Butters v. Mince
| Decision Date | 02 August 1979 |
| Docket Number | No. 78-290,78-290 |
| Parties | Darren Lee BUTTERS, By and Through his next friend Bonnie D. Butters, Plaintiffs-Appellants, v. Leslie Gene MINCE, Defendant-Appellee. . III |
| Court | Colorado Court of Appeals |
Anderson, Calder & Lembke, P. C., Gary L. Calder, Stephen P. Calder, Aurora, for plaintiffs-appellants.
White & Steele, P. C., R. Eric Peterson, Denver, for defendant-appellee.
Plaintiffs, Darren Butters and his mother as next friend, bring this appeal from a judgment entered on a jury verdict in their favor, contending that the court erred in failing to give certain instructions and that the amount of damages awarded Darren was too low. Mrs. Butters does not appeal from that part of the judgment which awarded her medical expenses, and that part of the judgment is therefore affirmed. The remainder of the judgment, however, is reversed.
Darren was riding his bicycle along a city street when he was struck by a pickup truck driven by defendant. Defendant stipulated at trial that he was intoxicated and negligent at the time of the accident. Therefore, the only issues submitted to the jury related to the question of Darren's contributory negligence, the extent of Darren's general and special damages, and a determination as to whether punitive damages were appropriate. The jury awarded Mrs. Butters $1,500 for medical expenses, and $1,500 to Darren for his injuries, but did not assess any punitive damages. The court reduced the verdicts by ten (10) percent representing the degree of contributory negligence the jury attributed to Darren.
Plaintiffs argue that the court erred in refusing to instruct the jury that driving while under the influence of intoxicating liquor constitutes wanton and reckless disregard for the rights and safety of others. This instruction was tendered in connection with plaintiffs' claim for punitive damages under § 13-21-102, C.R.S.1973, which requires a finding of "wanton and reckless disregard of the injured party's rights and feelings." Under the particular facts here, we agree.
The instruction requested by plaintiffs reads as follows:
"The operation of a motor vehicle by one who is consciously under the influence of intoxicating liquor so as to impair the ability of the operator to drive carefully, is a wanton and reckless disregard for the rights and safety of others."
Whether a defendant's intoxication constitutes wanton and reckless disregard for the rights and safety of others is generally a question of fact for the jury. See Moore v. Bothe, 479 S.W.2d 634 (Ky.1972). And, where there is supportive evidence, the court should instruct the jury on this issue.
The instruction requested by plaintiffs was, in effect, a request for a directed verdict, taking the issue of wanton and reckless disregard from the jury. In most cases, a directed verdict on this issue would be inappropriate. Under the facts of this case, however, the plaintiff was entitled to such an instruction because the evidence was overwhelming that defendant's actions amounted to wanton and reckless disregard for the rights and safety of the injured party.
Defendant admitted that he was negligent and intoxicated. Undisputed...
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