Gordon v. Benson

Decision Date15 October 1996
Docket NumberNo. 95SC255,95SC255
Citation925 P.2d 775
PartiesMichael GORDON, Petitioner, v. Beverly Gay BENSON, Respondent.
CourtColorado Supreme Court

Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Jennifer L. Drinkwine, Englewood, for Petitioner.

Harshman, McBee & Coffman, Donald L. McBee, Kay Snider Coffman, Grand Junction, for Respondent.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to review the Colorado Court of Appeals' decision in Benson v. Gordon, No. 93CA1857 (Colo.App. Feb. 16, 1995), affirming a judgment for the plaintiff in a negligence action arising from an automobile accident. The court of appeals held that the trial court properly refused the defendant's request that the jury be instructed on comparative negligence. We conclude that the defendant was entitled to such an instruction based on the evidence presented at trial. We therefore reverse the judgment of the court of appeals and remand with directions to order a new trial.

I.

In April 1991, the plaintiff, Beverly Benson (Benson), and the defendant, Michael Gordon (Gordon), were involved in an automobile accident in Grand Junction, Colorado. Benson brought a negligence action in Mesa County District Court against Gordon, who denied liability and asserted the affirmative defense of comparative negligence.

The testimony at trial presented conflicting versions of the relevant facts. According to Benson, Gordon negligently drove his vehicle and collided with the rear of her automobile while she was stopped at a stop sign at an exit from a parking lot. A passenger in Benson's automobile supported this version of the events.

However, according to Gordon and the witnesses on his behalf, the accident occurred when Gordon's vehicle was stopped at the stop sign behind Benson. This testimony indicated that Gordon pulled up behind Benson and stopped. Benson, in an attempt to turn right to enter the street, advanced past the stop sign and partially into the street to see beyond some trees and parked cars. According to Gordon and the witnesses he presented, Benson was unable to complete the turn, shifted into reverse, and backed into Gordon's stationary vehicle. 1

After the parties presented all of their evidence, Gordon submitted a proposed comparative negligence instruction, and Gordon's counsel argued to the trial court that the jury could find that neither the plaintiff's witnesses nor the defendant's witnesses were entirely correct but that instead, Gordon's vehicle was moving forward and Benson's automobile was backing up at the time of the collision. The trial court disagreed, ruling that based on the evidence, the accident either was all Gordon's fault or all Benson's fault and that only an unreasonable jury could find otherwise. Because the court could identify no evidence that would support a conclusion by the jury that both parties were negligent, the court refused to instruct the jury on comparative negligence.

The court instructed the jury regarding negligence and directed the jurors to determine whether Benson incurred injuries, whether Gordon was negligent, and whether Gordon's negligence caused any of Benson's injuries. 2 The jury found that Benson did sustain injuries as a result of Gordon's negligence and awarded Benson $352,000. 3

The court of appeals affirmed the judgment entered on the jury's verdict. The court of appeals held that Gordon did not present any evidence to support the defense of comparative negligence and the trial court therefore properly refused to instruct the jury regarding that defense. In addition, the court of appeals determined that Gordon abandoned the affirmative defense of comparative negligence by failing to present evidence in support of that defense or to argue at trial that he was negligent. We reverse based upon our conclusions that the evidence was sufficient to warrant an instruction on the defense of comparative negligence and that it was not necessary for Gordon to admit negligence in order to be entitled to such an instruction.

II.

Colorado's comparative negligence statute, section 13-21-111, 6A C.R.S. (1987), abrogated the traditional contributory negligence doctrine and in its place substituted a statutory scheme whereby a plaintiff in a negligence action may recover so long as his or her negligence was less than that of the defendant. Lyons v. Nasby, 770 P.2d 1250, 1258-59 (Colo.1989). "The purpose of comparative negligence is to ameliorate the harshness of the complete bar resulting from common law contributory negligence." Montgomery Elevator Co. v. Gordon, 619 P.2d 66, 70 (Colo.1980). Under section 13-21-111, "the relative degrees of the plaintiff's and defendant's fault must be ascertained to determine whether and what amount of recovery is proper." Lyons, 770 P.2d at 1259. The relative degrees of fault are to be determined by a trier of fact except in the clearest of cases where the facts are undisputed and reasonable minds can draw but one inference. Id. at 1259-60. With these principles in mind, we address the issue of when a trial court must instruct a jury on comparative negligence.

III.

A trial court is obligated to instruct the jury correctly on the law applicable to the case. Jordan v. Bogner, 844 P.2d 664, 667 (Colo.1993); Stephens v. Koch, 192 Colo. 531, 533, 561 P.2d 333, 334 (1977). This duty requires the trial court to instruct on a party's theory of the case if it is supported by competent evidence, Davis v. Cline, 177 Colo. 204, 208, 493 P.2d 362, 364 (1972), and entitles a party to an instruction embodying the party's theory if there is sufficient evidence in the record to support it, Federal Ins. Co. v. Public Serv., 194 Colo. 107, 112, 570 P.2d 239, 242 (1977).

An instruction to the jury on comparative negligence must be based on competent evidence appearing in the record. Powell v. City of Ouray, 32 Colo.App. 44, 49, 507 P.2d 1101, 1105 (1973); see Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 428-29, 532 P.2d 337, 339 (1975) (same principle applied to contributory negligence instruction under prior law). The general rule, enunciated in Powell v. City of Ouray, is that "comparative negligence rules are applicable only where there is evidence presented which would substantiate a finding that both parties are at fault, and the inability to prove any negligence on the part of plaintiff eliminates the operation of the rule." 32 Colo.App. at 49, 507 P.2d at 1105. Accordingly, it is reversible error to submit the defense of comparative negligence to the jury where there is no evidence to support it. Morgan v. Board of Water Works, 837 P.2d 300, 304 (Colo.App.1992); see Safeway Stores, 187 Colo. at 428-29, 532 P.2d at 339 (principle applied to contributory negligence under prior law). Conversely, when the evidence would support a finding that both parties are at fault, the court must instruct the jury on comparative negligence and allow the jury to assess the relative degrees of the parties' fault. Lyons, 770 P.2d at 1260. The matter for our determination is whether the evidence in this case supports a comparative negligence instruction.

IV.

The trial court declined to instruct the jury on comparative negligence. In the court's view, the evidence required the jury to find either that the accident resulted solely from the negligence of Gordon or solely from the negligence of Benson. The court of appeals also adopted this reasoning. We disagree. By believing part but not all of the testimony of each group of witnesses, the jury could have found that both parties were negligent.

A.

In evaluating the testimony of a witness, a fact finder is not required to accept or reject the entire testimony. A witness can be correct in remembering one fact and incorrect in remembering another based on factors such as differences in opportunity to perceive and tricks of memory. A witness also may falsify some parts of his or her testimony while otherwise testifying truthfully. It is therefore well established that the fact finder is entitled to accept parts of a witness's testimony and reject other parts. United States v. Cueto, 628 F.2d 1273, 1275 (10th Cir.1980) ("A jury may believe a part of a witness' testimony, and disbelieve other parts."); United States v. Parr, 516 F.2d 458, 464 (5th Cir.1975) ("a jury may believe only part of a story, and disbelieve another part"); People v. Wilson, 838 P.2d 284, 292 (Colo.1992) (quoting with approval a jury instruction that "[y]ou may believe all of the testimony of a witness, or part of it, or none of it"); People v. Wood, 743 P.2d 422, 428 (Colo.1987) (same); Maisel v. People, 166 Colo. 161, 167, 442 P.2d 399, 402 (1968) (jury is entitled "to determine what part of an individual witness's testimony is to be believed and what portion is not to be believed"); In re Marriage of Bowles, 916 P.2d 615, 617 (Colo.App.1995) ("finder of fact can believe all, part, or none of a witness' testimony, even if uncontroverted"); People v. Hood, 878 P.2d 89, 93 (Colo.App.1994) ("Because separate parts of [a witness's] testimony independently supported conspiracy and complicity, the jury could have believed those parts of the testimony relating to the conspiracy, but rejected the portions relating to defendant's participation in the murder as a complicitor."). Other courts have applied this principle in cases involving defenses based on the plaintiff's negligence. Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 367 (5th Cir.1980) (jury has "undoubted power to sift the evidence before it and to believe or disbelieve portions of the testimony of various witnesses (or even of the same witness) in constructing its own view of what most probably happened"); Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526, 530 (1994) ("the jury may choose simply to believe a portion of the testimony of each party"); Wasserman v. Wong, 181 A.D.2d 672, 581 N.Y.S.2d 221, 223 (N.Y.App.Div.1992) ("A jury may believe or...

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