rg v. Excel Elec., Inc , 2020 COA 103 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 9, 2020
2020COA103
No. 18CA2358, Warembourg v. Excel Elec., Inc. — Evidence —
Spoliation — Sanctions — Adverse Inference Instruction
A division of the court of appeals analyzes whether a trial
court abused its discretion in giving an adverse inference jury
instruction containing an irrebuttable presumption of causation
and liability as a sanction after finding that the defendant engaged
in spoliation by destroying a critical piece of evidence, in breach of
its duty to preserve that evidence. The division holds that Colorado
law authorizes the imposition of such an instruction for the
pre-litigation destruction of evidence and that the trial court did not
abuse its discretion in imposing the instruction as a sanction for
spoliation.
The division additionally holds that the trial court did not err
in classifying the plaintiff as an invitee under the Premises Liability
Act, § 13-21-115, C.R.S. 2019; in its evidentiary rulings; in
declining to instruct the jury on the plaintiff’s alleged assumption of
risk; and in ruling that the cap on noneconomic damages in the
Construction Defect Action Reform Act, § 13-20-806(4)(a), C.R.S.
2019, does not limit the plaintiff’s damages.
COLORADO COURT OF APPEALS 2020COA103
Court of Appeals No. 18CA2358
Boulder County District Court No. 17CV30891
Honorable Nancy W. Salomone, Judge
Brian Warembourg,
Plaintiff-Appellee,
v.
Excel Electric, Inc.,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE LIPINSKY
Freyre and Graham*, JJ., concur
Announced July 9, 2020
Zaner Harden Law, LLP, Kurt Zaner, Sara McEahern, Denver, Colorado; Levin
Sitcoff, PC, Nelson A. Waneka, Denver, Colorado, for Plaintiff-Appellee
Walberg Law, PLLC, Wendelyn K. Walberg, Morrison, Colorado, for Defendant-
Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Spoliation — a party’s failure to preserve evidence —
jeopardizes adverse parties’ ability to obtain justice. The
truth-seeking function of our legal system is thwarted if a party is
deprived of material evidence during discovery or if the finder of fact
is denied that evidence at trial. Thus, upon learning that he or she
is likely to be involved in litigation, a person has a legal duty to
preserve all potentially relevant evidence within his or her
possession.
¶2 Courts possess the inherent authority to impose sanctions for
spoliation. Judges have the power to enter a broad range of
penalties against spoliators, depending on whether the destruction
of the evidence was intentional, the prejudice to the other party,
how spoliation affects the judicial process, and whether lesser
sanctions would be effective. These penalties can range from
monetary sanctions to the most drastic sanction of all — the entry
of a default judgment. Adverse inference jury instructions fall in
the middle of the spectrum of sanctions.
¶3 In this case, we consider whether a trial court abused its
discretion in giving an adverse inference jury instruction containing
an irrebuttable presumption of causation and liability (the subject
1
instruction) as a sanction after finding that the defendant destroyed
a critical piece of evidence, in breach of its duty to preserve that
evidence.
¶4 Because we discern no abuse of discretion, and disagree with
the defendant’s other arguments, we affirm.
I. Background Facts and Procedural History
A. Warembourg’s Injury
¶5 Brian Warembourg, an employee of Schmidt Custom Floors,
Inc., provided flooring for a new home being constructed by Feller
Homes, Inc. Excel Electric, Inc., performed the electrical work at
the construction site. It installed a temporary electrical box (the
box) to supply power to the subcontractors.
¶6 While working at the site on September 9, 2015, Warembourg
was unable to power his equipment using the home’s interior
outlets. He plugged a tool into the box, which was located outside
the home, but discovered that the exterior outlets on the box also
were not working. To troubleshoot the problem, he removed the
box’s front cover and began toggling the circuit breakers inside the
box. While toggling one of the breakers, the box “exploded,”
shooting an “intense release” of electricity into Warembourg’s hand.
2
Warembourg suffered permanent and disabling injuries as a result
of the electrocution.
¶7 Warembourg’s coworker photographed the damaged box
shortly after the accident. The pictures depict a weathered
electrical box lacking legible warning stickers. Although the box’s
cover had been removed, the photographs show that none of the
box’s internal wiring had been disconnected.
B. Excel’s Pretrial Conduct and the Spoliation Sanction
¶8 On the day of the incident, Excel learned that someone had
been injured at the job site. Excel retrieved the damaged box and
took it to its warehouse. The next morning, Shane and Corey Heil,
Excel’s owners, inspected the box. (For clarity, and without
intending any disrespect, we refer to the members of the Heil family
by their first names.) Neither Shane nor Corey wrote any notes
about or photographed the box. Excel discarded the box sometime
during the next eight months.
¶9 An investigator for Warembourg’s worker’s compensation
carrier, Pinnacol Assurance, called Shane on October 27, 2015, “in
regards to an injury that one of [its] . . . injured workers had . . . .”
The investigator explained, “There was a temporary power pole that
3
was set up. And we’re just trying to figure out if there w[ere] any
circumstances that contributed to his injury.” Shane told the
investigator that his “shop guy” “probably” threw the box away
because it was unrepairable. Shane later added, “And when I heard
[Warembourg] got hurt, it’s like, he probably shouldn’t have been in
[the box] in the first place.”
¶ 10 On April 29, 2016, Warembourg’s counsel sent Excel a letter
introducing himself, referencing his client’s injury claim, and
putting Excel on notice of its duty to preserve evidence. The letter
specifically mentioned the need to preserve “the temporary electrical
box” and other “evidence relating to this incident.”
¶ 11 Excel tendered a claim to its liability insurance carrier on May
13, 2016. Shane sent the insurance carrier a letter discussing the
cause of Warembourg’s injuries. In the letter, Shane speculated
that Warembourg had been using a power cord lacking an industry
standard end and attempted to overcome his lack of proper
equipment by hooking the deficient cord directly to a breaker in the
box. Shane claimed that Warembourg removed the cover to the
box, reached into the electrified box, and unhooked live wires.
4
¶ 12 Warembourg filed suit against Excel. In its answer, Excel
pleaded contributory negligence and assumption of risk as
affirmative defenses, and designated Schmidt Floors as a nonparty
at fault. It “admit[ted] that approximately six months after the [box]
. . . was returned, the [box] was thrown away.”
¶ 13 In interrogatory responses, Excel claimed that “[t]he exact date
the box was disposed of is not known, but it was approximately six
months after the date of the incident when [Excel’s] storage unit
underwent its customary six month cleanout. Shane Heil would
have been the individual responsible for authorizing the disposal of
the box.” Excel added, “[a]fter the date of the incident, Excel did
not hear anything about the accident or about [Warembourg] until
it received a phone call from an attorney over a year later.”
¶ 14 Warembourg deposed several of Excel’s employees, including
Shane, Matthew O’Connell, Corey, and Chris Heil. (O’Connell was a
longtime employee of Excel. Chris is Corey’s son and Shane’s
nephew.)
¶ 15 Shane testified during his deposition that Excel retained the
box for approximately six months “[b]ecause we cleaned out our
warehouse sometime in May after the accident.” He reiterated, “We
5
threw it out six months after we brought it back to the shop.”
When Warembourg questioned Shane’s timeline, Shane said the
box was destroyed in March or April 2016. Shane admitted,
however, that he was guessing the date because Excel did not have
any records concerning the cleaning. Shane further testified that
he ordered Chris to throw away the box because it was taking up
space.
¶ 16 During his deposition on March 28, 2018, O’Connell testified
that Excel currently displayed a damaged electrical panel (the
panel) on a wall at its warehouse as a warning to Excel’s employees
about the dangers of electricity. Someone had written “IGNORANT
FLOORING GUY” next to the panel. O’Connell explained that the
panel had been there for years.
¶ 17 During Corey’s deposition, he stated that Excel threw away the
box between six to eight months after Warembourg’s accident. He
said he was present when the box was thrown away and probably
made the decision to do so. However, Corey conceded that the last
time he remembered seeing the box was September or October
2015, and that he could not “even say that it was [in Excel’s
warehouse] in December [2015] to be honest.”
6
¶ 18 Corey further testified that Excel held the box in the “job
room,” which was not subject to periodic cleanings and would not
have been cleaned until three months after Excel’s work with Feller
Homes concluded in late 2016 or early 2017. Finally, Corey
admitted that he knew Warembourg suffered a “major injury” based
on the information Shane received from Pinnacol Assurance in the
October 27, 2015, call.
¶ 19 Following these depositions, Warembourg served a request to
inspect the panel at Excel’s warehouse. Excel objected, claiming
that it destroyed the panel in late March 2018 — apparently within
hours of O’Connell’s revelation about the existence of the
“IGNORANT FLOORING GUY” label and the panel.
¶ 20 Warembourg next deposed Chris. Chris testified that he threw
away the panel after Shane told him to remove it from the
warehouse wall and Corey told him to dispose of it. Chris also said
he did not remember seeing the box.
¶ 21 Excel moved for a ruling that the Premises Liabilities Act
(PLA), § 13-21-115, C.R.S. 2019, provided Warembourg’s sole
remedy and for a determination of Warembourg’s status under the
PLA. Excel asserted that Warembourg was a trespasser because he
7
had lacked its permission to “break into” its box and had engaged
in criminal activity under sections 18-4-506.5 or 18-2-101, C.R.S.
2019, by removing the box’s cover. The court agreed that the PLA
provided Warembourg’s exclusive remedy, but classified
Warembourg as an invitee at the time of the accident because both
parties presented evidence that he had the authority to access the
breakers within the box.
¶ 22 In addition, Warembourg moved for entry of a default
judgment against Excel as a sanction for its destruction of the box
and the panel and lack of candor regarding these items. The
district court found that Excel provided inconsistent accounts of the
date it destroyed the box and, consequently, found that Excel
engaged in spoliation when it destroyed the box in bad faith. The
court further found that Excel’s spoliation prejudiced Warembourg
because an exemplar panel and photographs of the box were
inadequate substitutes for the box itself. The court also determined
that Excel’s destruction of the panel during litigation adversely
impacted its credibility concerning its destruction of the box.
¶ 23 After determining that it could not impose “the ultimate
sanction of default in absence of a rule or court order,” the district
8
court announced it would give an adverse inference jury instruction
as a sanction for Excel’s spoliation. The court asked the parties to
tender proposed language for the instruction and submit briefs on
the times during the trial when the court should read the
instruction to the jury.
¶ 24 At the trial management conference, the district court ruled
that Excel could not present evidence that Warembourg had
engaged in criminal conduct.
¶ 25 Shortly before trial, the district court conducted a hearing to
determine the language of the subject instruction. Based on its
previous findings that Excel destroyed the box intentionally and in
bad faith, the court concluded that the appropriate sanction was an
instruction that the jury must presume Excel failed to use
reasonable care to protect Warembourg against the danger the box
presented and, therefore, was a cause of the accident. The
instruction stated,
[d]ue to the Defendant’s destruction of the
electrical box, the Court has previously made a
legal finding that the electrical box is
presumed to have been a danger on the
property about which [Excel] knew or, as an
entity using reasonable care, should have
known; that [Excel] failed to use reasonable
9
care to protect against the danger of the
electrical box on the property, and [Excel’s]
failure was a cause of [Warembourg’s] injuries,
if any. You must regard those facts as proven.
Therefore, you need only consider whether
plaintiff has proven by a preponderance of the
evidence that he had injuries.
¶ 26 In addition, the court specifically barred Excel from presenting
evidence that it acted with due care and announced it would read
the subject instruction each time Excel defied its order by
introducing evidence of its due care.
¶ 27 The court did not strike Excel’s contributory negligence
defense, however. For this reason, the court declined to give
Warembourg’s proposed instruction that the box was “the cause” of
his injuries. (Emphasis added.) The court also rejected
Warembourg’s request for a standalone instruction. Finally, the
court determined that evidence of the condition of the box was
admissible because it was relevant to the credibility of Excel’s
employees and to its contributory negligence defense.
C. The Trial and Excel’s Motion to Cap Warembourg’s Damages
¶ 28 The district court enforced the spoliation sanction against
Excel by reading the subject instruction to the jury after Excel’s
10
expert opined that Warembourg had engaged in dangerous actions
when he removed the box’s cover. The court also read the subject
instruction to the jury during voir dire — upon Excel’s request —
and after the completion of the evidentiary portion of the trial.
Consistent with its pretrial rulings, the court allowed Warembourg
to present testimony about the panel and the likely condition of the
box before the accident.
¶ 29 Further, the court rejected Excel’s tendered assumption of risk
instruction because the evidence showed that Warembourg lacked
knowledge of the specific danger associated with toggling the
breaker and, thus, did not consent to the risk of injury. The court
also struck Excel’s assumption of risk defense because it was
inconsistent with its contributory negligence defense and
designation of a nonparty at fault.
¶ 30 The jury returned a verdict in favor of Warembourg. It
concluded that neither Warembourg nor Schmidt Floors acted
negligently or caused Warembourg’s injuries. Rather, it found Excel
to be 100% at fault. The jury awarded Warembourg damages
totaling approximately $16 million, of which approximately $5.3
million was for his noneconomic injuries.
11
¶ 31 Excel moved to cap the jury’s award of noneconomic damages
under the Construction Defect Action Reform Act (CDARA),
§§ 13-20-801 to -808, C.R.S. 2019, arguing that CDARA’s statutory
cap applied to construction professionals such as itself. The district
court disagreed, ruling that CDARA’s cap did not limit
Warembourg’s damages because this was not a construction defects
case. Instead, the court applied the general cap on noneconomic
damages found in section 13-21-102.5(3)(a), C.R.S. 2019, which
was nearly twice as high as CDARA’s cap. The court then doubled
the general cap due to Warembourg’s “profound, severe, and
life-altering” injuries. See § 13-21-102.5(3)(a).
¶ 32 Excel also filed a motion for new trial, which the district court
denied.
II. Discussion
¶ 33 Excel advances five primary contentions of error:
(1) The district court improperly classified Warembourg as
an invitee under the PLA.
(2) The district court erred in giving the subject instruction
as a sanction for Excel’s spoliation.
12
(3) The district court abused its discretion by barring Excel’s
evidence that it had acted with due care and that
Warembourg had violated the criminal code, and by
allowing Warembourg to testify about the condition of the
box, which Excel claimed amounted to improper
advocacy by the court.
(4) The district court erred in declining to instruct the jury
on Excel’s assumption of risk defense.
(5) The district court should have capped Warembourg’s
noneconomic damages under CDARA.
A. Warembourg’s Status Under the PLA
¶ 34 Excel contends that the district court erred by ruling that
Warembourg was an invitee for purposes of the PLA. Excel
specifically asserts that, because he was not authorized to “break
into” its box, Warembourg was a trespasser or, at best, a licensee.
And, because Warembourg failed to present evidence that Excel
knew of any dangers created by the box, Excel argues that he is not
entitled to recover any damages. We discern no error in the court’s
classification of Warembourg as an invitee under the PLA, however.
13
1. Standard of Review
¶ 35 We review a trial court’s ruling on whether a plaintiff was an
invitee, licensee, or trespasser at the time of injury as a mixed
question of fact and law. Legro v. Robinson, 2015 COA 183, ¶ 15,
369 P.3d 785, 789; see § 13-21-115(4). “We defer to the court’s
credibility determinations, and will disturb its findings of historical
fact only if they are clearly erroneous and not supported by the
record.” Legro, ¶ 15, 369 P.3d at 789. But we review de novo the
court’s application of the facts to the governing legal standards. Id.
2. Legal Authority
¶ 36 The General Assembly enacted the PLA to “establish a
comprehensive and exclusive specification of the duties landowners
owe to those injured on their property.” Vigil v. Franklin, 103 P.3d
322, 328 (Colo. 2004); see § 13-21-115(2) (“In any civil action
brought against a landowner by a person who alleges injury
occurring while on the real property of another and by reason of the
condition of such property, or activities conducted or circumstances
existing on such property, the landowner shall be liable only as
provided in” section 13-21-115(3).) The statute “preempts prior
common law theories of liability, and [is] the sole codification of
14
landowner duties in tort.” Vigil, 103 P.3d at 328; see Wycoff v.
Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1265
(Colo. App. 2010) (“The [PLA] provides the sole remedy against
landowners for injuries on their property.”).
¶ 37 A “‘landowner’ includes, without limitation, an authorized
agent or a person in possession of real property and a person legally
responsible for the condition of real property or for the activities
conducted or circumstances existing on real property.”
§ 13-21-115(1). “Thus, a ‘person need not hold title to the property
to be considered a “landowner.”’” Wycoff, 251 P.3d at 1266 (quoting
Burbach v. Canwest Invs., LLC, 224 P.3d 437, 441 (Colo. App.
2009)).
We read the statute as intending to define and
limit the liability of property owners. Such
protection is, in our view, available to
authorized agents or parties in possession of
the property and also to parties legally
responsible for the condition of the property or
activities conducted on it. Since the protections
of the statute are broad-reaching, its
responsibilities must be coextensive.
Therefore, an independent contractor . . . is a
“landowner” for purposes both of the
protections and the responsibilities of the
statute.
15
Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1216 (Colo.
2002) (emphasis added).
¶ 38 Section 13-21-115(3) “outlines the respective duties that a
landowner owes to trespassers, invitees, and licensees and provides
that a breach of those duties may result in liability for damages
caused.” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565,
574 (Colo. 2008); see Legro, ¶ 19, 369 P.3d at 789 (“[T]he ability of
an injured party to recover is correlated with his status as a
trespasser, licensee, or invitee.” (quoting § 13-21-115(1.5)(a))).
¶ 39 A landowner owes the greatest duty of care to an invitee, a
lesser duty to a licensee, and the least duty to a trespasser. Wycoff,
251 P.3d at 1265; see § 13-21-115(3). The PLA defines invitee,
licensee, and trespasser as follows:
(a) “Invitee” means a person who enters or
remains on the land of another to transact
business in which the parties are mutually
interested or who enters or remains on such
land in response to the landowner’s express or
implied representation that the public is
requested, expected, or intended to enter or
remain.
(b) “Licensee” means a person who enters or
remains on the land of another for the
licensee’s own convenience or to advance his
own interests, pursuant to the landowner’s
16
permission or consent. “Licensee” includes a
social guest.
(c) “Trespasser” means a person who enters or
remains on the land of another without the
landowner’s consent.
§ 13-21-115(5).
¶ 40 A plaintiff’s status may change if he or she exceeds the scope
of the landowner’s invitation to access the property. Chapman v.
Willey, 134 P.3d 568, 569-70 (Colo. App. 2006).
3. Analysis
a. Warembourg’s Status Under the PLA Is Not a Moot Issue
¶ 41 As an initial matter, Warembourg claims that his status under
the PLA is moot because this determination concerns only the
standard of care Excel owed to him, which the district court
conclusively resolved through the subject instruction. We reject
this argument, however, because it assumes that the court would
have imposed an identical sanction regardless of its ruling on
Warembourg’s status under the PLA.
¶ 42 The subject instruction specifically said that Excel “knew, or
as an entity using reasonable care, should have known” that the
box presented a danger of injury. The “knew or should have
known” language mirrors the standard to which landowners must
17
adhere to protect invitees under the PLA. See § 13-21-115(3)(c)(I).
Thus, it appears the district court fashioned the sanction based on
its previous ruling that, pursuant to the PLA, Warembourg was an
invitee. Had the court’s PLA ruling differed, the sanction likely
would have differed too. Thus, because the court’s PLA ruling
informed its sanction, which impacted the later proceedings in the
case, we conclude that Warembourg’s status under the PLA is not
moot.
b. Warembourg Was an Invitee at the Time of His Injury
¶ 43 Because the record shows that Warembourg and Excel were
mutually interested in providing construction services for Feller
Homes and supports the district court’s finding that Excel did not
tell Warembourg he could not toggle the box’s internal breakers, we
hold that Warembourg was an invitee under the PLA at the time of
his injury. See § 13-21-115(5)(a) (An “[i]nvitee” is a person “who
enters or remains on the land of another to transact business in
which the parties are mutually interested.”).
¶ 44 The parties do not dispute that Excel owned the box and was
responsible for its condition and providing electrical access to
subcontractors at the construction site. Thus, we conclude that
18
Excel was a property owner for purposes of the PLA because it was
legally responsible for the condition of the box. See Pierson, 48 P.3d
at 1216.
¶ 45 Nor do the parties dispute that Feller Homes hired Schmidt
Floors and Excel to provide construction services for the new home
and that Warembourg was Schmidt Floors’ employee. Further, the
record supports the district court’s finding that “each party
require[d] the existence of the other in order to perform a service for
which it [could] be compensated: [Warembourg] require[d] electricity
in order to install floors; and [Excel] need[ed] subcontractors, such
as [Schmidt Floors], for whom construction site electricity is a
commodity.” For this reason, given that the parties were “mutually
interested” in “transacting business,” Warembourg was Excel’s
invitee under the PLA for purposes of accessing power from the box.
§ 13-21-115(5)(a).
¶ 46 The parties’ agreement on the facts ends here, however. Excel
concedes that Warembourg was initially its invitee but contends
that Warembourg lost that status when he “broke into” the box. In
response, Warembourg asserts that Excel’s briefs addressing the
PLA failed to provide any evidence that he had lacked the authority
19
to toggle the box’s internal breakers. (Warembourg argues that our
review is limited to the arguments presented in the parties’ briefs on
Warembourg’s status under the PLA and, thus, we may not
consider evidence Excel introduced at trial regarding Warembourg’s
authority to access the interior of the box).
¶ 47 Neither party apparently contends that the district court
misapplied the law. Rather, Excel claims that the court erred in
finding that Warembourg had the authority to access the interior of
the box. Thus, the resolution of this issue turns on whether
Warembourg had such authority: if he did, he was an invitee; if not,
he was either a licensee or a trespasser. See § 13-21-115(5).
¶ 48 We need not resolve Warembourg’s contention that Excel
waived the right to present evidence regarding Warembourg’s status
under the PLA because, regardless of whether we consider the
evidence introduced at trial, the record supports the district court’s
finding that Warembourg had the authority to troubleshoot power
problems by removing the box’s cover and toggling its internal
breakers. Although Excel’s employees testified that they had not
given Warembourg permission to “break into” and “mess with” the
box, there is no evidence that any of these employees — or anyone
20
else — told Warembourg he could not troubleshoot the
malfunctioning box in the exact manner he did.
¶ 49 Indeed, the deposition and trial testimony show that
Warembourg operated within the scope of his authority:
 Warembourg testified that he thought he had permission
to use the box and troubleshoot the power problem, that
he had toggled breakers “well over a thousand” times in
his fourteen years as a subcontractor, and that nobody
had ever told him he lacked such permission.
 Shane testified that Excel installed the box to provide
power to subcontractors working at the construction site;
subcontractors commonly troubleshoot power problems
by removing the panel on temporary boxes to toggle the
internal breakers; and Excel did nothing to stop other
subcontractors from troubleshooting in this manner.
 O’Connell testified similarly, explaining that
subcontractors have access to temporary boxes,
commonly remove the boxes’ covers to troubleshoot
problems, and have not been told they are not authorized
to do so.
21
 Corey testified that Excel does not tell subcontractors
that they may not access the interior of its temporary
boxes.
 The Inspection Supervisor for the City of Westminster
opined that subcontractors commonly remove the panel
on boxes and toggle the internal breakers to troubleshoot
power issues.
Moreover, contrary to Excel’s assertions, the photographs of the
damaged box in the record prove it lacked legible warning stickers.
Based on this evidence, we conclude that Excel did not limit
Warembourg’s authority to access the box.
¶ 50 Because Warembourg possessed the authority to troubleshoot
the power problem by removing the box’s cover and toggling its
internal breakers, the district court did not err in classifying him as
an invitee under the PLA.
B. The Spoliation Sanction
¶ 51 Excel contends that the district court erred in instructing the
jury on an irrebuttable presumption of causation and liability as a
sanction for Excel’s destruction of the box. We disagree.
22
1. Standard of Review
¶ 52 Because “trial courts enjoy broad discretion to impose
sanctions for spoliation of evidence, even if the evidence was not
subject to a discovery order permitting sanctions under C.R.C.P.
37[,] . . . we will not overturn the trial court’s determination unless
it is manifestly arbitrary, unreasonable, or unfair.” Castillo v. Chief
Alt., LLC, 140 P.3d 234, 236 (Colo. App. 2006); see Pfantz v. Kmart
Corp., 85 P.3d 564, 567 (Colo. App. 2003). If a court imposes an
adverse inference instruction as a sanction for spoliation, “the form
and style of the instruction [are] within the trial court’s discretion.”
Rogers v. Westerman Farm Co., 29 P.3d 887, 909 (Colo. 2001).
2. Legal Authority
¶ 53 “The ability to provide the jury with an adverse inference
instruction as a sanction for spoliation of evidence derives from the
trial court’s inherent powers.” Aloi v. Union Pac. R.R. Corp., 129
P.3d 999, 1002 (Colo. 2006) (citing Pena v. Dist. Court, 681 P.2d
953, 956 (Colo. 1984)). Although courts’ inherent powers to
sanction spoliation may differ between jurisdictions, see Silvestri v.
Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001), “we are
persuaded by Colorado cases involving discovery violations, as well
23
as by more recent federal precedent,” for guidance on whether a
court abuses its discretion by imposing a particular sanction,
Pfantz, 85 P.3d at 568.
¶ 54 “In determining whether the trial court abused its discretion,
we must examine whether the rationales underlying the adverse
inference supported giving the instruction as a sanction for
spoliation.” Aloi, 129 P.3d at 1002.
[A]dverse inference instructions serve both a
punitive and a remedial purpose. The punitive
function serves to deter parties from
destroying evidence in order to prevent its
introduction at trial. The remedial function
serves to restore the putative prejudiced party
to the position it would have held had there
been no spoliation.
Id. (citations omitted).
¶ 55 To effectuate these purposes, the supreme court adopted the
Fourth Circuit’s rationale that a court need not find bad faith or
that the content of the destroyed evidence would have been
unfavorable to the spoliator before imposing a sanction in the form
of an adverse instruction. See id. at 1003-04 (“To draw an adverse
inference from the absence, loss[,] or destruction of evidence, it
would have to appear that the evidence would have been relevant to
24
an issue at trial and otherwise would naturally have been
introduced into evidence.” (quoting Vodusek v. Bayliner Marine
Corp., 71 F.3d 148, 156 (4th Cir. 1995))).
¶ 56 Thus, “[t]he trial court need not find that the evidence was
destroyed in bad faith; it may sanction a party who willfully
destroys evidence relevant to a contested issue” if “the party knew
or should have known that the destroyed evidence was relevant to
pending, imminent, or reasonably foreseeable litigation.” Castillo,
140 P.3d at 236 (citing Aloi, 129 P.3d at 1003); Pfantz, 85 P.3d at
568-69; Rodriguez v. Schutt, 896 P.2d 881, 884-85 (Colo. App.
1994), aff’d in part and rev’d in part on other grounds, 914 P.2d 921(Colo. 1996).
¶ 57 Further, the spoliator’s state of mind is an important
consideration when determining the appropriate severity of the
adverse inference sanction. See Pfantz, 85 P.3d at 568 (“The
sanction should be ‘commensurate with the seriousness of the
disobedient party’s conduct.’” (quoting Newell v. Engel, 899 P.2d
273, 276 (Colo. App. 1994))).
[A]n adverse inference instruction can take
many forms, again ranging in degrees of
harshness. The harshness of the instruction
25
should be determined based on the nature of
the spoliating party’s conduct — the more
egregious the conduct, the more harsh the
instruction. In its most harsh form, when a
spoliating party has acted willfully or in bad
faith, a jury can be instructed that certain
facts are deemed admitted and must be
accepted as true. At the next level, when a
spoliating party has acted willfully or
recklessly, a court may impose a mandatory
presumption. Even a mandatory presumption,
however, is considered to be rebuttable. The
least harsh instruction permits (but does not
require) a jury to presume that the lost
evidence is both relevant and favorable to the
innocent party.
Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am.
Secs., 685 F. Supp. 2d 456, 470 (S.D.N.Y. 2010) (footnotes omitted),
abrogated on other grounds by Chin v. Port Auth., 685 F.3d 135 (2d
Cir. 2012).
3. The District Court Did Not Abuse Its Discretion in Imposing
the Subject Instruction as a Sanction for Excel’s Spoliation
¶ 58 As explained above, the district court imposed the subject
instruction as a sanction for Excel’s intentional destruction of the
box in bad faith. The court noted that this sanction served the
punitive purpose of deterring misconduct and the remedial purpose
of reducing the “profound[] prejudice” to Warembourg.
26
¶ 59 Excel concedes that it discarded the box and that the box
would have be relevant to the litigation. However, Excel claims that
its actions were benign: its employees were not “litigation-savvy”
and did not understand the importance of retaining a damaged
piece of equipment for months when Warembourg had not divulged
the extent of his injuries or the significance of the box to those
injuries. It further asserts that its employees’ inconsistent and
contradictory statements concerning the box’s destruction resulted
from their “possible incomplete memor[ies]” and Warembourg’s
engagement in “semantics.”
¶ 60 In the alternative, Excel contends that, even if the record
supports the court’s finding, the court abused its discretion
because Colorado law does not authorize the sanction it imposed.
Excel further asserts that the subject instruction impermissibly
took the issues of credibility, causation, and liability away from the
jury, thereby wrongfully precluding the jury from deciding the case
on the merits. We consider and reject each argument.
27
a. The District Court Did Not Err in Finding that Excel
Intentionally Destroyed the Box in Bad Faith
¶ 61 Excel had a legal duty to preserve the box upon learning that
litigation arising from Warembourg’s accident was likely. See Cache
La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 621 (D.
Colo. 2007) (“In most cases, the duty to preserve evidence is
triggered by the filing of a lawsuit. However, the obligation to
preserve evidence may arise even earlier if a party has notice that
future litigation is likely.”); Scott v. IBM Corp., 196 F.R.D. 233, 249
(D.N.J. 2000) (“While a litigant is under no duty keep or retain every
document in its possession, even in advance of litigation it is under
a duty to preserve what it knows, or reasonably should know, will
likely be requested in reasonably foreseeable litigation.”).
¶ 62 The analysis of when litigation was “reasonably foreseeable” is
“a flexible fact-specific standard that allows a district court to
exercise the discretion necessary to confront the myriad factual
situations inherent in the spoliation inquiry.” Micron Tech., Inc. v.
Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011). That analysis
was stymied here due to Excel’s conflicting accounts of the box’s
destruction.
28
¶ 63 The district court meticulously reviewed the record in
determining that Excel had destroyed the box while under a duty to
preserve it. In support of its conclusion, the district court made the
following findings of fact:
 “[Excel] knew within days of September 9, 2015 that
[Warembourg] had sustained an injury related to the
electrical box in question”;
 “[Excel] was on notice as of October 27, 2015, that the
box had relevance to an investigation of this injury”; and
 “[s]ometime between May 1 and 17, 2016, [Excel
acquired] actual knowledge that litigation was imminent.”
¶ 64 Based on these findings, the court concluded that Excel
“disposed of the electrical box sometime after it had actual
knowledge that the box had potential evidentiary value . . . .
Conflicting evidence and testimony provided by [Excel], however,
make[] it impossible to definitely establish the date of destruction.”
Due to the Excel employees’ conflicting testimony regarding when
the box was discarded, who destroyed it, and where it was kept
before its destruction, the court inferred that “at the time [Excel]
destroyed the electrical box involved in [Warembourg’s] injury, it
29
knew or should have known that the destroyed evidence was
relevant to pending, imminent, or reasonably for[e]seeable
litigation.”
¶ 65 The record supports the district court’s findings of fact and
inferences from those facts. See People in Interest of L.M., 2018
COA 57M, ¶ 17, 433 P.3d 114, 118 (“[T]he inferences and
conclusions to be drawn from [the facts] are within the [trial] court’s
discretion.”). First, Corey testified that Excel knew somebody had
been injured “a couple days after” the accident. Corey’s testimony
is consistent with the evidence that an Excel employee retrieved the
damaged box the day of the accident and Excel inspected the box
the next day.
¶ 66 Second, following Shane’s call with Pinnacol Assurance, Excel
was on notice that the box was relevant to Warembourg’s injuries.
The investigator explained who he was, for whom he worked, and
why he was calling. Their conversation focused on the condition of
the box, its whereabouts, and Warembourg’s alleged actions
preceding the accident. Further, Shane said he knew Warembourg
had been injured.
30
¶ 67 If there was any doubt that Excel knew the box was relevant,
Shane later testified that he knew it was prudent to retain
injury-causing equipment for potential worker’s compensation
claims. Moreover, Corey conceded that, at the time of the Pinnacol
Assurance call, Excel knew that a “major injury” had occurred and
that a worker’s compensation carrier was investigating the cause of
Warembourg’s injuries and the condition of the box.
¶ 68 Third, the record evidence establishes that Excel had actual
knowledge that litigation was imminent when it received the letter
from Warembourg’s counsel in early May 2016. The letter
specifically referenced Warembourg’s claim against Excel and
included an express request that Excel preserve “any . . . evidence
relating to this incident.” Further, the record shows that Excel
tendered a claim for Warembourg’s injuries to its insurance carrier
on May 13, 2016.
¶ 69 Thus, the record supports the district court’s finding that
Excel intentionally “disposed of the electrical box sometime after it
had actual knowledge that the box had potential evidentiary value.”
¶ 70 The record also supports the district court’s inference that
Excel destroyed the box in bad faith. Excel inconsistently described
31
when it disposed of the box. Shane first told the investigator for
Pinnacol Assurance on October 27, 2015, that Excel had “probably”
already thrown away the box. He initially testified in his deposition
that Excel retained the box for approximately six months, but later
testified that Excel kept the box until March or April 2016. Shane
also testified that Excel discarded the box during a routine cleaning
of its warehouse, which occurred sometime in May 2016. Yet Excel
represented in interrogatory responses that it disposed of the box
approximately six months after Warembourg’s accident. And Corey
testified that Excel retained the box for six to eight months after the
accident.
¶ 71 As the district court correctly noted, “[a]t least one of these
statements [wa]s necessarily false . . . [and] prevented an interested
party from inspecting the box for physical evidence regarding the
circumstances of [Warembourg’s] injury.”
¶ 72 Excel also inconsistently described who destroyed the box.
During the call with Pinnacol Assurance, Shane stated that his
“shop guy” discarded the box. Shane later testified that he was
responsible for discarding the box and that either he or Chris did
so. However, Chris testified that he did not remember seeing the
32
box. Meanwhile, Corey testified that he was present when the box
was thrown away and probably made the decision to do so.
Further, in interrogatory responses, Excel certified that “Shane Heil
would have been the individual responsible for authorizing the
disposal of the box.” Thus, at least one of Excel’s sworn statements
concerning who destroyed the box must also have been false.
¶ 73 Finally, Excel inconsistently described where it kept the box
after Warembourg’s injury. Shane initially told Pinnacol Assurance
that Excel did not have the box and later testified that he directed
its destruction during a routine cleaning. Corey gave a different
account, however, testifying that Excel held the box in the “job
room,” which was not subject to periodic cleanings.
¶ 74 The district court found that Excel intentionally destroyed the
box in bad faith in anticipation of litigation, based on Excel’s
numerous inconsistent statements, its destruction of the
“IGNORANT FLOORING GUY” label and the panel within hours
following O’Connell’s deposition testimony about this potentially
damaging evidence, and its demonstrably false representations
throughout the litigation, including its statement that “[a]fter the
date of the incident, Excel did not hear anything about the accident
33
or about [Warembourg] until it received a phone call from an
attorney over a year later.”
¶ 75 We cannot assume the district court’s role to find facts and
determine credibility. Legro, ¶ 15, 369 P.3d at 789 (“We defer to the
court’s credibility determinations, and will disturb its findings of
historical fact only if they are clearly erroneous and not supported
by the record.”). The district court was free to believe or disbelieve
the witnesses. We conclude that it did not err in disbelieving
Excel’s representations and finding that Excel intentionally
destroyed the box in bad faith.
b. The District Court Did Not Abuse Its Discretion in Giving the
Subject Instruction
¶ 76 As an initial matter, we reject Excel’s assertion that Colorado
law does not authorize a court to give an adverse inference jury
instruction containing an irrebuttable presumption as a sanction
for a party’s pre-litigation destruction of evidence. Excel provides
no authority, and we can find none, that circumscribes a court’s
power in this manner. To the contrary, Colorado and federal case
law overwhelmingly indicates that courts possess broad discretion
in fashioning the appropriate sanction for spoliation. See Aloi, 129
34
P.3d at 1002; see also Vodusek, 71 F.3d at 156; Gates Rubber Co. v.
Bando Chem. Indus., Ltd., 167 F.R.D. 90, 102 (D. Colo. 1996)
(Because the imposition of sanctions is essentially a judgment call,
courts’ rulings “cannot be tied down to a fixed rule or formula. If
such were the case, courts would lose their flexibility in the
sanctions process, and discretion would lose its meaning.”).
¶ 77 A court has the option to fashion an adverse inference jury
instruction against the spoliator. See Rodriguez, 896 P.2d at 884
(“Where a party intentionally destroys evidence to prevent its
introduction at trial, the trial court clearly has the power to employ
an adverse inference as a sanction.”); see also Pension Comm., 685
F. Supp. 2d at 470. The adverse inference instruction can take
different forms; “[i]n its most harsh form, when a spoliating party
has acted willfully or in bad faith, a jury can be instructed that
certain facts are deemed admitted and must be accepted as true.”
Pension Comm., 685 F. Supp. 2d at 470; see Pfantz, 85 P.3d at
568-69 (affirming the trial court’s rulings, including its decision to
give an adverse inference jury instruction containing an irrebuttable
presumption as a sanction for spoliation).
35
¶ 78 For these reasons, we hold that Colorado trial courts have the
authority to give an adverse inference jury instruction containing an
irrebuttable presumption as a sanction for a party’s pre-litigation
spoliation of evidence. See Lauren Corp. v. Century Geophysical
Corp., 953 P.2d 200, 204 (Colo. App. 1998) (“We note that the
opposite result — denying the court the inherent power to award
sanctions . . . — would only encourage unscrupulous parties to
destroy damaging evidence before a court order has been issued.”).
¶ 79 We decline to address Warembourg’s contention that the
district court also had the authority to enter a default judgment as
a sanction for Excel’s pre-litigation spoliation. Such a
determination “would have no practical legal effect upon the
existing controversy” — whether the district court abused its
discretion in imposing a jury instruction containing an irrebuttable
presumption. Am. Drug Store, Inc. v. City & Cty. of Denver, 831 P.2d
465, 469 (Colo. 1992) (quoting Van Schaack Holdings, Ltd. v.
Fulenwider, 798 P.2d 424, 426-27 (Colo. 1990)).
¶ 80 Having concluded that the spoliation sanction was within the
district court’s authority, we now turn to whether the court abused
its discretion in imposing it. We hold that the court did not abuse
36
its discretion because the sanction served the punitive function of
deterring Excel’s bad faith misconduct and the remedial function of
restoring Warembourg to the position in which he would have been
had Excel not discarded the box. See Aloi, 129 P.3d at 1002.
¶ 81 The court’s finding that Excel intentionally destroyed the box
in bad faith alone provides a sufficient punitive purpose for
imposition of the subject instruction. See Pension Comm., 685
F. Supp. 2d at 470; Pfantz, 85 P.3d at 568-69. Moreover, the
district court’s findings regarding Excel’s destruction of the panel
during litigation underscore the appropriateness of the sanction.
The court needed to “deter [Excel] from destroying evidence” that
would naturally have been “introduc[ed] at trial.” Aloi, 129 P.3d at
1002.
¶ 82 The subject instruction also properly served as a remedial
measure to limit prejudice to Warembourg. See id. The district
court found that the box was “the key item of physical evidence,”
that it “would have been relevant to an issue at trial and otherwise
would naturally have been introduced into evidence,” and that
Warembourg was “profoundly prejudiced” by its destruction. Id. at
1004 (quoting Vodusek, 71 F.3d at 156). The court noted that an
37
exemplar panel and photographs of the box were inadequate
substitutes for the box itself because the “proffered substitutes
cannot resolve the disputed question of the condition of [the box],
and all its constituent parts, when [Warembourg] came upon it.”
¶ 83 The record supports the district court’s finding of prejudice
and need for remedial measures. Excel destroyed the box without
recording any notes or taking any photographs of it, thereby
precluding Warembourg and Pinnacol Assurance from examining it.
Excel subsequently misrepresented the condition of the box, stating
that it found no issues during its inspection, and speculated that
Warembourg’s attempt to compensate for his own lack of proper
equipment caused his injuries. However, Excel failed to introduce
any evidence supporting its contention that Warembourg either
lacked the proper equipment or injured himself while trying to hook
an improper cord to the breaker. Thus, without access to the box,
Warembourg could not defend himself against Excel’s accusations
that he, and not the box, caused his injuries. For this reason, we
conclude that a lesser sanction would not have adequately
remedied the prejudice to Warembourg. An adverse inference jury
instruction articulating a rebuttable presumption of causation and
38
liability, for which Excel advocates, would have carried little weight
given that Excel had the opportunity to examine the box and
Warembourg did not. Under this hypothetical scenario,
Warembourg would have had no way to refute Excel’s statements
that the box was functioning properly and did not cause the
accident.
¶ 84 Because the district court had the authority to impose the
subject instruction as a sanction for Excel’s spoliation of the box,
and because the sanction served punitive and remedial functions,
we hold that the court did not abuse its discretion in giving the
adverse inference jury instruction.
c. The District Court Did Not Preclude the Jury from Deciding
the Case on the Merits
¶ 85 Finally, we reject Excel’s contention that the sanction
impermissibly precluded the jury from deciding the case on the
merits. As we perceive it, Excel has recloaked its previous abuse of
discretion argument in the guise of a right to a jury trial argument.
But Excel’s contention misses the mark because courts are
empowered to enforce their lawful rulings. See Pena, 681 P.2d at
956 (“The inherent powers which courts possess consist of: ‘[A]ll
39
powers reasonably required to enable a court to perform efficiently
its judicial functions, to protect its dignity, independence, and
integrity, and to make its lawful actions effective.’” (quoting Jim R.
Carrigan, Inherent Powers and Finance, Trial, Nov.-Dec. 1971, at
22)) (emphasis added). Thus, because we held above that the court
did not abuse its discretion in imposing an adverse inference jury
instruction containing an irrebuttable presumption, we conclude
that its enforcement of the sanction did not impermissibly take the
factfinding role from the jury. Indeed, the federal and Colorado
courts have affirmed trial courts’ instructions that certain facts are
deemed admitted and must be accepted as true. See Smith v. Kmart
Corp., 177 F.3d 19, 28-29 (1st Cir. 1999); Pfantz, 85 P.3d at 567.
¶ 86 Moreover, the district court allowed Excel to present its
contributory negligence defense and nonparty at fault argument.
These arguments required the jury, and not the court, to determine
whether Warembourg or Schmidt Floors were partly at fault for the
accident. Thus, we disagree that the subject instruction precluded
the jury from deciding the case on the merits.
40
C. The District Court’s Evidentiary Rulings
¶ 87 Excel argues that the district court abused its discretion by
barring Excel’s experts from testifying about, and Excel’s counsel
from discussing, the cause of Warembourg’s injuries; by allowing
Warembourg’s allegedly speculative testimony about the condition
of the box; and by precluding Excel from introducing evidence that
Warembourg violated the criminal code when he accessed the box.
Excel claims that the court’s evidentiary rulings, in conjunction
with the subject instruction, sanctioned Excel multiple times for the
same act, which amounted to improper advocacy by the court. We
disagree.
1. Standard of Review
¶ 88 We review a trial court’s evidentiary rulings for an abuse of
discretion. Wal-Mart Stores, Inc. v. Crossgrove, 2012 CO 31, ¶ 7,
276 P.3d 562, 564. “A trial court has considerable discretion in
ruling upon the admissibility of evidence, and we will find an abuse
of discretion only if its ruling is manifestly arbitrary, unreasonable,
or unfair.” Leaf v. Beihoffer, 2014 COA 117, ¶ 9, 338 P.3d 1136,
1138 (quoting Wark v. McClellan, 68 P.3d 574, 578 (Colo. App.
2003)). “In weighing those dangers and considerations, the
41
proffered evidence ‘should be given its maximal probative weight
and its minimal prejudicial effect.’” Alhilo v. Kliem, 2016 COA 142,
¶ 9, 412 P.3d 902, 906 (quoting Murray v. Just In Case Bus.
Lighthouse, LLC, 2016 CO 47M, ¶ 19, 374 P.3d 443, 451).
2. The District Court Did Not Abuse Its Discretion in Preventing
Excel’s Witnesses from Opining About the Safety of the Box
¶ 89 Excel specifically asserts that the district court erred by
reading the subject instruction to the jury after Excel’s expert
opined that Warembourg had engaged in dangerous actions. Excel
also contends that the court’s rulings improperly precluded its
witnesses from testifying that
 other contractors had safely used the box the previous
year;
 “[t]he box was assembled, installed[,] and maintained
according to the applicable standards of care”;
 “[t]he accident’s cause was not an unreasonable failure of
Excel to protect against a danger of which it knew or
should have known”;
42
 “[r]easonable protection was provided by Excel against
dangers which were known or should have been known”;
and
 “[n]o unreasonable failure to protect caused the injury in
this case.”
¶ 90 We reject Excel’s assertions. The district court read the
subject instruction after Excel’s expert testified that, because
“[Warembourg] was hurt,” “the work was dangerous.” The court’s
action was consistent with its decision — and obligation — to
enforce the subject instruction. At the pretrial hearing, the court
informed the parties,
now that the Court has made this
determination about the conclusive
presumption, it is no longer relevant to assert
or argue that [Excel] exercised due care. The
Court has taken that question from the jury.
And so a circumstance where the Court might
give this instruction would be an event that
[Excel] argued or one of the witnesses, perhaps
an expert, attempted to offer testimony about
[Excel] having exercised due care. The Court
would give the instruction in the event that
that was – that testimony would lead the jury
to infer that there was due care exercised.
Given our holding that the court did not abuse its discretion in
imposing the subject instruction, supra Part II.B.3.b, we conclude
43
that the court’s reading of the instruction, just as it warned Excel it
would do, was not “manifestly arbitrary, unreasonable, or unfair.”
Leaf, ¶ 9, 338 P.3d at 1138 (quoting Wark, 68 P.3d at 578); see
Pena, 681 P.2d at 956 (explaining that courts have the inherent
power “to make [their] lawful actions effective”); see also Pfantz, 85
P.3d at 568 (explaining that a party that destroys evidence in bad
faith is precluded from presenting secondary evidence concerning
the characteristics of the evidence (citing CRE 1004(1))).
¶ 91 Further, although the district court said that “it [wa]s no
longer relevant to assert or argue that [Excel] exercised due care,”
the record indicates that the instruction did not preclude Excel
from introducing evidence of its alleged exercise of due care
regarding the condition of the box. For example, Excel presented
evidence that
 Shane inspected and tested the box before installing it at
the construction site;
 the box passed inspection; and
 more than a dozen other subcontractors had used the
box without reporting any issues.
44
¶ 92 For this reason, we disagree with Excel’s blanket statement
that the court precluded it from presenting evidence of its alleged
exercise of due care. Accordingly, we hold that the court did not
abuse its discretion when it precluded Excel’s expert from testifying
that Excel exercised due care concerning the condition of the box.
3. The District Court Did Not Abuse Its Discretion in Permitting
Warembourg’s Witnesses from Opining About the Box’s
Condition and Destruction
¶ 93 Excel next asserts that the district court erred in permitting
Warembourg to present speculative evidence about the condition of
the box, Excel’s destruction of the panel, and Excel’s alleged
knowledge concerning its destruction of the box, which was
irrelevant as a consequence of the court’s imposition of the subject
instruction. The court addressed Excel’s contention in denying
Excel’s motion for new trial, explaining that Excel’s comparative
fault defense and nonparty at fault argument made this evidence
relevant. The court also noted that it had permitted both parties to
present evidence concerning Excel’s destruction of the box, and that
Excel chose to do so.
¶ 94 Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
45
the action more probable or less probable than it would be without
the evidence.” CRE 401. Relevant evidence is generally admissible.
CRE 402.
¶ 95 In advancing its assertion that the condition of the box was
irrelevant after the court imposed the subject instruction, Excel
focuses on Warembourg’s PLA claim and ignores its own defenses.
Evidence of the condition of the box would have been irrelevant had
the subject instruction stated that Excel was the sole cause of
Warembourg’s injuries and had Excel not argued comparative fault
and that Schmidt Floors was a nonparty at fault. But, by stating
that Excel was “a cause” of the accident, the subject instruction left
the door open for Excel’s presentation of evidence that
Warembourg’s and Schmidt Floors’ actions contributed to the
accident. Thus, the condition of the box was relevant to Excel’s
own defenses at trial.
¶ 96 Excel’s destruction of the panel and knowledge of when it
destroyed the box were also relevant to Excel’s theory of the case.
As the district court correctly noted, the jury “had to determine
[Excel’s] degree of liability in comparison to [Warembourg’s] and
[Schmidt Floors’] alleged liability.” See § 13-21-111(1), (2)(b), C.R.S.
46
2019 (providing that, in actions where the plaintiff’s negligence
contributed to his or her injuries, “any damages allowed shall be
diminished in proportion to the amount of negligence attributable to
the person for whose injury, damage, or death recovery is made,”
which is determined “by the degree of negligence of each party,
expressed as a percentage”); § 13-21-111.5(1), C.R.S. 2019 (stating
that, in applying the nonparty designation statute, “no defendant
shall be liable for an amount greater than that represented by the
degree or percentage of the negligence or fault attributable to such
defendant . . . .”). Evidence concerning Excel’s destruction of the
panel during the pendency of the litigation and its knowledge of
when it discarded the box were relevant to its credibility on all other
issues, including its representations about the condition of the box
and its percentage of fault for the accident.
¶ 97 Accordingly, we hold that the district court did not abuse its
discretion in permitting Warembourg to present evidence
concerning the condition of the box, Excel’s destruction of the
panel, and Excel’s alleged knowledge when it discarded the box.
47
4. We Do Not Address Excel’s Remaining Contentions of Error
Concerning the District Court’s Evidentiary Rulings
¶ 98 Excel contends that the district court abused its discretion by
precluding Excel from introducing evidence that Warembourg
allegedly violated the criminal code and by barring Excel’s counsel
from arguing in closing that the box was safe. But Excel devotes a
mere conclusory sentence to each of these issues. We decline to
address these arguments because they are “unsupported by any
substantial argument” and, thus, are insufficiently developed for
appellate review. Taylor v. Taylor, 2016 COA 100, ¶ 13, 381 P.3d
428, 431.
5. The District Court Did Not Improperly Act as an Advocate
¶ 99 Excel argues that the district court’s evidentiary rulings
improperly sanctioned Excel multiple times for the same act and,
thus, amounted to improper advocacy by the court. Because we
held above that the court correctly applied the subject instruction,
we reject Excel’s argument.
¶ 100 Moreover, despite the severity of Excel’s conduct that led to
Warembourg’s inability to prove that the box caused his injuries,
the district court went out of its way to ensure that the sanction
48
would not preclude the jury from deciding the case on the merits.
See Aloi, 129 P.3d at 1006 (“The test which must be applied here is
whether the trial judge’s conduct so departed from the required
impartiality as to deny the [party] a fair trial.” (quoting People v.
Adler, 629 P.2d 569, 573 (Colo. 1981))). The court
 denied Warembourg’s request for language in the
instruction stating that the box was “the cause” of the
accident;
 denied Warembourg’s request for a standalone
instruction highlighting Excel’s spoliation;
 permitted Excel to present evidence that the “destruction
[of the box] was due to a good faith accidental loss”;
 never informed the jury of its finding that Excel destroyed
the box in bad faith;
 permitted Excel to raise its contributory negligence
defense and argue that Schmidt Floors was a nonparty at
fault;
 read the adverse inference jury instruction to the jury
only three times over an eight-day trial, one time at
Excel’s request;
49
 did not read the instruction in many instances where
Excel presented evidence of its alleged exercise of due
care concerning the condition of the box; and
 expressly invited Excel to object to Warembourg’s
presentation of evidence about the box if such evidence
became cumulative, which Excel did not do.
Thus, we agree with the court’s assessment that “the spoliation
instruction was not unduly highlighted” and did not deprive Excel
of a fair trial. See Aloi, 129 P.3d at 1006.
¶ 101 Moreover, in each of the its actions listed above, the district
court addressed Excel’s objections and articulated the reasoning
behind its decision. See id. Accordingly, when we view the totality
of the court’s actions, we conclude that it did not act as an advocate
because its actions were “motivated by a desire to remedy prejudice
caused by spoliation of evidence rather than by partiality.” Id.
D. The Rejected Assumption of Risk Instruction
¶ 102 Excel contends that the district court erred in failing to
instruct the jury on Excel’s assumption of risk defense, given that
Warembourg presented evidence that he was qualified to
troubleshoot the problems with the box; Excel introduced evidence
50
that Warembourg ignored a warning sticker on the box; and the
parties agreed he voluntarily removed the box’s cover and accessed
the breaker. Excel further asserts that the court erroneously
concluded that the tendered instruction was inconsistent with
Excel’s contributory negligence defense and argument that Schmidt
Floors was a nonparty at fault. We discern no error.
1. Standard of Review
¶ 103 Trial courts must correctly instruct the jury on all matters of
law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). We review
de novo whether the “instructions as a whole accurately informed
the jury of the governing law.” Id. However, because trial courts
have broad discretion to fashion the form and style of instructions,
“we review a trial court’s decision to give a particular jury
instruction for an abuse of discretion.” Id. “A trial court abuses its
discretion only when its ruling is manifestly arbitrary,
unreasonable, or unfair, or the instruction is unsupported by
competent evidence in the record.” Vititoe v. Rocky Mountain
Pavement Maint., Inc., 2015 COA 82, ¶ 78, 412 P.3d 767, 782.
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2. Legal Authority
¶ 104 A party may plead an assumption of risk defense in PLA cases.
See Tucker v. Volunteers of Am. Colo. Branch, 211 P.3d 708, 711
(Colo. App. 2008) (“The PLA . . . does not exclusively limit defenses
and does not abrogate statutorily created defenses . . . .”), aff’d and
remanded sub nom. Volunteers of Am. Colo. Branch v. Gardenswartz,
242 P.3d 1080 (Colo. 2010). “[A] person assumes the risk of injury
or damage if he voluntarily or unreasonably exposes himself to
injury or damage with knowledge or appreciation of the danger and
risk involved.” § 13-21-111.7, C.R.S. 2019; see Carter v. Lovelace,
844 P.2d 1288, 1289 (Colo. App. 1992).
3. The District Court Did Not Abuse Its Discretion in Declining to
Instruct the Jury on Excel’s Assumption of Risk Defense
¶ 105 We conclude that the district court did not abuse its discretion
in rejecting Excel’s tendered assumption of risk instruction because
the evidence at trial showed that Warembourg lacked knowledge
that toggling a breaker in the box presented a danger of injury and,
thus, did not consent to that danger. See Wark, 68 P.3d at 581(explaining that a court may instruct the jury on the assumption of
risk defense if the facts of the case support giving the instruction).
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¶ 106 Contrary to Excel’s contention, the record evidence does not
indicate that Warembourg knew of the danger or consented to it.
Rather, Warembourg testified that he was not aware of the danger
of being electrocuted by toggling the breaker. There is a difference
between generally appreciating the danger of electricity and
knowing that a particular electrical component presents a danger of
electrocution. See Carter, 844 P.2d at 1290 (holding that the trial
court erred in instructing the jury on assumption of the risk when
the plaintiff did not assume the specific risk that caused his
injuries). A finding that Warembourg’s testimony was credible
alone would have been sufficient for the court to reject Excel’s
tendered assumption of risk instruction. See Wark, 68 P.3d at 581(explaining that a party’s subjective knowledge of the danger is
necessary for an assumption of risk instruction); see also Legro,
¶ 15, 369 P.3d at 789 (“We defer to the court’s credibility
determinations . . . .”).
¶ 107 Moreover, additional evidence supported Warembourg’s
subjective belief that his actions were not dangerous. Shane and
Corey conceded that toggling a breaker in a properly functioning
box would not be a dangerous act. Warembourg’s flooring expert,
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his coworker, and the Inspection Supervisor for the City of
Westminster confirmed this point. Further, Shane and O’Connell
testified during their depositions and the Inspection Supervisor
opined in his expert report that subcontractors commonly remove
the panel on boxes and toggle the internal breakers to troubleshoot
issues with power.
¶ 108 Excel’s arguments conflate the assumption of risk and
contributory negligence defenses. The distinction between these
defenses reinforces our conclusion that the district court did not
abuse its discretion in rejecting Excel’s tendered instruction. See
Appelhans v. Kirkwood, 148 Colo. 92, 99, 365 P.2d 233, 237 (1961)
(“[A]ssumption of risk is a matter of knowledge of the danger and
intelligent acquiescence in it, while contributory negligence is a
matter of some fault or departure from the standard of reasonable
conduct . . . .” (quoting Prosser on Torts § 305 (2d ed. 1955)));
Carter, 844 P.2d at 1289 (“[A]ssumption of risk requires knowledge
of the danger and consent to it. Contributory negligence does not.”).
Each of Excel’s assertions rests on the subjective belief of one of its
employees — not Warembourg’s belief — that Warembourg
assumed the risk of electrocution by opening the box. These
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arguments potentially support the conclusion that Warembourg
acted negligently, but do not support the conclusion that
Warembourg assumed the risk of injury.
¶ 109 Moreover, as noted above, the photographs of the box in the
record establish that it lacked legible, if any, warning stickers. We
therefore reject Excel’s contention that Warembourg assumed the
risk of injury by ignoring the warning stickers on the box. And
given our holding that the court did not abuse its discretion in
rejecting Excel’s tendered assumption of risk instruction because
Warembourg lacked knowledge of, and did not consent to, the box’s
danger, we need not address the court’s alternate rationale that the
proposed assumption of risk instruction was inconsistent with
Excel’s other defenses.
E. Caps on Noneconomic Damages
¶ 110 Excel contends that the district court erred by not applying
the cap on noneconomic damages set forth in CDARA. Excel
asserts that the CDARA cap applies because it “was a construction
professional whom the statute was intended to protect.” We
disagree.
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1. Standard of Review
¶ 111 Statutory interpretation is a question of law that we review de
novo. Colo. Oil & Gas Conservation Comm’n v. Martinez, 2019 CO 3,
¶ 19, 433 P.3d 22, 28. “In doing so, we look to the entire statutory
scheme in order to give consistent, harmonious, and sensible effect
to all of its parts, and we apply words and phrases in accordance
with their plain and ordinary meanings.” Id.
2. Legal Authority
¶ 112 The General Assembly has proscribed a general cap on
noneconomic damages:
In any civil action other than medical
malpractice actions in which damages for
noneconomic loss or injury may be awarded,
the total of such damages shall not exceed the
sum of two hundred fifty thousand dollars,
unless the court finds justification by clear
and convincing evidence therefor. In no case
shall the amount of noneconomic loss or injury
damages exceed five hundred thousand
dollars.
§ 13-21-102.5(3)(a). This cap is adjusted for inflation. § 13-21-
102.5(3)(c).
¶ 113 The General Assembly has also capped noneconomic damages
in construction defect cases: “In an action asserting personal injury
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or bodily injury as a result of a construction defect in which
damages for noneconomic loss or injury or derivative noneconomic
loss or injury may be awarded, such damages shall not exceed the
sum of two hundred fifty thousand dollars.” § 13-20-806(4)(a),
C.R.S. 2019. The CDARA cap is also adjusted for inflation. § 13-
20-806(4)(b).
3. The General Cap on Noneconomic Damages — Not the Cap in
CDARA — Applies to Warembourg’s Damage Award
¶ 114 Based on the plain language of CDARA, we hold that its cap
on noneconomic damages does not apply to Warembourg’s
judgment because this is not a construction defects case. See § 13-
20-802.5, C.R.S. 2019. Rather, this case represents the
quintessential premises liability action: Warembourg alleged that
Excel was legally responsible for the condition of the property or
activities conducted on it and failed to use reasonable care to
protect him against a dangerous condition that caused his injury.
Indeed, Warembourg could not have presented any other theory of
liability after the district court ruled that the PLA provided his sole
means of recovery. And this was the exact relief Excel sought in its
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pretrial motion for a declaration that the PLA applied to
Warembourg’s claims.
¶ 115 Moreover, regardless of the district court’s ruling on the
appropriate legal theory, the facts demonstrate that CDARA does
not apply. The General Assembly enacted CDARA to proscribe the
rights and remedies of property owners who allege that
professionals in the construction industry are responsible for
construction defects on their property. § 13-20-802, C.R.S. 2019.
As the district court found, Warembourg was not a property owner
and his claims did not arise from a defect impacting his property.
¶ 116 Further, Excel did not intend for its injury-causing property —
the box — to be an “improvement to real property.” See
§ 13-20-802.5(1) (providing that CDARA applies to actions “against
a construction professional . . . caused by a defect in the design or
construction of an improvement to real property”). The General
Assembly “intended [CDARA] to apply only to negligence in
planning, design, construction, supervision, or inspection that
results in a defect in an improvement to real property that causes an
injury, and to limit actions against building professionals only for
claims of injury arising from defects in the improvement they
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create.” Two Denver Highlands Ltd. P’ship v. Dillingham Constr.
N.A., Inc., 932 P.2d 827, 829 (Colo. App. 1996) (emphasis added).
Given that the term “improvement to real property” is not defined in
CDARA, “[t]he principal factor to be considered in making a
determination of whether an activity constitutes an improvement to
real property is the intention of the owner.” Id.; see Enright v. City
of Colorado Springs, 716 P.2d 148, 150 (Colo. App. 1985) (“[A]
permanent fixture . . . must be construed as an improvement to real
property.”). Here, the record indicates that Excel intended to
remove the box at the end of construction. Because the box was
temporary, it was not an “improvement to real property.”
¶ 117 Thus, CDARA’s cap on noneconomic damages does not limit
Warembourg’s recovery. Accordingly, the general cap on
noneconomic damages, which can be doubled due to Warembourg’s
“profound, severe, and life-altering” injuries, applies to this case.
See § 13-21-102.5(3)(a).
III. Conclusion
¶ 118 The district court’s judgment is affirmed.
JUDGE FREYRE and JUDGE GRAHAM concur.
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