County District Court No. 15CV30729 Honorable Lance P.
Killian Davis Richter & Mayle, PC, J. Keith Killian,
Damon J. Davis, Benjamin P. Meade, Grand Junction, Colorado,
Goldfarb & Rice, LLC, Arthur J. Kutzer, Sarah M.
Andrzejczak, Denver, Colorado, for Defendant-Appellee
1 Plaintiff, Maria Herrera, appeals the judgment entered on
the jury's verdict awarding her damages of $1980.81 on
her negligence claim against defendant, Leo Lerma. We reverse
Facts and Procedural Background
2 In November 2012, defendant's truck hit plaintiff's
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
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 hadn't presented any evidence
supporting such an instruction. We agree.
Standard of Review
6 We review a trial court's 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. 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,
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),
aff'd 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 defendant's
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 auto accident
to the date of the second auto accident.
instruction is proper when sufficient evidence shows that a