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Francis v. Dahl1/13/2005
and paying for appropriate medical care, let alone deal with the complexities of insurance coverage issues related to such care. Nor do we perceive how a jury could examine the conduct of a ten year-old child in the context of mitigating her own damages by way of seeking medical and chiropractic care without erroneously imputing her mother's conduct to the child.
Notwithstanding the language of the instruction, defendant's argument and evidence at trial were that plaintiff's mother had failed to arrange for proper medical care for plaintiff. The mitigation instruction improperly directed the jury to deduct from its damage award any amount it determined to be caused by plaintiff's failure to mitigate, but the instructions did not require the jury to specify the amount of any such deduction. Thus, we have no basis for determining to what extent the final award of damages was predicated upon the jury's finding of a failure to mitigate, and, therefore, prejudice must be presumed. See Loup-Miller v. Brauer & Assocs. Rocky Mtn., Inc., 40 Colo. App. 67, 69, 572 P.2d 845, 847 (1977).
Accordingly, we conclude that allowing the jury effectively to impute to plaintiff her mother's failure to mitigate was reversible error, requiring a new trial on damages. See Denver City Tramway Co. v. Brown, supra; Cardona v. County of Albany, supra; Favier v. Winick, supra.
We reject defendant's argument, based on Benallo v. Bare, 162 Colo. 22, 427 P.2d 323 (1967), that, because plaintiff was over the age of seven, the reasonableness of her conduct was automatically subject to evaluation by the jury. Benallo held that a child six years old or younger is always incapable of being contributorily negligent. Unlike the case here, however, Benallo did not involve an alleged failure to seek medical care as the basis for a mitigation instruction, nor did it involve what was, in effect, an attempt to impute a parent's alleged negligence to a plaintiff child over the age of six but under the legal age of majority. Further, we do not read the holding in Benallo to mandate that a mitigation instruction must always be given when the plaintiff is at least seven years old. While we recognize that there may be cases where it is appropriate for a jury to assess the reasonableness of the conduct of a child over the age of six with respect to mitigation of damages, this is not such a case.
In light of our holding, we need not address plaintiff's contention that the trial court reversibly erred in granting defendant's motion in limine. However, we note that the trial court granted the motion without considering plaintiff's timely response. A trial court abuses its discretion when it grants a motion before the nonmoving party responds within the time allowed under C.R.C.P. 121 ยง 1-15(1). See Weatherly v. Roth, 743 P.2d 453 (Colo. App. 1987).
II.
Because the issue may arise at the new trial on damages, we next address and reject plaintiff's contention that the trial court erred by instructing the jury on damages caused by subsequent injury.
When an instruction fairly presents the issues and is supported by evidence, a party is entitled to have it given. Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo. App. 1985). Unless clearly erroneous, the court's determination to give an instruction will not be disturbed on appeal. Burt v. Beautiful Savior Lutheran Church, supra, 809 P.2d at 1068.
The trial court instructed the jury, consistent with CJICiv. 4th 6:9, to consider whether plaintiff was injured in a fall from a pommel horse in gym class on March 13, 2001, and, if so, to determine whether such fall increased any injuries or damages caused by the accid
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