Banning v. Prester
Decision Date | 27 December 2012 |
Docket Number | 11CA2210.,Nos. 11CA1093,s. 11CA1093 |
Parties | Michelle BANNING, Plaintiff–Appellant and Cross–Appellee, v. William T. PRESTER, Defendant–Appellee and Cross–Appellant. |
Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
Bendinelli Law Office P.C., Marc F. Bendinelli, Westminster, Colorado, for Plaintiff–Appellant and Cross–Appellee.
Wick & Trautwein, LLC, Robin L. Wick, Kimberly B. Schutt, Fort Collins, Colorado, for Defendant–Appellee and Cross–Appellant.
Opinion by Judge CASEBOLT.
¶ 1 In this automobile accident case, plaintiff, Michelle Banning, appeals the judgment awarding her damages following a jury verdict against defendant, William T. Prester. She contends the court erred in giving a jury instruction concerning mitigation of damages and in admitting certain evidence. Prester cross-appeals, contending that the trial court should have offset his recovery of costs against the judgment for Banning instead of entering two separate judgments. We reverse both judgments and remand for a new trial.
¶ 2 Prester negligently drove his vehicle, causing a low speed rear-end collision with Banning's vehicle. Although Banning did not seek medical attention on the day of the collision, she saw her primary care doctor several days later, complaining of neck and back pain. She thereafter saw several other doctors and started treatment with a chiropractor.Eventually, her billed medical expenses reached almost $140,000.
¶ 3 After Banning commenced this litigation, Prester admitted liability, but disputed the nature and extent of Banning's damages. He also raised the affirmative defense of failure to mitigate damages, contending at trial that Banning failed to follow through with recommended physical therapy, continued to smoke against her doctor's advice, and pursued expensive treatment when it was not improving her pain symptoms.
¶ 4 At trial, Banning presented evidence of $139,050 in medical and related expenses and $5,425 of out-of-pocket expenses, and she requested an amount of future damages to be determined by the jury based on testimony of her expert. The jury returned a verdict of $30,000 in economic damages and $50,000 in noneconomic damages.
¶ 5 Banning sought prejudgment interest on the award. Prester sought an award of costs pursuant to section 13–17–102, C.R.S.2012, contending that the verdict did not exceed his statutory settlement offer of $140,000, thus entitling him to costs incurred after the offer of settlement. The trial court entered two separate judgments, awarding costs in favor of Prester of $19,479.11, and entering a total judgment for Banning, which included interest, in the amount of $116,044.15. Prester filed a motion requesting the court to enter a net judgment, which the trial court denied. This appeal and cross-appeal ensued.
¶ 6 Banning asserts that the trial court erred in instructing the jury concerning Prester's mitigation of damages defense by allowing the jury to find she failed to mitigate if she “continued to undergo expensive treatment when it was not resolving her pain.” She argues that this instruction did not accurately state the law concerning mitigation of damages and that the jury had already been instructed to determine the amount of her reasonable and necessary medical and hospital expenses. We agree.
¶ 7 Initially, we address and reject Prester's assertion that Banning failed to preserve her objection to the mitigation instruction. Although Banning did not initially object to this instruction during the jury instruction conference, she objected before the trial court read it to the jury. Banning's counsel stated, After a bench conference, the court concluded that it would not modify the instruction, but it also noted that Banning had made her objection for the record.
¶ 8 We conclude Banning adequately preserved her objection. SeeC.R.C.P. 51 ( ); Harris Group, Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo.App.2009) (same).
¶ 9 Trial courts have a duty to correctly instruct juries on all matters of law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo.2011). We review de novo whether the instructions as a whole accurately inform the jury of the governing law. Fishman v. Kotts, 179 P.3d 232, 235 (Colo.App.2007). However, we review for abuse of discretion a trial court's decision to give a particular jury instruction. Id. A trial court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence. Kendrick v. Pippin, 252 P.3d 1052, 1061 (Colo.2011).
¶ 10 Language in a jury instruction cannot be a ground for reversal unless it prejudices a party's substantial rights. Williams v. Chrysler Ins. Co., 928 P.2d 1375, 1378 (Colo.App.1996). Prejudicial error in an instruction exists when the record shows that a jury might have answered differently if a proper instruction had been given. Id.
¶ 11 An injured party has the duty to take such steps as are reasonable under the circumstances to mitigate the damages sustained. Thus, a plaintiff may not recover damages for injuries that might reasonably have been avoided. Harsh v. Cure Feeders, L.L.C., 116 P.3d 1286, 1288 (Colo.App.2005); see also City of Westminster v. Centric–Jones Constructors, 100 P.3d 472, 480 (Colo.App.2003).
¶ 12 In the personal injury context, a failure to mitigate usually concerns a plaintiff's unreasonable failure to seek medical advice or unreasonable failure to follow that medical advice once received. See Lascano v. Vowell, 940 P.2d 977, 983 (Colo.App.1996) ( ); Hildyard v. Western Fasteners, Inc., 33 Colo.App. 396, 403, 522 P.2d 596, 600 (1974) ( ); Dan B. Dobbs, The Law of Torts § 203 (2000) ( ).
¶ 13 The trial court instructed the jury, as pertinent here, that Prester had proved his failure to mitigate damages defense if it found that Banning “continued to undergo expensive treatment when it was not resolving her pain.” The court further instructed that, if it so found, the jury must “determine the amount of damages caused by plaintiff's failure to take such reasonable steps,” which “amount must not be included in any award of damages.”
¶ 14 The parties have not cited, nor have we found, any Colorado case law or cases from other jurisdictions holding that a plaintiff has an affirmative duty to cease medical treatment when it is “expensive” and “fails to resolve a complaint of pain.” See CJI–Civ. 4th 5:2 (1998) ( ); see alsoC.R.C.P. 51.1(1) (court shall generally use instructions contained in the Colorado Jury Instructions that apply to the evidence under the prevailing law); Yampa Valley Elec. Ass'n v. Telecky, 862 P.2d 252, 256–57 (Colo.1993) ( ); Federal Ins. Co. v. Public Serv. Co., 194 Colo. 107, 110, 570 P.2d 239, 241 (1977) ( ); Felder v. Union Pac. R.R. Co., 660 P.2d 911, 914 (Colo.App.1982) ( ).
¶ 15 Nor can we find any treatises that analyze whether such an affirmative duty has been recognized. See C. McCormick, Law of Damages § 36 (1935) ( ). Instead, the law recognizes that an injured party, who incurs expense in pursuing reasonable efforts to avoid or minimize the damaging effects of another's wrong, may recover for such expense as one of the items of damage for the wrong. See Gundersons, Inc. v. Tull, 678 P.2d 1061, 1065 (Colo.App.1983)aff'd in part and rev'd in part,709 P.2d 940 (Colo.1985); McCormick, § 42.
¶ 16 Because there is no common law or other authority to support the asserted affirmative duty, we conclude the court erred in so instructing the jury.
¶ 17 Furthermore, mitigation of damages instructions in personal injury cases typically have focused on inaction of the injuredparty, such as failing to seek medical treatment or failing to follow medical advice. See Lascano, 940 P.2d at 983;Hildyard, 33 Colo.App. at 403, 522 P.2d at 600. Here, the asserted failure to mitigate did not focus on Banning's inaction. Indeed, Banning testified that she experienced pain relief after obtaining the injections at issue, but was forced to discontinue them because of their cost. Instead, the instruction focused the jury's attention on the actions...
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