Laura A. Newman, LLC d/b/a Herb's and Herb's Jazz & Blues, Petitioner:
T. Lawton Roberts, Respondent:
Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 11CA1851.
The Colorado Supreme Court holds that allowing a civil litigant fewer peremptory challenges than authorized, or than available to and exercised by the opposing party, does not by itself require automatic reversal. Instead, the reviewing court must determine whether the error substantially influenced the outcome of the case in accordance with C.R.C.P. 61. This conclusion follows from People v. Novotny, 2014 CO 18, 320 P.3d 1194, where we determined that the automatic reversal rule in the criminal context rested on the assumption that impairment of the ability to shape the jury through peremptory challenges affected a " substantial right" and thus warranted automatic reversal. This same assumption undergirds our parallel rule in the civil context, but, as we held in Novotny, subsequent developments in the law concerning harmless error analysis and the significance of the right to shape the jury have invalidated that assumption. As such, we reject the automatic reversal rule in the civil context and overrule prior decisions to the contrary. See Blades v. DaFoe, 704 P.2d 317 (Colo. 1985); Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (Colo. 1975); Denver City Tramway Co. v. Kennedy, 50 Colo. 418, 117 P. 167 (Colo. 1911).
Attorneys for Petitioner: John J. Coates, Kevin M. Coates, Dill Dill Carr Stonbraker & Hutchings, P.C., Denver, Colorado; Benjamin E. Tracy, Nathan Dumm & Mayer, P.C., Denver, Colorado.
Attorneys for Respondent: Damian S. Stone, The Law Office of Damian Stone, P.C., Denver, Colorado; T. Thomas Metier, Esq., Metier Law Firm, LLC, Fort Collins, Colorado.
Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Jason Wesoky, Darling Milligan Horowitz, P.C., Denver, Colorado; Adrienne M. Tranel, Bachus & Schanker, LLC, Denver, Colorado.
dissents, and HOOD, JUSTICE joins in the dissent.
[¶1] During jury selection in this civil case, the plaintiff challenged a juror for cause, but the trial court denied the challenge. The plaintiff then exercised one of his peremptory challenges to excuse the juror. On appeal, the court of appeals held that the trial court's denial was erroneous.
Roberts v. Newman, No. 11CA1851, slip op. at 3-4 (Colo.App. March 7, 2013). Then, relying on Blades v. DaFoe, 704 P.2d 317, 323 (Colo. 1985), in which we adopted a rule of automatic reversal for such errors in civil jury trials, the court reversed and remanded for a new trial without examining whether the error was harmless. Roberts, slip op. at 16-17.
[¶2] Today we conclude that the same reasoning that led us to reject the automatic reversal rule in the criminal context, see People v. Novotny, 2014 CO 18, 320 P.3d 1194, requires us to reject the analogous rule in civil cases. As we detailed in Novotny, the automatic reversal rule in the criminal context rested on the assumption that impairment of the ability to shape the jury through peremptory challenges affected a " substantial right," and, in fact, amounted to a due process violation. Id. at ¶ ¶ 14-16, 320 P.3d at 1199. Such impairment, we continued, was per se reversible error and not subject to harmless error review, which instructs a court to disregard any error that does not affect a substantial right. Id. at ¶ 14, 320 P.3d at 1199. As we traced in Novotny, however, subsequent developments in U.S. Supreme Court jurisprudence wiped away the foundations of that assumption, suggesting that an error regarding the ability to shape the jury is not a due process violation, and would affect a substantial right only if it substantially affected the outcome of the trial. Id. at ¶ 17, 320 P.3d at 1200. Today, we conclude that the automatic reversal rule of Blades, designed to remedy an error that impaired a litigant's " substantial rights" and " right to a fair and impartial jury," 704 P.2d at 322, 324, rests on the same--no longer viable--assumption.
[¶3] Accordingly, we now overrule our cases to the contrary and hold that allowing a civil litigant fewer peremptory challenges than authorized, or than available to and exercised by the opposing party, does not by itself require automatic reversal. Instead, the reviewing court must determine whether the error substantially influenced the outcome of the case in accordance with the civil harmless error rule, C.R.C.P. 61. We therefore reverse the court of appeals and remand the case for further proceedings consistent with this opinion.
[¶4] This case arises from an altercation between plaintiff-respondent, T. Lawton Roberts, and several unidentified patrons of Herb's, a bar owned and operated by Newman, LLC. Although the sequence of events is disputed, the parties generally agree that Roberts suffered severe injuries during the altercation, which occurred in a public parking lot across the back alley from Herb's. Roberts sued Newman, LLC and the bar's landlord, L& H. He also sued Newman, LLC's managing members, Laura Newman and Holly Morrison, arguing that they could be held individually responsible for any liability
attributed to Newman, LLC under a theory of equitable ownership and piercing the corporate veil. Roberts stated several claims for relief against all four defendants, including negligence and a claim under the Premises Liability Act (" PLA" ), § 13-21-115, C.R.S. (2015). Only Newman, LLC is a party to this proceeding.
[¶5] During jury selection, Roberts challenged three potential jurors for cause: Juror B., Juror D., and Juror G. Of relevance here, Juror B. stated that she had " a concern about being impartial," because she, like Newman and Morrison, was a female business owner. Juror D. and Juror G. also indicated concerns about impartiality.
[¶6] The trial court denied the challenges for cause as to all three prospective jurors. It concluded that none had indicated an unwillingness or inability to follow the court's instructions and that the jurors had been rehabilitated. The trial court also noted that some of the jurors might have been claiming bias simply to avoid serving on the jury. Roberts then used three of his five peremptory challenges to remove the previously challenged jurors. He ultimately exercised all five challenges.
[¶7] The trial court granted a directed verdict for all the defendants on Roberts's negligence claim on the grounds that they had no duty to protect him. It also directed a verdict on all remaining claims against L& H after determining that the evidence was insufficient to prove either that it was a landowner under the PLA or that it could be vicariously liable for the claims against Newman, LLC. Because Newman and Morrison's individual liability under the PLA was equitable and contingent upon a verdict against Newman, LLC, the court reserved judgment on the individual claims against them pending the jury's verdict with respect to Newman, LLC. The case was therefore submitted to the jury solely on Roberts's PLA claim against Newman, LLC, and the jury returned a verdict in the company's favor.
[¶8] On appeal, Roberts contested the trial court's denial of his challenges for cause, arguing that the trial court abused its discretion. The court of appeals agreed as to Juror B. It held that Juror B. " had a long-held bias in favor of female business owners like defendants" and had made it clear that she could not be impartial. Roberts, slip op. at 12, 13-14. Having determined that the trial court erred in denying the for-cause challenge as to Juror B., the court of appeals declined to rule on the challenges to Juror D. and Juror G. Id. at 3-4.
[¶9] Turning to the remedy, the court of appeals noted that " [i]f a trial court abuses its discretion in denying a challenge for cause, removing the prospective juror by peremptory challenge does not render the error harmless." Id. at 8 (citing Blades, 704 P.2d at 324; People v. Macrander, 828 P.2d 234, 244 (Colo. 1992)). It held that under Blades, " when a 'challenge for cause should have been granted . . . the court's failure to do so constitutes reversible error.'" Id. at 16 (quoting Blades, 704 P.2d at 323) (omission in original). Pointing to this court's earlier holdings that " an improperly denied challenge for cause, requiring use of a peremptory challenge, was reversible error," the court of appeals reversed and remanded for a new trial. Id. at 17 (citing Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337, 338-39 (Colo. 1975)). It did not perform any analysis to determine whether the error was harmless.
[¶10] Newman, LLC now petitions this court and asks us to overrule Blades and reject the automatic reversal rule in civil cases as we recently did in the criminal context.
See Novotny, ¶ 27, 320 P.3d at 1203. We conclude that the same ...