Huntoon v. TCI Cablevision of Colorado, Inc., 95CA1944
| Decision Date | 03 April 1997 |
| Docket Number | No. 95CA1944,95CA1944 |
| Citation | 948 P.2d 33 |
| Parties | 21 Colorado Journal 476 Sharon L. HUNTOON, Plaintiff-Appellee, v. TCI CABLEVISION OF COLORADO, INC., a Colorado corporation, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder; Purvis Gray Schuetze & Gordon, John A. Purvis, Glen F. Gordon, Boulder, for Plaintiff-Appellee.
Sherman & Howard L.L.C., Richard N. Baer, John J. Cyran, Denver; Burg & Eldredge, P.C., Janet R. Spies, Brendan O. Powers, Denver, for Defendant-Appellant.
Opinion by Judge METZGER.
In challenging a judgment entered in favor of plaintiff, Sharon Huntoon, defendant, TCI Cablevision of Colorado, Inc., asserts that the trial court erred in granting plaintiff's motion for a directed verdict on the issue of liability. Defendant also appeals several discovery and evidentiary issues. We reverse and remand the cause for a new trial.
This case arises from injuries sustained by plaintiff in a rear-end collision. Both plaintiff and an employee of defendant were traveling in the same direction on a Boulder street when an individual traveling two cars ahead of the plaintiff attempted to park in an angular parking spot. The automobile in front of plaintiff then slowed to a stop, thereby causing plaintiff to stop her vehicle suddenly. The defendant's vehicle, driven by one of its employees, then rear-ended plaintiff's vehicle.
After the presentation of all the evidence, plaintiff moved for a directed verdict on the issue of liability. She argued that no evidence had been presented to allow defendant to contend, under the theory of comparative negligence, that plaintiff shared responsibility for causing her injuries and that defendant was liable for her injuries, damages, and losses. The trial court granted the motion and then let the jury proceed to the question of damages.
Defendant first contends the trial court erred in directing a verdict on the issue of liability. We agree.
A review of a trial court's entry of a directed verdict presents an issue of law. A court deciding a motion for directed verdict must consider the evidence in the light most favorable to the party against whom it is directed and the strongest inferences reasonably deducible from the most favorable evidence should be indulged in his or her favor. Indeed, the evidence supporting a directed verdict must do more than contradict conflicting evidence; it must nullify such evidence. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); see also Evans v. Webster, 832 P.2d 951 (Colo.App.1991).
The general rule in cases involving rear-end collisions is that the driver of the car that follows and collides with the car in front is presumed to have been negligent. However, this presumption is rebuttable. Bettner v. Boring, 764 P.2d 829 (Colo.1988).
Even when a defendant has been presumed negligent as a matter of law, Colorado's comparative negligence statute requires that the parties' relative fault be apportioned in determining applicable recovery. Lyons v. Nasby, 770 P.2d 1250 (Colo.1989).
When determining whether a comparative negligence jury instruction should be given, an appellate court must determine whether the evidence in the case supports such an instruction. In such regard, it is important to keep in mind that a jury may believe all, none, or only specific portions of the evidence presented and, thus, may believe all or just a portion of a certain witness' testimony. Gordon v. Benson, 925 P.2d 775 (Colo.1996).
Here, the employee who was driving defendant's vehicle testified that he observed the rear of plaintiff's car lurch upward after she stopped suddenly. The witness testified that he was unable to stop in time to avoid colliding with her car. The plaintiff testified that she was "not really paying attention" to the activity in the street at the time of the accident and her testimony was inconsistent as to the duration of the period between when her vehicle stopped and when she was rear-ended by defendant's employee.
Viewing this evidence in the light most favorable to the defendant, and indulging in the strongest inferences reasonably applicable, we conclude that a jury could find that a portion of fault lay with plaintiff. Thus, because there are discrepancies in the evidence, it was improper for the trial court to direct a verdict on the issue of liability.
An issue concerning both liability and damages that may arise on retrial is defendant's contention that the trial court erred in admitting unqualified expert testimony concerning the cause of plaintiff's brain injuries. We agree.
During trial, plaintiff called a neuropsychologist, employed by her insurer, who had administered neurological examinations to determine the extent of plaintiff's injuries.
At trial, plaintiff's counsel asked, on a number of occasions, whether the accident had caused plaintiff's injuries. Over objection, the trial court allowed the witness to address these questions. While the witness did not directly answer the questions, the clear import of his testimony was that the accident had caused plaintiff's injuries.
A neuropsychologist may testify as an expert witness regarding the existence of organic brain injury if the neuropsychologist has reviewed an individual's history, medical records, school records, and has interviewed the individual and conducted neuropsychological testing. Gast v. City of Fountain, 870 P.2d 506 (Colo.App.1993), rev'd on other grounds, 904 P.2d 478 (Colo.1995). However, no authority in Colorado allows a neuropsychologist to testify to the physical cause of organic...
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Huntoon v. TCI Cablevision of Colorado, Inc.
...directed verdict for Huntoon on issues of liability because it found some evidence of comparative negligence. See Huntoon v. TCI Cablevision, 948 P.2d 33, 34 (Colo.App.1997). The court of appeals also found that the admission of neuropsychologist testimony regarding the cause of Huntoon's o......