Millican v. Wolfe, 83CA0326
| Decision Date | 10 January 1985 |
| Docket Number | No. 83CA0326,83CA0326 |
| Citation | 701 P.2d 107 |
| Parties | Linda MILLICAN and Nigel Clayton, the natural parents of April Lea Clayton, Deceased, Plaintiffs-Appellants, v. Rick WOLFE and Shirley Wolfe, individually, and d/b/a the Soda Saloon; Robert Dietz; and J.D. Carelli, Defendants-Appellees. . II |
| Court | Colorado Court of Appeals |
George Alan Holley & Assoc., P.C., Dennis B. Polk, Golden, for plaintiffs-appellants.
Montgomery Little Young Campbell & McGrew, P.C., William H. Remine, III, Englewood, for defendants-appellees.
Plaintiffs, Linda Millican and Nigel Clayton, sought damages for the wrongful death of their two-year-old daughter, April Lea Clayton, and Linda Millican sought damages for negligent infliction of emotional distress. The jury awarded the plaintiffs $4,024 on the wrongful death claim and $7,500 on Linda Millican's separate claim for negligent infliction of emotional distress. Linda Millican appeals, arguing that the trial court erred by not instructing the jury that she was entitled to recover damages for permanent injury and damages for her daughter's wrongful death, as well as damages resulting from witnessing her daughter's death. Plaintiffs also argue that they are entitled to a new trial because the amount of the verdict is inadequate and because the jury reached its verdict by using a quotient method. We disagree with these contentions, and therefore affirm.
Linda Millican, her two daughters, and her mother-in-law went into The Soda Saloon, an ice cream parlor in Central City, to purchase ice cream. The business was owned and operated by the defendants, Rick and Shirley Wolfe, and the premises were owned by defendant J.D. Carelli. Located within the store were two antique slot machines which dispensed gold ore samples. These slot machines were owned by defendant, Robert Dietz, and leased to the Wolfes. One of the slot machines toppled over and injured April Lea Clayton in the presence of her mother. The injury was followed by the child's death a short time later.
Millican tendered an instruction on damages resulting from permanent injuries which the trial court refused. We find no merit to Millican's argument that the trial court erred in this regard.
As the trial court ruled, Millican was not entitled to an instruction on permanent injury because there was not any evidence that she suffered permanent injury. See Barter Machinery & Supply Co. v. Muchow, 169 Colo. 100, 453 P.2d 804 (1969). The trial court instructed the jury that she was entitled to recover for future physical or mental pain and suffering. This instruction is all that was required under the evidence here.
Millican next argues that she can recover all of the damages caused by the death of her daughter in her negligent infliction of emotional distress claim. These damages, she contends, are in addition to those recoverable for wrongful death. The trial court ruled that Millican's damages are limited to those caused by seeing the accident and do not extend to all damages caused by the consequent death.
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Black v. Waterman, 02CA0172.
... ... as to indicate clearly and definitely that the jury neglected to consider the evidence, Millican v. Wolfe, 701 P.2d 107 (Colo.App.1985), or was influenced by bias, passion, prejudice, or other ... ...
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Common Issues in Legal Malpractice Litigation
...658 P.2d 1370, 1375 (Colo.App. 1984); Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1412 (10th Cir. 1991); Millican v. Wolfe, 701 P.2d 107, 108 (Colo.App. 1985); Hale v. Morris, 725 P.2d 26, 28 (Colo.App. 1986); James v. Harris, 729 P.2d 986, 988 (Colo.App. 1986); Kimelman, supra, ......