County District Court No. 15CV30729, Honorable Lance P.
Davis Richter & Mayle, PC, J. Keith Killian, Damon J. Davis,
Benjamin P. Meade, Grand Junction, Colorado, for
Goldfarb & Rice, LLC, Arthur J. Kutzer, Sarah M. Andrzejczak,
Denver, Colorado, for Defendant-Appellee
1] Plaintiff, Maria Herrera, appeals the judgment
entered on the jurys verdict awarding her damages of
$1980.81 on her negligence claim against defendant, Leo
Lerma. We reverse and remand.
Facts and Procedural Background
2] In November 2012, defendants truck hit
plaintiffs car from behind as she slowed for traffic. A week
later, plaintiff sought healthcare at a hospital where she
complained of numbness in her legs and arms as well as neck
pain. The doctor diagnosed her with neck strain.
3] In June 2013, plaintiff was involved in a second
car accident. She had stopped at a traffic light and her
sandal had become stuck beneath the brake pedal. As she tried
to free it, she accidentally pushed the accelerator, causing
her to hit the trailer hitch of the truck in front of her.
Plaintiff testified that the second accident did not injure
4] A year later, starting in June 2014, plaintiff
sought additional medical treatment for her neck and lower
back. She then sued defendant for negligence, claiming total
damages of $38,356.46. The jury awarded her $1980.81 in
economic damages but $0 on her claims of physical impairment
and noneconomic damages.
II. Instructional Error
5] Plaintiff contends that the trial court erred by
instructing the jury to consider whether the second accident
in June 2013 "increased, aggravated, or worsened any
injuries, damages, or losses caused by the" first
accident because defendant hadnt presented any evidence
supporting such an instruction. We agree.
Standard of Review
6] We review a trial courts decision to give a
particular jury instruction for an abuse of discretion.
Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011);
Vititoe v. Rocky Mountain Pavement Maint., Inc.,
2015 COA 82, ¶ 67, 412 P.3d 767. A trial court abuses its
discretion only when its ruling is manifestly arbitrary,
unreasonable, or unfair, or the instruction is unsupported by
competent evidence in the record. Day, 255 P.3d at
1067; Vititoe, ¶ 67.
7] "We review a properly preserved objection to
a jury instruction for harmless error." Waneka v.
Clyncke, 134 P.3d 492, 494 (Colo.App. 2005), affd
on other grounds and remanded, 157 P.3d 1072 (Colo.
2007). Such an error is harmless unless it affects the
parties substantial rights. C.R.C.P. 61. "The court
must order a new trial when the result of the trial may have
been different if the court had given the proper
instruction." Clyncke, 157 P.3d at 1079;
Webb v. Dessert Seed Co., 718 P.2d 1057, 1066-67
(Colo. 1986) (requiring a new trial when the result would
probably have been different if the court had given the
proper instruction); Mendez v. Pavich, 159 Colo.
409, 411-12, 412 P.2d 223, 224 (1966) (requiring retrial when
an instruction is so erroneous that it would probably lead
the jury into error).
8] Using an instruction consistent with CJI-Civ. 6:9
(2009), the trial court instructed the jury as follows:
The plaintiff ... claims damages from the defendant ... for
injuries, damages, or losses caused by an auto accident on
November 13, 2012. If you find that the defendants
negligence or negligence per se, if any, was a cause
of any such injuries, damages, or losses, then the plaintiff
may recover all damages caused by that event. But if you find
that plaintiff was later injured in an auto accident on June
6, 2013[,] which was not caused by any acts or omissions of
the defendant, then the plaintiff may not recover any damages
caused only by the second auto accident.
If you find the auto accident on June 6, 2013, increased,
aggravated, or worsened any injuries, damages, or losses
caused by the auto accident on November 13, 2012, then you
must separate, if possible, those damages caused by the first
auto accident from those caused by the second auto accident,
and the plaintiff may recover all those separate damages
caused by the first auto accident.
If it is not possible to separate any damages caused by the
auto accident on November 13, 2012[,] from any caused by the
auto accident on June 6, 2013, then the plaintiff may recover
those damages only from the date of the first ...