19CA2124 Langley v Van Eaton 01-20-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA2124
City and County of Denver District Court No. 17CV34847
Honorable Martin F. Egelhoff, Judge
James Langley,
Plaintiff-Appellee,
v.
Heidi Van Eaton and Team Industrial Services, Inc.,
Defendants-Appellants.
JUDGMENT AFFIRMED, ORDER VACATED,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE GROVE
Navarro and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 20, 2022
Bachus & Schanker LLC, J. Kyle Bachus, Denver, Colorado, for Plaintiff-
Appellee
Hall & Evans, L.L.C., Malcom S. Mead, Kenneth H. Lyman, Bryan Gogarty,
Denver, Colorado, for Defendants-Appellants
1
¶ 1 Plaintiff, James Langley, was injured when defendant, Heidi
Van Eaton, negligently ran into him in a pickup truck while Langley
was bicycling on the road. The truck was owned by Van Eaton’s
employer.
¶ 2 Van Eaton and her employer, Team Industrial Services, Inc.
(collectively, Van Eaton), appeal the judgment entered on the jury’s
verdict finding them liable for ninety percent of Langley’s damages
and allocating the remaining ten percent to Northern Colorado
Traffic Control (NCTC), a company that designed the traffic flow in
the construction zone where the collision occurred. We affirm the
judgment but remand the case for recalculation of postjudgment
interest.
I. Background
¶ 3 Van Eaton collided with Langley as he lawfully rode his bicycle
through a construction zone adjacent to a freeway off-ramp. Van
Eaton, who was exiting from the freeway in a pickup truck, failed to
yield as required by two signs at the end of the off-ramp and
collided with Langley. Langley sustained serious injuries.
¶ 4 Langley sued Van Eaton and her employer. Van Eaton then
designated NCTC as a nonparty at fault. In response, Langley
2
amended his complaint to include claims against both NCTC and
Lawrence Construction (collectively, NCTC). Before trial, Van Eaton
admitted that she was negligent, leaving the amount of damages
and the allocation of comparative fault between herself, NCTC, and
Langley as the only issues for the jury to decide.
¶ 5 Also before trial, Langley entered into a written high-low
agreement with NCTC, in which NCTC agreed that, notwithstanding
the jury’s verdict, it would pay Langley no less than $125,000 and
no more than $350,000. Neither party disclosed the agreement
before trial, either to the trial court or to Van Eaton. And because it
was not disclosed to Van Eaton or to the court, the jury was not
made aware of it either.
¶ 6 In his opening statement, Langley’s attorney argued that both
Van Eaton and NCTC were at fault. However, Langley presented no
evidence of NCTC’s fault for his injuries except for showing a
videotaped deposition of Van Eaton, during which she blamed
NCTC for its poor design of the interchange. Accordingly, once
Langley rested his case-in-chief, NCTC moved for a directed verdict.
Because Langley had presented no substantive evidence against it,
the trial court granted the motion, and NCTC became a nonparty.
3
¶ 7 This order prompted Van Eaton to move for a mistrial. Van
Eaton’s attorney argued that he had been “sandbagged” and
expressed concern that Langley would now switch tactics and argue
that NCTC bore no responsibility for the crash so as to minimize the
possibility that the jury would allocate NCTC a substantial portion
of the comparative fault. During a lengthy colloquy with the court
and counsel, Van Eaton’s attorney also told the court that he had
learned that Langley and NCTC had reached some sort of
agreement, and, although he had been unable to learn its details,
he suspected that it was collusive. As counsel put it: “[T]his is a
soft presentation and basically a rollover on [Langley’s] claims
against [NCTC], because [Langley] want[s] to argue next that there
has been a judicial determination of insufficient evidence with
regard to [NCTC’s] liability.”
¶ 8 The trial court denied Van Eaton’s motion for a mistrial, and
instead ruled that Langley had already made “a clear judicial
admission with respect to [his] allegations that [NCTC was]
negligent.” The court thus prohibited Langley’s attorney from
arguing that NCTC did not bear any causal fault for the accident.
Langley complied with this order, and at the end of the trial the jury
4
found that Van Eaton, NCTC, and Langley were all negligent. It
apportioned ninety percent of the award to Van Eaton and ten
percent to NCTC. The jury apportioned zero percent of the award to
Langley because, in response to an interrogatory on the verdict
form, it found that Langley’s negligence was not a cause of his own
claimed damages or losses.
¶ 9 After the verdict, Van Eaton filed a motion to depose counsel
for NCTC “concerning the existence of a settlement agreement
between [NCTC] and [Langley].” At the same time, Van Eaton filed a
motion for a new trial in which she argued that she had been
prejudiced by the other parties’ failure to promptly disclose the
high-low agreement and by the trial court’s corresponding failure to
instruct the jury as to the agreement’s existence, consistent with
Greenemeier v. Spencer, 719 P.2d 710 (Colo. 1986). In response,
Langley disclosed the high-low agreement to Van Eaton. Later, the
court issued an order denying the motion for a new trial. With
respect to the nondisclosure of the high-low agreement, the court
pointed out that it could not have instructed the jury about its
existence because it had no idea that the agreement existed and
Van Eaton never requested a Greenemeier instruction.
5
II. Nondisclosure of Settlement Agreement
¶ 10 Van Eaton contends that she is entitled to a new trial because
neither Langley nor NCTC timely disclosed their high-low agreement
to her or to the court, as she contends was required by our supreme
court’s holding in Greenemeier. While we agree that the agreement
should have been disclosed, we conclude that reversal is not
required because Van Eaton cannot establish that she was
prejudiced by the lack of disclosure.
A. Preservation
¶ 11 Van Eaton’s argument on appeal concerning the high-low
agreement is best understood as presenting two independent, but
related, contentions. She first argues that the trial court erred by
failing to provide a Greenemeier instruction to the jury. Second, she
maintains that the trial court erroneously denied her motion for a
new trial, which was based in part on her argument that she was
prejudiced by Langley’s and NCTC’s failure to disclose the high-low
agreement.
¶ 12 Langley urges us to deem Van Eaton’s arguments unpreserved
and thus unreviewable. We agree in part. Because counsel for Van
Eaton never asked the trial court to provide a Greenemeier
6
instruction nor asked the court to inquire further once he inferred
that some sort of agreement had been reached, the court had no
information upon which it could have based a Greenemeier
instruction. See C.R.C.P. 51; McLaughlin v. BNSF Ry. Co., 2012
COA 92, ¶ 21 n.2 (declining to review instruction-related contention
of error because the party “did not request such an instruction in
the district court, and therefore failed to preserve the issue for
review”). We therefore are not in a position to review the trial
court’s failure to instruct the jury of the existence of the high-low
agreement.
¶ 13 On the other hand, the propriety of Langley’s nondisclosure of
the high-low agreement is properly before us insofar as it formed
the basis for Van Eaton’s motion for a new trial. Citing C.R.C.P.
59(d)(1), Van Eaton contends that the failure of Langley and NCTC
to disclose the high-low agreement was an “irregularity in the
proceedings” that deprived her of a fair trial. Because this issue is
preserved, we examine Van Eaton’s contentions through the lens of
her C.R.C.P. 59 motion.
7
B. Standard of Review
¶ 14 We review a trial court’s ruling on a motion for new trial under
C.R.C.P. 59(a) for an abuse of discretion. Buckley Powder Co. v.
State, 70 P.3d 547, 564 (Colo. App. 2002). A trial court abuses its
discretion when its actions are manifestly arbitrary, unreasonable,
or unfair, or are based on an erroneous understanding or
application of the law. Sch. Dist. No. 12 v. Sec. Life of Denver Ins.
Co., 185 P.3d 781, 786-87 (Colo. 2008).
C. Analysis
¶ 15 The precise issue before us is whether the trial court erred
when it denied Van Eaton’s motion for a new trial because Langley
and NCTC did not disclose their high-low agreement, thus depriving
her of the opportunity to request a Greenemeier instruction. We
first consider whether a high-low agreement is the type of
settlement agreement contemplated in Greenemeier. After
concluding that it is and observing that it should have been
promptly disclosed to the court and opposing parties, we hold that,
nonetheless, Van Eaton was not prejudiced by Langley’s
nondisclosure, and is therefore not entitled to a new trial.
8
1. High-Low Agreements
¶ 16 At the outset, we consider whether the high-low agreement is
the type of settlement agreement that should have been disclosed to
the court and any parties not made part of the settlement. Langley
argues that disclosure was unnecessary because a high-low
agreement is a “conditional settlement” that, at least in this case,
did not excuse NCTC from participating in the trial, and in fact
substantially incentivized it to do so by providing for a large
difference between the agreement’s $125,000 and $350,000
bookends.
¶ 17 A number of other jurisdictions have considered this question
and have held — universally, as far as we can tell— that high-low
settlement agreements should be disclosed to courts and other
2008) (“All verdict contingent settlement agreements promptly must
be disclosed to the court and any nonsettling defendants.”); In re
Eighth Jud. Dist. Asbestos Litig., 872 N.E.2d 232, 236 (N.Y. 2007)
(“To ensure that all parties to a litigation are treated fairly, we hold
that whenever a plaintiff and a defendant enter into a high-low
agreement in a multi-defendant action which requires the agreeing
9
defendant to remain a party to the litigation, the parties must
disclose the existence of that agreement and its terms to the court
and the nonagreeing defendant(s).”); Corn Exch. Bank v. Tri-State
Livestock Auction Co., 368 N.W.2d 596, 599 (S.D. 1995) (holding
that the disclosure of a high-low agreement to the court and
nonagreeing defendants is “imperative” because “without prior
disclosure the trial court never arrives at the question of whether
the agreement should be revealed to the jury”); Ratterree v. Bartlett,
707 P.2d 1063, 1076 (Kan. 1985) (“When a settlement agreement is
entered into between the plaintiff and one or more, but not all,
alleged defendant tortfeasors, the parties entering into such
agreement shall promptly inform the court in which the action is
pending and the other parties to the action of the existence of the
agreement and its terms.”).
¶ 18 Although it addressed a somewhat different question,
Greenemeier is consistent with this reasoning. In fact, in that case,
our supreme court went one step further than many states have
done by holding that “the fact of settlement, but not the amount
paid, should be brought to the jury’s attention, absent special
circumstances.” 719 P.2d at 714 (emphasis added). Under
10
Greenemeier then, there is a presumption that juries should be
instructed concerning a codefendant’s settlement. And it flows from
that presumption that the court and other parties will be made
aware of the settlement in the first place. After all, a court cannot
formulate and provide an instruction about the settlement if it is
unaware that it exists. Thus, the existence and terms of the high-
low agreement should have been promptly disclosed to Van Eaton
and the court.
2. Prejudice
¶ 19 We turn next to whether Van Eaton was prejudiced by the
nondisclosure such that a new trial is warranted.
¶ 20 Most courts to have considered the question have held that
while disclosure is mandatory, failure to comply with that
requirement will lead to reversal only if the lack of disclosure
(holding that nonagreeing defendant was not prejudiced by
nondisclosure because “the agreement did not change the
adversarial alignment of the parties”); Ryals v. Hall-Lane Moving &
Storage Co., 468 S.E.2d 69, 72 (N.C. Ct. App. 1996) (holding that
the nonagreeing party was “not prejudiced by ignorance until mid-
11
trial of a settlement agreement between plaintiff and the co-
defendants such that exclusion of evidence of that agreement
constituted reversible error”). We conclude that this approach is
consistent with Greenemeier, which held that the failure to disclose
a settlement agreement to the jury is not reversible error unless the
lack of disclosure prejudices the nonsettling party. 719 P.2d at
717. We find no prejudice here.
¶ 21 To be sure, Van Eaton was apparently not expecting Langley’s
eleventh-hour change in trial strategy, and counsel for NCTC and
Langley both had ample opportunity to disclose the existence of the
high-low agreement to Van Eaton or the court.
1
But a party seeking
a new trial faces a high bar. The motion should be denied “where
the error ‘did not prejudice or harm the party seeking a new trial, or
where the trial resulted in substantial justice.’” McLaughlin, ¶ 17
(citation omitted); see also Greenemeier, 719 P.2d at 717.
1
While we conclude that counsel should have disclosed the
agreement, we recognize that there is arguably some fault on both
sides here. Van Eaton’s last-minute disclosure that she was not
going to contest negligence substantially changed the trial calculus
for Langley’s counsel and appears to have prompted efforts to
ensure at least a minimal recovery in the event that the jury
allocated fault unfavorably with respect to Langley.
12
¶ 22 We conclude that the trial court did not abuse its discretion by
denying Van Eaton’s motion for a new trial because (1) even if it
were appropriate,
2
a Greenemeier instruction would not have
avoided the specific prejudice Van Eaton alleges on appeal; and (2)
the agreement did not change the adversarial posture of the parties.
a. Greenemeier Instruction
¶ 23 Van Eaton contends that because the jurors understood that
the claims against NCTC were dismissed, but did not know why,
they would naturally infer that there was little or no evidence to
support those claims and thus allocate minimal fault to NCTC. She
asserts that, had she known of the high-low agreement, she “would
have asked the court to tell the jury that the claims against NCTC
had been dismissed because Plaintiff and NCTC had reached a
settlement — in other words, a Greenemeier instruction.”
2
The propriety of a Greenemeier instruction is an issue distinct
from the question whether the agreement should have been
disclosed to the parties and the court. We do not consider whether
a Greenemeier instruction would have been appropriate here
because we conclude that Van Eaton was not prejudiced by its
absence. Thus, any error was harmless.
13
¶ 24 The trial court, however, did not grant NCTC’s motion for a
directed verdict because “Plaintiff and NCTC had reached a
settlement.” Instead, the court granted the motion because Langley
failed to carry his burden of proof against NCTC during his case-in-
chief. While Van Eaton speculates that Langley’s decision not to do
so was the result of collusion, jury instructions must be tied to
evidence in the record. See Bedor v. Johnson, 2013 CO 4, ¶ 50 (“A
trial court has a duty to properly instruct the jury on law applicable
to the case if there is evidence in the record to support it.”).
¶ 25 Moreover, the record tends to undermine Van Eaton’s claim of
manipulation. The high-low agreement itself, for example, stated
that the parties entered into the agreement “in an effort to protect
their respective interests and not for any other purpose or collusive
effect as to the remaining parties.” And while the self-serving
nature of that statement may make it less persuasive, the high-low
agreement backed it up by establishing a large gap — $225,000 —
between its two extremes. This incentivized both sides to make
their respective cases, see Asbestos Litig., 872 N.E.2d at 234 n.2
(“[T]he narrower the range, the more likely it seems that the parties’
true motive for entering into a high-low agreement is to gain a
14
tactical advantage at the expense of the nonagreeing defendant.”),
as was apparent from the appropriately adversarial posture that
NCTC took in its opening statement and while conducting cross-
examination. See Gen. Motors Corp. v. Lahocki, 410 A.2d 1039,
1044-45 (Md. 1980) (relying on settling defendant’s failure to
vigorously cross-examine plaintiff’s expert as support for “GM’s
assertion that the [high-low] agreement effected a change in its
relationship as a co-defendant”).
¶ 26 Finally, the jury was instructed “to consider only the evidence
received at trial” and not to “be influenced by sympathy, bias, or
prejudice for or against any party in this case.” Because we
presume a jury will follow the trial court’s instructions, see Rego Co.
v. McKown-Katy, 801 P.2d 536, 539 (Colo. 1990), we presume that
its verdict was based on the evidence presented at trial, and not
influenced by the dismissal of NCTC.
b. Burden of Proof
¶ 27 Van Eaton also contends that when NCTC was dismissed mid-
trial, the burden of proof shifted. As she frames the argument, at
the beginning of the trial, Langley had the burden to prove that
NCTC was liable, but once NCTC became a nonparty, the burden of
15
proof shifted to Van Eaton, who was then tasked with proving
nonparty fault. Because this happened mid-trial, Van Eaton
contends, it was too late to subpoena additional witnesses, which
prejudiced her.
¶ 28 What this argument overlooks is that Van Eaton’s strategy all
along — and particularly after she admitted her own negligence at
the outset of trial — was to shift blame away from herself and
toward both Langley and NCTC. Van Eaton originally designated
NCTC as a nonparty at fault. At trial, she presented evidence that
NCTC bore blame for the accident. And during closing argument,
her attorney argued that NCTC was liable because the traffic plan
for the construction zone was designed incorrectly and did not take
safety into account.
¶ 29 Therefore, it is not clear how Van Eaton was prejudiced by
NCTC’s dismissal and shift to nonparty status. She could have
asked for a continuance or other leeway from the court to subpoena
additional witnesses, but she did not. Her trial strategy — which
included presentation of an expert witness who opined that NCTC
was at fault for the accident — remained largely the same, and she
continued to place blame for the accident on Langley and NCTC.
16
¶ 30 In sum, under the circumstances here, we cannot find that
Van Eaton was prejudiced by the nondisclosure of the high-low
settlement agreement. In accordance with C.R.C.P. 61, the trial
court thus did not abuse its discretion by disregarding a defect in
the proceedings because it did not affect Van Eaton’s substantial
rights. Therefore, the trial court did not err by denying Van Eaton’s
motion for a new trial.
III. Exclusion of Expert in Safe Bicycling Practices
¶ 31 At trial, Van Eaton called Jeffrey Broker, Ph.D., to testify
about safe bicycling practices. After Van Eaton attempted to qualify
Broker as an expert, Langley objected. The court then held a
lengthy discussion with both parties as to the admissibility of the
testimony, after which it concluded that the “testimony that was
going to be offered by the witness wasn’t a proper subject of expert
testimony.”
¶ 32 Van Eaton contends that the trial court erred by ruling that
(1) Broker was not qualified; (2) if Langley’s actions were legal, they
could not be considered unreasonable; and (3) Broker’s testimony
would not be necessary or helpful to the jury. We disagree.
17
A. Standard of Review
¶ 33 We review the district’s court decision to exclude expert
testimony for an abuse of discretion. Core-Mark Midcontinent, Inc.
v. Sonitrol Corp., 2012 COA 120, ¶ 29; see also People v. Fasy, 829
P.2d 1314, 1317-18 (Colo. 1992) (trial courts have broad discretion
to determine the admissibility of expert testimony). A court abuses
its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or is based on application of an erroneous
legal standard. Core-Mark Midcontinent Inc. v. Sonitrol Corp., 2016
¶ 34 CRE 702 provides that “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.” It thus
establishes a two-part approach to admissibility. A court must first
determine whether the proffered expert testimony will be helpful to
the trier of fact in the understanding of evidence or resolution of a
fact at issue in the case. See Melville v. Southward, 791 P.2d 383,
18
387 (Colo. 1990). Second, the court must determine whether the
witness is qualified to give the proposed testimony. Id.
¶ 35 Expert testimony is helpful to the trier of fact if it explains a
relevant matter that is outside the understanding of the ordinary
juror. People v. Williams, 790 P.2d 796, 798 (Colo. 1990); see also
Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 932 (Colo. 1997)
(expert testimony is required to establish the standard of care only
if the standard is not within the “common knowledge and
experience of ordinary persons”); 3 Christopher B. Mueller & Laird
C. Kirkpatrick, Federal Evidence § 7:9, at 759 (4th ed. 2013) (The
helpfulness standard is satisfied “if the subject is technical and lies
beyond common experience, and [with] experts who are versed in
fields of specialized or technical knowledge that are well beyond the
common experience of lay people.”); 4 Jack B. Weinstein & Margaret
A. Berger, Weinstein’s Federal Evidence § 702.03[2][a], at 702-42
(Mark S. Brodin ed., 2d ed. 2015) (“Expert testimony is generally
not permitted concerning factual issues that are within the
knowledge and experience of ordinary lay people, because it would
not help the trier of fact to understand the evidence or determine a
fact in issue. The trier of fact is, under those circumstances, fully
19
capable of understanding the evidence and deciding the issues
through the use of its common knowledge and common sense.”).
Determining whether particular expert testimony meets that
standard involves an inquiry as to “whether the untrained
[layperson] would be qualified to determine intelligently and to the
best possible degree the particular issue without enlightenment
from those having a specialized understanding of the subject
involved.” Williams, 790 P.2d at 798 (quoting Fed. R. Evid. 702
advisory committee’s note to 1972 proposed rule).
B. Analysis
¶ 36 Van Eaton contends that the trial court erred when it found
Broker to be unqualified to testify and also when it determined that
Broker could not opine that Langley was acting unreasonably even
though he was following the law. Having examined the entire
colloquy concerning Van Eaton’s attempt to qualify Broker as an
expert, including the pinpoint citations that Van Eaton provides, we
do not agree that the trial court made either of these rulings so we
decline to address them.
¶ 37 Instead, the trial court based its ruling on Van Eaton’s third
contention of error and concluded that Broker’s prospective
20
testimony would have been neither necessary nor helpful for the
jury. Broker was planning to testify that Langley could have been
safer if had he worn brighter clothing, had not entered the
intersection immediately after the light turned green, and had made
eye contact with Van Eaton before entering the intersection. After
discussing this prospective testimony with the parties, the trial
court raised the concern that the topics Broker planned to cover
were ones that the jurors were capable of understanding using
common sense and their own life experiences. The court gave both
parties an opportunity to respond to this concern, and the following
colloquy occurred:
THE COURT: But this just doesn’t strike me
as a proper area for expert testimony. So if
there’s something based upon his expertise
that’s beyond the understanding of an
ordinary juror, then let’s hear it, but . . . what
I’m hearing . . . doesn’t strike me as being a
proper subject for expert testimony.
VAN EATON’S ATTORNEY: I’d like an
opportunity to submit a supplemental offer of
proof, probably his report, maybe his
deposition, just so we have a record on that.
THE COURT: Well, now is your chance to
convince me that he’s got something relevant
and admissible to say.
21
¶ 38 Van Eaton’s attorney declined to articulate any additional
reasons for the admissibility of Broker’s testimony, did not ask for a
recess, and did not ask for an opportunity to consult with Broker.
The trial court continued: “And I’m talking to the Court of Appeals
right now saying that I can only rule on what I have. Okay? So
let’s move on.”
¶ 39 The trial court gave Van Eaton ample opportunity to explain
why Broker’s opinions were appropriately expert testimony instead
of issues that lay jurors could be expected to understand based on
their own common sense and life experiences. Yet Van Eaton
declined to do so. We conclude that the trial court appropriately
exercised its discretion when it concluded that the three topics Van
Eaton articulated that Broker would opine on — conspicuous
clothing, timing the light, and eye contact — could reasonably be
understood through common knowledge and experience of ordinary
persons; thus expert testimony was not required. See 4 Weinstein
& Berger, § 702.03[2][a], at 702-42.
¶ 40 Van Eaton also contends that Broker would have offered other
opinions that were beyond what the jury could have determined
through common sense. For example, Broker could have discussed
22
his line-of-sight analysis or how Langley could have taken a safer
route with a dedicated bicycle lane. But as we have already noted,
Van Eaton did not identify either of these opinions as subjects of
Broker’s expertise, even when the trial court made clear that it was
looking for more. We therefore decline to address them. See
O’Connell v. Biomet, Inc., 250 P.3d 1278, 1282 (Colo. App. 2010)
(“Arguments never presented to, considered by, or ruled upon by a
trial court may not be raised for the first time on appeal.”).
Accordingly, we conclude that the trial court did not abuse its
discretion when it ruled that Broker could not testify.
IV. Jury Instructions
¶ 41 Next, Van Eaton contends that the trial court erred by failing
to instruct the jury on both a bicyclist’s duty of care and
assumption of the risk. We are not persuaded.
A. Preservation and Standard of Review
¶ 42 Because Van Eaton tendered instructions to the court on both
a bicyclist’s duty of care and assumption of the risk, both issues are
preserved for our review.
¶ 43 It is within the trial court’s discretion to determine the form
and style of jury instructions. Harris Grp., Inc. v. Robinson, 209
23
P.3d 1188, 1195 (Colo. App. 2009) (citing Williams v. Chrysler Ins.
Co., 928 P.2d 1375, 1377 (Colo. App. 1996)). “We will not overturn
such a determination absent a showing of an abuse of that
ruling on jury instructions is an abuse of discretion only when the
ruling is manifestly arbitrary, unreasonable, or unfair.” Id. (citing
Williams, 928 P.2d at 1377).
¶ 44 A court erroneously instructs the jury when the instruction at
erroneous instruction is reversible only when it prejudices a party’s
substantial rights. Id. If a jury probably would have decided a case
differently if given a correct instruction, then the error is reversible.
Id. (citing Webb v. Dessert Seed Co., 718 P.2d 1057, 1066-67 (Colo.
1986)).
B. Duty of Care
¶ 45 Van Eaton provided the trial court with the following stock
instruction: “Although a bicycle operator may have the right of way,
the bicycle operator must exercise reasonable care considering the
existing conditions.” CJI-Civ. 11:3 (2021).
24
¶ 46 She first contends that because C.R.C.P. 51.1 says that the
court “shall use” the instructions from the Colorado Jury
Instructions “as are applicable to the evidence and the prevailing
law,” the court erred by not using this particular instruction
because it was most applicable to the facts of the case. We reject
this argument because it is settled that, if the other instructions
adequately inform the jury of the applicable law, a trial court does
not err in refusing a legally correct tendered instruction. Vista
Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 70 (Colo.
App. 2004).
¶ 47 The trial court declined to use the tendered bicycle-specific
instruction because it found that the concept that the instruction
explained was covered by the general negligence instruction, which
defined negligence and reasonable care and explained, among other
things, that a driver has a duty to “maintain a proper lookout” and
“drive at a speed no greater than is reasonable under the conditions
then existing.” The general negligence instruction also included the
following: “Bicyclists in Colorado have all the same rights and
responsibilities applicable to drivers of any other vehicle.”
25
¶ 48 The primary difference between these two instructions was
that the rejected bicycle-specific instruction explicitly stated that a
bicyclist still has a duty of reasonable care even if he has the right-
of-way. But that concept was already encompassed in the
instructions that the court provided. As noted above, the
negligence instruction defined “reasonable care” as it potentially
applied to Van Eaton’s conduct as a driver, and then informed the
jury that the same principles also applied to Langley, as a bicyclist.
The trial court reasonably concluded that the negligence instruction
as provided would require the jury to decide, as part of its
comparative negligence analysis, whether Langley exercised
reasonable care under the conditions by riding through an
intersection while he had the right-of-way. See Vikman v. Int’l
Brotherhood of Elec. Workers, Local Union No. 1269, 889 P.2d 646,
662 (Colo. 1995) (“In determining whether jury instructions
adequately inform the jury of the legal principles to be applied to
the facts of the case, all of the instructions should be considered as
a whole.”). Because the concepts in the bicycle-specific instruction
were covered by instructions that the jury received, the trial court’s
choice not to give the tendered instruction was not manifestly
26
arbitrary, unreasonable, or unfair. See Harris Grp., Inc., 209 P.3d
at 1195.
C. Assumption of the Risk
¶ 49 Van Eaton also tendered the following instruction on
assumption of the risk: “Negligence may also mean assumption of
risk. A person assumes the risk of injury or damage if the person
voluntarily exposes himself to such injury or damage with
knowledge or appreciation of the danger and risk involved.” This
instruction was taken from section 13-21-111.7, C.R.S. 2021,
which requires a court to provide an instruction on the elements of
assumption of risk “[i]n any trial to a jury in which the defense of
assumption of risk is an issue for determination by the jury.” The
trial court rejected the instruction because it concluded that issues
of comparative negligence
3
were more applicable to the case than
assumption of the risk.
3
The trial court actually used the phrase “contributory negligence,”
but neither party assigns a contention of error to this verbiage and
we assume that the court simply misspoke. See Watson v. Reg’l
Transp. Dist., 762 P.2d 133, 136 (Colo. 1988) (“Colorado, by statute,
replaced the doctrine of contributory negligence with a statutory
system of comparative negligence. § 13–21–111, 6A C.R.S.
(1987).”).
27
¶ 50 Van Eaton contends that the instruction was required because
— notwithstanding the fact that he broke no traffic laws — Langley
assumed the risk that Van Eaton would hit him when he timed the
light, entered the construction zone of a busy intersection, did not
make eye contact with Van Eaton, wore inconspicuous clothing,
and did not use a headlight. We disagree.
¶ 51 Assumption of risk requires “knowledge of the danger and
consent to it.” Carter v. Lovelace, 844 P.2d 1288, 1289 (Colo. App.
1992). On the other hand, like its predecessor contributory
negligence, comparative negligence applies when a plaintiff takes
risks “which he merely might have discovered by the exercise of
ordinary care.” Appelhans v. Kirkwood, 148 Colo. 92, 99, 365 P.2d
233, 237 (1961) (quoting William L. Prosser, Law of Torts 305 (2d
ed. 1955)). In Carter, the plaintiff legally tried to pass two vehicles
on a two-lane road but was injured when the driver of one of them
made a left-hand turn into a gravel lot. The trial court instructed
the jury on assumption of risk, but the division reversed, holding
that the plaintiff “did not assume a ‘known and obvious’ risk when
he attempted to pass the vehicles because the road ahead was clear
28
when he began passing the vehicles and the gravel turn-off was not
visible.” Carter, 844 P.2dat 1290.
¶ 52 In reaching this holding, the division cautioned against
construing assumption of the risk too broadly, noting that doing so
would create the possibility that all drivers assume the risk of any
accident resulting from such a passing maneuver. Id. Instead, the
court determined that a jury instruction on contributory negligence
(which was the law at the time) was sufficient to capture the
plaintiff’s fault because, while “plaintiff’s attempt to pass
defendant’s vehicle may have occurred in a negligent manner,” he
“did not assume a known risk that the defendant would make a left
turn in front of him since he did not know of such a risk, and could
not have reasonably consented to take such a risk.” Id.
¶ 53 Van Eaton attempts to distinguish her situation from Carter
by arguing that it is more akin to Vititoe v. Rocky Mountain
Pavement Maintenance, Inc., 2015 COA 82. In Vititoe, the court
found an assumption of the risk jury instruction was justified
because the plaintiff saw the defendant’s vehicle at a stoplight, and,
under the mistaken impression that it had begun moving forward
as the light turned green, accelerated toward the intersection before
29
crashing into the back of a trailer that the vehicle was towing. Id.
at ¶ 72. Vititoe is distinguishable, however, because the plaintiff in
that case “acknowledged that he saw [the defendant’s] truck in his
lane of traffic and accelerated nevertheless.” Id. at ¶ 74. Because
the plaintiff was an experienced motorcyclist, “a reasonable juror
could conclude that any driver of such experience understands the
risk and danger posed by a collision with another vehicle.” Id. at
¶ 72.
¶ 54 Here, by contrast, Langley did nothing but ride his bicycle
legally in his lane. As the trial court instructed the jury, he had the
right to believe that, when doing so, others — including drivers of
vehicles around him — would obey applicable laws and regulations
(unless there were reasonable grounds to believe otherwise). See
376-77, 203 P.2d 733, 736 (1949). Those laws include those that
required Van Eaton to comply with the yield signs at the merge
point. § 42-4-703(4), C.R.S. 2021 (“[I]f a driver is involved in a
collision with a vehicle in the intersection or junction of roadways
after driving past a yield sign without stopping, such collision shall
be deemed prima facie evidence of the driver’s failure to yield right-
30
of-way.”). Because there were no reasonable grounds to believe that
other drivers would fail to comply with the traffic signage, Langley
cannot be said to have had knowledge of the danger and to have
consented to its outcome. Carter, 844 P.2d at 1289. The trial court
accordingly did not abuse its discretion by declining to instruct the
jury on Van Eaton’s affirmative defense of the assumption of risk.
V. Admissibility of Subsequent Remedial Measures
¶ 55 On the day of the accident, yield signs stood on both sides of
the street at the merge point where the collision happened. Two
weeks after the accident, NCTC removed the yield signs and put
stop signs in their place. Before trial — while it was still a party —
NCTC filed a motion in limine to exclude evidence of that change,
arguing that it “explicitly qualif[ied] as a subsequent remedial
measure” because experts for both sides had “opined that the stop
sign would have made the event less likely to occur.” The trial court
granted the motion in a brief written order.
¶ 56 Van Eaton challenges that order, arguing that the bar on
subsequent remedial measures does not apply to (1) the actions of a
nonparty and (2) evidence that shows the existence of a dangerous
31
condition. The first argument is not preserved and the second
argument fails on the merits.
A. Preservation
¶ 57 Van Eaton preserved her contention that the change from yield
signs to stop signs is evidence of a dangerous condition, which
should be exempt from the general rule excluding evidence of
subsequent remedial measures, because she raised the issue in
response to NCTC’s motion in limine, which the trial court granted.
¶ 58 But Van Eaton did not preserve her contention that this
evidence was admissible once NCTC was dismissed from the case.
Indeed, during the trial, she did not attempt to introduce this
evidence after NCTC became a nonparty. Therefore, the trial court
never had an opportunity to rule on the question whether the
change in NCTC’s status altered the admissibility of the evidence of
its subsequent remedial measures. Banning v. Prester, 2012 COA
215, ¶¶ 24-27 (appellate courts decline to address arguments that
have not been adequately preserved).
B. Standard of Review
¶ 59 We review a district court’s evidentiary rulings for an abuse of
discretion. Leaf v. Beihoffer, 2014 COA 117, ¶ 9. A court abuses
32
its discretion when its ruling is manifestly arbitrary, unreasonable,
or unfair. Id.
C. Analysis
¶ 60 Under CRE 407, “[w]hen, after an event, measures are taken
which, if taken previously, would have made the event less likely to
occur, evidence of the subsequent measures is not admissible to
prove negligence or culpable conduct in connection with the event.”
Evidence of subsequent remedial measures can be offered for other
purposes, however, “such as proving ownership, control, or
feasibility of precautionary measures, if controverted, or
¶ 61 Two of the public policy goals served by Rule 407 are to
encourage defendants to make repairs after an accident and to
recognize that some accidents are caused by contributory (or
comparative) negligence, the effects of which can be mitigated by
additional safety measures. Rimkus v. Nw. Colo. Ski Corp., 706 F.2d
1060, 1064 (10th Cir. 1983) (interpreting the analogous federal
rule).
¶ 62 Van Eaton contends that evidence of NCTC’s subsequent
remedial measures was admissible to show that a dangerous
33
condition existed at the scene at the time of the accident. We
disagree because, under the circumstances here, that is precisely
the type of evidence that the rule prohibits. CRE 407 bars the
introduction of subsequent remedial measures to prove negligence,
and whether a dangerous condition existed at the scene relates
directly to the question whether the defendant breached a duty to
the plaintiff by failing to address the dangerous condition before the
accident. See Smit v. Anderson, 72 P.3d 369, 372 (Colo. App. 2002)
(the elements of a negligence claim are duty, breach, causation, and
damages). Langley’s own complaint alleges that the traffic control
plan was “design[ed] and implement[ed] . . . in a negligent and
dangerous manner, and fail[ed] to ensure a safe route of travel for
bicyclists, such as Plaintiff.” Because the existence of a dangerous
condition is inextricable from whether NCTC breached its duty, and
therefore inextricable from the concept of negligence, the trial court
properly excluded the evidence for this purpose.
¶ 63 Van Eaton relies on two cases to support her argument that
the challenged evidence was admissible under Rule 407, Rimkus
and Martinez v. W.R. Grace Co., 782 P.2d 827 (Colo. App. 1989). In
Rimkus, applying the analogous federal rule, the Tenth Circuit
34
Court of Appeals affirmed the district court’s admission of the
defendant’s post-accident conduct. 706 F.2d at 1064. The district
court had ruled that where a skier was injured in a collision with an
unmarked hazard, and the ski patrol marked the hazard the day
after the accident in accordance with its policy of marking hidden
hazards, the post-accident conduct was admissible for the purpose
Circuit affirmed the admission of the evidence on different grounds,
holding that the testimony “was received not for the purpose of
proving the negligence of the defendant, but rather was for the
purpose of showing that the plaintiff was not guilty of contributory
negligence,” and “for the purpose of undermining the testimony of
[another witness] that he could see the outcropping” from some
distance away. Id. at 1065.
¶ 64 Similarly, in Martinez, the division held that where a store
owner painted a bump in the parking lot after the plaintiff tripped
on it, evidence of this safety precaution was admissible to impeach
the safety manager’s testimony that there was already a significant
difference between the color of the asphalt and the color of bump,
35
and that if there had not been a difference, the bump would have
been painted pursuant to the store’s policies. 782 P.2d at 829.
¶ 65 Consistent with the text of CRE 407, Rimkus and Martinez
both stand for the proposition that evidence of subsequent remedial
measures can be admissible for some purposes other than showing
a defendant’s negligence. Van Eaton, however, did not seek to
introduce the evidence of the subsequent remedial measure for any
of the non-negligence purposes enumerated in the Rule. Instead,
as she puts it in her opening brief, “[e]vidence that NCTC replaced
the yield signs with stop signs after the accident supports a
reasonable inference that the confluence of traffic . . . in this
construction zone[] created a dangerous condition and that the yield
signs did not provide adequate warning of this danger.” In other
words, Van Eaton wanted to introduce evidence of NCTC’s removal
of the yield signs in order to show that the accident would have
been less likely if stop signs had been there in the first place. But
that is no more than a reframed negligence argument. And because
CRE 407 expressly prohibits a party from introducing evidence of a
defendant’s subsequent remedial measures to demonstrate
36
negligence, the trial court did not abuse its discretion in excluding
it.
VI. Closing Argument
¶ 66 Van Eaton contends that the trial court improperly restricted
the scope of her closing argument. Because she did not preserve
this issue, however, we decline to consider it on the merits.
¶ 67 At the close of evidence, Langley’s attorney moved for a
directed verdict on the question whether he was negligent and thus
could have any award reduced under a theory of comparative
negligence. He argued that “[t]he totality of the evidence regarding
the conduct of Mr. Langley” was that, at the time of the accident, he
was riding a properly equipped bicycle lawfully on the road, and
that there was “zero evidence that conspicuity was even an issue.”
Because there was no “prima facie evidence that [Langley] acted
unreasonably,” his attorney argued, Langley was entitled to a
directed verdict on the question of his comparative negligence.
¶ 68 In response, Van Eaton’s attorney argued that “there was
plenty of evidence for the jury to find comparative negligence.”
Asserting that “the standard isn’t whether he complied with
statutory law, [but instead] whether he acted reasonably under the
37
circumstances,” counsel noted that the jury could consider, among
other things, whether it was reasonable for Langley to maintain his
“speed of 17 miles an hour in that stretch of roadway,” whether he
“appropriately scanned his surroundings,” and whether he was
wearing conspicuous enough clothing under the circumstances.
¶ 69 The trial court denied the motion for a directed verdict, but
then went on to say that “if there’s going to be argument about that
what Mr. Langley did, which he was legally entitled to do, is
somehow negligent . . . if there’s an objection to that kind of
argument, you can probably expect that to be sustained.” This
prompted Langley’s attorney to “present a motion in limine”
regarding the argument “that somebody lawfully on a roadway
traveling within the speed limit in the correct direction at the right
location is somehow negligent or is doing something wrong in the
conduct you just described.”
¶ 70 The court neither granted nor denied Langley’s request,
pointing out that it was not clear exactly what arguments Van
Eaton would present. Instead, the court responded much more
generally, saying that it was “signaling what [it] consider[ed] to be
proper argument,” “anticipating that everyone’s going to comply
38
with that,” and stating that “there [would] be a correction in open
court in front of the jury” if counsel’s closing was inappropriate.
¶ 71 Van Eaton’s attorney remained silent throughout this entire
exchange. He did not ask the court to rule on Langley’s motion in
limine, did not explain which arguments he planned to present, and
did not ask the court clarify the bounds of what arguments it would
deem acceptable.
¶ 72 During closing argument the next day, Van Eaton’s attorney
told the jury that “nobody is disputing that Mr. Langley had a legal
right to ride his bike through this area, but it doesn’t mean that it
was the safe thing to do. There’s a difference between legally being
allowed to do something —” At this point, Langley’s attorney
objected and the court and counsel had the following exchange at
the bench.
[LANGLEY’S ATTORNEY]: Yesterday you asked
if I had any objection to him making the
argument that perfectly legal behavior was
somehow less safe, that he was not to go into
that area and to make an objection, so that’s
what I’m doing. He’s now arguing that
although it’s completely legal and permissible
that it was less safe for him to enter into this
area.
39
[VAN EATON’S ATTORNEY]: I’m not going to
argue any of the facts. It is a valid statement
of law. I’m not going to address the green
light, I’m not going to talk about any of that –
[LANGLEY’S ATTORNEY]: He had a right to be
on the road there.
[VAN EATON’S ATTORNEY]: I’m not going to
dispute that.
THE COURT: Under those circumstances go
ahead.
¶ 73 Thus, the court overruled Langley’s objection and Van Eaton’s
attorney immediately followed up by “reiterat[ing]” to the jury that
“just because doing something is legal does not mean it is safe.”
Again, however, counsel did not ask the court to clarify the bounds
of what would be permissible in closing, and he presented the
remainder of his argument on this point without interruption from
the court or opposing counsel.
¶ 74 Van Eaton argues that, although “defense counsel told the
jury that something which is legal may not be safe, . . . he was not
allowed to apply this abstract principle to the facts of the case (for
example, to Plaintiff’s act of ‘timing the light’).” But counsel never
attempted to make the argument that Van Eaton outlines on
appeal, nor did he ask the court to rule on exactly what he could
40
and could not say. Absent an explicit ruling by the court or any
attempt by defense counsel to get one, we are left with nothing to
review. See Liberty Bankers Life Ins. Co. v. First Citizens Bank & Tr.
Co., 2014 COA 151, ¶ 25 (finding that the appellant’s contention of
error was not sufficiently preserved because the appellant did not
give the trial court notice of the issue or an opportunity to rule on
it). Accordingly, because Van Eaton did not preserve this issue, we
will not consider it. See Giguere v. SJS Fam. Enters., Ltd., 155 P.3d
462, 470 (Colo. App. 2006) (we do not address arguments raised for
the first time on appeal).
VII. Postjudgment Interest
¶ 75 Finally, Van Eaton contends that the trial court erred by
awarding Langley postjudgment interest accruing at a rate of nine
percent, instead of at the market-determined rate, as required by
statute. Langley concedes this error.
¶ 76 Section 13-21-101, C.R.S. 2021 imposes different statutory
interest rates on damage awards depending on whether the
judgment is appealed. When a judgment debtor files a notice of
appeal, “the rate at which postjudgment interest accrues becomes
the market-determined rate, rather than the [prejudgment interest]
41
rate of nine percent.” Rodriguez v. Schutt, 914 P.2d 921, 928 (Colo.
1996). This means that once the judgment debtor files a notice of
appeal, the right to continuing prejudgment interest is
extinguished, and the statutory postjudgment rate instead begins to
apply — retroactively — as of the date of the judgment. Because,
notwithstanding her appeal, the court erroneously ordered Van
Eaton to pay interest at the prejudgment rate of nine percent, we
vacate that portion of the judgment and remand the case so that
the court may award interest at the statutory postjudgment rate.
VIII. Conclusion
¶ 77 We vacate the award of postjudgment interest at a fixed rate of
nine percent and remand the case for the court to award
postjudgment interest at the market rate. In all other respects, we
affirm the judgment.
JUDGE NAVARRO and JUDGE PAWAR concur.
