Wark v. McClellan

• Decision Date: 13 March 2003
• Docket Number: No. 01CA1496.,01CA1496.
• Citation: 68 P.3d 574
• Parties: Charles W. WARK, Shauna L. Wark, and Savanah J. Wark, by and through her next friends and parents, Charles W. Wark and Shauna L. Wark, Plaintiffs-Appellants, v. Richard M. McCLELLAN, Defendant-Appellee.
• Court: Colorado Court of Appeals

68 P.3d 574

Charles W. WARK, Shauna L. Wark, and Savanah J. Wark, by and through her next friends and parents, Charles W. Wark and Shauna L. Wark, Plaintiffs-Appellants, v. Richard M. McCLELLAN, Defendant-Appellee.

No. 01CA1496.

Colorado Court of Appeals, Div. III.

March 13, 2003.

Crane & Tejada, P.C., Alex C. Tejada, Bethiah Beale Crane, Durango, Colorado, for Plaintiffs-Appellants.

James R. Alvillar & Associates, James R. Alvillar, Rachelle Roberson, Grand Junction, Colorado, for Defendant-Appellee.

Opinion by Judge DAVIDSON.

Plaintiffs, Charles W. Wark, Shauna L. Wark, and Savanah J. Wark, appeal from the judgment entered on a jury verdict in favor of defendant, Richard M. McClellan, on plaintiffs' claims for negligence, wrongful death, negligent infliction of emotional distress, loss of consortium, and loss of services of a minor. We affirm and remand.

The case arises from an automobile accident that occurred on a mountain dirt road in rural Colorado. Plaintiffs were passengers in a large pickup truck that was towing a loaded horse trailer. In the cab of the truck were plaintiffs, Shauna and Charles Wark (mother and father, respectively, or parents), their two nine-year-old twin daughters, Lerisa and Savanah Wark, and the driver. The occupants were seated next to each other in the cab of the truck, and Lerisa was sitting on father's lap. Father and the driver had consumed alcohol before entering the truck, and none of the occupants was restrained.

Defendant also was driving a large pickup truck with a trailer containing construction materials. The accident occurred at a narrow part of the road. Plaintiffs' truck was traveling downhill, came around a blind curve, and encountered defendant's truck, facing uphill, either stopped or moving slowly. Plaintiffs' truck maneuvered around defendant's truck on the inside, but the two trailers collided, and plaintiffs' truck then swerved to the outside and rolled down a steep embankment into the river. The driver and Lerisa died in the accident.

The driver was designated a nonparty at fault. The jury returned a verdict finding defendant not negligent and awarding no damages to plaintiffs. The court awarded costs to defendant.

On appeal, plaintiffs argue that a variety of procedural and evidentiary errors were prejudicial enough to warrant a new trial. Plaintiffs also challenge the trial court's determination of costs. Except for an adjustment of the costs calculation, we find no basis for reversal.

I.

Plaintiffs first contend that the court erred in denying a motion for mistrial based on evidentiary errors and unduly prejudicial statements by defense counsel. While we agree that defense counsel occasionally acted with questionable propriety, we disagree that a mistrial was warranted. A mistrial is warranted where the prejudice created from improper testimony renders the trial unfair to the other party. Margenau v. Bowlin, 12 P.3d 1214 (Colo. App.2000). A mistrial is a drastic remedy, and we will not disturb the trial court's decision absent a gross abuse of discretion and prejudice to the moving party. Moreover, a mistrial is warranted only where the prejudice to the moving party cannot be remedied by other means. See People v. Abbott, 690 P.2d 1263 (Colo.1984)

; Pyles-Knutzen v. Board of County Comm'rs, 781 P.2d 164 (Colo.App.1989).

A.

Plaintiffs first contend that the trial court erred in making certain evidentiary rulings. We disagree.

A trial court has considerable discretion in ruling upon the admissibility of evidence, and we will find an abuse of discretion only if its ruling is manifestly arbitrary, unreasonable, or unfair. See Rojhani v. Meagher, 22 P.3d 554 (Colo.App.2000)

.

Generally, evidence that logically tends to prove or disprove a fact in issue or that sheds light upon a matter contested is relevant. Evidence so remotely related to contested issues that it affords only conjectural inference should not be admitted. People v. Rudnick, 878 P.2d 16 (Colo.App.1993). A trial court has considerable discretion in determining whether evidence has logical relevance. People v. Saiz, 32 P.3d 441 (Colo. 2001).

1.

At trial, plaintiffs objected to the testimony of the defense accident reconstruction expert because he had inspected the road after it had been altered. Plaintiffs also objected to the introduction of photographs of the road taken after the alteration. Plaintiffs continue on appeal to object to the expert's testimony as irrelevant and unreliable. We disagree.

We perceive no abuse of discretion in the court's determination that, regardless of the road modifications, the expert testimony could assist the jury in understanding the evidence. See CRE 702; People v. Shreck, 22 P.3d 68 (Colo.2001)(trial court has broad discretion in determining the admissibility of scientific evidence and should consider the reliability of the scientific principles, the qualifications of the witness, and the usefulness of the testimony to the jury). Importantly, we note, in rendering his opinion, the expert took the change in road conditions into account.

Moreover, to minimize any prejudice or confusion, the court excluded photographs taken by the expert that showed the modified road at the place of impact. Conversely, photographs of areas of the road other than the specific accident site, as the expert testified, established the approach to the point of impact and were neither confusing nor misleading.

2.

We also disagree with plaintiffs that reversal is required because a defense psychiatric expert, retained only to testify on the question of mitigation of damages, was allowed to testify as to father's alcohol consumption. Because the statement went beyond the scope of the anticipated testimony, it should have been timely disclosed. However, the court sustained plaintiffs' objection and limited that portion of the testimony to a single, brief sentence. See C.R.C.P. 16(b)(4); Freedman v. Kaiser Foundation Health Plan, 849 P.2d 811 (Colo.App.1992)(court has discretion to impose sanctions when expert testifies outside areas disclosed).

3.

At trial, defendant asked a police officer whether, at the accident scene, he had determined that defendant had "violated any statutes of ... the traffic code." Plaintiffs objected, and the court, in camera, stated that it would be inappropriate for the officer to answer the question, but ultimately did not sustain or overrule the objection and did not give a curative instruction to the jury. Plaintiffs contend that the court erred by not granting a mistrial on this basis. We disagree. Section 42-4-1713, C.R.S.2002, as relevant here, states that "no record of the conviction of any person for any violation of this article shall be admissible as evidence in any court in any civil action." This statutory proscription extends to reference to the issuance of a ticket. See Ripple v. Brack, 132 Colo. 125, 286 P.2d 625 (1955)

(statement by counsel regarding charges filed against defendant and question "you charged him with a traffic violation?" defeats underlying purpose of statute).

Here, however, rather than referring to a conviction or the issuance of a ticket, defendant asked the officer his opinion as to whether defendant had violated any traffic laws. Moreover, the trial court did not allow the witness to answer the question, and the question was not repeated.

Under these circumstances, although we disapprove of defense counsel's tactic, the mere possibility that the jury could infer that a traffic ticket had not been issued did not render the question so prejudicial as to require a mistrial. See Margenau v. Bowlin, supra

(denying mistrial not abuse of discretion where reference was only to issuance of a traffic ticket, no mention of the citation was repeated, and reference was inadvertent); Jackson v. Moore, 883 P.2d 622 (Colo.App.1994)(statement regarding issuance of ticket not expressly disallowed by statute; therefore, attorney fees should not have been awarded for mistrial).

Moreover, to the extent plaintiffs argue that because the question required a factual conclusion as to fault, it invaded the province of the jury, we note again that the court did not allow the officer to answer.

B.

Plaintiffs next challenge alleged improper statements by defense counsel.

1.

During opening and closing statements, defense counsel referred to evidence that parents did not wear seat belts and did not restrain their children. Plaintiffs contend that by making these statements, defendant improperly characterized the seat belt defense as going to comparative negligence. We disagree.

Evidence regarding lack of seat belt use is admissible at trial, but only to reduce an award of damages for pain and suffering. See § 42-4-237(7), C.R.S.2002; Churning v. Staples, 628 P.2d 180 (Colo.App.1981). Accordingly, statements regarding how the failure to use a seat belt caused certain injuries may be admitted. See Anderson v. Watson, 953 P.2d 1284 (Colo.1998)

(defendant may, but is not required to prove causal relationship between lack of seat belt use and injuries, and need prove only that seat belt was not worn).

Here, although the record indicates that defense counsel walked a dangerously fine line, generally, counsel's statements were not directed to parents' negligence, but rather to the causation of their injuries. Furthermore, the jury was given a proper limiting instruction at the close of the evidence. See Williams v. Chrysler Ins. Co., 928 P.2d 1375 (Colo.App.1996)

(the form of a limiting instruction is within the discretion of the trial court); People v. Sandoval, 709 P.2d 90 (Colo.App.1985)(we must presume that the jury followed the instructions given to it).

Similarly, we disagree with plaintiffs that it was error to allow the accident reconstruction expert to testify regarding lack of seat belt use. The court properly found that the testimony did not misstate the law and that a contemporaneous instruction would have been...