dissenting:
I respectfully dissent.
The majority opinion, as I read it, holds that the trial court erred procedurally by granting defendants’ motion for summary judgment because there existed a genuine issue of fact which should have been submitted to a jury for determination. In my view, there was no genuine issue of fact remaining after the combined hearing on defendants’ motion for summary judgment *390and the plaintiff’s motion to set aside the release. Therefore, the trial court, after denying the motion to set aside the release, properly granted the defendants’ motion for summary judgment. It is clear from this record that these rulings were made after an extensive presentation of evidence by the plaintiff in support of her motion to set aside the release.
The majority correctly points out that the defendants’ answer contained a demand for a jury trial, and that at no time after that demand was made did all of the parties agree to waive a jury. Consequently, if any issues of fact remained unresolved, they should have been decided by a jury, and not by the court. C.R.C.P. 38(d); Forster v. Superior Court, 175 Colo. 444, 488 P.2d 202 (1971).
In my view, however, there were no disputed issues of fact. All of the parties agree that Darlene Guzman (plaintiff), when she was a minor, was struck on the head on September 29, 1970, by a vending machine which fell from a truck being operated by Irwin D. Gleason in the course of his employment with Coin Fresh, Inc. (defendants). It is agreed that, as a result of that injury, she suffered an intratemporal lobe hematoma. On October 22, 1972, the Denver Probate Court approved a settlement agreement whereby plaintiff’s father, Tranquillino Benavidez, as her legal guardian, received $6,114.35 in exchange for a general release of any claims against defendants.1
Finally, it is agreed that in May 1974, plaintiff experienced an epileptic seizure. The evidence before the trial court revealed that traumatic epilepsy may have resulted from the intratemporal lobe hematoma suffered by the plaintiff on September 29, 1970.
The majority, however, asserts that there is an issue of fact as to whether the October 1972 release should be set aside because if Benavidez had been advised or had known that traumatic epilepsy was a possible complication resulting from the plaintiff’s injuries, he would not have signed the release. The evidence before the court reveals no mistake in diagnosis upon which a mutual mistake of fact could be based. There is no mistake of fact involved in this case, and therefore, as a matter of law, the trial court correctly ruled that the release barred the plaintiff’s claim.
A release may be set aside where it was obtained as a result of a mutual mistake of fact based upon a mistake in diagnosis. Scotten v. Landers, 190 Colo. 27, 543 P.2d 64 (1975); McCarthy v. Eddings, 109 Colo. 526, 127 P.2d 883 (1942). Only a mistake in diagnosis, and not a mistake in prognosis, will warrant the setting aside of a release. Davis v. Flatiron Materials Co., 182 Colo. 65, 511 P.2d 28 (1973); McCarthy v. Eddings, supra. Mistakes in diagnosis are mistakes of past or present physical condition, while mistakes of prognosis are mistakes with regard to the future course of recovery from a known disease or known injury. Davis v. Flatiron Materials Co., supra.
Although the majority recognizes the distinction between diagnosis and prognosis, its interpretation of the facts leads it to conclude that this case involves a mistaken diagnosis. In my view, if there was any mistake, it was a mistake in prognosis and will not support setting aside the release.
As a result of the injury to her head occasioned by the falling vending machine, the plaintiff sustained an intratemporal lobe hematoma. Several years later, she was stricken by epileptic seizures, which could have any number of causes, see 5 Cyclopedia of Medicine, Surgery, Specialties, 229 (1973), including an infratemporal lobe hematoma. See 5 Cyclopedia of Medicine, Surgery, Specialties, supra; Gordy and *391Gray, 3B Attorneys’ Textbook of Medicine, §§ 92.20, 92.40 and 92.52 (1963); Cantor, 4 Traumatic Medicine and Surgery for the Attorney, § 807 (1961).
Post-traumatic epilepsy is an occasional consequence of an intratemporal lobe hematoma. As such, it frequently does not become manifest for months or even years after the injury, if ever. See Gordy and Gray, supra at § 92.52; Cantor, supra, at § 807(1). In this case, it was nearly four years before the plaintiff suffered an epileptic seizure. Thus, at the time the release contract was entered into, any mistake with regard to the plaintiff’s subsequent affliction with post-traumatic epilepsy was a mistake with regard to her future course of recovery from the intratemporal lobe hema-toma, or prognosis. It was not a mistake of diagnosis. Mistakes in prognosis will not support the setting aside of a valid release contract. Davis v. Flatiron Materials Co., supra; McCarthy v. Eddings, supra.
The rationale for such a rule is clear. Public policy favors the settlement of disputes without resort to the courts, provided such settlements are fairly reached. Davis v. Flatiron Materials Co., supra; Rogers v. Funkhouser, 121 Colo. 13, 212 P.2d 497 (1949). For defendants in personal injury cases to be induced to enter into such settlement contracts, they must be assured of a degree of finality. Davis v. Flatiron Material Co., supra. If an injured party can set aside a release contract simply because he was not specifically aware of a consequence of his injury which subsequently developed, any incentive for a defendant to enter into such a release transaction would be nullified. The only safe release from a defendant’s viewpoint would be one listing every possible consequence of the known injury. As a practical matter, such an all-inclusive list is an impossibility.
The record reflects that the probate court was careful to make certain that Benavidez, as the plaintiff’s guardian, was aware of the ramifications of entering into a general release.2 Having chosen to settle the case for an agreed amount which in this case included a substantial percentage for possible future damages, the plaintiff must be held to that election.
There being no question of fact requiring determination, the record indicates that the trial court properly granted defendant’s motion for summary judgment. The decision of the court of appeals should be reversed and the judgment of the trial court affirmed.
I am authorized to say that Justice RO-VIRA concurs in the dissent.
. The Probate Court’s order stated:
“WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:
That the compromise settlement on behalf of said Minor ... is hereby approved; and said Natural Guardian, Tranquillino Benavidez, is hereby authorized and directed to accept the sum of Six Thousand One Hundred Fourteen Dollars and Thirty-Five Cents ($6,114.35), in full and complete settlement of all claims of said Minor, Darlene Benavidez [Guzman], and said Guardian against Irwin D. Gleason, owner and driver of the automobile involved, and to deliver a full and complete release in the form attached to the petition.
. Before approving the settlement agreement, the judge in the probate court questioned Bena-videz with regard to his understanding of the significance of entering into such a release. During the court’s questioning, the following exchange took place:
“THE COURT: Mr. Benavidez, do you understand that if this settlement is made it will be a full and complete and final settlement, and neither you nor your daughter would have any further claim against Irwin D. Gleason and his insurance company?
THE WITNESS: Yes, I understand that.
THE COURT: And do you understand that that is so, notwithstanding what the future of your child might be as a result of these injuries?
THE WITNESS: Yes, I understand that, too.
THE COURT: You know that you could not reopen this case?
THE WITNESS: I couldn’t, yes.”