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Jackson v. Moore9/29/1994
In this negligence action, defendants, Larry G. Moore and Wal-Mart Stores, Inc., appeal a judgment entered on a jury verdict in favor of plaintiff, James A. Jackson, an award of costs for the trial, and an award of attorney's fees for a mistrial. We reverse in part and affirm in part.
Because of icy conditions he encountered during the early morning hours of April 17, 1990, plaintiff pulled his truck to the right edge of the road. Deciding that it would be safer to wait until morning to continue, plaintiff positioned himself across the seat of the cab on the driver's side using the door as a backrest. Plaintiff allegedly was not wearing his seat belt at that time, and he left the engine running.
Approximately 30 to 40 minutes later, Moore, driving a Wal-Mart Stores, Inc., truck tractor, encountered black ice and struck plaintiff's parked vehicle. The collision threw plaintiff into the steering wheel, injuring his shoulder.
This action followed and first went to trial in October 1992. During cross-examination, counsel for defendants asked the investigating state patrol trooper whether any citations had been issued to defendant Moore. Plaintiff objected and a mistrial was declared. Subsequently, the trial court found that counsel for defendants had acted in bad faith or had displayed obdurate behavior, and thus, defendants were ordered to pay fees and costs related to the mistrial in the amount of $2,843.75.
Thirty-three days prior to the second trial, plaintiff filed a Motion to Supplement Disclosure Certificate, requesting the addition of a witness to testify to the adverse effect of using a "jake brake" on icy surfaces. According to one witness, a jake brake is a type of brake that creates a back pressure in the motor. Over defendants' objections, plaintiff's motion was granted, and the witness was allowed to testify.
In the second trial the jury awarded plaintiff damages of $17,000 for lost income and $23,000 for pain and suffering.
Prior to both trials, plaintiff offered to settle the case for $45,000, while defendants offered to settle for $50. The jury verdict of $40,000, was reduced by a stipulated deduction of $4,242.40 for workers' compensation wage benefits paid to plaintiff leaving a balance of $35,757.60. To this sum the court added interest in the amount of $9,784.70 and plaintiff's costs for the second trial of $1,386.42, for a total judgment of $46,928.72.
I.
Defendants argue that it was error to disallow testimony that the defendant had not received a traffic citation, that the declaration of a mistrial was error, and that the award of attorney's fees for "obdurate behavior" was inappropriate. We do not address the propriety of the ruling on mistrial, but conclude that the court did not abuse its discretion in excluding the testimony at the second trial and reverse the award of attorney's fees.
A.
Section 42-4-1508, C.R.S. (1993 Repl. Vol. 17) (recodified as ยง 42-4-1713, C.R.S. (1994 Cum. Supp.)) provides:
Except as provided in sections 42-2-201 to 42-2-208, no record of the conviction of any person for any violation of this article shall be admissible as evidence in any court in any civil action.
Here, at the first trial defendants' counsel asked the state trooper, "whether or not you issued any citations to Mr. Moore?" Upon counsel's request to approach the bench, the court ruled that it was going to preclude any Discussion on that issue, and the trooper did not answer the question. At a subsequent conference, the court ruled that the mention of a ticket, or the lack thereof, in this case had
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