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Foster v. Phillips9/30/1999
JUDGMENTS AFFIRMED
Division IV
Kapelke, J., concurs
Ruland, J., concurs in part and Dissents in part
Plaintiffs, Marqueece Foster (son), a minor, by Dannie Foster, his grandmother and next friend, and Lexus C. Foster (daughter), a minor, by Brenda Craney, her mother and next friend, appeal the judgments entered upon jury verdicts on their claims against defendant, Travis B. Phillips, for the wrongful death of their father, Allen Foster, Jr. (decedent). We affirm.
Defendant negligently caused an automobile accident resulting in the decedent's death. Defendant was intoxicated at the time of the accident.
Plaintiffs sued defendant for economic and non-economic damages resulting from the wrongful death. Before trial, defendant admitted that his "negligence and negligence per se was the sole and proximate cause of the automobile accident." The case therefore proceeded to a jury trial to determine the amount of damages owed to plaintiffs.
The jury awarded the son $24,581 in economic damages and $11,166 for non-economic damages. It awarded the daughter $17,505 in economic damages, but nothing for non-economic damages.
Plaintiffs filed a motion for post-trial relief, which included an argument that the verdicts for non-economic damages were inadequate. The trial court denied the motion, and this appeal followed.
I.
Plaintiffs first contend that the trial court erred when it refused to allow them to introduce evidence of defendant's excessive blood alcohol level. We find no reversible error.
Before trial, defendant filed a motion in limine seeking to exclude evidence pertaining to the circumstances surrounding the automobile accident, including defendant's blood alcohol content. The trial court entered an order "partially granting" the motion. It ruled that any reference to defendant's blood alcohol content on the day of the accident or to toxicology expert opinions was prohibited.
Section 13-21-203(1), C.R.S. 1999, describes the damages that a jury may award in a wrongful death action:
he jury may give such damages as they may deem fair and just, with reference to the necessary injury resulting from such death, including damages for non-economic loss or injury as defined in section 13-21-102.5 and subject to the limitations of this section and including within non-economic loss or injury damages for grief, loss of companionship, pain and suffering, and emotional stress, to the surviving parties who may be entitled to sue; and also having regard to the mitigating or aggravating circumstances attending any such wrongful act, neglect, or default . . . .
Until the statute was amended in 1989, damages recoverable for wrongful death were limited to the pecuniary loss suffered as a result of the death. Moffatt v. Tenney, 17 Colo. 189, 30 P. 348 (1892). The effect of the 1989 amendment was to permit additional recovery for non-economic damages. See Colo. Sess. Laws 1989, ch. 130, § 13-21-203 at 752.
Initially, we reject plaintiffs' argument that the statute permits the jury to consider the aggravating circumstances surrounding defendant's "act" or "neglect." The supreme court in Moffatt v. Tenney, supra, 17 Colo. at 198, 30 P. at 351 rejected the same contention:
Since mitigating circumstances relating to the act itself do not justify an assessment of damages less than compensatory, it is not reasonable to suppose that the aggravating circumstances contemplated by the statute are such as would justify an assessment of damages more than compensatory. . . . e are constrained to hold that the words 'mitigati
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