Blades v. DaFoe, No. 83SC306

Docket NºNo. 83SC306
Citation704 P.2d 317
Case DateJuly 08, 1985
CourtSupreme Court of Colorado

Page 317

704 P.2d 317
Virginia M. BLADES and Phillip N. Blades, Petitioners,
v.
Charles DaFOE and Robert McCurdy, Respondents.
No. 83SC306.
Supreme Court of Colorado,
En Banc.
July 8, 1985.
Rehearing Denied Aug. 19, 1985.

Page 319

Eugene Deikman, P.C., Denver, for petitioners.

Long & Jaudon, P.C., James A. Dierker, Denver, for Charles DaFoe.

Johnson, Mahoney & Scott, P.C., Brian J. Lampert, Denver, for Robert McCurdy.

NEIGHBORS, Justice.

We granted certiorari to review three issues addressed in Blades v. DaFoe, 666 P.2d 1126 (Colo.App.1983), by the court of appeals. First, did the trial court commit reversible error when it granted six peremptory challenges to the defendants in violation of C.R.C.P. 47(h)? Second, did the trial court abuse its discretion in denying the plaintiffs' challenge for cause to a prospective juror? Third, did the trial court accurately instruct the jury on the plaintiffs' lack of informed consent claim?

We hold that each of the errors involving jury selection is reversible and requires a new trial. The abbreviated record on appeal, however, does not provide a sufficient factual basis upon which to evaluate the alleged errors concerning the jury instructions. 1 Therefore, we decline to address the third issue in this case.

I.

The plaintiffs, Virginia and Phillip Blades, filed medical malpractice claims against the defendant physicians, Charles DaFoe, Robert McCurdy, and Douglas H. Kirkpatrick. The plaintiffs' amended complaint alleged the theories of negligence, assault and battery, and lack of informed consent in connection with the physicians' conduct in performing surgery on Mrs. Blades. The plaintiffs' claims against Kirkpatrick were dismissed on his motion for a directed verdict. 2 The jury returned a defense verdict, finding no negligence on the part of DaFoe and McCurdy.

The plaintiffs appealed the denial of their motion for a new trial to the court of appeals. The court recognized the trial court's error in granting the defendants more peremptory challenges than permitted by C.R.C.P. 47(h), but adopted the rule that a verdict will not be set aside where the trial court grants peremptory challenges in excess of the number provided by statute or rule unless there is evidence of prejudice to the aggrieved party. The court of appeals also held that the trial court did not manifestly abuse its discretion in denying the plaintiffs' challenge for cause to a juror who stated that the plaintiffs faced an "uphill battle" in proving their case.

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II.

Trial by jury in a civil case is not a constitutional right. The right to a jury trial in a civil action or proceeding is governed by C.R.C.P. 38 promulgated by this court pursuant to our constitutional rule-making power embodied in article VI, section 21 of the Colorado Constitution. Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804 (1969). See also § 13-2-108, 6 C.R.S. (1984 Supp.). Nevertheless, it is axiomatic that all litigants who are entitled to a jury trial in a proceeding, whether civil or criminal, are entitled to fair and impartial jurors. See Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975). The allowance of challenges has always been deemed essential to the fairness of trial by jury. United States v. Nell, 526 F.2d 1223 (5th Cir.1976). See also Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Denver City Tramway Co. v. Carson, 21 Colo.App. 604, 123 P. 680 (1912) (challenges for cause); Butler v. Hands, 43 Colo. 541, 95 P. 920 (1908) (peremptory challenges).

Similarly, there is no constitutional right to peremptory challenges. Moreover, a peremptory challenge did not exist at common law, 3 and the right, where it exists, is by virtue of a statute or rule. Butler v. Hands, 43 Colo. 541, 95 P. 920 (1908). We have granted the right to peremptory challenges by rule of civil procedure, specifically C.R.C.P. 47(h).

In practice, the exercise of a peremptory challenge varies substantially from the court-controlled challenges for cause. "While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable." Swain, 380 U.S. at 220, 85 S.Ct. at 836. In United States v. Marchant, 25 U.S. (12 Wheat.) 480, 481, 6 L.Ed. 700 (1827), Justice Story observed:

The right of peremptory challenge is not, of itself, a right to select, but a right to reject jurors. It excludes from the panel those whom the prisoner objects to, until he has exhausted his challenges, and leaves the residue to be drawn for his trial, according to the established order or usage of the court. The elementary writers nowhere assert a right of this nature in the prisoner, but uniformly put the allowance of peremptory challenges upon distinct grounds. Mr. Justice Blackstone, ... puts it upon the ground, that the party may not be tried by persons against whom he has conceived a prejudice, or who, if he has unsuccessfully challenged them for cause, may, on that account, conceive a prejudice against the prisoner. The right, therefore, of challenge, does not necessarily draw after it the right of selection, but merely of exclusion. It enables the prisoner to say who shall not try him; but not to say who shall be the particular jurors to try him.

Thus, the right to exercise peremptory challenges created by our rule is a valuable right and an effective means of securing a more impartial and better qualified jury. Butler, 43 Colo. at 544, 95 P. at 921; People v. Hollis, 670 P.2d 441, 442 (Colo.App.1983).

III.

A.

We turn first to the issue of the number of peremptory challenges granted to the defendants. C.R.C.P. 47(h) provides:

Peremptory Challenges. Each side shall be entitled to four peremptory challenges, and if there is more than one party to a side they must join in such challenges. Additional peremptory challenges in such number as the court may see fit may be allowed to parties appearing in the action either under Rule 14 or Rule 24 (C.R.C.P.) if the trial court in its

Page 321

discretion determines that the ends of justice so require.

Prior to the voir dire examination, the trial court ruled that the plaintiffs would have four peremptory challenges and that the three defendants were entitled to two challenges each, for a total of six on the defense side of the case. In addition, the plaintiffs and the defendants were allowed to designate one juror per side as an alternate with the plaintiffs selecting the first alternate. The order of exercising the peremptory challenges was as follows: plaintiffs' first, defendant/DaFoe's first, defendant/McCurdy's first, defendant/Kirkpatrick's first, plaintiffs' second, defendant/DaFoe's second, defendant/McCurdy's second, defendant/Kirkpatrick's second, plaintiffs' third, and plaintiffs' fourth.

There can be little doubt that the procedure employed by the trial court violated the method of selecting jurors contemplated by C.R.C.P. 47. The allocation of peremptory challenges is prescribed by C.R.C.P. 47(h) and does not depend on the exercise of judicial discretion. Compare Crim.P. 24(d)(3) ("For good cause shown, the court at any time may add peremptory challenges to either or both sides.").

Some jurisdictions are governed by rules or statutes which grant the trial court the discretion in civil cases to grant multiple parties more than the specified number of peremptory challenges when the court determines that the parties' interests are adverse. See, e.g., Massoni v. State Highway Commission, 214 Kan. 844, 522 P.2d 973 (1974), overruled on other grounds, Lollis v. Superior Sales Company, Inc., 224 Kan. 251, 580 P.2d 423 (1978); Kudrna v. Comet Corp., 175 Mont. 29, 572 P.2d 183 (1977). See generally Annot., 32 A.L.R.3d 747, § 4 (1970). C.R.C.P. 47(h), however, contains only two exceptions: actions under C.R.C.P. 14 (third party practice), and C.R.C.P. 24 (intervention), circumstances which do not exist here.

We are not inclined to sanction arbitrary deviations from C.R.C.P. 47(h) by trial courts. Cf. People v. Boulies, 690 P.2d 1253 (Colo.1984) (Crim.P. 24); Beckord v. District Court, 698 P.2d 1323 (Colo.1985) (C.R.C.P. 42.1). Our rule expressly requires a collective total of four peremptory challenges per side, irrespective of the number of parties comprising either the party-plaintiff or the party-defendant. Thus, the rule in Colorado is that multiple litigants, designated as co-plaintiffs or co-defendants, are together entitled to only one set of peremptory challenges, regardless of whether their interests are essentially common or generally antagonistic. C.R.C.P. 47(h) provides that when there are several parties on a side, all must join in making a challenge. See generally Annot., 32 A.L.R.3d 747, § 9 (1970) (cases collected which require multiple parties to join in challenges). The issue thus presented is whether the erroneous procedure followed by the trial court constitutes reversible error.

B.

Whether an improper allocation of peremptory challenges in civil cases must be accompanied by a showing of actual prejudice in order to secure the reversal of a judgment and a new trial is a question on which there is a division of opinion in the various state appellate decisions. See Annot., 95 A.L.R.2d 957 (1970). The defendants urge us to affirm the court of appeals' holding that reversal is not required unless the party attacking the verdict establishes prejudice resulting from the excess number of peremptory challenges granted to the opponent. We decline to do so, and hold that it is reversible error if the trial court grants peremptory challenges in excess of the number prescribed in C.R.C.P. 47(h). When the error is preserved on the record, a new trial is required.

Several considerations persuade us to adopt the reversible error rule. As discussed in section III.A., the allocation...

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43 practice notes
  • Carrano v. Yale-New Haven Hosp., No. 17286.
    • United States
    • Supreme Court of Connecticut
    • August 22, 2006
    ...that have concluded that all awards of peremptory challenges not required by law defy harmless error review. See, e.g., Blades v. DaFoe, 704 P.2d 317, 321 (Colo.1985) ("reversible error if the trial court grants peremptory challenges in excess of the number prescribed" by law); Ke......
  • Poet v. Traverse City Osteopathic Hosp., Docket No. 82941
    • United States
    • Supreme Court of Michigan
    • August 22, 1989
    ...in addition to the evidence presented at trial and the instructions of law, the juror must be dismissed for cause." Blades v. DaFoe, 704 P.2d 317, 324 (Colo., 1985). (Emphasis In addition to the initial challenge for cause quagmire, the case at bar presents the additional problem arisi......
  • Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, No. 3824
    • United States
    • Supreme Court of Alaska (US)
    • March 27, 1992
    ...of its disagreement with that ruling. The point was therefore properly preserved. See Alaska R.Civ.P. 46(f); see also Blades v. DaFoe, 704 P.2d 317, 323 44 Initially, the court allowed each party three peremptory challenges, but by agreement of the parties relating to the issue of alternate......
  • Randle v. Allen, No. 900189
    • United States
    • Supreme Court of Utah
    • October 8, 1993
    ...after running the gauntlet of challenge[s] performed in accordance with the prescribed rule of the game.' " Blades v. DaFoe, 704 P.2d 317, 322 (Colo.1985) (quoting Kentucky Farm Bureau Mut. Ins. Co. v. Cook, 590 S.W.2d 875, 877 (Ky.1979)). Accordingly, we hold that it was prejudicial e......
  • Request a trial to view additional results
43 cases
  • Carrano v. Yale-New Haven Hosp., No. 17286.
    • United States
    • Supreme Court of Connecticut
    • August 22, 2006
    ...that have concluded that all awards of peremptory challenges not required by law defy harmless error review. See, e.g., Blades v. DaFoe, 704 P.2d 317, 321 (Colo.1985) ("reversible error if the trial court grants peremptory challenges in excess of the number prescribed" by law); Ke......
  • Poet v. Traverse City Osteopathic Hosp., Docket No. 82941
    • United States
    • Supreme Court of Michigan
    • August 22, 1989
    ...in addition to the evidence presented at trial and the instructions of law, the juror must be dismissed for cause." Blades v. DaFoe, 704 P.2d 317, 324 (Colo., 1985). (Emphasis In addition to the initial challenge for cause quagmire, the case at bar presents the additional problem arisi......
  • Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, No. 3824
    • United States
    • Supreme Court of Alaska (US)
    • March 27, 1992
    ...of its disagreement with that ruling. The point was therefore properly preserved. See Alaska R.Civ.P. 46(f); see also Blades v. DaFoe, 704 P.2d 317, 323 44 Initially, the court allowed each party three peremptory challenges, but by agreement of the parties relating to the issue of alternate......
  • Randle v. Allen, No. 900189
    • United States
    • Supreme Court of Utah
    • October 8, 1993
    ...after running the gauntlet of challenge[s] performed in accordance with the prescribed rule of the game.' " Blades v. DaFoe, 704 P.2d 317, 322 (Colo.1985) (quoting Kentucky Farm Bureau Mut. Ins. Co. v. Cook, 590 S.W.2d 875, 877 (Ky.1979)). Accordingly, we hold that it was prejudicial e......
  • Request a trial to view additional results

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