2019 COA 178
Colo. Ct. App.2019Background
- James (Jim) Sharon, a nursing-home resident, sued Belmont Lodge and affiliated entities for negligence; a jury awarded $300,000 noneconomic and punitive damages (later reduced by the district court).
- Defendants appealed; while the appeal was pending Sharon died and his co-special administrators were substituted as plaintiffs.
- A division of the Court of Appeals reversed the judgment, concluding (among other things) that a joint venture did not exist and ordered a retrial as to two defendants.
- On remand defendants moved for summary judgment, arguing Colorado’s survival statute bars recovery of noneconomic damages (pain, suffering, disfigurement) and therefore punitive damages; plaintiffs stipulated they sought only noneconomic and punitive damages.
- The district court entered judgment for defendants; the Court of Appeals affirmed, holding that reversal nullified the prior recovery and the survival statute bars noneconomic damages on retrial; punitive damages were barred because no recoverable actual damages remained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a decedent’s representative may recover noneconomic damages on retrial when the decedent obtained such damages before death but the judgment was reversed on appeal | Sharon: the survival statute shouldn’t bar recovery here because the decedent had already recovered before dying | Defendants: reversal nullifies the prior recovery, so survival statute’s personal-injury limitation applies on retrial | Court: No — reversal returns parties to pre-judgment positions; noneconomic damages are barred by § 13-20-101(1) |
| Whether applying the survival statute in these circumstances improperly reintroduces common-law abatement (all actions die with the party) | Sharon: barring recovery produces the same result survival statute was meant to eliminate | Defendants: statute preserves the cause of action but limits post-death recoverable damages; policy changes are for the legislature | Court: The statute preserves the claim but limits noneconomic damages; policy arguments must go to the General Assembly |
| Whether a jury verdict (pre-judgment) that awards damages but is reversed on appeal counts as a prior "recovery" for survival-statute purposes | Sharon: prior jury award should operate as recovery for survival statute | Defendants: reversal cancels the judgment/award so no continuing recovery exists | Court: Reversal nullifies the judgment/award; for survival-statute purposes there is no prior recoverable award after reversal |
| Whether punitive damages may be awarded absent recoverable actual damages on retrial | Sharon: punitive damages should still be available | Defendants: punitive damages require an underlying award of actual damages | Court: Punitive damages barred because no recoverable actual (economic) damages remain; punitive damages depend on actual damages |
Key Cases Cited
- Publix Cab Co. v. Colo. Nat’l Bank of Denver, 338 P.2d 702 (Colo. 1959) (historical overview of common-law abatement and survival statutes)
- Ahearn v. Goble, 7 P.2d 409 (Colo. 1932) (death after judgment does not abate judgment while it stands)
- Sullivan v. Delta Air Lines, Inc., 935 P.2d 781 (Cal. 1997) (similar survival-statute analysis; judgment stands if affirmed but abates if reversed)
- Butler v. Eaton, 141 U.S. 240 (U.S. 1891) (reversed judgments treated as void and without effect)
- Schleier v. Bonella, 237 P. 1113 (Colo. 1925) (reversal returns parties to pre-judgment positions)
- White v. Hansen, 837 P.2d 1229 (Colo. 1992) (exemplary/punitive damages require an underlying award of actual damages)
- Fowden v. Pac. Coast S.S. Co., 86 P. 178 (Cal. 1906) (reversal of judgment places case as if no judgment had been given)