White v. Hansen

• Decision Date: 21 September 1992
• Docket Number: No. 91SC162,91SC162
• Citation: 837 P.2d 1229
• Parties: Craig W. WHITE, Petitioner/Cross-Respondent, v. Gary L. HANSEN, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

Page 1229

837 P.2d 1229

Craig W. WHITE, Petitioner/Cross-Respondent, v. Gary L. HANSEN, Respondent/Cross-Petitioner.

No. 91SC162.

Supreme Court of Colorado En Banc.

Sept. 21, 1992.

Louis A. Weltzer, Stephen R. Ehrlich, Denver, for petitioner, cross-respondent.

Law Office of Gary P. Sandblom, P.C., Gary P. Sandblom, Boulder, for respondent, cross-petitioner.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari to review White v. Hansen, 813 P.2d 750 (Colo.App.1990), which was an appeal from a judgment in a personal injury action that was tried to a jury. The jury returned a verdict finding that both the plaintiff and the defendant were fifty percent negligent, but awarded exemplary damages to the plaintiff for the defendant's willful and wanton conduct. The district court entered judgment for the defendant on the negligence claim and vacated the verdict for punitive damages. The court of appeals affirmed the district court's judgment for the defendant, Gary L. Hansen (Hansen), but reversed that part of the judgment that vacated the award of exemplary damages ¹ to the plaintiff, Craig W. White (White). The three issues to be reviewed on certiorari are:

1. Whether section 13-21-111(1), 6 C.R.S. (1973), of Colorado's comparative negligence statute permits the negligence of one party to be compared to the willful and wanton conduct of another.

2. Whether a statement taken from an injured person in violation of section 13-21-301, 6A C.R.S. (1982 Supp.), may be used by the person taking such statements in an action arising out of the incident causing the injury, when the statement is given by a person who is not a party to the action.

3. Whether the court of appeals erred in ruling that a plaintiff in a personal injury action whose fault is equal to or greater than that of the defendant can still recover exemplary damages.

We answer all three questions in the affirmative. The third issue is of limited precedential value since the enactment of section 13-21-102(1)(a), 6A C.R.S. (1987), and the announcement of Lira v. Davis, 832 P.2d 240 (Colo.1992). ²

Accordingly, we affirm in part, reverse in part, and remand to the court of appeals with directions to affirm the district court's order entering judgment for Hansen and vacating the punitive damage award in favor of White.

I

In the early morning hours of March 24, 1983, White and a companion, Gund Larsen (Larsen), were walking with their backs to traffic down the travel lanes of a street in Aspen, Colorado, when they were struck by an automobile driven by Hansen. Hansen had been drinking earlier that evening before he commenced his drive home. Both White and Larsen suffered personal injuries, and were hospitalized and received medical treatment for their injuries. White's injuries are the subject of this litigation.

The day following the accident, Larsen, who is not a party to this action, was contacted by an investigator acting on behalf of the car's owner. Larsen gave the representative a statement. Because Larsen returned to her home in Norway she was not available to testify at White's trial. A portion of her statement to the investigator was admitted as a declaration against interest over the objection that section 13-21-301, 6A C.R.S. (1987), barred admission of the statement. ³

At the conclusion of trial, the jury found that White had suffered $1,000 in actual damages, and awarded $5,000 in exemplary damages pursuant to section 13-21-102, 6 C.R.S. (1973). In awarding the exemplary damages, the jury determined that Hansen's act of driving under the influence of alcohol was "willful and wanton conduct" as that term is defined in the statute. ⁴ The jury also allocated the percentage of fault for the accident equally to both White and Hansen, finding each fifty percent negligent.

II

White claims that while it is proper to compare negligent conduct to negligent conduct, willful and wanton misconduct is different in kind from ordinary negligence and should not be considered in reaching an award for comparative negligence. He argues that because the jury found Hansen's conduct to be willful and wanton for purposes of our exemplary damages statute his own negligence should not be compared to Hansen's misconduct. While many jurisdictions, including Colorado, have discussed such distinctions in tort actions, we find that under our comparative fault statute they are not necessary, and do not affect the allocation of fault between the respective parties.

The terms willful and wanton misconduct, willful and wanton negligence, gross negligence, reckless conduct, and reckless negligence, were adopted in various formulations by virtually every jurisdiction to combat the injustice brought about by the affirmative defense of contributory negligence. The common thread that separates these fault concepts from ordinary negligence is that the defendant's conduct is so aggravated as to be all but intentional. ⁵

The demarcation line between the terms has led to the conclusion that the terms describe a form of aggravated negligence that differs in quality rather than degree from ordinary lack of care. See W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34, at 214 (5th ed. 1984). Our exemplary damages statute recognizes the distinction between negligence and willful and wanton conduct providing for the recovery of exemplary damages in addition to compensatory damages, and prevents contribution between defendants in applicable cases. See §§ 13-21-102, 13-50.5-102, 6A C.R.S. (1987).

It has never been the law in Colorado that, in ordinary negligence cases, ⁶ willful and wanton misconduct or reckless misconduct barred the application of contributory negligence. Rather, we have consistently held that willful conduct not rising to the level of an intentional tort would not protect a negligent plaintiff from the application of the contributory negligence defense. See Healy v. Hewitt, 101 Colo. 92, 71 P.2d 63 (1937); Denver & R.G.R.R. Co. v. Spencer, 25 Colo. 9, 52 P. 211 (1898).

In Healy, we held that a complaint charging a defendant with wanton and/or willful disregard of the rights and safety of others is not the equivalent of an allegation of willful or intentional injury. We held an instruction that contributory negligence would not bar plaintiff's claim if it found that the defendant's conduct was wanton, willful or reckless ⁷ was reversible error because "negligence is never anything more than negligence." Healy, 101 Colo. at 98, 71 P.2d at 66.

Contributory negligence imposed a severe penalty on a plaintiff whose ordinary or simple negligence provided the basis for a defense of contributory negligence as a bar to recovery even though the defendant's negligence was gross, reckless, or willful. In response to this inequity, the General Assembly enacted section 13-21-111, 6 C.R.S. (1973), entitled "Negligence cases--comparative negligence as measure of damages." See Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883 (Colo.1983); Darnell Photographs, Inc. v. Great American Ins. Co., 33 Colo.App. 256, 519 P.2d 1225 (1974). When the General Assembly adopted the comparative negligence statute in 1971 it was aware of our prior decisions which refused to recognize distinct degrees or qualities of negligence for purposes of barring claims of contributory negligence. See Rauschenberger v. Radetsky, 745 P.2d 640, 643 (Colo.1987); Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973). Had the legislature intended to differentiate between the quality of negligent conduct for purposes of comparing the parties' fault, it would have done so.

To determine comparative negligence, the trier of fact must allocate the weight to be assigned each party's conduct. ⁸ We believe, as a majority of the courts and commentators do, that labels assigned to negligent conduct serve only to distract the trier of fact from a proper determination of comparative fault. See Sorenson v. Allred, 112 Cal.App.3d 717, 169 Cal.Rptr. 441 (1980) (noting that the elimination of such "buzz" words as willful misconduct, causes the focus to be on the real issue--the degrees of fault of each party); Downing v. United Auto Racing Ass'n, 211 Ill.App.3d 877, 156 Ill.Dec. 352, 570 N.E.2d 828 (1991). See also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34, at 210 (5th ed. 1984) ("there are such things as major or minor departures from reasonable conduct; but the difficulty of classification, because of the very real difficulty of drawing satisfactory lines of demarcation, together with the unhappy history, justifies the rejection of distinctions in most situations").

The trier of fact must weigh the conduct of the parties, be it slightly, grossly, recklessly or willfully negligent, and make the appropriate percentage allocation of fault. ⁹ Therefore, in an action based upon the non-intentional conduct of the defendant, it is not relevant that the trier of fact decides that the defendant engaged in willful and wanton conduct for purposes of awarding exemplary damages under section 13-21-102. ¹⁰ If the trier of fact determines the plaintiff's negligence is greater or equal to the defendant's, judgment must be entered in favor of the defendant. If on the other hand, the trier of fact determines the plaintiff's negligence was less than the defendant's, an award of compensatory damages may be made, the amount of which will be offset by the percentage of the plaintiff's fault, if any. In our view, if the plaintiff prevails on the underlying claim and the trier of fact finds the defendant acted willfully and wantonly, exemplary damages may be awarded under section 13-21-102.

III

White claims the admission into evidence of portions of a hearsay statement given by Larsen to an investigator was error. There is no dispute that the statement in question is hearsay and allegedly was taken from Larsen in violation of section 13-21-301(1). ¹¹ The question is whether the...