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Carter v. Lovelace11/19/1992
Plaintiff, Jay M. Carter, III, appeals from the judgment entered following a jury trial. We reverse and remand with directions.
In August 1989, plaintiff was driving westbound on a two-lane highway, behind a vehicle towing a small trailer. In front of the vehicle with the trailer was a motor home driven by defendant, Edwin M. Lovelace. When plaintiff reached a passing zone, he attempted to pass the two vehicles; however, before he passed the first vehicle, defendant made a left-hand turn in front of plaintiff's car while attempting to turn off into a gravelled parking area. The two vehicles collided, and plaintiff's wife sustained injuries in the accident which ultimately proved fatal.
Plaintiff filed a wrongful death action against defendant, and in response, defendant raised the affirmative defenses that plaintiff was contributorily negligent in the operation of his vehicle and that plaintiff had assumed the risk of a collision by attempting to pass two over-sized vehicles despite an approaching curve and a limited passing zone.
At the Conclusion of a jury trial, the court, over plaintiff's objection, instructed the jury on assumption of risk. The jury returned a verdict finding plaintiff and defendant each 50% negligent, and accordingly, the court entered judgment in favor of the defendant.
I.
Plaintiff's main contention is that the trial court erred by giving an assumption of risk instruction. We agree.
A party is entitled to an instruction embodying his or her theory of the case if there is evidence in the record to support it. Schafer v. Hoffman, 831 P.2d 897 (Colo. 1992). However, a court should not give an instruction which is not applicable to any issue the jury is required to decide. Lamont v. Union Pacific R.R. Co., 714 P.2d 1341 (Colo. App. 1986).
Section 13-21-111.7, C.R.S. (1987 Repl. Vol. 6A) provides:
Assumption of a risk by a person shall be considered by the trier of fact in apportioning negligence pursuant to section 13-21-111. For the purposes of this section, a person assumes the risk of injury or damage if he voluntarily or unreasonably exposes himself to injury or damage with knowledge or appreciation of the danger and risk involved.
Thus, § 13-21-111.7 defines assumption of risk in terms of either a plaintiff's unreasonable exposure to a known risk or a plaintiff's voluntary but not necessarily unreasonable exposure to such risk. See Harris v. The Ark, 810 P.2d 226 (Colo. 1991) (upholding the constitutionality of § 13-21-111.7). In either event, plaintiff must know of the risk he or she undertakes.
At trial, the court instructed the jury on both contributory negligence and assumption of risk. The distinction between these two affirmative defenses is important in resolving the issue before us. That distinction was addressed in Appelhans v. Kirkwood, 148 Colo. 92, 99, 365 P.2d 233, 237 (1961), in which the court stated:
Assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct. . . . The two coexist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care.
See Harris v. The Ark, supra (reaffi
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