Whitlock v. University of Denver, 83CA0136

• Decision Date: 08 August 1985
• Docket Number: No. 83CA0136,83CA0136
• Citation: 712 P.2d 1072
• Parties: 30 Ed. Law Rep. 562 Oscar WHITLOCK, Plaintiff-Appellant and Cross-Appellee, v. UNIVERSITY OF DENVER, a Colorado corporation, Defendant-Appellee and Cross-Appellant. . III
• Court: Colorado Court of Appeals

Page 1072

712 P.2d 1072

30 Ed. Law Rep. 562

Oscar WHITLOCK, Plaintiff-Appellant and Cross-Appellee, v. UNIVERSITY OF DENVER, a Colorado corporation,

Defendant-Appellee and Cross-Appellant.

No. 83CA0136.

Colorado Court of Appeals,

Div. III.

Aug. 8, 1985.

Rehearing Denied Sept. 12, 1985.

Certiorari Granted (University) Jan. 31, 1986.

Gerash & Robinson, P.C., Walter L. Gerash, Scott H. Robinson, Denver, for plaintiff-appellant and cross-appellee.

Hall & Evans, Eugene O. Daniels, James A. Smith, Alan Epstein, Denver, for defendant-appellee and cross-appellant.

Kripke, Epstein & Lawrence, P.C., Scott W. Lawrence, Denver, amicus curiae for Colo. Trial Lawyers Ass'n.

Covington & Burling, Eugene D. Gulland, J. Peter Byrne, Washington, D.C., amicus curiae for American Council on Educ.

TURSI, Judge.

Plaintiff, Oscar Whitlock, appeals an order granting the defendant University of Denver's motion for judgment notwithstanding the verdict and, in the alternative, a remittitur or a new trial. The university cross-appeals that part of the trial court's order which upheld the jury's finding that the university owed a legal duty to the plaintiff. We reverse, and remand for reinstatement of the jury verdict.

On July 19, 1978, at approximately 10:00 p.m., plaintiff, a student at the defendant university, injured his neck on a trampoline while attempting a one and three quarters front flip. The injury rendered plaintiff a quadriplegic. The trampoline was owned by Beta Theta Pi, a recognized fraternity on the university's campus.

Plaintiff brought suit against the university, the fraternity, the trampoline manufacturer and seller, and several named individuals. Settlement was reached with all defendants except the university.

The jury returned a verdict in favor of plaintiff, finding the university to be 72% at fault and plaintiff to be 28% at fault for plaintiff's injuries. The jury determined plaintiff's total damages at $7,300,000 and, in accordance with the university's percentage of fault, judgment was entered against it for $5,256,000.

In granting the university's motion for judgment notwithstanding the verdict, the trial court found that plaintiff had presented sufficient evidence to establish duty and standard of care so that it was for the jury to determine whether that standard was breached. The trial court also found that there was evidence of contributory negligence. The court ruled, however, that the jury was improperly influenced by sympathy for the plaintiff's drastic injuries in assigning plaintiff only 28% of the fault. The court concluded that: "Excluding sympathy ... reasonable men and women hearing the evidence as to the University's negligence and weighing it against the evidence of contributory negligence committed by the plaintiff would have barred his recovery by finding him equally or more negligent than the University." Accordingly, the trial court set aside the jury's assessment of relative fault and entered a finding that the plaintiff's negligence exceeded that of the university.

In addition, the trial court found that the jury's determination of the total damages of $7.3 million was excessive and also was influenced by "sympathy, passion or prejudice." The court ruled that the proper measure of damages reflected by the evidence presented of plaintiff's loss of future earnings and pain and suffering should have been no more than $4 million. As an alternative measure therefore, the trial court entered a remittitur in that amount in the event its ruling on the judgment notwithstanding the verdict motion was overturned on appeal. As a third alternative, the trial court granted the university's motion for new trial.

I

The existence and scope of tort duties are questions of law for the court to determine. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo.1981). A legal duty to use reasonable care arises in response to a foreseeable risk of injury to others. Palmer v. A.H. Robbins Co., 684 P.2d 187 (Colo.1984); Metropolitan Gas Repair Service, Inc. v. Kulik, supra. In this negligence by omission case, the factors to be considered in determining whether the law should impose a duty are the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the defendant. See Iverson v. Solsbery, 641 P.2d 314 (Colo.App.1982). Here, the record amply supports the trial court's conclusion that the university owed a duty to persons in plaintiff's situation either to remove the trampoline from the fraternity premises or to supervise its use.

Evidence adduced at trial revealed the following facts. The Beta Theta Pi fraternity house (Beta house) is located in a central part of the university campus near an open and well traveled courtyard and a general classroom building. The house stood on land leased to the fraternity by the university. A trampoline had been present at various points on the lawn around the Beta house continuously for as long as 10 years prior to plaintiff's accident. There had also been a trampoline in front of a neighboring fraternity house. University personnel were aware of the presence and use of these trampolines.

There was testimony from former students and fraternity members that many students, people from the community, and children jumped on the Beta trampoline frequently, often in the evening. There was evidence that several individuals were injured as a result of jumping on trampolines owned by the Betas and the other fraternity. Some of these injuries were reported to university security and some individuals were treated by the university's student health clinic.

The university's director of athletics and recreation testified regarding the dangers surrounding the unsupervised use of trampolines. He stated that, when he began working at the university, the school owned only one trampoline which, he learned, students often jumped on without supervision. Because he believed that the trampoline was a dangerous piece of equipment, he had the trampoline locked up and issued keys to gymnastic coaches and their assistants. He instituted a policy whereby the trampoline was to be used only under the supervision of a coach.

Other evidence revealed that the university exercised a degree of control over certain activities of students in campus fraternities. A safety council created by the chancellor of the university sought to curb skateboarding on campus because of numerous injuries reported to the council by the campus security officers. The council required participants in fraternity boxing to have medical check-ups. The university also regulated fraternity greased pole climbing contests.

The assistant dean of student life visited fraternities once a week or so and discussed various issues including safety and violations of university policies. The dean and the safety council required that a grid be placed on a fraternity house window after a student had been injured falling out of it.

The lease between the Beta fraternity and the university was placed in evidence and revealed that the university was responsible for maintaining the fraternity building and its surroundings in "as good order and condition as other portions of the campus." The lease reserved in the university the right to terminate the lease for a violation of "the reasonable rules of conduct ... imposed from time to time on students ... by the [university]."

Plaintiff also entered into evidence, over the objection of the university, several documents and articles from publications dating from before plaintiff's accident showing increased concern among educators and sport professionals about the use of trampolines in schools and sports. These articles reported that spinal injuries and paralysis were common injuries resulting from improperly executed tumbling maneuvers on trampolines. Some members of the university's staff were familiar with these articles or with other information of this nature.

Defendant argues that our holding in Burchinal v. Gregory, 41 Colo.App. 490, 586 P.2d 1012 (1978), is controlling in this instance. We disagree.

In Burchinal we held that the mere ownership of a trampoline raised no duty to warn a 15-year-old user of the dangers of trampoline jumping which the user already understood and appreciated. The trial court in Burchinal granted defendants' motion for summary judgment when plaintiffs failed to introduce any evidence upon which to ground a duty upon defendants. There, plaintiffs seem to have relied solely upon the allegations in their complaint. Here, the plaintiff introduced abundant and sufficient evidence upon which a duty could be based and upon which a jury could compare the negligence of the parties and find the defendant's negligence to be greater than that of the plaintiff. Thus, under the facts of this case, Burchinal is inapposite.

II

The trial court granted the university's motion for judgment notwithstanding the verdict based upon its conclusion that "the strong effect of sympathy on the jury overrode the abundant and convincing evidence as to contributory negligence on behalf of the plaintiff." After reviewing the record, we are convinced that the trial court erred because there was no showing that passion or prejudice affected the jury's assessment of degree of fault.

The issue of percentage of negligence is one for the jury. Section 13-21-111(4), C.R.S. (1984 Cum.Supp.); Holmes v. Gamble, 655 P.2d 405 (Colo.1982). Only in the clearest of cases where the facts are undisputed and reasonable minds can draw only one inference from them should relative fault be determined as a matter of law. Transamerica Insurance Co. v. Pueblo Gas & Fuel Co., 33 Colo.App. 92, 519 P.2d 1201 (1973). A jury's determination of relative fault cannot be disturbed in the absence of a clear showing of passion or prejudice....