Watson v. Regional Transp. Dist.

• Court: Colorado Supreme Court
• Writing for the Court: LOHR
• Citation: Watson v. Regional Transp. Dist., 762 P.2d 133 (Colo. 1988)
• Decision Date: 12 September 1988
• Docket Number: 86SC230
• Parties: Jayma WATSON, Petitioner, Cross-Respondent, v. REGIONAL TRANSPORTATION DISTRICT, Respondent, Cross-Petitioner.

Page 133

762 P.2d 133

57 USLW 2174

Jayma WATSON, Petitioner, Cross-Respondent, v. REGIONAL TRANSPORTATION DISTRICT, Respondent, Cross-Petitioner.

No. 86SC230.

Supreme Court of Colorado En Banc.

Sept. 12, 1988.

As Modified on Denial of Rehearing Oct. 17, 1988.

Stevens & Littman, Andrew C. Littman, Boulder, for petitioner, cross-respondent.

Eiberger, Stacy & Smith, Lawrence D. Stone, Denver, for respondent, cross-petitioner.

LOHR, Justice.

Jayma Watson (Watson) suffered severe injuries to her right leg and foot when the motorcycle on which she was riding as a passenger collided with a bus owned and operated by the Regional Transportation District (RTD). The motorcycle was operated by Watson's husband, Randy. Watson brought a negligence action against RTD. A jury determined that she had suffered damages in the amount of $100,000 and that fifty-one percent of the damages were caused by the negligence of RTD and forty-nine percent by the negligence of Randy Watson. The trial court ruled that the negligence of Watson's husband must be imputed to her and entered judgment in favor of Watson and against RTD in the sum of $51,000. Watson appealed and RTD cross-appealed. The Colorado Court of Appeals upheld the imputation of the negligence of Randy Watson to his wife but reversed the judgment and remanded for a new trial on the basis of RTD's cross-appeal because of defects in the jury instructions. Watson v. Regional Transp. Dist., 729 P.2d 988 (Colo.App.1986). We granted Watson's petition for certiorari to review the imputation of negligence issue, and granted RTD's cross-petition for certiorari to resolve a work product question not addressed by the court of appeals. We conclude that the negligence of Watson's husband should not have been imputed to her and that the trial court properly resolved the work product issue. We therefore remand the case to the court of appeals with directions to return it to the trial court for a new trial.

I.

This case arose out of a traffic accident that occurred on April 23, 1982, in Boulder, Colorado. Watson and her husband were traveling west on their motorcycle on Arapahoe Avenue at a distance behind an RTD bus. The bus stopped for a stoplight at 33rd Street and began a right turn after the light changed. Before completing the turn, the bus stopped again. ¹ Watson's husband applied the brakes on the motorcycle when he saw the bus stop. The motorcycle skidded sixty-three feet and struck the rear of the bus.

At the time of the accident, the Watsons were running errands prior to traveling to Longmont with friends. Although Jayma Watson owned the motorcycle jointly with her husband, she did not have an operator's license and did not know how to operate the motorcycle.

Watson brought an action against RTD in Boulder County District Court for the injuries she suffered in the accident, alleging that the RTD bus driver was negligent, that RTD was negligent in choosing the bus route, and that these acts of negligence were the causes of her injuries. ² RTD denied the allegations of negligence and affirmatively alleged that Watson's negligence or the negligence of her husband caused or contributed to the accident. RTD further asserted that any negligence of Watson's husband must be imputed to her.

Prior to trial, RTD moved for summary judgment. In the motion, RTD argued that the accident was caused solely by the negligence of Watson's husband. RTD further argued that Randy Watson's negligence must be imputed to Jayma Watson as a matter of law, "since Jayma Watson is the joint owner of the motorcycle, was a passenger on the motorcycle at the time of the rear-end collision, and Mr. and Mrs. Watson were proceeding to an agreed upon destination for a common purpose." RTD also argued that "[t]here is no evidence or facts which demonstrate any negligence on the part of [RTD] at the time the rear-end collision occurred."

The trial court granted RTD's motion in part, holding that Randy Watson was negligent as a matter of law and that his negligence must be imputed to Jayma Watson. The court denied the motion with respect to RTD's negligence, finding that a genuine issue of material fact existed as to whether RTD was negligent. Watson subsequently filed a motion to reconsider the granting of partial summary judgment. Following a hearing, the trial court rescinded its ruling that Watson's husband was negligent as a matter of law. However, the court refused to alter its ruling that any negligence on the part of Watson's husband would be imputed to Watson.

During the course of discovery, Watson's counsel and an accident-reconstruction expert conducted and videotaped an experiment involving an RTD bus performing turns from Arapahoe Avenue onto 33rd Street at the location of the accident. The experiment was done with the cooperation of RTD, which supplied the driver. Shortly thereafter on the same day, RTD's counsel conducted and personally videotaped a second experiment. Watson's counsel and the accident-reconstruction expert observed the second experiment although RTD's counsel was not aware of their presence. Watson's counsel subpoenaed the videotape of the second experiment. Prior to the trial, RTD's counsel objected to the production of the videotape on the grounds that it constituted his work product and that its admission into evidence would make him a potential witness in the case. The court ordered RTD to produce the videotape pursuant to the subpoena for submission to the jury. The court, however, refused to allow Watson's counsel to preview the tape, because in the court's view that would have constituted discovery after the deadline for discovery had passed.

The case proceeded to a trial before a jury. Both videotapes were admitted into evidence and shown to the jury as part of Watson's case. At the conclusion of the evidence, the trial court directed a verdict in favor of RTD on the issue of the negligence of Watson's husband. The court instructed the jury that

[t]he Court has determined as a matter of law that Randy Watson was negligent at the time of the accident because he did not drive his motorcycle in such a manner as to avoid hitting the bus that was in front of him. This negligence is chargeable to Jayma Watson because she was a co-owner riding the motorcycle which was being used for a purpose in common with the driver and had a right to control his vehicle. Therefore, the Court has determined as a matter of law that the plaintiff, Jayma L. Watson, was negligent.

RTD tendered four jury instructions pertaining to the standard of care applicable to the conduct of Watson's husband. The first three instructions regarded looking but failing to see what must have been plainly visible as a failure to use reasonable care, the duty to drive at a speed no greater than is reasonable under the existing conditions, and the duty to maintain a proper lookout. The fourth tendered instruction was a negligence per se instruction. The trial court refused to submit the instructions to the jury. ³

The jury returned a verdict finding RTD fifty-one percent negligent and Jayma Watson forty-nine percent negligent and set damages at $100,000. Following the trial, RTD filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. RTD argued, among other things, that the trial court erred as a matter of law in failing to give the four jury instructions on Randy Watson's standard of care and negligence per se, and that the trial court erred in permitting Watson's counsel access to the videotape of RTD's experiment and further erred in permitting the jury to view the tape. Watson also sought relief, pursuant to C.R.C.P. 59. ⁴ In her motion, Watson argued that the trial court erred as a matter of law by imputing Randy Watson's negligence to her. The trial court denied the motions.

Watson appealed to the court of appeals, contending that the trial court erred in imputing Randy Watson's negligence to her. The court of appeals affirmed the trial court's ruling. RTD cross-appealed, arguing that the trial court erred in refusing to give the three instructions regarding the duty of care owed by Watson's husband. RTD did not appeal the trial court's refusal to give the negligence per se instruction. The court held that "[t]he failure to give these instructions prejudiced RTD to the extent that the jury had access to the applicable law to determine RTD's comparative negligence, but lacked access to the specific law applicable for the determination of plaintiff's comparative negligence." Watson v. Regional Transp. Dist., 729 P.2d at 990-91. The court accordingly reversed the judgment and remanded for a new trial. RTD raised additional arguments on appeal before the court of appeals, including the contention that the trial court erred in permitting the jury to view the videotape of the accident scene filmed by RTD's counsel. The court of appeals summarily rejected these arguments. Watson, 729 P.2d at 991. Watson petitioned for certiorari and RTD cross-petitioned. We granted certiorari to consider whether the negligence of Randy Watson was properly imputed to Jayma Watson and whether the trial court erred in permitting the jury to view RTD's counsel's videotape of the accident scene. We first address the imputed comparative negligence issue and then consider the matter of the videotape.

II.

A.

This case presents an issue concerning the circumstances under which the negligence of the operator of a motor vehicle should be imputed to a passenger in a negligence action brought by the passenger against a third party to recover damages for personal injuries. The seminal Colorado case regarding this issue is Moore v. Skiles, 130 Colo. 191, 274 P.2d 311 (1954). ⁵ In Moore v. Skiles, the plaintiff was injured when the truck driven by her husband in which she was riding as a passenger was involved in an accident with another vehicle. The couple owned the truck jointly. The...