Winkler v. Shaffer, 2015 COA 63

Multi-vehicle pileup on an icy highway during a snowstorm; defendant (truck driver Shaffer) lost control after being struck and stopped blocking the road; plaintiffs (John and Linda Winkler) struck the stopped truck and were injured.
Plaintiffs sued Shaffer and multiple co-defendants; jury found some co-defendants 100% at fault and found Shaffer not negligent; several co-defendants settled or were dismissed.
Shortly before trial defendants played a video deposition of Sergeant Gates, the first officer on scene, who described road/weather conditions and opined that Shaffer drove reasonably under the conditions.
Plaintiffs moved to strike Sergeant Gates’s deposition as beyond the scope of disclosure and prejudicial because it was taken ten days before trial; the trial court denied the motion.
Plaintiffs requested a negligence per se jury instruction based on Colo. statutes governing following too closely and speed; the court refused and instead gave standard common-law negligence and reasonable-care instructions.
Plaintiffs appealed, arguing the deposition admission and refusal to give negligence per se instructions were errors; the court affirmed judgment for defendant.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of Sgt. Gates's video deposition	Gates exceeded expert-disclosure scope and ten days' notice prejudiced Winkler's ability to respond	Disclosure indicated Gates could testify about his observations/investigation; plaintiffs had the deposition and did not seek continuance or make offer of proof	Admission was not reversible error; any nondisclosure was harmless because plaintiffs had opportunity to defend and did so through their expert
Refusal to give negligence per se jury instruction	Court should have instructed that violations of §§ 42-4-1008 or 42-4-1101 constitute negligence	Statutory standards mirror common-law negligence already given; a per se instruction would be redundant	Court did not err; negligence per se instruction would have been redundant to common-law negligence instructions

Clements v. Dowies, 217 P.3d 912 (Colo. App. 2009) (abuse-of-discretion review for discovery sanctions)
Todd v. Bear Valley Vill. Apartments, 980 P.2d 973 (Colo. 1999) (harmlessness inquiry focuses on prejudice and opportunity to defend)
Trattler v. Citron, 182 P.3d 674 (Colo. 2008) (Rule 37(c)(1) harmlessness standard)
Silva v. Wilcox, 223 P.3d 127 (Colo. App. 2009) (negligence per se instruction unnecessary where statute codifies common-law negligence)
Day v. Johnson, 255 P.3d 1064 (Colo. 2011) (abuse-of-discretion standard for jury instructions)