Sandoval v. Birx, 86CA1536
| Decision Date | 18 August 1988 |
| Docket Number | No. 86CA1536,86CA1536 |
| Citation | 767 P.2d 759 |
| Parties | Elvinio SANDOVAL and Lucille Sandoval, and as next friends of David Sandoval, a minor, Plaintiffs-Appellants, v. Frances BIRX and Robert Birx, Defendants-Appellees. . I |
| Court | Colorado Court of Appeals |
Scott & Barrera, P.C., Daniel P. Barrera, Michael F. Scott, Denver, for plaintiffs-appellants.
Burg & Aspinwall, P.C., Peter W. Burg, Scott J. Eldredge, Denver, for defendants-appellees.
In this action for damages sought on behalf of plaintiff David Sandoval, judgment was entered on a jury verdict for defendants, and plaintiffs appeal. We reverse.
David, a thirteen-year-old, was an invited guest in defendants' home. Because of David's unease, defendants' son John restrained their dog while David ran into John's room. Although David never verbalized his fear of dogs to the defendants, he did nothing to provoke the dog. John obtained some pepperoni sticks and opened the door to hand one to David. At that time, the dog jumped into the room and bit David about the face and leg.
Plaintiffs contend that the trial court erred when it did not allow an animal control officer to testify as to his opinion regarding the dog's disposition based upon his observation of the dog during the month immediately following the incident. We agree.
The trial court excluded the officer's testimony because, though endorsed as a witness, he had not been endorsed as an expert. However, we conclude that the officer's proffered testimony was admissible as lay opinion. CRE 701 allows a lay witness to testify to opinions or inferences which are "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue."
The officer had observed the dog's behavior on a daily basis for close to a month following the incident, and thus, he was competent to opine whether the dog had vicious or dangerous tendencies. See Barger v. Jimerson, 130 Colo. 459, 276 P.2d 744 (1954).
Generally, reversal of a judgment may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected. CRE 103(a). Here, there was conflicting evidence regarding whether the dog had vicious tendencies; therefore, the probative value of the officer's opinion was substantial. Hence, we conclude the trial court's determination that this testimony was admissible only if given by an expert constitutes reversible error. See People v. Gallegos, 644 P.2d 920 (Colo.1982).
Because we are remanding the cause for new trial, we address plaintiffs' other contentions which may arise on retrial.
Plaintiffs contend that the trial court erred in failing to grant their motion for judgment notwithstanding the verdict. We disagree.
The case was submitted to the jury on a claim of negligence. In order to prove the owner of a domestic animal is negligent, a plaintiff must show: (1) that the animal had vicious or dangerous tendencies; (2) that the owner had knowledge or notice thereof; and (3) that the owner did not exercise reasonable care to prevent injuries reasonably anticipated to result from such tendencies. DuBois v. Myers, 684 P.2d 940 (Colo.App.1984); CJI-Civ.2d 13:1 (1980). The extent of the defendants' knowledge concerning the vicious propensities of a domestic animal is a question of fact for the jury to determine. Davis v. Roberts, 155 Colo. 387, 395 P.2d 13 (1964).
While it was undisputed that the dog had bitten children on two prior occasions, the evidence was conflicting with respect to the severity of the injuries and whether the circumstances of their occurrence were such as would put the defendants on notice that the dog had dangerous tendencies....
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Moura v. Randall
...subsequent to an accident is admitted to prove vicious tendencies on an earlier date." Id. 180 S.E.2d at 203. See also Sandoval v. Birx, 767 P.2d 759 (Colo.Ct.App.1988) (concluding that an animal control officer who observed the dog on a daily basis for almost one month after the attack was......
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...sticks by his father, the court held that the boy's actions were not a provocation which would excuse the attack. Sandoval v. Birx, 767 P.2d 759, 760, (Colo.App.1988). See also, Robinson v. Meadows, 203 Ill.App.3d 706, 148 Ill.Dec. 805, 561 N.E.2d 111 (1990), cert. denied, 135 Il.2d 566, 15......
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...that the trial court did not err in declining to instruct the jury on the passenger's comparative negligence. See Sandoval v. Birx, 767 P.2d 759 (Colo.App.1988). V. The Board's final contention is that the trial court erred in submitting to the jury the issue of plaintiffs' permanent injuri......
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Peiffer v. State Farm Mut. Auto. Ins. Co., s. 94CA1545
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