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Leaf v. Beihoffer

Court of Appeals of Colorado, Fifth Division

September 11, 2014

Michael Leaf, Plaintiff-Appellant,
Peter Beihoffer, Defendant-Appellee

Page 1137

Boulder County District Court No. 11CV887. Honorable Maria E. Berkenkotter, Judge, Honorable D.D. Mallard, Judge.

Nathan Berger & Associates, Nathan M. Berger, Denver, Colorado; The Ferris Law Firm, LLC, John P. Ferris, Denver, Colorado, for Plaintiff-Appellant.

The Ross-Shannon Law Firm, P.C., Bradley Ross-Shannon, Gregory F. Szydlowski, Lakewood, Colorado, for Defendant-Appellee.

Opinion by JUDGE J. JONES. Hawthorne and Ashby, JJ., concur.


Page 1138


[¶1] In this negligence action, plaintiff, Michael Leaf, appeals the district court's judgment entered on a jury verdict in favor of defendant, Peter Beihoffer. We affirm.

[¶2] One of the issues Mr. Leaf presents for review is one of first impression in Colorado: whether evidence of a witness's failure to file income tax returns for several years is probative of the witness's character for truthfulness and therefore admissible under CRE 608(b) to impeach the witness's credibility. We hold that it is. Accordingly, we reject Mr. Leaf's challenge to the district court's ruling allowing such evidence.

I. Background

[¶3] Mr. Beihoffer's car rear-ended Mr. Leaf's taxicab on February 26, 2010, on an icy road. A police officer estimated that Mr. Beihoffer's car was traveling at fifteen miles per hour when it struck Mr. Leaf's stopped car. The only property damage resulting from the crash was paint transfer on the bumpers of the two vehicles.

[¶4] Officer John Smyly testified that Mr. Beihoffer was unsteady after the accident and smelled of marijuana. Mr. Beihoffer failed roadside sobriety tests, admitted that he had taken two Xanax tablets before driving, and subsequently tested positive for marijuana. Police found six Xanax tablets in Mr. Beihoffer's pocket and marijuana in the vehicle. " I believe he was impaired," Officer Smyly testified. Mr. Beihoffer ultimately pleaded guilty to a misdemeanor charge of driving under the influence of drugs (DUI), in violation of section 42-4-1301(1)(a), C.R.S. 2013.

[¶5] Mr. Leaf did not complain of injuries at the scene. However, he sought emergency room treatment for pain nine days after the accident and began treatment with a chiropractor two months after the accident.

[¶6] Mr. Leaf sued Mr. Beihoffer for negligence, alleging that the collision had caused him permanent spinal injuries.[1] Mr. Beihoffer denied that he had been negligent; he also asserted that Mr. Leaf had suffered no injuries in the crash, and that any permanent spinal injuries were caused by Mr. Leaf's serious ski accidents rather than the collision.

[¶7] A jury found that (1) Mr. Beihoffer had not been negligent; (2) Mr. Leaf had not suffered any injuries or damages; and (3) there was no causal connection between the alleged negligence and the claimed injuries. Accordingly, the court entered judgment in Mr. Beihoffer's favor.

II. Discussion

[¶8] Mr. Leaf contends that the district court erred by (1) not giving preclusive effect to Mr. Beihoffer's DUI guilty plea and by excluding evidence that Mr. Beihoffer had pleaded guilty to DUI; (2) rejecting his proposed jury instruction defining DUI; (3) excluding medical evidence he provided to Mr. Beihoffer after the court's cut-off date for discovery; and (4) allowing impeachment evidence that he had failed to file income tax returns for several years. We discern no reason to reverse.

A. Standard of Review

[¶9] We review a district court's evidentiary rulings for an abuse of discretion. Wal-Mart Stores, Inc. v. Crossgrove, 276 P.3d 562, 2012 CO 31, ¶ 7; Mullins v. Med. Lien Mgmt., Inc., 2013 COA 134, ¶ 35. " 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." Wark v. McClellan, 68 P.3d 574, 578 (Colo. App. 2003).

Page 1139

[¶10] We also review a district court's " decision to give a particular jury instruction for an abuse of discretion." Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011); see Bedor v. Johnson, 292 P.3d 924, 2013 CO 4, ¶ 8.

[¶11] Mr. Leaf preserved the issues he raises on appeal. So if we determine that the court erred in admitting or excluding evidence or in refusing to give the jury the particular instruction at issue, we must reverse the judgment unless we determine that any such error was harmless. An error was harmless if it did not affect a party's substantial rights. C.R.C.P. 61; see CRE 103(a). " An error affects a substantial right only if 'it can be said with fair assurance that the error substantially influenced the outcome of the case or impaired the basic fairness of the trial itself.'" Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (quoting in part Banek v. Thomas, 733 P.2d 1171, 1178 (Colo. 1986)).

B. Analysis

[¶12] To prevail on a negligence claim, the plaintiff must prove (1) the existence of a legal duty of the defendant to the plaintiff; (2) breach of that duty; (3) injury and damages to the plaintiff; and (4) a sufficient causal connection between the defendant's breach and the plaintiff's damages. E.g., HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879, 888 (Colo. 2002); Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320 (Colo. 1992). If a plaintiff fails to establish any one of these elements, any errors related to other elements are necessarily harmless because the plaintiff cannot prevail in any event. See, e.g., Schlesselman v. Gouge, 163 Colo. 312, 316, 431 P.2d 35, 37 (1967) (refusing to consider contentions of error related to damages where the jury returned a verdict in favor of the defendant on " the basic issue of liability" ); Vanderpool v. Loftness, 2012 COA 115, ¶ 31 (jury findings against the plaintiff on the issues of liability and causation rendered harmless any error related only to damages); Dunlap v. Long, 902 P.2d 446, 448-49 (Colo. App. 1995) (jury determination that the plaintiffs suffered no injury or damages rendered harmless any error related only to the defendant's liability).

[¶13] In this case, the jury returned a special verdict form, finding against Mr. Leaf on the elements of breach of duty, damages, and causation. (Mr. Beihoffer did not deny that he owed a legal duty to Mr. Leaf to be reasonably careful.) Thus, unless Mr. Leaf can show error relating to all three of those elements, reversal is not warranted.

[¶14] Mr. Leaf's first two contentions of error -- the exclusion of Mr. Beihoffer's guilty plea to DUI, and the rejection of Mr. Leaf's proposed jury instruction on DUI -- relate only to the element of breach of duty.[2] His third contention of error -- the exclusion of medical evidence -- relates only to the element of damages. But his final contention of error -- the admission of evidence that he failed to file income tax returns -- concerns an attack on his credibility generally, and therefore relates to all three elements. This is because Mr. Beihoffer's counsel introduced evidence of Mr. Leaf's failure to file tax returns to cast doubt on Mr. Leaf's truthfulness, and, under the facts of this ...

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