Cherry Creek School Dist. No. 5 v. Voelker by Voelker
| Decision Date | 27 September 1993 |
| Docket Number | No. 92SC444,92SC444 |
| Citation | 859 P.2d 805 |
| Parties | 85 Ed. Law Rep. 1209 CHERRY CREEK SCHOOL DISTRICT # 5; Victoria Anne Timm, f/k/a Vicky Vosbeck; and Chris Walling, Petitioners, v. Jennifer J. VOELKER, a minor by her next friends, Gary E. and Shirley A. VOELKER; and Gary E. Voelker and Shirley A. Voelker, Respondents. |
| Court | Colorado Supreme Court |
Watson, Nathan & Bremer, P.C., J. Andrew Nathan, Christina M. Habas, Denver, for petitioners Cherry Creek School Dist. No. 5 and Victoria Anne Timm.
Long and Jaudon, P.C., Dennis W. Brown, Thomas C. Kearns, Denver, for petitioner Chris Walling.
Gary T. Cornwell, The Woodlands, TX, for respondents.
We accepted certiorari to review the court of appeals decision in Voelker v. Cherry Creek School District No. 5, 840 P.2d 353 (Colo.App.1992), which held that the trial court abused its discretion in denying respondents' request to have a preservation video deposition taken, or alternatively, in refusing to grant them a continuance until the deposition could be taken. The court of appeals also concluded that respondents should have been allowed to introduce certain statutes and regulations showing that one of the petitioners was not certified to teach middle school students. We reverse and remand with directions.
This litigation arises out of two incidents in which respondent Jennifer Voelker was struck in the head while attending West Middle School, Cherry Creek School District No. 5. The first incident occurred on October 3, 1983, when a textbook was thrown at petitioner Chris Walling. Walling ducked and the book flew over him striking Voelker in the head. This incident occurred immediately preceding the math class taught by petitioner Vicky Timm, who was not in the classroom when the incident occurred. The second incident occurred on December 5, 1984, when Voelker was struck on the back of the head by a volleyball during volleyball practice.
The injuries allegedly resulting from these incidents involved damage to Voelker's inner ear--causing persistent dizziness, vertigo, imbalance, and nausea. 1
Respondents filed suit on October 3, 1986, asserting negligence claims against Walling (due to his involvement in the book throwing incident), negligent supervision claims against Cherry Creek School District No. 5 (), and Timm (due to her alleged absence prior to, and for a period of time after, the time designated for the teaching and supervision of the math class). Several other defendants were named, but have subsequently been dismissed from the suit. 2
Respondents claimed that Voelker's medical condition prevented her from traveling out of state to participate in discovery. Consequently, counsel for petitioners traveled to Portland, Oregon, where Voelker had moved following the incidents, to take her deposition on August 10 and 11, 1989, and again on February 19, 1990. Because of Voelker's condition, she was unable to testify for significant periods of time and her frequent rest breaks prolonged the time required to complete her deposition.
The jury trial was set approximately one year in advance, with the trial scheduled to begin on April 16, 1990. On February 19, 1990, Walling moved for a continuance because his college final exams were to take place during the trial. Respondents "strenuously" objected to a continuance, asserting that "they [would] be severely prejudiced if such a continuance [was] granted." In urging that Walling's motion should be denied, respondents noted the difficulty and cost in re-scheduling their expert witnesses; their increased legal expenses; the continuing cost of medical and living expenses; and the difficulty in re-scheduling the trial in the near future. Moreover, respondents noted that Walling had failed to show what efforts had been undertaken to reschedule his examinations. Finally, respondents noted that Walling "should have foreseen such a potential conflict," because he knew of his final exam schedule well before trial. Ultimately, the trial court denied Walling's motion, noting that if the case were to be continued the next available trial date would be in late 1991.
On March 16, 1990, the day discovery ended by court order, respondents filed a motion for enlargement of time to conduct depositions, in particular the preservation deposition of Voelker. Such a deposition was necessary because the "vestibular disorders resulting from the incidents which are the subject matter of this lawsuit," rendered Voelker unable "to travel to Denver, Colorado for the April 16, 1990, trial date." Cherry Creek and Timm objected, arguing that because Voelker required frequent breaks, the deposition could take several days and would have to be conducted in Portland, Oregon. They concluded that these facts, coupled with the impending trial date, would render it difficult to schedule the deposition and that it would likely interfere with their trial preparation. Finally, they noted that Voelker's 391 page discovery deposition was available for the preservation of her testimony.
Prior to the court ruling on the motion for an enlargement of time, respondents issued a notice of deposition for the preservation of Voelker's testimony stating that the videotaped deposition would take place on April 9 and 10, 1990. Pursuant to C.R.C.P. 26(c), petitioners moved for a protective order. As grounds for the order, they argued that the respondents had known of Voelker's physical limitations since the trial setting and that they had given no valid reason why arrangements for the deposition had not been made earlier. Petitioners also argued that the late date of the request unfairly burdened their ability to prepare for trial, and that it would be inconvenient, expensive, burdensome, and prejudicial. Finally, petitioners again noted the existence of Voelker's 391 page discovery deposition transcript.
At a hearing held ten days before the trial was scheduled to begin, the trial court requested the respondents to describe the circumstances that supported ordering a preservation deposition that close to trial. Respondents' attorney, Mr. Lenyo, replied as follows:
Well, Your Honor, I don't know if there's specific authority as to the timing. I don't think that there is any question that in a situation like this where we have an injured party who is unable to attend the trial that in order to present their testimony we can preserve it through a videotape presentation.
So the question is what is really the circumstances why we are forced to be doing this one week before trial.
. . . . .
I don't want to represent to the Court that I didn't have any idea that this wasn't going to happen, but I was waiting for that final examination by Dr. Black to confirm it.
Respondents' counsel gave no reason why the deposition had not been scheduled earlier. The trial court granted the motion for protective orders, reasoning that the motion was made on the "eve of the trial" after the date all discovery was to end.
Immediately after the trial court granted petitioners' motion, respondents requested a continuance of the April 16th trial date. They asserted that the continuance would enable them to conduct a preservation videotape deposition, or alternatively, if Voelker's condition improved, enable Voelker to travel to Denver to testify in person at the re-scheduled trial. 3 Petitioners objected, citing the inconvenience and prejudicial effect of delaying the trial. As with Walling's requested continuance, the trial court denied the motion.
The eighteen day jury trial commenced, as scheduled, and after several breaks, concluded on May 16, 1990. Voelker's 391 page deposition was read into evidence at various times throughout the trial. The jury returned a verdict in favor of the defense, and judgment was entered on the verdict. According to the special verdict form, the jury found that respondents had suffered injuries; however, it found no negligence on the part of any defendant. Following trial, the petitioners submitted a bill of costs.
Noting the complexity of the case and the amount of damages at issue, 4 the court found that discovery depositions were "an integral part of the preparation for trial" and that they "were a necessity for the proper preparation for trial and for the orderly and efficient presentation of evidence and cross-examination of witnesses." The court concluded that "it [had] inherent and discretionary authority to award the costs of taking [out of state witness] depositions pursuant to C.R.S. § 13-16-122 and in particular subsection (1)(d) of that statute." Accordingly, because respondents did not dispute the reasonableness of the deposition costs, the trial court awarded petitioners virtually all the costs requested.
The court of appeals reversed, holding that the trial court abused its discretion in failing to order that Voelker's preservation deposition be taken prior to trial. It also held that if this would have created prejudicial hardship to the petitioners, the trial court erred in not granting a continuance so the deposition could be taken. Because the court ordered a new trial, it did not reach the issue of whether the trial court abused its discretion...
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