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Lascano v. Vowell9/5/1996
ive-minute movie showed short images of plaintiff, on separate occasions, moving about without any indication of neck or back pain.
Thus, we view the timing of the admission of this exhibit to be an abuse of discretion. And, considering the effect such an error may have had on the jury's evaluation of the evidence, we conclude that this error requires reversal of the judgment and a new trial on the damages issues.
As guidance for the trial court, on retrial the present version of C.R.C.P. 16 shall be applicable, and if the surveillance movie is again proffered by defendant, its admissibility should be determined in accordance with that rule.
II.
Among issues that may arise on retrial is plaintiff's argument that the trial court erred in instructing the jury regarding the effect of later events, unrelated to the automobile accident, on her injuries. We agree that this issue should be reconsidered on remand.
When an instruction fairly presents the issues and is supported by the evidence, a party is entitled to have it given. Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo. App. 1985).
In determining whether jury instructions adequately informed the jury of the applicable legal principles, all of the instructions must be considered as a whole. Vikman v. International Brotherhood of Electrical Workers, 889 P.2d 646 (Colo. 1995). An instruction that is incomplete or ambiguous may be cured by other instructions. Gorsich v. Double B Trading Co., 893 P.2d 1357 (Colo. App. 1994).
Nevertheless, unless cured by the instructions as a whole, it is reversible error for a trial court to give an erroneous instruction. Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198 (Colo. 1992).
In general, a plaintiff is entitled to recover the damages which were the natural and probable result of the defendant's negligence. Cope v. Vermeer Sales & Service of Colorado, Inc., 650 P.2d 1307 (Colo. App. 1982).
Here, using an instruction modeled after CJI-Civ. 3d 6:9 (1988), the trial court instructed the jury:
The plaintiff . . . claims damages from the defendant . . . for injuries caused by a motor vehicle accident on May 30, 1989. If you find that the defendant's negligence, if any, was a cause of any such injuries, then the plaintiff . . . may recover all damages caused by that event. But if you find that the plaintiff was later injured in August of 1989 in a log ride at Amusement Park; in July 1990 when she fell from a stool, and in October 1990 when biting into an apple, which were not caused by any acts or omissions of the defendant, then the plaintiff may not recover any damages caused only by the later accidents.
However, if you find the subsequent accidents aggravated any injuries caused by the motor vehicle accident of May 30, 1989, then you must separate, if possible, those damages caused by the automobile accident of May 30, 1989, from those caused by the accidents of August 1989, July 1990 and October 1990, and the plaintiff may recover all those separate damages caused only by the motor vehicle accident of May 30, 1989.
If it is not possible to separate any damages caused by the motor vehicle accident of May 30, 1989 from those caused by accidents of August 1989, July 1990 and October 1990, then the plaintiff may recover those damages only from the date of the motor vehicle accident to the date of the August 1989 log ride at Amusement Park accident.
Such an instruction is appropriately given when, after the injury giving rise t
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