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Bedee v. American Med. Response of Colorado

Court of Appeals of Colorado, Div. A

September 10, 2015

Karen Bedee, Plaintiff-Appellant,
v.
American Medical Response of Colorado, Defendant-Appellee

Page 1084

Editorial Note:

This Opinion is subject to revision upon final publication.

El Paso County District Court No. 13CV30050. Honorable Thomas Kelly Kane, Judge.

Melat, Pressman & Higbie, LLP, Alanson Higbie, Colorado Springs, Colorado, for Plaintiff-Appellant.

DAGNER | SCHLUTER | MITZNER | WERBER, LLC, Leslie L. Schluter, Greenwood Village, Colorado, for Defendant-Appellee.

OPINION

LOEB, CHIEF JUDGE

Page 1085

[¶1] In this negligence action, plaintiff, Karen Bedee, appeals from the judgment entered on a jury verdict finding that defendant, American Medical Response of Colorado (AMR), was not negligent and did not cause her injuries suffered when an ambulance in which she was a passenger hit several unmarked dips in the road. Bedee contends that the trial court erred in rejecting her tendered jury instruction, which stated that an ambulance driver must exercise the highest possible degree of care. We conclude that, under the circumstances here, the trial court did not err in rejecting Bedee's tendered instruction. Accordingly, we affirm the judgment.

I. Background

[¶2] Bedee was a member of a medical team from St. Francis Medical Center transporting a neonate in an ambulance owned by AMR from St. Francis in Colorado Springs to a Denver children's hospital. Bedee was also in the ambulance on the return trip to Colorado Springs after the patient was delivered to the Denver hospital. The operators of the ambulance were employees of AMR.

Page 1086

[¶3] Throughout the trip, Bedee was a passenger in the back of the ambulance. The rear compartment of the ambulance was equipped with seat belts (lap belts only) for use by the occupants. The passengers in the rear compartment were separated by a partition with an opening from the cab where the driver and the other operator sat. The opening was large enough for the rear compartment passengers and the cab occupants to speak with each other and for the rear passengers to see through the front windshield.

[¶4] On the return trip to Colorado Springs, the ambulance allegedly hit a series of dips in the road. Testimony at trial was conflicting as to whether these dips were so harsh as to cause the isolette used to transport the neonate to dislodge. Bedee alleged that these dips dislodged the isolette and also jostled the rear passengers. She asserted that when the ambulance hit the dips, she was lifted off of her seat and slammed back down, which caused her lower back to twist and torque. Bedee contended that the AMR operators of the ambulance were negligent because they did not slow down when hitting the dips, and that she saw the driver looking at or using some type of device while driving. Bedee also alleged that the return trip had several abrupt stops or " short stops." She sought damages for a lower back injury that resulted in lower back pain, spasms, and disability.

[¶5] Before trial, Bedee submitted a trial brief arguing that the facts of this case required that an instruction be given to the jury stating that the ambulance operators owed its passengers the highest degree of care under the test set forth Lewis v. Buckskin Joe's, 156 Colo. 46, 396 P.2d 933 (1964), because of AMR's control over the ambulance and Bedee's lack of freedom of movement during the ride. AMR filed a rebuttal brief noting that ambulances are not common carriers under a Colorado statute and, therefore, the higher degree of care should not apply. At the jury instruction conference, Bedee objected to the ordinary negligence and standard of care instructions, and tendered an instruction stating that an ambulance driver must exercise the highest possible care. The trial court rejected Bedee's tendered instruction, concluding that a higher standard of care was not applicable in this case; instead, the court gave the ordinary negligence and standard of care instructions.

[¶6] At trial, evidence established that Bedee was wearing her lap belt on the return trip. According to her testimony, the ambulance was traveling at what seemed to her to be normal speeds as it left Denver and there was no change in speed or driving when the driver was allegedly looking at the device. AMR's documentary evidence from the ambulance's onboard recorder showed the speeds and G-forces of the ambulance during the return trip. These exhibits also indicated that the ambulance was traveling without emergency lights or sirens, that no abnormal G-forces were experienced during the trip, and that at the relevant times, the ambulance never exceeded a 0.2 gravitational force. AMR also admitted into evidence a data summary for the entire ambulance trip that was created by the onboard record system, which indicated that there were no hard accelerations or decelerations during the trip and no instances where the ambulance exceeded the speed limit (defined as exceeding the limit for more than ten seconds).

[¶7] After the jury was instructed with the ordinary negligence and standard of care instructions, it returned a verdict in favor of AMR, finding that, although Bedee had injuries, AMR did not act negligently and did not cause those injuries.

[¶8] Bedee now appeals, contending that the trial court reversibly erred in rejecting her proffered instruction on the highest standard of care and in giving the ordinary " reasonable person" standard of care instruction. We disagree.

II. Standard of Review

[¶9] Trial courts have a duty to correctly instruct juries on all matters of law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). A court reviews de novo whether a particular jury instruction correctly states the law. Id. As long as the instruction properly informs the jury of the law, a trial court has broad discretion to determine the form and style of jury instructions. Id. Therefore, we review a trial court's decision to give a

Page 1087

particular jury instruction for an abuse of discretion. Id. " A trial court's ruling on jury instructions is an abuse of discretion only when the ruling is manifestly arbitrary, unreasonable, or unfair." Id. A court can also abuse its discretion when its decision rests on a misunderstanding or misapplication of the law. Sinclair Transp. Co. v. Sandberg, 350 P.3d 915, 2014 COA 75M, ¶ 26.

III. Applicable Law

[¶10] The sole issue in this appeal is whether the ambulance operators in this case (and thus, AMR based on vicarious liability) should be held to the highest standard of care. No Colorado appellate court has addressed the issue whether ambulance operators are subject to the highest standard of care. Accordingly, we begin by discussing the situations and circumstances where ...


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