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Winkler v. Shaffer

Court of Appeals of Colorado, Fourth Division

May 7, 2015

John Winkler and Linda Winkler, Plaintiffs-Appellants,
v.
Jason Shaffer, Defendant-Appellee

Weld County District Court No. 11CV107. Honorable Daniel S. Maus, Judge.

The Murphy Law Firm, LLC, Brian A. Murphy, Wheat Ridge, Colorado, for Plaintiffs-Appellants.

Pryor Johnson Carney Karr Nixon, P.C., Valerie A. Garcia, Elizabeth C. Moran, Greenwood Village, Colorado, for Defendant-Appellee.

Bernard and Miller, JJ., concur.

OPINION

HAWTHORNE, JUDGE.

Page 1021

[¶1] Plaintiffs, John Winkler and Linda Winkler, appeal the judgment entered on a jury verdict for defendant, Jason Shaffer. Plaintiffs contend that the trial court erred in denying their motion to strike a video deposition and declining to give a negligence per se jury instruction. We conclude that any alleged error with respect to the deposition was harmless and that the court did not err in declining to give a negligence per se instruction because if given the instruction would have been redundant to the jury instructions on common law negligence. We affirm.

I. Facts and Procedural History

[¶2] Plaintiffs were injured in a multi-vehicle accident during a snowstorm on an icy highway. Defendant lost control of a semitrailer truck after he was struck by two vehicles, and came to a stop blocking the highway. Plaintiffs' vehicle hit defendant's truck in the ensuing pile-up. Plaintiffs sued defendant and a number of other co-defendants, who are not parties to this appeal.

[¶3] At trial, defendants submitted a video deposition of Sergeant Gates. Sergeant Gates was the first law enforcement officer to respond to the accident and witnessed part

Page 1022

of the accident. He described the weather and road conditions on the day of the accident, and concluded that defendant drove reasonably given those conditions.

[¶4] Following the trial, the jury concluded that plaintiffs had suffered injuries. The jury found that some co-defendants were negligent and had caused one hundred percent of plaintiffs' injuries. On the other hand, the jury concluded that defendant and several additional co-defendants were not negligent and had not caused plaintiffs' injuries.

[¶5] The co-defendants that were found negligent at trial are not a party to this appeal. As to the remaining co-defendants, some settled and some were dismissed. So, despite the parties' briefings addressing co-defendants, we only address plaintiffs' arguments with respect to defendant.

II. Sergeant Gates's Deposition

[¶6] Plaintiffs assert that the trial court erred in denying their motion to strike Sergeant Gates's deposition. ...


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