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Pulliam v. Dreiling9/24/1992
Plaintiff, Dale R. Pulliam, appeals from the trial court's judgment entered on a jury verdict in favor of defendants, Toby and Steven Dreiling. We affirm.
In June 1989, plaintiff was stopped at a traffic light when his car was struck from behind by a car driven by Toby Dreiling. At the time of the accident, Toby was driving a car owned by his father, Steven Dreiling. It is undisputed that Toby had his father's permission to drive the car and that Toby was under the influence of alcohol. Plaintiff allegedly sustained personal injuries and damages as a result of the accident. Since both plaintiff and the Dreilings were insured, plaintiff's damages were covered by no-fault insurance.
Plaintiff sued Toby Dreiling for negligence and also claimed that since his actions in driving under the influence of alcohol were willful and wanton, plaintiff was entitled to punitive damages. Plaintiff also sued Steven Dreiling for negligently entrusting the vehicle to his son.
As an affirmative defense, defendants contended that plaintiff had failed to meet the statutory threshold requirements of § 10-4-714(1), C.R.S. (1987 Repl. Vol. 4A) and that, therefore, his claims were barred. At the close of the evidence, the trial court denied plaintiff's motion for a directed verdict against Toby Dreiling on the issues of negligence and causation.
The court then instructed the jury. Instruction number 26 read:
Before you consider the question of either negligence or damage, you must first find that the following was caused by the accident:
The plaintiff, Dale R. Pulliam sustained:
Permanent disability.
If you find that the above has not been proved by a preponderance of the evidence, then you must return a verdict in favor of the defendants, and all jurors shall sign Verdict Form A.
On the other hand, if you find that the above has been proved by a preponderance of the evidence, then you shall consider the questions of negligence and damages as set forth in the other instructions given by the Court in this case. (emphasis added)
In instruction number 27, the court told the jury:
You are instructed to answer the following questions: . . .
(1) Did the plaintiff . . . incur injuries, damages, and/or losses?
(2) Was the defendant, Toby Dreiling, negligent?
(3) Was the defendant's negligence, if any, a cause of any injuries, damages, and/or losses claimed by the plaintiff. . . .?
If your answer to any one or more of the above three questions is "no," then your foreman or forewoman shall complete only Special Verdict Form A and he or she and all jurors will sign it. (emphasis added)
Although both instructions directed the jury to sign special verdict form A, instruction 26 directed the jury to do so in order to return a verdict in favor of defendants. In contrast, instruction 27 refers only to the negligence of defendant Toby Dreiling.
Jury Verdict Form A read:
If the members of the jury sign this verdict form, they shall not sign any other special verdict forms.
We the jury find for the defendant and against the plaintiff .
However, through an oversight, this verdict form was not submitted to the jury. Instead, the following verdict form was submitted to the jury as Special Verdict Form A.
(1) Did the plaintiff, . . . incur injuries, damages and/or losses?
(2) Was the defendant . . . negligent?
(3) Was the defendant's . . . negligence, if any, a cause of any of the injuries, damages and/or losses cla
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