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Rodriguez v. Schutt12/15/1994
In this negligence action to recover damages for personal injuries, defendant, John W. Schutt (landlord), appeals the judgment entered on a jury verdict in favor of plaintiffs, James (husband) and Yolanda (wife) Rodriguez (collectively tenants). Plaintiffs cross-appeal regarding the calculation of interest on the judgment. We affirm but remand for recalculation of interest.
Husband sustained an injury to his hand and wrist from broken glass on a storm door to tenants' apartment. Tenants had rented the apartment from landlord who owned the building. They claimed that the glass in the storm door was cracked and that a slider had been "jerry-rigged" into it in place of a stationary piece of glass. Upon returning home one evening, husband, who had forgotten his keys, knocked on the door to get his wife's attention. As a result, the slider broke, the window shattered, and the pieces came down on the husband's hand and wrist causing an injury. Subsequently, tenants brought this action against landlord, husband seeking damages for his injuries and wife claiming loss of consortium.
At trial, tenants testified that they retained the original slider but later lost it during the move from the apartment to their subsequent residence. However, they had taken photographs of the slider approximately two months after the injury occurred, and those photographs were admitted into evidence at trial.
In addition, landlord's apartment manager testified at trial that she had observed the slider prior to the injury and noticed that it was in very poor condition and that the photographs accurately depicted the slider. She further testified that at sometime prior to the accident, while talking to landlord in front of tenants' apartment, the top glass window on the screen door fell down, and she observed that the pins to the slider had fallen out, and that the pins to the slider were bent in such a way so that they did not properly support the window.
Tenants further testified that when they moved into the apartment they walked through it with landlord and pointed out to him several things that needed to be repaired and that he agreed to make such repairs. Tenants claimed that they had given a written list of those items to landlord. They testified that they had retained a copy of the list, which they recalled giving to their attorney for use in this case. However, their attorney asserted during a deposition that he had no recollection of ever having received a copy of the list. Consequently, neither tenants nor landlord produced a copy of the list at trial. Tenants, however, were permitted to testify at trial regarding the contents of the lost list.
The jury entered a verdict on behalf of husband for $275,000 and wife for $25,000. However, the jury found husband 30 percent contributorily negligent, and accordingly, the trial court reduced the awards and entered judgment in favor of husband for $192,500 and wife for $17,500. Then, upon plaintiffs' motion, the trial court calculated interest on the judgment at 9 percent per annum from the date of the injury, and this appeal followed.
Landlord argues that, since tenants failed to produce the slider and the list, the trial court should have imposed a sanction against them in order to reduce the evidentiary imbalance created by the loss or destruction of those items. Conversely, if the judgment is affirmed, landlord seeks a $5,000 offset from the judgment for a payment made by his insurer to husband prior to trial. Tenants, on cross-appeal, challenge the operation of ยง 13-21-101, C.R.S. (1987 Repl. Vol. 6A) on both statutory and constitutional grounds.
I. Appropriateness of Sanction
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