Kennedy By and Through Kennedy v. Pelster
| Decision Date | 06 June 1991 |
| Docket Number | No. 90CA1297,90CA1297 |
| Citation | 813 P.2d 845 |
| Parties | Patricia KENNEDY, and Darrell Kennedy, and Erick Kennedy, By and Through Patricia KENNEDY, as Next Friend, Parent and Guardian, Plaintiffs-Appellants, v. Shawn PELSTER, Defendant-Appellee. . III |
| Court | Colorado Court of Appeals |
Russell E. Vigil, Denver, for plaintiffs-appellants.
White and Steele, P.C., Michael W. Anderson, Denver, for defendant-appellee.
Opinion by Judge CRISWELL.
Plaintiffs Darrell and Patricia Kennedy appeal from the judgment of the trial court that dismissed the complaint filed by them against the defendant, Shawn Pelster, for injuries sustained by the minor plaintiff, Erick Kennedy, through the alleged negligence of the defendant. The judgment of dismissal resulted from the trial court's finding that both adult plaintiffs had willfully refused to participate in proper discovery. We affirm in part and reverse in part.
Plaintiffs' complaint contained a single claim for relief in which it was alleged that, as the result of the negligence of the defendant, Erick Kennedy, the adult plaintiffs' 14-year old son, had sustained severe and permanent injuries. This complaint also alleged that some $14,000 had been expended by the adult plaintiffs in "health care costs" and that they would incur other costs in the future. Finally, it was alleged that the adult plaintiffs had been damaged by "the loss of ... the companionship and services" of their son.
Defendant attempted to obtain the deposition upon oral interrogatories of all of the plaintiffs, but was unsuccessful in doing so. While the minor plaintiff was apparently deposed by the defendant, his parents were not. On one occasion, the adult plaintiffs cancelled their depositions on the morning scheduled for the same, and on another occasion, Patricia Kennedy cancelled her deposition the night before its re-scheduled date. The record contains no suggestion of any legitimate reason for the refusal of either adult plaintiff to be deposed. Defendant represented to the trial court that Darrell Kennedy simply refused to be deposed and that Patricia Kennedy had decided not to have her deposition taken.
Given this record, therefore, there is substantial support for the trial court's finding that Darrell and Patricia Kennedy willfully refused to participate in discovery, and such finding authorized the trial court to dismiss any claims asserted by these two plaintiffs. See C.R.C.P. 37(d); Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672 (Colo.1987); Asamera Oil (U.S.), Inc. v. KMOCO Oil Co., 759 P.2d 808 (Colo.App.1988).
Hence, there being no evidence of a prior relinquishment of the claims therefor, the trial court's judgment of dismissal properly disposed of any claim for past medical expenses, future medical expenses during Erick's minority, any loss of earnings during his minority, loss of companionship with his parents, and all other claims that, on the date of the judgment of dismissal, were possessed by either Darrell or Patricia Kennedy. See Pawnee Farmers Elevator & Supply Co. v. Powell, 76 Colo. 1, 227 P. 836 (1924) (earnings); Union Pacific Ry. Co. v. Jones, 21 Colo. 340, 40 P. 890 (1895) (medical expenses).
However, this record does not reflect that either Darrell or Patricia Kennedy has been appointed as Erick's legal guardian. Patricia sought to recover damages on Erick's behalf only as his "next friend." Further, although the trial court specifically found that the two adult plaintiffs had wilfully refused to engage in proper discovery, no similar finding was made respecting the minor plaintiff. As noted, defendant was apparently able to depose him.
In Antonopoulos v. Telluride, 187 Colo. 392, 532 P.2d 346 (1976), our supreme court determined that "a minor's next friend is not a real party in interest [with respect to the minor's claim], but rather a...
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