Watson's statutory defense that Anderson failed to mitigate her pain and suffering damages by not using her seat belt at the time of the accident. See § 42-4-237(7), 11 C.R.S. (1997) (the seat belt defense). Although the jury awarded Anderson $640 in economic losses ¹--lost wages not covered by Anderson's own insurance carrier--it did not award Anderson compensation for non-economic damages (pain and suffering and loss of enjoyment of life). The trial court denied Anderson's motion for a new trial. Anderson appealed, arguing that, given the lack of evidence presented by Watson on the relationship between Anderson's injuries and her failure to wear a seat belt, the trial court erroneously instructed the jury on the seat belt defense. The court of appeals affirmed the trial court's decision. ² We now affirm the judgment of the court of appeals on different grounds.

I.

The operative facts are not in dispute. On the evening of October 24, 1992, Anderson was driving westbound through an intersection at Colorado Boulevard and Hampden Avenue where she had a green light. Watson, simultaneously driving southbound, drove through a red light and entered that intersection just in front of Anderson's car. As a result, the front of Anderson's car hit the side of Watson's car. Anderson was taken to the emergency room at Swedish Medical Hospital, treated for cervical spine strain, and released later that evening. The hospital physician instructed Anderson to apply ice packs and heating pads and to take Tylenol for pain. Anderson was told that if the pain persisted, she should consult her family physician, which she did shortly thereafter. Anderson's physician referred her to an orthopedic specialist. Anderson underwent physical therapy and ultimately had shoulder surgery.

Although Watson stipulated that her negligence caused the accident, she contested the nature and extent of Anderson's injuries. Thus, the issues to be determined at trial were the nature and extent of Anderson's injuries and the concomitant damages, if any. At the time of trial, Anderson claimed that she was still suffering from lower back, shoulder, and neck pain as a result of her accident-related injuries and that her lifestyle was severely affected by that pain.

Watson raised, as an affirmative defense, Anderson's failure to mitigate her damages by not using an available seat belt at the time of the accident. Pursuant to section 42-4-237, 11 C.R.S. (1997), entitled "Safety belt systems--mandatory use--exemptions--penalty," failure to wear a seat belt is admissible evidence if the accident victim seeks an award for pain and suffering. That section provides, in relevant part, as follows:

(7) Evidence of failure to comply with the requirement of subsection (2) of this section [requiring that drivers and front-seat passengers wear seat belts] shall be admissible to mitigate damages with respect to any person who was involved in a motor accident and who seeks in any subsequent litigation to recover damages for injuries resulting from the accident. Such mitigation shall be limited to awards for pain and suffering and shall not be used for limiting recovery of economic loss and medical payments.

§ 42-4-237(7), 11 C.R.S. (1997).

The evidence at trial on the relationship between Anderson's injuries and her failure to wear a seat belt was very limited. Watson did not provide any evidence by way of direct medical or expert testimony on this subject. ³ Moreover, Watson did not cross-examine Anderson's medical witnesses (Anderson's treating physicians)--with one exception ⁴--regarding whether her injuries were exacerbated by her failure to wear a seat belt. Similarly, Anderson's experts did not testify on the causal relationship between her non-use of a safety belt and injuries.

On appeal, Watson relied on Anderson's testimony to support her position that there was sufficient evidence to allow the jury to be instructed on the seat belt defense. Anderson testified on direct examination as follows:

Q: What happened to you inside the vehicle during the collision?

Anderson: I know that I hit my head because my head hurt, there was a bump there, but--I mean, there was--and I hit my knees up against the dashboard. And I know that I braced the steering wheel and once the car--I did not know where her car went after she hit me because I[was] still really shaken up and I was looking forward. It seemed like the brakes wouldn't go in my car and I kept hitting the brake and the car kept just kind of kept slowly creeping.

....

Q: When the ambulance personnel first came to the car did they ask you any questions?

Anderson: Yes, they asked me what hurts. I told them that my neck and my shoulder, my back, my knees hurt because I hit them in [sic] the dashboard. I also told them that my stomach had hurt and I didn't know if it was because I just was upset, but at that point they had cut my shirt off because they were afraid of internal damages.

Q: What did you tell [the doctors and nurses at the hospital] when they asked you where you were hurt?

Anderson: I told them that my back hurt, my shoulders hurt, my head hurt, my neck hurt, my knees hurt but I was sure they were okay because I just banged them and I could--you know, I could move them a little bit under the table.

Q: Were there any injuries that you were more concerned about at that time?

Anderson: I was really concerned about my back and I would say my back and my neck mostly. My shoulders I was a little bit concerned about because I was concerned that I had jammed something.

Q: Were you concerned about the bump on your head?

Anderson: Not really, everything else hurt at times worse than my head, I had a little headache.

In its instructions to the jury, the trial court stated as follows: ⁵

If you find in favor of the plaintiff, Katrina Lee Anderson, and that she is entitled to actual damages, then you must consider whether the affirmative defense of plaintiff's failure to mitigate or minimize pain and suffering damages has been proved. One claiming damages for personal injuries has the duty to take such reasonable steps as are reasonable under the circumstances to mitigate or minimize those damages. Any damages resulting from a failure to take such reasonable steps cannot be awarded.

This defense is proved if you find all of the following:

1. The plaintiff failed to wear her seat belt;

2. Such failure caused the plaintiff to incur more pain and suffering than she otherwise would have; and

3. The amount of damages caused by such failure. ⁶

In addition, the trial court instructed the jury that Watson had the burden of proving any affirmative defense by the preponderance of the evidence.

The jury returned a verdict form in which it found that: (1) Anderson had incurred injuries, damages, or losses; (2) Watson was negligent; (3) Anderson sustained zero damages for non-economic losses (excluding physical impairment or disfigurement); (4) Anderson sustained $640 in economic losses; and (5) Anderson sustained zero damages for physical impairment or disfigurement. After the trial court denied her motion for a new trial, Anderson appealed and the court of appeals affirmed the trial court.

II.

Although we agree with the result reached by the court of appeals, we do not agree with its reasoning. The court of appeals held that once Watson established an inference that Anderson's failure to wear a seat belt increased her pain and suffering, there was no need to present more specific evidence to the jury and the jury could be instructed on the seat belt defense. The court of appeals explained:

Thus, provided there is evidence from which it can be inferred with reasonable probability that pain and suffering will occur because of failure to wear a seat belt, it is not necessary that defendant introduce specific evidence that failure to wear a seat belt caused plaintiff to incur more pain and suffering than she otherwise would have.

Anderson, 929 P.2d at 8 (emphasis in original). For purposes of this opinion, we will refer to the court of appeals' analysis as the "inference standard."

Applying the "inference standard," the court of appeals found Anderson's testimony that "she banged her knees, head and chest as a result of the collision" was "sufficient for the jury to infer that [Anderson's] failure to wear a seat belt contributed to her pain and suffering." Id. at 9.

In reaching this conclusion, the court of appeals relied on several of its earlier decisions, Lawson v. Safeway, Inc., 878 P.2d 127 (Colo.App.1994); Askew v. Gerace, 851 P.2d 199 (Colo.App.1992); Morgan v. Board of Water Works, 837 P.2d 300 (Colo.App.1992); Sours v. Goodrich, 674 P.2d 995 (Colo.App.1983).

In Askew, a panel of the...