Vu v. Fouts, 94CA1812

• Decision Date: 22 February 1996
• Docket Number: No. 94CA1812,94CA1812
• Citation: 924 P.2d 1129
• Parties: Maria VU, Plaintiff-Appellee, v. Amy FOUTS, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 1129

924 P.2d 1129

Maria VU, Plaintiff-Appellee, v. Amy FOUTS, Defendant-Appellant.

No. 94CA1812.

Colorado Court of Appeals,

Div. IV.

Feb. 22, 1996.

As Modified on Denial of Rehearing

April 4, 1996.

Certiorari Denied Oct. 15, 1996.

Beem & Mann, P.C., Stuart D. Mann, Denver, for Plaintiff-Appellee.

Anderson, Campbell & Laugesen, P.C., Franklin D. Patterson, Christopher Robbins, Denver, for Defendant-Appellant.

Opinion by Judge MARQUEZ.

In this action for damages for personal injuries arising from an automobile collision, defendant, Amy Fouts, appeals from a judgment entered on a jury verdict finding her negligent and awarding damages to plaintiff, Maria Vu. We affirm.

A car driven by defendant collided with the rear of plaintiff's vehicle as the parties were traveling in the extreme right-hand lane of a four-lane road down a steep hill. Both parties and the investigating officer testified that road conditions were icy and snowy. The circumstances leading to the collision were disputed at trial.

Defendant testified that, just before the accident, plaintiff passed her on the left and lost control of her vehicle as she moved back into the right-hand lane in front of defendant. According to defendant, plaintiff then hit the curb and bounced back in front of defendant. Defendant stated that she tried to brake but could not avoid colliding into the rear of plaintiff's vehicle.

Plaintiff, on the other hand, testified that she had not changed lanes, that she slowed substantially for the hill, and that her vehicle was struck in the rear by defendant's vehicle.

At trial, the court excluded the testimony of two of the passengers in defendant's vehicle, granted a directed verdict deciding that the statutory threshold had been reached, and rejected defendant's tendered instruction on the sudden emergency doctrine.

I.

Defendant asserts that the trial court erred in granting plaintiff's motion in limine to exclude testimony of two non-party witnesses for the defendant for their failure to appear at deposition. We disagree.

The two witnesses excluded from testifying by plaintiff's motion were passengers in defendant's vehicle at the time of the accident. The court granted the motion based on the failure of those witnesses to appear for deposition by plaintiff, despite service of subpoenas, and on the prejudice to plaintiff that would result from allowing those witnesses to testify after evading the discovery process.

However, defendant argues that it was plaintiff who set the deposition dates so close to trial, thereby leaving plaintiff no time to file a motion to compel under C.R.C.P. 37(a) and C.R.C.P. 37(b)(1) after the witnesses failed to appear. The court's response, defendant claims, wrongly sanctioned her for the actions of witnesses that were not under her control. Defendant also asserts that no offer of proof is needed to preserve her right to appeal on these grounds because witnesses were listed in defendant's disclosure certificate and their testimony is relevant and admissible based on their status as passengers in her vehicle at the time of the accident. We reject these arguments.

A trial court has considerable discretion in deciding questions concerning the admissibility of evidence, and to show an abuse of discretion, a party must establish that, under the circumstances, the court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33 (Colo.1993).

To preserve for review an objection to the exclusion of evidence, a party must make a proper offer of proof which demonstrates the relevance and admissibility of the evidence. Melton v. Larrabee, 832 P.2d 1069 (Colo.App.1992). See CRE 103(a); People v. Hise, 738 P.2d 13 (Colo.App.1986) (because a party failed to make an offer of proof, reviewing court was unable to determine in what way the exclusion of evidence was prejudicial, and error, if any, was harmless).

At the hearing on the motion in limine, immediately before the beginning of the trial, defendant made no offer of proof concerning the content or importance of the testimony excluded by the motion. Defense counsel represented to the court only that she did not have any control over those witnesses and that, in fact, she did not know if they were going to appear at court because they had failed to honor a subpoena up to that point. Defense counsel further suggested that plaintiff be afforded the opportunity to speak to the witnesses before they gave testimony, should they appear. Thus, the court had no information upon which to make a determination at that time.

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. CRE 103(a).

A party's substantial right is affected by the exclusion of evidence if it can be said with fair assurance that the error influenced the outcome of a case or impaired the basic fairness of the trial itself. Cherry Creek School District No. 5 v. Voelker, 859 P.2d 805 (Colo.1993).

Defendant testified and also presented one eyewitness at trial who was also a passenger at the time of the accident. Defendant's argument that the testimony of that witness was useless because she did not have the perspective of the other two witnesses is unsubstantiated. Also, it was not until defendant testified at trial that the court was informed that one witness was seated in the front passenger seat of defendant's vehicle and that the other remarked that plaintiff's vehicle was sliding.

Thus, it is not clear from the record that the excluded testimony was essential to defendant's case or that it would have added anything to the testimony of the witness that testified. Hence, defendant has not demonstrated that reversal is warranted under CRE 103(a).

Additionally, defendant has failed to cite any authority supporting her argument that the court erred by excluding the testimony of the two witnesses under circumstances that precluded the deposing party from having time to pursue a motion to compel. The cases cited by defendant in support of that claim, Kennedy v. Pelster, 813 P.2d 845 (Colo.App.1991) and Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672 (Colo.1987), concern prejudicial error arising from rulings that resulted in a judgment of dismissal or default, not the exclusion of evidence.

Under these circumstances, we conclude that the court did not abuse its discretion in excluding the testimony.

II.

Defendant next asserts that, because of evidence that would support a contrary finding, the trial court improperly granted a directed verdict on the issue of threshold damages pursuant to § 10-4-714, C.R.S. (1994 Repl.Vol. 4A) and refused to instruct the jury as to such threshold damages. We disagree.

At trial, the court ruled against issuing a threshold tort instruction on grounds that the evidence showing $2,500 in reasonable and necessary expenses was undisputed.

A directed verdict as to whether a statutory threshold has been reached is proper only if the evidence regarding the extent and the cause of the injury is so clear that reasonable persons could not arrive at a contrary verdict. Pinell v. McCrary, 849 P.2d 848 (Colo.App.1992).

Defendant argues that, here, the court disregarded testimony by an expert medical witness for the defense that some of the medical treatment received by the plaintiff was unnecessary and that some records were not well documented, making it impossible to judge the necessity of that treatment.

However, it was undisputed that, at the time of trial, plaintiff had...