Garcia v. Estate of Wilkinson

• Decision Date: 25 October 1990
• Docket Number: No. 89CA0143,89CA0143
• Citation: 800 P.2d 1380
• Parties: Christella GARCIA, Plaintiff-Appellant, v. The ESTATE OF the Late William James WILKINSON, Jr., Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 1380

800 P.2d 1380

Christella GARCIA, Plaintiff-Appellant, v. The ESTATE OF the Late William James WILKINSON, Jr.,

Defendant-Appellee.

No. 89CA0143.

Colorado Court of Appeals,

Div. III.

Oct. 25, 1990.

Shakeshaft & Chernushin, P.C., Gregory Chernushin, John J. Donohoe, Colorado Springs, for plaintiff-appellant.

Goss & Waltz, Richard A. Waltz, Denver, for defendant-appellee.

Opinion by Judge JONES.

In this negligence action, plaintiff, Christella Garcia, appeals the judgment entered on a jury verdict in favor of defendant, the estate of William James Wilkinson, Jr. We affirm but remand for reconsideration of costs.

On November 10, 1986, Wilkinson's automobile struck the rear of another vehicle in which plaintiff was a passenger. The defendant admitted that Wilkinson was negligent in causing the accident but disputed that this accident caused plaintiff's injuries and damages.

Prior to trial, plaintiff moved for summary judgment on the issue of causation. The trial court denied the motion. The trial court also denied plaintiff's pre-trial motion for special voir dire concerning the alleged "insurance crisis" or "lawsuit crisis." After a three-day trial, the jury returned a verdict in favor of the defendant.

I.

Plaintiff initially contends that the trial court erred in refusing to grant her motion for summary judgment.

The denial of a motion for summary judgment is not appealable. Manuel v. Fort Collins Newspapers, Inc., 631 P.2d 1114 (Colo.1981).

II.

Plaintiff next contends that the trial court improperly refused to allow voir dire concerning several pre-trial newspaper advertisements pertaining to an "insurance crisis" or "lawsuit crisis." We disagree.

The purpose of voir dire examination is to enable counsel to determine whether any prospective juror possesses beliefs which would amount to bias and which could prevent a fair and impartial trial. People v. Binkley, 687 P.2d 480 (Colo.App.1984).

The propriety of questions to potential jurors on voir dire is within the discretion of the trial court and will be overturned only on a showing that the trial court abused its discretion causing prejudice to a party. People v. Brewer, 720 P.2d 583 (Colo.App.1985).

A trial court will be deemed to have abused its discretion if the parties are prevented from effectively exercising peremptory and cause challenges. See Luera v. Snyder, 599 F.Supp. 1459 (D.Colo.1984) citing to Darbin v. Nourse, 664 F.2d 1109 (9th Cir.1981).

The parties are prevented from effectively exercising peremptory and cause challenges when the trial court, in the exercise of its discretion, causes voir dire to be inadequate to test the qualifications and competency of the jurors. Lowther v. United States, 455 F.2d 657 (10th Cir.1972), cert. denied sub nom. Lowry v. United States, 409 U.S. 887, 93 S.Ct. 114, 34 L.Ed.2d 144 (1972) and 409 U.S. 857, 93 S.Ct. 139, 34 L.Ed.2d 102 (1972), reh'g denied, 409 U.S. 1050, 93 S.Ct. 511, 34 L.Ed.2d 502 (1972).

We have previously held that a trial court does not abuse its discretion in failing to permit voir dire regarding the "liability crisis" or "lawsuit crisis" if the court otherwise does permit questions concerning jurors' views on damage awards generally. Russo v. Birrenkott, 770 P.2d 1335 (Colo.App.1988).

We conclude that Birrenkott is dispositive as to this issue. Here, as in Birrenkott, the trial court prohibited counsel from voir dire inquiry concerning whether the jurors had read certain newspaper articles or advertisements and the possible impact of such writings on the jurors, because it concluded that such inquiry would tend, inexorably, to lead to comments in impermissible areas. However, again as in Birrenkott, the court did permit requested questions in a related area, devoid of any reference to insurance, but also designed to ferret out possible juror bias concerning claimants, lawsuits, citizen accountability, and damage awards generally.

In our view, such questions were adequate to test the qualifications and competency of the jurors and were sufficient to allow the parties to exercise effectively and intelligently challenges as to this issue.

Accordingly, we conclude that the trial court did not abuse its discretion in declining to allow extended voir dire.

III.

Plaintiff further contends that the trial court improperly denied her motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Again, we disagree.

A.

A judgment notwithstanding the verdict may be entered only if reasonable persons, viewing the evidence in the light most favorable to the party against whom the motion is directed, could not reach the same conclusions as the jury. Price v. Boulder Valley School District R-2, 782 P.2d 821 (Colo.App.1989).

At trial, plaintiff sought to recover for injuries and pain to her neck and shoulder. However, extensive testimony revealed that plaintiff suffered from shoulder pain, and was taking prescription medication for that pain, prior to the accident involving Wilkinson.

Furthermore, plaintiff did not complain of any injuries until nearly two weeks after the accident and missed no work for over a month after the accident. Although plaintiff claimed to have suffered from great pain while working, one of her supervisors testified that neither she nor any other supervisors had been informed or were aware of any of plaintiff's claimed physical problems.

In light of such testimony, the jury could reasonably find that Wilkinson's negligence did not cause plaintiff's injuries. Hence, the trial court did not err in denying plaintiff's motion.

B.

As an alternative to a judgment notwithstanding the verdict, plaintiff moved for a new trial. Plaintiff's sole basis for this motion was counsel for defendant's reference at trial to a child support guideline document from plaintiff's dissolution of marriage action listing plaintiff's gross monthly income as $937 per month during 1988. At that point in the trial, plaintiff had already testified that she was unable to work during that period and had submitted affidavits so stating.

Plaintiff contends that the trial court improperly allowed defendant's counsel to use the child support document to contradict her statements regarding her actual income, and she urges that her credibility was severely damaged throughout the trial as a result.

Whether a new trial is required is usually a matter for the sound discretion of the trial court, which, by its presence and observation at trial, is best equipped to make the decision. First National Bank v. Campbell, 198 Colo. 344, 599 P.2d 915 (1979). Moreover, a new trial should not be granted if the trial resulted in substantial justice, or if the error did not prejudice or harm the party seeking a new trial. Citicorp Acceptance Co. v. Sittner, 772 P.2d 655 (1989).

Reasonable inferences from the record establish that counsel for defendant was using the child support document to attempt to impeach other...