Boring v. Bettner , 1987 Colo. App. LEXIS 713 ( 1987 )

PIERCE, Judge,

dissenting:

I dissent on two grounds.

I cannot agree that the trial court erred in refusing to give an instruction on the presumption of negligence arising from a rear-end collision.

A party is entitled to an instruction only if it is applicable to the law and the facts of the case. See C.R.C.P. 51.1; Xerox Corp. v. ISC Corp., 632 P.2d 618 (Colo.App.1981). Here, the presence of the plaintiffs vehicle ten feet off the road was not a factor in the alleged negligence of the defendant which took place on the highway.

I would limit instructions patterned after CJI-Civ.2d 11:12 (1980) to those situations in which the presence of plaintiffs vehicle in front of the defendant’s vehicle was a factor in the course of action followed by the defendant at the time the defendant allegedly failed to take appropriate steps to avoid a collision. This would limit the giving of the instruction to those situations in which the negligence followed by the collision occurred while both vehicles were on the roadway or shoulder, in relatively close proximity, and facing in the same direction. Such have been the typical situations where such an instruction has been allowed in this state. Rhodig v. Cummings, 160 Colo. 499, 418 P.2d 521 (1966); Iacino v. Brown, 121 Colo. 450, 217 P.2d 266 (1950); Tracy v. Graf, 37 Colo.App. 323, 550 P.2d 886 (1976), rev’d on other grounds, 194 Colo. 1, 568 P.2d 467 (1977).

Here, all of the alleged negligence took place on the highway without any reference to plaintiff’s vehicle. The defendant’s vehicle went out of control on the highway and spun out of control before it left the highway. The fact that it eventually lightly struck the left rear and side of the plaintiff's vehicle was only incidental. It seems to me very misleading to instruct the jury, in essence, that liability may be premised upon the fact that defendant’s vehicle struck the plaintiff’s vehicle partially on the rear. Liability should be premised upon deficiencies in human judgment not on a random combination of the laws of chance and nature.

Under the facts here, the general negligence instructions given to the jury were adequate to apprise it of the law applicable to this case.

I would affirm as to all the issues in this case.