City of Aurora v. Loveless

• Decision Date: 28 December 1981
• Docket Number: No. 79SC392,79SC392
• Parties: CITY OF AURORA, a municipal corporation, and Steven L. Lines, Petitioners, v. Hazel Kay LOVELESS, widow of Benjamin L. Loveless, Respondent.
• Court: Colorado Supreme Court

Page 1061

639 P.2d 1061

CITY OF AURORA, a municipal corporation, and Steven L Lines, Petitioners, v. Hazel Kay LOVELESS, widow of Benjamin L. Loveless, Respondent.

No. 79SC392.

Supreme Court of Colorado, En Banc.

Dec. 28, 1981.

Rehearing Denied Feb. 8, 1982.

Wood, Ris & Hames, P. C., F. Michael Ludwig, Denver, for petitioners.

George Hinshaw and Morton L. Davis, Aurora, for respondent.

ROVIRA, Justice.

The respondent, Hazel Loveless, brought an action in the District Court of Arapahoe County seeking damages for the wrongful death of her husband, Benjamin Loveless (decedent). A jury of six returned a special verdict in favor of the petitioners, City of Aurora (City) and Steven Lines (Lines), a police officer employed by the City, finding that although Lines was negligent his negligence was not a proximate cause of death. In Loveless v. City of Aurora, Colo.App., 639 P.2d 1084 (Nov. 8, 1979), the court of appeals, finding that the two questions on the special verdict form relating to Lines' conduct were answered in an internally inconsistent manner, reversed the judgment and ordered a new trial. It also ordered certain exhibits to be admitted if offered on retrial. We granted certiorari and now reverse.

I.

On November 19, 1974, the decedent told his wife that he wasn't going to go to work; instead, he got a bottle of brandy and proceeded to become intoxicated. His wife testified that he appeared to be disoriented and depressed. She called some friends in order to get help, but finally left and called the Aurora Police Department from a neighbor's house across the street.

In response to the call, Officers Lines and Winger were dispatched to the Loveless residence. Upon their arrival, bystanders informed them that shots had been fired from the house. Immediately thereafter, a shotgun blast from within broke out the front window of the Loveless home; and while the officers approached the house, another shot was fired.

At this point, Lines ran into the house, assumed a crouching position with his revolver drawn and shouted, "Police, drop it!" Instead of complying with the order, the decedent closed the action on his shotgun, turned, and advanced toward Lines with the gun pointed at the officer's midsection. Lines pulled the trigger of his revolver, but the weapon misfired. He again ordered the decedent to "drop it," but the decedent continued to approach. Lines was able to push the barrel of the shotgun aside just as it was fired. Immediately thereafter, Lines fired his revolver into the decedent's chest; and, as a result, the decedent died. Witnesses estimated that the entire sequence of events lasted less than thirty seconds.

The decedent's surviving spouse brought a wrongful death action against Lines and the City, alleging negligence on the part of each and respondeat superior liability on the part of the city for the actions of Lines.

Pursuant to a special verdict form, ¹ the jury found that (1) Lines acted negligently, (2) his negligence was not a proximate cause of the damages claimed by the plaintiff (respondent), (3) the decedent was contributorily negligent, and (4) the decedent's contributory negligence was a proximate cause of the plaintiff's (respondent's) claimed damages. The jury, applying the instructions given to it, did not determine the amount of damages or apportion negligence pursuant to the comparative negligence statute because of its finding that Lines' negligence was not a proximate cause of death.

The court of appeals reversed and remanded for a new trial. It held that although it was "difficult to ascertain the conduct of the police officer that could be characterized by the jury as negligent," the determination of negligence was for the jury and would not be disturbed on appellate review. However, it was unable to harmonize the jury's finding of Lines' negligence with its finding that his negligence was not a proximate cause of death. It reasoned that Lines' acts, without any intervening cause, resulted in the decedent's being shot; and although the decedent's acts contributed to his death, they could not be said to be such an intervening cause as to constitute the sole proximate cause of his death. It further instructed the trial court not to exclude certain police department regulations in the new trial if the respondent sought to enter these regulations into evidence.

II.

The petitioners argue that the court of appeals erred in holding that the special verdict of the jury was internally inconsistent. We agree.

Jury verdicts will not be reversed for inconsistency if a reading of the record reveals any basis for the verdicts. Our task is to examine the record and determine whether there was competent evidence from which the jury could have logically reached the verdict in this case. Furthermore, if under the evidence adduced in this case there is "a view of the case which makes the jury's answers ... consistent," we must adopt that view. 5A J. Moore, Federal Practice P 49.03(4) at 49-29 (2d ed. 1980). ²

This challenge focuses upon two findings in the special verdict form returned by the jury. The first finding was that Lines was negligent. The second was that the negligence was not a proximate cause of the respondent's damages. We begin by noting that the special verdicts are not inconsistent on their face. In Colorado a finding of negligence does not create liability on the part of a defendant unless that negligence is a proximate cause of the plaintiff's injury. Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975); Roberts v. Fisher, 169 Colo. 288, 455 P.2d 871 (1969); Kent Mfg. Co. v. Zimmerman, 48 Colo. 388, 110 P. 187 (1910). Further, questions of negligence and proximate cause are issues of fact to be determined by the jury, and the appellate courts are bound by the jury's findings when there is competent evidence in the record supporting those findings. See Vigil v. Pine, 176 Colo. 384, 490 P.2d 934 (1971); Pioneer Const. Co. v. Richardson, 176 Colo. 254, 490 P.2d 71 (1971).

In the present case the jury was instructed that negligence means: "a failure to do an act which a reasonably prudent person would do, or the doing of an act which a reasonably prudent person would not do, under the same or similar circumstances to protect others from bodily injury or death." Further, it was instructed that proximate cause means "that cause which in natural and probable sequence produced the claimed injury. It is the cause without which the claimed injury would not have been sustained."

The court of appeals assumed the jury's finding of Lines' negligence was based solely on his "breaking into the home and not waiting for assistance." As a result of that assumption as to the jury's thought processes, it found it impossible to harmonize the jury's finding of negligence with the finding that the negligence was not a proximate cause of the respondent's damages.

An appellate court has a duty to attempt to reconcile the jury's answers to special verdicts if it is at all possible. See Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Meinke v. Lewandowski, 306 Minn. 406, 237 N.W.2d 387 (1975). "Where there is a view of the case that makes the jury's answers ... consistent, they must be resolved that way." Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798, 807 (1962).

The jury heard substantial testimony concerning the shooting and the events leading up to it. The negligence instruction was general and was in no way specifically tied to any particular sequence of events. Therefore, we are not prepared to say that the jury's answer in the first special verdict was based solely on Lines' breaking into the Loveless home and not waiting for assistance. In applying the instructions on negligence and proximate cause to the evidence adduced in this case, the jury could have found Lines negligent because he failed to reasonably protect bystanders from injury which might have been inflicted by the decedent, or that he should have waited a longer time before going into the house, or that he should have used some other method of limiting the danger inherent in the decedent's conduct. We recognize that the thrust of the respondent's complaint was that the police officer was negligent in confronting the decedent and shooting him; nonetheless, it is conceivable that the jury applied the negligence instruction to a sequence of events distinct and unrelated to the eventual shooting. Given this possibility, the jury's findings that Lines was negligent but that his...