Fletcher v. Porter

• Court: Colorado Court of Appeals
• Writing for the Court: BABCOCK
• Citation: Fletcher v. Porter, 754 P.2d 788 (Colo. App. 1988)
• Decision Date: 24 March 1988
• Docket Number: 86CA0285
• Parties: James K. FLETCHER, individually, and as father and next friend of Erin Fletcher, a minor, Plaintiffs-Appellants, v. Donald Willis PORTER and Barry Porter, Defendants-Appellees. . II

Page 788

754 P.2d 788

James K. FLETCHER, individually, and as father and next friend of Erin Fletcher, a minor, Plaintiffs-Appellants, v. Donald Willis PORTER and Barry Porter, Defendants-Appellees.

No. 86CA0285.

Colorado Court of Appeals Div. II.

March 24, 1988.

Rehearing Denied April 21, 1988.

Plaut, Lipstein, Cohen, PC, Frank Plaut, Lakewood, for plaintiffs-appellants.

Weller, Friedrich, Hickisch, Hazlitt & Ward, Sheryl L. Anderson, Denver, for defendants-appellees.

BABCOCK, Judge.

In this negligence action to recover damages arising out of an automobile collision, plaintiffs, James K. Fletcher, individually and as father and next friend of Erin Fletcher, a minor, (father and Erin) appeal the judgment of the trial court entered upon jury verdicts. The jury returned a $10,000 special verdict in favor of father apportioning 60% negligence to defendant, Donald W. Porter, and 40% negligence to father. As to Erin, the jury returned a general verdict for defendants. Father and Erin contend that the verdicts are inconsistent and, thus, the judgment should be reversed and the matter remanded for new trial on all issues. We agree that the verdicts are irreconcilable as to Erin, and therefore, we reverse and remand for new trial as to damages only. We affirm the judgment as to father.

In December 1984, an intersection collision occurred between a car driven by father and one owned by defendant Barry Porter and driven by defendant Donald W. Porter. It was stipulated that Barry Porter was the head of the household where Donald resided and Donald was driving the car with Barry's express permission.

Two-year-old Erin was a passenger in father's car riding in a child car seat placed in the rear seat behind father with her seat belt on. The evidence was undisputed that before the collision Erin's physical and mental health were good. In the collision, Erin received facial cuts and lacerations, and there were pieces of glass imbedded around the orbital area of her eye. She was taken to the emergency room of a hospital, treated for these injuries, and released the night of the collision.

The unrebutted testimony at trial was that Erin's cuts were painful, there was scarring, there remained a one-quarter inch square piece of glass imbedded in the orbital area of her eye which caused discomfort, and she had been diagnosed as having and was being treated for moderate to severe post-traumatic stress disorder. Father had incurred more than $3,500 expenses for Erin's medical and psychiatric care.

In accord with the Colorado Auto Accident Reparations Act, 10-4-701, et seq., C.R.S. (1987 Repl. Vol. 4A), the trial court instructed the jury that, insofar as proved by the evidence, father's damages included any reasonable and necessary past or future medical expenses incurred on behalf of Erin, except that the jury was to exclude any such expenses which had been or would be incurred within three years after the accident and which did not or would not in total exceed $25,000. As to Erin, the jury was instructed that, insofar as proved by the evidence, her damages were to include compensation for past and future physical pain or mental suffering. As part of any past or future mental suffering the jury was also instructed to consider any emotional distress, embarrassment, or humiliation Erin had or would incur as a result of scarring or disfigurement.

The trial court submitted father's claim to the jury with special comparative negligence forms of verdict. Because any negligence of father could not be imputed to Erin, the trial court concluded that if the jury found that defendants were negligent there would be no need to submit special verdicts as to Erin, and the jury would merely insert in the general verdict the amount of her damages if any. Accordingly, the trial court submitted general verdict forms to the jury as to Erin's claim.

As to the father, the jurors signed and returned the special verdict form finding that defendant Donald was 60% negligent, that father was 40% negligent, and that their combined negligence caused father's $10,000 damages. However, the jury returned a...