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Wark v. McClellan3/13/2003
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Roy and Webb, JJ., concur
Plaintiffs, Charles W. Wark, Shauna L. Wark, and Savanah J. Wark, appeal from the judgment entered on a jury verdict in favor of defendant, Richard M. McClellan, on plaintiffs' claims for negligence, wrongful death, negligent infliction of emotional distress, loss of consortium, and loss of services of a minor. We affirm and remand.
The case arises from an automobile accident that occurred on a mountain dirt road in rural Colorado. Plaintiffs were passengers in a large pickup truck that was towing a loaded horse trailer. In the cab of the truck were plaintiffs, Shauna and Charles Wark (mother and father, respectively, or parents), their two nine-year-old twin daughters, Lerisa and Savanah Wark, and the driver. The occupants were seated next to each other in the cab of the truck, and Lerisa was sitting on father's lap. Father and the driver had consumed alcohol before entering the truck, and none of the occupants was restrained.
Defendant also was driving a large pickup truck with a trailer containing construction materials. The accident occurred at a narrow part of the road. Plaintiffs' truck was traveling downhill, came around a blind curve, and encountered defendant's truck, facing uphill, either stopped or moving slowly. Plaintiffs' truck maneuvered around defendant's truck on the inside, but the two trailers collided, and plaintiffs' truck then swerved to the outside and rolled down a steep embankment into the river. The driver and Lerisa died in the accident.
The driver was designated a nonparty at fault. The jury returned a verdict finding defendant not negligent and awarding no damages to plaintiffs. The court awarded costs to defendant.
On appeal, plaintiffs argue that a variety of procedural and evidentiary errors were prejudicial enough to warrant a new trial. Plaintiffs also challenge the trial court's determination of costs. Except for an adjustment of the costs calculation, we find no basis for reversal.
I.
Plaintiffs first contend that the court erred in denying a motion for mistrial based on evidentiary errors and unduly prejudicial statements by defense counsel. While we agree that defense counsel occasionally acted with questionable propriety, we disagree that a mistrial was warranted.
A mistrial is warranted where the prejudice created from improper testimony renders the trial unfair to the other party. Margenau v. Bowlin, 12 P.3d 1214 (Colo. App. 2000). A mistrial is a drastic remedy, and we will not disturb the trial court's decision absent a gross abuse of discretion and prejudice to the moving party. Moreover, a mistrial is warranted only where the prejudice to the moving party cannot be remedied by other means. See People v. Abbott, 690 P.2d 1263 (Colo. 1984); Pyles-Knutzen v. Board of County Comm'rs, 781 P.2d 164 (Colo. App. 1989).
A.
Plaintiffs first contend that the trial court erred in making certain evidentiary rulings. We disagree.
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. See Rojhani v. Meagher, 22 P.3d 554 (Colo. App. 2000).
Generally, evidence that logically tends to prove or disprove a fact in issue or that sheds light upon a matter contested is relevant. Evidence so remotely related to contested issues that it affords only conjectural inference should not be admitted. People v. Rudnick, 878 P.2d 16 (Colo. App. 1993). A trial court has considerable discretion in determining
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