Herrera v. Lerma

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          Mesa County District Court No. 15CV30729, Honorable Lance P. Timbreza, Judge

         Killian Davis Richter & Mayle, PC, J. Keith Killian, Damon J. Davis, Benjamin P. Meade, Grand Junction, Colorado, for Plaintiff-Appellant

         Senter Goldfarb & Rice, LLC, Arthur J. Kutzer, Sarah M. Andrzejczak, Denver, Colorado, for Defendant-Appellee

         OPINION

         HAWTHORNE, JUDGE

         [¶ 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 and remand.

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          I. 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 her.

         [¶ 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 hadn’t presented any evidence supporting such an instruction. We agree.

          A. 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, 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), 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).

          B. Analysis

         [¶ 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 ...