“Flying is learning how to throw yourself at the ground and miss.” – HHGTTG. Here, Plaintiff fell three stories in a dimly lit house under construction when a handrail gave way. He sued Defendant/landowner and two builders who negligently put up the handrail. The builders defaulted. The jury found for Plaintiff. Defendant appealed. The trial court did not give an instruction to apportion fault between Defendant and the builders; the court of appeals held it should have. But, since landowners have a nondelegable duty to keep property safe, and thus, Defendant was vicariously liable for all of the builders’ liability, the error was harmless. The evidence did support Plaintiff’s contributory negligence, so it was an error not to offer that instruction. Finally, Plaintiff was a licensee, not a trespasser. The case was remanded for a determination of plaintiff’s fault only.
Tag Archives: Nonparty at Fault
“Integrity has no need of rules.” Albert Camus. There is no question that paying a testifying witness a contingent fee based on the outcome of the case is prohibited. But such evidence is not excluded per se. The court of appeals came to that conclusion because trial courts have discretion to admit testimony generally. Next, the court of appeals determined that the paid witness was properly permitted to summarize evidence already admitted into the record without violating CRE 602. Similarly, the witness’s summary exhibits were properly admitted, again because they were based on admitted evidence. Moving on, it held that a nonparty at fault could not be designated based on vicarious liability alone. The court then upheld the trial court’s decisions 1) to deny a directed verdict on a fraud claim and the economic loss rule and, 2) found a CRE 701 objection was not preserved for appeal.
A massive fire started by a burglar burns down a warehouse. The burglar alarm system failed. The owner and its insurers sue the security company. The trial court dismissed all claims and plaintiff appealed to the court of appeals; the contract claims survive but the court finds that a limitation of liability provision did not limit a willful and wanton breach of contract. The security company loses at trial and brought this second appeal, challenging the prior appellate decision, the exclusion of its experts, and the refusal to designate the burglar as a nonparty at fault. Here, the court addressed and confirmed its prior decision notwithstanding the “law of the case,” but reversed for a new damages trial. The exclusion of the experts was not harmless because their testimony was central to damages. But, the nonparty at fault statute only applies to torts, not contract claims.