Watson v. Regional Transp. Dist.

• Decision Date: 08 May 1986
• Citation: Watson v. Regional Transp. Dist., 729 P.2d 988 (Colo. App. 1986)
• Docket Number: 84CA0480
• Parties: Jayma WATSON, Plaintiff-Appellant and Cross-Appellee, v. REGIONAL TRANSPORTATION DISTRICT, Defendant-Appellee and Cross-Appellant. . III
• Court: Colorado Court of Appeals

Page 988

729 P.2d 988

Jayma WATSON, Plaintiff-Appellant and Cross-Appellee, v. REGIONAL TRANSPORTATION DISTRICT, Defendant-Appellee and Cross-Appellant.

No. 84CA0480.

Colorado Court of Appeals Div. III.

May 8, 1986.

Rehearing Denied June 12, 1986.

Certiorari Granted Dec. 8, 1986.

Stevens & Littman, P.C., Andrew C. Littman, Boulder, for plaintiff-appellant and cross-appellee.

Eiberger, Stacy & Smith, Lawrence D. Stone, Denver, for defendant-appellee and cross-appellant.

METZGER, Judge.

Plaintiff, Jayma Watson, sustained injuries when a motorcycle upon which she was riding and which was being driven by her husband, Randy Watson, collided with a bus owned by defendant, the Regional Transportation District (RTD). From the judgment entered in her resulting negligence action, she appeals, and RTD cross-appeals. We reverse and remand for a new trial.

Prior to the accident plaintiff, and her husband, who had been drinking, were performing errands. The motorcycle was proceeding on a street in Boulder when it rear-ended the RTD bus after skidding for 63 feet. When the collision occurred, the bus had its right turn signal on, and the driver was in the process of making a right-hand turn, but was unable to complete the turn because of traffic on the street he was turning into.

Prior to trial, the trial court ruled that, as a matter of law, any negligence by the motorcycle driver would be imputed to plaintiff. At trial it was established that the motorcycle involved in the accident was jointly owned by plaintiff and her husband, but that plaintiff did not know how to operate the motorcycle. At the conclusion of the evidence, the trial court directed a verdict finding Randy Watson negligent as a matter of law.

The case was submitted to the jury to determine if RTD were negligent, and, if it were found negligent, to determine the comparative negligence of the parties.

The trial court instructed the jury to impute Randy Watson's negligence to plaintiff and explained why it had found Randy Watson negligent. However, it rejected three of RTD's tendered instructions dealing with Randy Watson's specific duties as a motorist because, it held, those instructions might confuse the jury.

The jury returned a verdict finding RTD to be 51 percent negligent, plaintiff to be 49 percent negligent, and awarded plaintiff $100,000 in total damages.

In plaintiff's appeal, she contends that the trial court erred in imputing to her the negligence of her husband, the driver. In its cross-appeal, RTD contends, among other arguments for reversal, that the trial court erred when it failed to give specific instructions to the jury concerning Randy Watson's duty of care.

We reject plaintiff's contentions, but agree with RTD's major assertion, and accordingly reverse and remand for a new trial.

I.

Plaintiff argues that, because she did not have a motorcycle license and had no actual control over the motorcycle nor ever exercised verbal control, and because the title to the motorcycle was held jointly only for financing purposes, the presumption of right to control the motorcycle was rebutted. Accordingly, she contends the trial court erred in imputing the driver's negligence to her. We disagree.

A driver's negligence may be imputed to a passenger if the passenger has a right to control the driver. Moore v. Skiles, 130 Colo. 191, 274 P.2d 311 (1954). A right to control the driver is presumed if an owner or joint owner is riding as a passenger in his own vehicle in order to accomplish a common purpose with the driver. Moore v. Skiles, supra. See also Kussman v. City & County of Denver, 706 P.2d 776 (Colo.1985); Hover v. Clamp, 40 Colo.App. 410, 579 P.2d 1181 (1978). The presumption of the right to control is rebuttable by evidence that the driver was driving the vehicle solely for his own purposes and was not acting as an agent for his passenger-owner or co-owner. See Moore v. Skiles, supra.

Here, it was undisputed that plaintiff and the driver were co-owners engaged in agreed-upon errands on their way to an agreed destination. These circumstances are sufficient to support an imputation of the driver's negligence to plaintiff.

II.

RTD contends on cross-appeal that the trial court erred when it failed to give three tendered...