2015 COA 82
Colo. Ct. App.2015Background
- Vititoe (plaintiff) on motorcycle made a U‑turn on Colfax Ave., then collided with the rear portion of a lowboy trailer driven by Horton (defendant’s employee) in the westbound left lane at a green light.
- Parties disputed causation and fault: Vititoe advanced theories that Horton was negligent because (a) Horton exceeded hours‑of‑service limits and was fatigued, and (b) trailer taillights were improperly positioned/not visible; defendant argued Vititoe negligently accelerated into a visible trailer.
- Experts: Rugemer (truck operations) testified Horton likely violated hours rules and was fatigued; Feiereisen (accident reconstruction) testified taillights were too low; other witnesses contradicted fatigue/visibility claims.
- Jury returned special verdict: defendant was negligent, but that negligence was not a cause of Vititoe’s injuries; trial court entered judgment for defendant.
- Vititoe appealed, arguing (1) prejudicial voir dire statements re: helmet use warranted canvass/limiting instruction or mistrial; (2) verdict lacked evidentiary support; and (3) several jury instructions were erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jurors’ voir dire comments about helmet use required canvass, limiting instruction, or mistrial | Prospective jurors expressed views that motorcyclists should be held to higher standard and wouldn’t follow law about helmet evidence; court should have remedied potential prejudice | Comments were general opinions, not factual revelations about parties/evidence; trial court informed panel helmet evidence was inadmissible and dismissed jurors who said they wouldn’t follow law | No abuse of discretion; statements not prejudicial, corrective action unnecessary; dismissals and instructions sufficed |
| Whether evidence supported special verdict finding negligence but no causation | Stipulation that collision caused injuries plus plaintiff’s negligence theories (fatigue/taillights) show defendant’s negligence was a but‑for or substantial cause | Expert conceded no opinion that regulatory violation caused crash; eyewitness/reconstruction evidence allowed reasonable inference that negligence, if proven, did not cause collision | Verdict supported: competent evidence allowed jury to find negligence yet conclude it did not cause the injuries |
| Whether trial court erred by omitting hours‑of‑service regulations from negligence‑per‑se instruction (Instruction 21) | Instruction should have referenced Reg. 6102(a)(I)/49 C.F.R. 395.3 as the standard for negligence per se | Plaintiff never requested inclusion at trial; jury heard expert testimony about the regulation and was instructed on negligence generally | Issue waived; plain‑error review declined — no manifest injustice shown |
| Whether assumption‑of‑risk and rear‑end presumption instructions (Instructions 16, 24, 25) were improper | Assumption‑of‑risk: plaintiff argued his statements showed he believed truck was moving (so no knowledge/consent to risk). Rear‑end presumption: collision was a barrier crash, not a typical rear‑end | Court: plaintiff’s statements to detective could be read as admission he saw and accelerated toward trailer; facts satisfied res ipsa/Bettner elements for rear‑end presumption | No error: assumption‑of‑risk instruction supported by evidence; rear‑end presumption instructions correctly stated law and were supported by the record |
Key Cases Cited
- Dare v. Sobule, 674 P.2d 960 (Colo. 1984) (motorcyclist’s helmet use inadmissible to show negligence or mitigate damages)
- People v. Mersman, 148 P.3d 199 (Colo. App. 2006) (voir dire statements may require cure, but corrective action need not follow where defendant did not request it and prejudice is not plain)
- United States v. Guzman, 450 F.3d 627 (6th Cir. 2006) (jury pool not contaminated where jurors announce potential biases and voir dire aids counsel’s peremptory challenges)
- City of Aurora v. Loveless, 639 P.2d 1061 (Colo. 1981) (appellate duty to reconcile special verdict answers when possible)
- Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977 (Colo. App. 2011) (proximate cause includes causation in fact and legal causation)
- Bettner v. Boring, 764 P.2d 829 (Colo. 1988) (rear‑end collision presumption appropriate only when res ipsa loquitur elements and Bettner requirements are met)