Pennington v. Sears, Roebuck & Co.
1994 Colo. App. LEXIS 194
Colo. Ct. App.
1994
Check Treatment

*1 Dorothy PENNINGTON,

Plaintiff-Appellee,

SEARS, COMPANY, & ROEBUCK

Defendant-Appellant.

No. 93CA1175. Appeals,

Colorado Court

Div. V. 30, 1994.

June

153 Boesen, P.C., Irwin, damages R. to Irwin & Brad Den- admissible show her were ver, aggravated plaintiff-appellee. exacerbated or because of her for inability financial to obtain care and treat- Hill, Denver, Hill, Ronald C. Anstine and ment. defendant-appellant. for The trial court ruled that the evidence by Judge Opinion CASEBOLT. purposes would be admitted for of demon- strating mental It further held injuries In this action to recover for result- it was admissible show whether the dam- Sears, fall, slip ing from a and defendant ages by Pennington incurred were exacerbat- (Sears), Company appeals a Roebuck & from aggravated or of the lack of care ed because plaintiff, judgment entered in favor of Doro- why Pennington and also to demonstrate did thy Pennington. reverse and remand for We not seek care or treatment sooner. a trial. new admitted, that, alleged complaint Pennington her Before the evidence was first the snowfall, large slipped jury it after a and fell court instructed was puddle being “solely to the of water inside Sears’ store. She admitted relates negligent requested damages, issue of losses or sustained asserted Sears was by recovery expenses, permanent plaintiff purpose for medical and not for the of any, bodily injury, pain suffering, showing negligence, mental an- if of the defen- guish, earning capacity. dant.” and loss negligence answer denied Sears’ trial, After awarded

raised, here, an as relevant affirmative de- $100,000 compensatory damages. mitigate damages. The fense of failure to Sears contends that the trial court errone- parties that did filed disclosure certificates ously admitted evidence that it offered and of recov- not disclose additional theories pay then refused to for medical ery applicable or other defenses. expenses. agree. We day jury selec- On the first of trial before pay Evidence of an offer to for medi commenced, became aware that tion Sears expenses may cal be admitted estab Pennington intended to introduce evidence liability. lish a defendant’s CRE 409. How promised pay had for all of that Sears ever, under certain circumstances in which expenses Pennington’s medical and later re- purposes other the evidence is offered only neged promise, paying on that a small may proof liability, the evidence than portion. requested the court to ex- Sears admissible. initially such evidence. The trial court clude be relevant held that the evidence would have ad which other courts Situations asserted a defense of fail- because Sears had For mitted such evidence are illustrative. However, damages. ure to Sears example, questioned at when defendant prevent in order to

withdrew that defense trial whether an accident occurred on its presentation of such evidence. pay was premises, its offer to medical bills Atlantic & Tea statements, Pennington admissible. Great During opening Pacific Custin, 54, v. 214 N.E.2d 542 Co. discussing any offer or Ind. 13 precluded from (1938). Also, when a defendant denied own any subsequent refusal instrumentality alleg ership that had expenses. Following opening state- ments, edly plaintiffs evidence again whether caused the court considered held to present his medical bills was be allowed to such Flieg Levy, v. App.Div. admissible. 148 that the evi- be evidence. asserted 564, 249, aff'd, 781, N.Y. 101 208 because it was 133 N.Y.S. dence remained admissible (1912). Also, agency an 1102 when prove liability of Sears under N.E. not offered to relationship a material issue for determi to demon- but rather was offered nation, appropriate. was likewise anguish such evidence that she had incurred mental strate Wood, 309, 160 S.E. own promise. Br 201 N.C. of its as a result of Sears’ breach evidence was further contended that this She ery, are no case authori addition to that which was caused we aware of negligence, ty propriety introducing arose because that discusses Thus, promise. prove or the offer such breach Annotation, not meet the injury. does test of aggravation of See Pay materiality negligence Showing legal in a claim con- Admissibility Evidence *3 of ment, Payment, text. or or Promise Offer of of Medical, Expenses Hospital and Similar of Likewise, pay the the refusal medical Party by Party, Injured Opposing may while it a of expenses, be source mental (1975). Hence, must ana A.L.R.3d 932 we type not the anguish, does show that of men- 401, 402, lyze the issue under CRE and 403. anguish requested of tal for breach Sears’ proffered the Under alleged negli- resulted from Sears’ consequence to a fact of must relate “that is creating the gence maintaining danger. or action.” the determination the Stated Thus, here, present absent not circumstances differently, proffered inadmis the evidence is also meet the the refusal does not test of legally unless it is material to some sible materiality. legal People in the factual issue case. See v. Carl Regarding aggravation Penning (Colo.1986). son, 712 P.2d 1018 injuries, to pay ton’s while the refusal the proffered legally If the evidence is expenses may explain why Pennington’s inju material, admissibility dependent its becomes ie., ry permanent impairment, by created a any tendency on whether the evidence has delaying point surgery the to a when the consequential make the existence a fact repaired, not that could be issue was probable less than it probable more or consequence not of to the determination of inquiry, the latter without evidence. This Pennington action. The the reasons did not then, logical If focuses on relevance. the not impor obtain medical care earlier were proffered relevant, logically evidence is not tant to the determination of the action be the evidence should not be admitted. See failure to cause Sears withdrew its Carlson, supra. People v. and did at defense not contend that challenged analyzing In whether the evi- Pennington precluded or limited in re . consequence, dence relates to fact of the covery damages permanent impair for the negligence elements of the claim for relief admittedly she ment sustained because she Indeed, must be examined. undergo surgery. did not immediate surgeon’s testimony Pennington’s that here, § pertinent 13-21- As impairment permanent existed she because (1993 115(3)(c)(I), Cum.Supp.) C.R.S. allows earlier, undergo surgery did not uncon recovery “damages to an invitee for caused generally tested. Weinstein M. See J. & by the failure to landowner’s unreasonable ¶ 401(03) Berger, Weinstein’s Evidence against protect reasonable care to exercise actually he or dangers of which knew should Thus, have known.” the evidence of offer Moreover, the evidence does not sat expenses later refusal pay medical isfy of logical the test relevance. Under the may upon or relate to the bear case, circumstances of the mere offer by following sustained losses later refusal do medical ex accident because concerns tendency to prove themselves have a penses, the reasonableness of those medical disprove severity or or of anxi existence bodily expenses, and mental concern, ety, sleeplessness, worry, anger, or proffered evidence does not negli frustration that would flow from Sears’ upon damages proximately bear relate to or promise. opposed gence as to its breach Sears; therefore, negligence by the caused This evidence neither affords reasonable materiality legal does not exist under the anguish inference that mental resulted from presented here. claim negligence maintaining premis es, particular light upon asserted nor sheds that issue. See that (Colo.1981). Botham, sought People for which recov- 629 P.2d 589 reversed, juror judgment is and the cause perceive do not that a reasonable is We trial, for a new the fact that offered remanded could believe that expenses and probable makes it more later refused to do so concurs, HUME, J., anguish caused had mental dissents, RULAND, J., negligence, degree or increases the negligence. anguish flowing from such Judge dissenting. RULAND Berger, M. Weinstein’s See J. Weinstein & ¶ 401(08) (1986). Evidence respectfully I dissent. view, my In court the trial did not abuse Furthermore, even if we were to con determining its substantial discretion in subsequent clude that refusal *4 promise pay Penning- evidence of legally logi was both and subsequent ton’s medical bills and refusal relevant, cally exclusion of this evidence do so was relevant and material to the dis- required

would nevertheless be under CRE puted damages in issue of this case. CRE danger prejudice, unfair 403. The mis Hernandez, 401; People v. 687 P.2d 502 leading jury, and confusion of the issues (Colo.App.1984). limiting Even with the instruc is evident. here, given by given tion court adopted from the CRE 409 was verbatim Pennington’s inability for her own Federal Rules Evidence. See F.Ed.R.E. prob expenses, her husband’s health salutary 409. The function of the rule is a income, lems, security and his limited social one: readily how this evidence we can discern product Rule 409 is the of a desire jury. prejudice and confuse the would create humanitarianism, encourage which would that, Additionally, despite the we note if discouraged be the humanitarian act of limiting confining this evi- court’s instruction paying expenses penalized by making were damages, Pennington’s dence to the issue addition, against payor. In it evidence argued closing liability in as a counsel it any- that the conduct means the inference issue, fighting stating that if Sears “were her thing than humanitarianism is unreli- other why they pay liability, on for the test able. they only pay for when said we’ll

that’s $1950 Rothestein, P. Federal Rules Evidence at going you put that to- We’re to let $500? (1992); M. p. 126.9 see J. Weinstein & also gether.” ¶ Berger, 409[01] Weinstein’s Evidence Moreover, we are unable to conclude Here, of either the

that error was harmless. Once admit there was no violation this ted, spirit case repeatedly emphasized language or the of the rule this evidence was because, exception, with one tes- by Pennington, both her own direct testi husband, adjustor’s recanted on the mony, of her and that of her tified that Sears bills and thus portions of this evidence were her medical son. While cross-examination, humanitarian considerations are not involved. on once elicited Further, admitted on erroneously the evi the evidence was not trial court admitted dence, liability. attempt the issue of Sears’ Sears had no choice but Additionally, Pennington’s it. clos discredit relevancy, it Turning to the issue of then anything ing argument above is but noted undisputed suffered was harmless. left to the rotator cuff of her massive tear circumstances, fall. as a result of the we conclude shoulder Under these withdrew its failure to improper while Sears that admission of the evidence was defense, persisted in 409, 401, 402, its denial its affirmative and and under CRE to the “nature and claim as In view of this admission was harmless. ” was so of her and disposition, the other is- extent we do not address instructed. sues raised Sears. limited, longer she can no Pennington’s surgeon automobile is and opinion of

The enjoy physical and recreation activi- plaintiff obtained varied uncontroverted that had receiving surgery bowling camping after in which required soon such as and ties perma- formerly and extent of her participated. the nature she pain would have been impairment nent $41,- jury finally awarded excess of substantially diminished. The reasons for impairment plaintiffs permanent 000 for surgery then be- the failure to obtain surgeons’ testimony is disfigurement. The explain material to highly came relevant and perma- uncontroverted that her degree why up both the she ended with because, interval between the nent due to the permanent impairment that she did as well surgery, repair no of the accident and date pain, suffering, gravity of the in her effected to two of the tendons could be that she claimed. shoulder. view, result, my the evidence of As a offer, result, very plaintiff to honor that can lift little offer and refusal As a arm, in- private had no cannot under- weight evidence that with her left motion, always treat- or funds from which to and she will repetitive surance take ment, medicaid ben- subjected pain. and the fact that federal has a life to chronic She And, all rele- efits were unavailable to her were years. expectancy of excess *5 material to establish the nature and Tylenol vant and requires that she six she testified injuries. of her See CRE 402. extent pain capsules day mitigate each her chron- sleep more than pain ic and she is unable jury The was instructed on two occasions to three hours at a time before she is two be- sequence in close that this evidence was pain. awakened purpose plain- ing admitted for limited damage liabil- tiffs claim and not as Conversely, the extent that Sears as- jury ity. presumption There is prejudicial the evidence was under serts applied and I understood and that instruction 403, agree. I Most relevant and mate- to conclude other- find no basis this record People rial evidence is. See v. District Co., Prutch v. Ford Motor 618 wise. See (Colo.1989). Court, But, I dis- 785 P.2d (Colo.1980). P.2d 657 agree prejudice the conclusion that the with contrary Specifically, conten- was unfair. tion, ample in the record to there is This is because the focus of evidence is First, jury’s damage support the award. by promise upon to abide which the refusal $17,000 jury for medical excess awarded the mak- aggravated in effect —not unpaid as well as fu- expenses incurred and by our ing of the itself. As noted physical therapy. ture Court, People District supreme court v. parties stipulated unpaid to the The supra: $15,000 the cost of bills in excess of therapy pro- treatments was physical future admissibility The thrust of Rule 403 favors jected thus both as to cost and duration requires proba Rule 403 that the .... subject part rendering this of the award question be ‘sub tive value of evidence calculation. mathematical danger stantially outweighed’ $41,000 requirement prejudice.... also awarded in excess of unfair ‘This is inconvenience, life, enjoyment make clear that the need for the meant to for loss remedy pain suffering, and mental a drastic and less re exclusion is measures, supported cautionary in the in amply award is also such as This strictive longer jury, may no undertake suffice to re record. can structions to the danger prejudice accept to an household activities for which duce the the numerous (citation omitted) formerly responsibility, she can assumed able level.’ longer participate physical activities no 785 P.2d at 146. no grandchildren, numerous she can with her Here, cautionary requisite instruction in her longer participate instructor given. ability to drive an was kindergarten, church Finally, extent claims that the to the unduly emphasized, I note the

evidence was objections upon in the record based

lack of theory, and the extended cumulative Pennington by

cross-examination regarding separate occasions

counsel on two topic. I these circumstances and because

Under for re-

do not view Sears’ other contentions merit, having I would affirm the

versal as

judgment. LIVESTOCK, INC., AND

BROWN GRAIN Myrna Corporation and F.

a Colorado individually,

Thompson, Plaintiffs-Ap

pellees, *6 COMPA

UNION PACIFIC RESOURCE

NY, Compa Champlin Petroleum f/k/a Corpo ny, subsidiary Pacific of Union

ration, Defendant-Appellant.

No. 93CA1022. Appeals,

Colorado Court

Div. V.

June 1994. Collins, McCormick, Fort

Robert S. plaintiffs-appellees.