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Westfall v. Town of Hugo3/25/1993
Plaintiff, Gilbert O. Westfall, appeals from the judgment entered on a jury verdict dismissing his claim for damages allegedly caused by a fire emanating from a sanitary landfill operated by the defendant, Town of Hugo. He argues that the trial court committed reversible error by admitting evidence of plaintiff's prior lawsuits and in refusing to instruct the jury upon certain administrative regulations. We agree; hence, we reverse and remand for a new trial.
For a number of years, the Town has operated a sanitary landfill in the unincorporated portion of Lincoln County. Plaintiff owns pasture and farmland located nearby.
In April 1986, a grass fire occurred that apparently began in or near the Town's disposal site. Because of high winds, the fire spread over a large area, burning a substantial area of grasslands, including approximately 5,000 acres of land and several miles of fencing owned by plaintiff.
Claiming damages consisting of loss of leasehold revenue and the cost of repair to the fence, plaintiff instituted suit against the Town. His evidence, if credited, could have led to the inference that the Town negligently failed adequately to maintain and operate the disposal site, and as a result, a fire started by some third party within the disposal pit spread to the surrounding area.
After a trial to a jury, a verdict for the Town was returned, and the court entered its judgment on that verdict.
I.
We agree with plaintiff that the trial court committed reversible error in allowing plaintiff to be cross-examined with respect to other, unrelated litigation in which he had been involved.
During plaintiff's direct examination, he identified photographs taken of the disposal site the day after the fire. On cross-examination, he admitted that the photographs were taken because of the possibility of future litigation. Thereafter, at the end of re-direct, plaintiff testified that he was not "real happy" about being on the witness stand and that he would "rather have my place back like it was before the fire than having to be here trying to get a little damage out of them . . . ."
On re-cross examination, plaintiff was questioned, over objection, about four instances of litigation in which he had been involved in the 38 years prior to trial. One lawsuit, the subject matter of which is nowhere described in the record, was instituted by him against the Town of Genoa in 1953. Another, involving the Town of Limon, was apparently instituted in 1979, and a third was filed in Lincoln County in 1962. He initially denied suing a neighbor in 1981, but, upon being recalled as a part of defendant's case-in-chief, acknowledged that an attorney had filed a trespass suit on his behalf to recover for some 250 bales of hay that had been taken from his property. The result of that litigation is not disclosed by the record.
The jury was not informed with respect to the subject matter or the results of the 1953 lawsuit against the Town of Genoa, the 1962 lawsuit in Lincoln county, or the 1979 suit against the Town of Limon. From the record made in a hearing out of the presence of the jury, however, it appears that the 1962 lawsuit was a divorce proceeding and that the 1979 litigation against the Town of Limon related to water rights in which a water district and other landowners had joined and which was settled without a trial.
At trial, counsel for the Town, relying on Banek v. Thomas, 733 P.2d 1171 (Colo. 1986), justified the admission of such evidence on the basis that it tended to impeach plaintiff's testimony that he would rather not be in the courtroom and would rather the fi
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