Banning v. Prester

Decision Date27 December 2012
Docket NumberCourt of Appeals No. 11CA1093 & 11CA2210,Boulder County District Court No. 09CV984
Citation2012 COA 215
CourtColorado Court of Appeals
PartiesMichelle Banning, Plaintiff-Appellant and Cross-Appellee, v. William T. Prester, Defendant-Appellee and Cross-Appellant.

Honorable Andrew R. Macdonald, Judge

Honorable Carol Glowinsky, Judge



Division II


Bernard and Booras, JJ., concur

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

¶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.

I. Facts

¶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.

II. Mitigation Instruction

¶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.

A. Preservation

¶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, "Yesterday when we were going through the instructions, I struck out No. 2 [of the mitigation instruction], which is ‘continues to undergo expensive treatment.' It has nothing to do with mitigation." 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. See C.R.C.P. 51 (party must object before instruction given to jury); Harris Group, Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo. App. 2009) (same).

B. Standard of Review

¶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.

C. Law

¶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) (before jury could reduce plaintiff's damages on grounds that she failed to mitigate by failing to follow her doctor's advice, jury was required to find plaintiff's decisions in that regard were unreasonable); Hildyard v. Western Fasteners, Inc., 33 Colo. App. 396, 403, 522 P.2d 596, 600 (1974) (plaintiff's obligation to mitigate damages did not require him to submit to surgery that involved substantial hazards or offered only a possibility of cure); Dan B. Dobbs, The Law of Torts § 203 (2000) (plaintiff who unreasonably delays in obtaining medical attention for her injury or who unreasonably refuses to follow medical advice cannot recover for exacerbation of injury resulting from her own delay or refusal).

D. Application

¶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) (instructing court to insert in failure to mitigate instruction an appropriate description of that conduct which, under the applicable law, the plaintiff had an affirmative duty to undertake in order to mitigate any particular damages); see also C.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) (where no statute or rule supported the presumption created by a jury instruction, the presumption could only be proper if it was supported by common law principles); Federal Ins. Co. v. Public Serv. Co., 194 Colo. 107, 110, 570 P.2d 239, 241 (1977) (trial court has the duty to examine the prevailing law to determine whether a jury instruction in the Colorado Jury Instructions is applicable to the facts of the particular case and states the prevailing law); Felder v. Union Pac. R.R. Co., 660 P.2d 911, 914 (Colo. App. 1982) (a party is not entitled to an instruction that contains an incorrect statement of the applicable law).

¶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) (stating general rule concerning mitigation of personal injury damages as "any suffering or disability incurred by one who has sustained personal injury, when the same could have been avoided by submitting to treatment by a physician selected with reasonable care, must be excluded as a ground of recovery"). 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 injured party, 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...

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