2020 COA 103
Colo. Ct. App.2020Background
- On Sept. 9, 2015 Warembourg (a flooring subcontractor) was severely electrocuted while troubleshooting a temporary exterior electrical box installed by Excel at a construction site.
- Excel retrieved the damaged box, inspected it the next day, kept it in its facilities, and then discarded the box months later; photographs of the box and an exemplar panel exist but the original box was destroyed.
- Plaintiff’s counsel sent a preservation letter in April 2016; Excel tendered the claim to its insurer in May 2016 and later provided inconsistent accounts of when, where, and by whom the box was discarded; Excel also destroyed an on‑wall panel during litigation.
- The district court found Excel engaged in spoliation (intentional, in bad faith), ruled Warembourg was an invitee under the Premises Liability Act (PLA), and imposed an adverse‑inference jury instruction that (in effect) required the jury to regard certain facts about Excel’s negligence and causation as proven.
- The jury found Excel 100% at fault and awarded about $16 million; the district court applied the general noneconomic damages cap (doubled for severity) rather than the CDARA construction‑defects cap.
- On appeal Excel challenged the PLA classification, the spoliation sanction (irrebuttable presumption/instruction), several evidentiary rulings, the refusal to give assumption‑of‑risk, and the damages cap; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Classification under PLA (invitee vs. trespasser/licensee) | Warembourg was an invitee: subcontractor access to power was mutually beneficial and he had authority to troubleshoot the box. | Excel argued Warembourg exceeded authority by "breaking into" the box and thus was a trespasser or licensee. | Affirmed: Warembourg was an invitee — evidence showed subcontractors customarily accessed and toggled breakers and Excel did not prohibit it. |
| Spoliation sanction: adverse‑inference instruction with irrebuttable presumption of causation/liability | Instruction necessary to remedy prejudice from loss of the key physical evidence and to deter bad‑faith destruction. | Excel argued Colorado law does not authorize such an instruction for pre‑litigation destruction and that the instruction usurped the jury's factfinding. | Affirmed: Trial court had inherent power to impose such a sanction; facts supported bad‑faith spoliation and prejudice, and the instruction was within the court's discretion. |
| Evidentiary rulings and judicial advocacy (e.g., barring evidence of due care, permitting plaintiff testimony about box condition) | Plaintiff asserted those rulings were appropriate to enforce the sanction and to allow relevant evidence on credibility and comparative fault. | Excel said the rulings repeatedly sanctioned Excel and the court acted as advocate, depriving Excel of a fair trial. | Affirmed: Rulings were within discretion; evidence about the box and panel remained relevant to comparative fault and credibility; court did not improperly advocate. |
| Assumption of risk instruction | Plaintiff argued Warembourg lacked knowledge of the specific danger and did not consent to it. | Excel argued Warembourg voluntarily assumed the risk by opening the box and ignoring warnings; requested an instruction. | Affirmed: Court did not err in refusing the instruction — record supported that Warembourg lacked subjective knowledge of the specific electrocution risk. |
| Damages cap (CDARA vs. general cap) | Plaintiff argued CDARA did not apply because this was a premises/personal‑injury case, not a construction‑defects claim. | Excel argued it is a construction professional and CDARA’s lower noneconomic cap should apply. | Affirmed: CDARA did not apply; case arose under the PLA as a premises liability claim and the box was a temporary device, so the general noneconomic cap applied (and was doubled for severity). |
Key Cases Cited
- Aloi v. Union Pac. R.R. Corp., 129 P.3d 999 (Colo. 2006) (recognizes inherent‑power authority to impose adverse‑inference sanctions for spoliation)
- Castillo v. Chief Alt., LLC, 140 P.3d 234 (Colo. App.) (trial‑court discretion in spoliation sanctions reviewed for abuse)
- Pfantz v. Kmart Corp., 85 P.3d 564 (Colo. App.) (sanction severity should fit misconduct; adverse inference instructions permissible)
- Pena v. Dist. Court, 681 P.2d 953 (Colo. 1984) (courts’ inherent powers to make lawful actions effective)
- Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995) (absence/destruction of evidence supports adverse inference if evidence would naturally have been introduced)
- Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., 685 F. Supp. 2d 456 (S.D.N.Y. 2010) (survey of forms/harshness of adverse‑inference instructions)
- Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. App. 2002) (PLA: who counts as a landowner/party responsible for property)
- Vigil v. Franklin, 103 P.3d 322 (Colo. 2004) (PLA preempts prior common‑law landowner duties)
- Smith v. Kmart Corp., 177 F.3d 19 (1st Cir. 1999) (cases upholding instructions deeming certain facts admitted as sanction)