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Pedge v. RM Holdings12/19/2002
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Taubman and Webb, JJ., concur
In this personal injury action, defendants, R.M. Holdings, Inc. and Vantage Point Office Park Association, appeal the judgment entered on a jury verdict in favor of plaintiffs, Barnaby Pedge and Uplink Computing Solutions, Inc. (collectively Pedge). The primary issue in this appeal is whether unidentified or unknown persons may be designated as nonparties pursuant to Colorado's pro rata apportionment statute, § 13-21-111.5, C.R.S. 2002. Because we conclude they may be so designated, we reverse the judgment and remand for a new trial.
At all times relevant here, Pedge was the president and sole owner of Uplink Computing Solutions, Inc., a computer consulting business located in Boulder, Colorado. In April 1999, Pedge was assaulted outside his office early one morning by an unknown assailant. He later brought this premises liability action against the landlord, R.M. Holdings, and the association that manages the office complex, Vantage Point.
Before trial, defendants filed a designation of nonparties pursuant to § 13-21-111.5, designating "any or all customers or employees of the Plaintiffs or other unidentified persons who may be the person or persons responsible for striking . . . Pedge." The trial court granted Pedge's motion to strike the designation, accepting his reasoning that it was "so vague and over-broad as to be a non-designation." At the close of evidence, the trial court refused defendants' request that the jury be instructed to consider the fault of the unidentified nonparty assailant.
As relevant here, over defendants' objection, the trial court also concluded Pedge was an invitee with respect to Vantage Point and instructed the jury accordingly.
I.
Defendants contend the trial court erred in striking their nonparty designation pursuant to § 13-21-111.5(3)(b), C.R.S. 2002. We agree.
Section 13-21-111.5(3)(b) provides in relevant part:
Negligence or fault of a nonparty may be considered if . . . the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action . . . . The notice shall be given by filing a pleading in the action designating such nonparty and setting forth such nonparty's name and last-known address, or the best identification of such nonparty which is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault. (Emphasis added.)
In civil liability cases, § 13-21-111.5 allows defendants to designate as a nonparty at fault an individual or entity "wholly or partially at fault" for the damages alleged by the plaintiff. This designation ensures that parties found liable will not be responsible for more than their fair share of the damages. Stone v. Satriana, 41 P.3d 705 (Colo. 2002).
The statute also allows tortfeasors who commit intentional torts to be designated as nonparties for the purposes of apportioning liability. See Slack v. Farmers Ins. Exch., 5 P.3d 280 (Colo. 2000).
Before the finder of fact may consider the negligence or fault of a nonparty, the issue must be properly raised by a defendant in a pleading that complies with § 13-21-111.5(3), C.R.S. 2002. Thompson v. Colo. & E. R.R. Co., 852 P.2d 1328 (Colo. App. 1993). Whether defendants' nonparty designation complied with the requirements of § 13-21-111.5(3) is a question of law that we review de novo. Fazio v. State Farm Mut. Auto. Ins. Co., 55 P.3d 229 (Colo. App. 2002).
We reject Pedge's contention that he was given insufficient n
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