Loveless v. City of Aurora

• Decision Date: 08 November 1979
• Docket Number: No. 78-292,78-292
• Citation: 639 P.2d 1084
• Parties: Hazel Kay LOVELESS, Widow of Benjamin L. Loveless, Plaintiff-Appellant, v. CITY OF AURORA, a municipal corporation, and Steven L. Lines, Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 1084

639 P.2d 1084

Hazel Kay LOVELESS, Widow of Benjamin L. Loveless, Plaintiff-Appellant, v. CITY OF AURORA, a municipal corporation, and Steven L Lines, Defendants-Appellees.

No. 78-292.

Colorado Court of Appeals, Div. III.

Nov. 8, 1979.

Rehearing Denied Dec. 6, 1979.

Certiorari Granted March 10, 1981.

George A. Hinshaw, Morton L. Davis, Aurora, for plaintiff-appellant.

Wesley H. Doan, P.C., Michael P. Bahr, Wood, Ris & Hames, Eugene S. Hames, Denver, for defendants-appellees.

STERNBERG, Judge.

Plaintiff brought this action seeking damages for the wrongful death of her husband. Following trial, an adverse judgment was entered pursuant to a special verdict. Plaintiff appeals and we reverse.

The events leading to the death of plaintiff's husband are not disputed. In response to plaintiff's telephone report of a dispute with her husband and request for assistance, the Aurora Police Department dispatched two police officers to plaintiff's home. Upon their arrival a neighbor told them that she had heard shots coming from the home. The officers heard more shots as they got out of their patrol car. One officer, defendant Lines, allegedly in violation of police department regulations, burst through the front door instead of waiting for back-up help.

Lines confronted the decedent who was armed with a shotgun, and ordered him to drop the weapon. The decedent did not comply, but rather began to turn the shotgun at Lines. Lines pulled the trigger of his revolver, but it misfired. He again ordered that the decedent drop the shotgun. The decedent continued to turn and the officer pushed the weapon aside. The shotgun discharged without harming the officer, who then shot the decedent in the chest with his now functioning revolver. The wound resulted in the death of plaintiff's husband.

In submitting the case to the jury, the court gave the usual comparative negligence special verdict form, Colo.J.I. 9:32 (1976). The jury answered the questions on the form as follows: Defendant Lines was negligent, but his negligence was not a proximate cause of the death; the decedent was negligent and his negligence was a proximate cause of his death. Because of the finding that Lines' negligence was not a proximate cause of the death, the jury made neither a determination of damages nor an apportionment of negligence.

Under the facts of this case, it is difficult to ascertain the conduct of the police officer that could be characterized by the jury as negligent. However, the determination of whether Lines' conduct did constitute negligence was one for the jury. Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969). Accepting the jury conclusion that Lines was negligent, we are unable to harmonize its conclusion that the negligence was not a proximate cause of the death....