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Morales v. Golston12/15/2005
ther's death. The court responded that there was no inconsistency in a finding of negligence, but no causation.
Plaintiff's counsel replied, "Okay." After inviting comment with no response, the court adjourned further proceedings.
Plaintiff later filed a motion for judgment notwithstanding the verdict, or in the alternative a motion for new trial, arguing that the evidence was clear and overwhelming that defendant was the cause of her mother's death and that the jury verdicts were inconsistent. The trial court denied the motion.
This appeal followed.
I.
Plaintiff contends that the jury's verdicts finding defendant liable for the injuries suffered by her daughter, but not liable for the death of her mother, are inconsistent. Plaintiff asserts that where negligence is linked to causation of one passenger, then negligence must be linked to causation for every passenger. Plaintiff also argues that the verdict regarding her mother's death is internally inconsistent and contrary to the undisputed evidence at trial, because the jury found that defendant was negligent and that her mother suffered fatal injuries, but that defendant's negligence did not cause her death. Plaintiff urges that, because the jury found that defendant was negligent, causation has been established as a matter of law in the wrongful death case. We disagree.
A.
As a preliminary matter, defendant contends that, having failed to object before the jury was dismissed, plaintiff waived her right to challenge any inconsistencies in the verdicts on appeal. In so arguing, defendant relies upon C.R.C.P. 49(b) and federal cases construing Fed. R. Civ. P. 49(b), which is identical to C.R.C.P. 49(b). We are not persuaded.
C.R.C.P. 49 provides:
(a) Special Verdicts. The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made upon the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
(b) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact, the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entere
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