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Johnson v. Schonlaw

Supreme Court of Colorado, En Banc

September 17, 2018

Albert Johnson, Petitioner
Ryan Lee Schonlaw and VCG Restaurants Denver, Inc., d/b/a PT's ALL NUDE, a Colorado corporation. Respondents

          Certiorari to Colorado Court of Appeals Court of Appeals Case No. 13CA802

          Attorneys for Petitioner: The Viorst Law Offices, P.C. Anthony Viorst Denver, Colorado

          Attorneys for Respondents: Berg Hill Greenleaf Ruscitti LLP Rudy E. Verner Boulder, Colorado

          Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Darling Milligan Horowitz PC Jason B. Wesoky Denver, Colorado



         ¶1 Johnson sought review of the court of appeals' judgment reversing jury verdicts in his favor on personal injury claims against Schonlaw and VCG Restaurants. At the close of the case, the district court overruled the objections of Schonlaw and VCG to its announced decision to allow the alternate to deliberate to verdict with the other jurors. The court of appeals concluded that the trial court had erred in allowing an alternate juror to participate in jury deliberations over the objection of a party, and that the error gave rise to a presumption of prejudice, which remained unrebutted by Johnson, and therefore required reversal.

         ¶2 Because the error in this case did not affect the substantial rights of either Schonlaw or VCG, it should have been disregarded as harmless, as required by C.R.C.P. 61. The judgment of the court of appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.


         ¶3 Albert Johnson filed suit against VCG Restaurants Denver, Inc., d/b/a/ PT's All Nude, its managing agency, and a number of its employees, including Ryan Lee Schonlaw, asserting claims arising from injuries he sustained just outside the nightclub at closing. One of the defendants was dismissed before trial, and of the remaining defendants, the jury returned verdicts finding Schonlaw liable on claims of battery and intentional infliction of emotional distress and VCG liable for battery, intentional infliction of emotional distress, and negligent supervision. The district court ultimately entered judgments of $74, 452.83 against Schonlaw and $246, 462 against VCG.

         ¶4 While there was conflicting testimony about the altercation in which Johnson was injured, it appeared undisputed that Johnson suffered serious facial injuries requiring surgery, caused either by a blow inflicted by Schonlaw or by Johnson's face coming into contact with the ground as the result of that blow or lost footing during a struggle with Schonlaw and at least one of the club's other employees. It was also undisputed that the employees involved in the confrontation, or "courtesy patrol members," were all substantially larger than the 5'10'', 168-pound Johnson, two of whom were described as former University of Colorado football players, one weighing 365 pounds; and that a taxi driver called 911 to report what he characterized as a guy getting "beaten and choked."

         ¶5 The jury was instructed on the defendants' theory that the "courtesy patrol members" were exercising their legal rights and/or the legal rights of their employer, VCG, in preventing Johnson from regaining access to the club and in escorting him away from the club. In addition to the elements of battery, intentional infliction of emotional distress, and negligent supervision and training, the jury was instructed on the affirmative defenses of consent, self-defense, defense of another, defense of real property, and comparative negligence.

         ¶6 After the close of the evidence, the district court asked the parties if they would agree to allow the alternate juror, who had been permitted without objection to participate in pre-deliberation discussions, to deliberate with the six regular jury members. Johnson agreed, but Schonlaw and VCG objected. The district court overruled their objection, indicating that it considered the matter to be within the court's discretion, and it instead instructed the jury that all seven jurors, including the alternate, would deliberate to a verdict. The jury deliberated over the course of some three days. On the third and final day of deliberations, the jurors sent a note to the court indicating that they could not come to an agreement on punitive damages. Johnson then withdrew his punitive damages claim and shortly thereafter the jury returned its verdicts, signed by all seven members.

         ¶7 On direct appeal, the court of appeals reversed and remanded for a new trial, concluding that whatever discretion may be permitted a trial court by C.R.C.P. 47(a)(5) with regard to pre-deliberation discussions does not extend to allowing an alternate to deliberate with the regular jurors and, similarly, that any discretion granted at section 13-71-142, C.R.S. (2018), to retain the alternates when the jury retires to deliberate does not conflict with the express requirement of Rule 47(b) for the court and parties to agree before permitting an alternate juror's actual participation in deliberations. Having found that the district court therefore erred in permitting the alternate to participate over the objection of a party, the intermediate appellate court further found, in reliance on People v. Boulies, 690 P.2d 1253, 1255-56 (Colo. 1984), a more-than-quarter-century-old criminal case from this court, that the participation of the alternate raised a presumption of prejudice requiring reversal unless rebutted, and that the presumption remained unrebutted by Johnson.

         ¶8 Johnson petitioned for review solely on the question whether permitting the alternate to deliberate in this civil case was an error subject to the harmless error analysis dictated by C.R.C.P. 61, as distinguished from an error raising a ...

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