COLORADO COURT OF APPEALS 2016COA142
Court of Appeals No. 15CA0072
City and County of Denver District Court No. 13CV32833
Honorable Kenneth M. Laff, Judge
Naema Alhilo,
Plaintiff-Appellee,
v.
Daniel Kliem,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE WEBB
Ashby and Nieto*, JJ., concur
Announced October 6, 2016
Zaner Harden Law LLP, Kurt Zaner, Marc Harden, Elliot Singer, Denver,
Colorado; Levin Rosenberg PC, Michael J. Rosenberg, Nelson A. Waneka,
Denver, Colorado, for Plaintiff-Appellee
Campbell, Latiolais & Averbach, LLC, Colin C. Campbell, Kirstin M. Dvorchak,
Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 Abdul Alhilo died in a collision between his motorcycle and a
car driven by defendant, Daniel Kliem. The deceased’s mother,
plaintiff Naema Alhilo, brought a wrongful death action against
Kliem. The jury allocated fifty-five percent of the fault to Kliem and
forty-five percent to the deceased. It awarded $750,000 in
noneconomic damages and $1,500,000 in exemplary damages.
Kliem appeals the judgment entered on the verdict. We affirm.
I. Background and Procedural History
¶2 The accident occurred on Federal Boulevard in Denver. Kliem
drove out of a car wash across the southbound lanes, intending to
turn left and drive north. The deceased, going south, sought to
avoid a collision by moving to the inside lane, but still hit the side of
Kliem’s car. He died at the scene.
¶3 When the accident occurred, the deceased was traveling at an
estimated speed of between seventy-five and eighty-six miles per
hour. The speed limit was forty miles per hour. His driving
privileges had been suspended several years earlier based on his
status as a habitual traffic offender (HTO).
¶4 After the collision, Kliem drove off. He stopped his car a few
blocks away and fled on foot, despite having been injured. From
1
the car, the police recovered several beer cans — three of them
opened — a bottle of vodka, and a pipe containing marijuana. The
crash occurred on June 26th and Kliem turned himself in on June
28th. Several years earlier, he had been convicted of two driving
while impaired (DWI) offenses.
¶5 During pretrial proceedings, the parties raised, and the trial
court ruled on, all of the evidentiary issues argued in this appeal.
¶6 After the jury returned its verdict, plaintiff calculated Kliem’s
share of the noneconomic damages at $412,500 and sought
judgment in that amount, correctly pointing out that it was less
than the cap in section 13-21-203, C.R.S. 2016. Kliem responded
that the court should apply the cap first, then apportion liability,
which would result in a judgment of $239,838.50. The trial court
agreed with plaintiff. The court denied Kliem’s post-trial motions
for a judgment notwithstanding the verdict on exemplary damages,
alleging insufficient evidence, and for a new trial on liability,
alleging evidentiary errors.
II. Evidentiary Issues
¶7 Kliem contends the trial court made three evidentiary errors:
excluding evidence of the deceased’s driving record and his status
2
as an HTO; admitting evidence of Kliem’s two prior DWI offenses;
and admitting evidence that Kliem fled the accident scene. We
address each one in turn but discern no ground for reversal.
A. Standard of Review and Law
¶8 Evidentiary rulings are reviewed for an abuse of discretion.
Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 16.
“[A] trial court necessarily abuses its discretion if it bases its ruling
on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” People v. Segovia, 196 P.3d 1126,
1129 (Colo. 2008).
¶9 To begin, under CRE 401, evidence is logically relevant if it
has “any tendency to make the existence of [a material fact] more
probable or less probable than it would be without the evidence.”
In general, then, “[a]ll relevant evidence is admissible,” unless the
United States Constitution, the Colorado Constitution, a state
statute, the evidence rules, or other rule prescribed by the supreme
court prohibits its admission. CRE 402; Murray, ¶ 19. Even so,
relevant evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
3
of undue delay, waste of time, or needless presentation of
cumulative evidence.” CRE 403. In weighing those dangers and
considerations, the proffered evidence “should be given its maximal
probative weight and its minimal prejudicial effect.” Murray, ¶ 19
(quoting People v. Dist. Court, 869 P.2d 1281, 1285 (Colo. 1994)).
B. The Deceased’s Driving Record and His HTO Status
¶ 10 Plaintiff moved in limine to preclude evidence of the deceased’s
driving record and his status as an HTO, arguing that this evidence
— while uncontroverted — was not relevant. The trial court agreed
and granted the motion. Now Kliem argues, as he did below, that
the exception in section 42-4-1713, C.R.S. 2016, required the trial
court to admit this evidence. We read the statute differently and
conclude that the trial court acted within the scope of its broad
discretion.
1. Statutory Standard of Review
¶ 11 Whether section 42-4-1713 requires the admission of a
driver’s HTO status and associated driving record in any civil trial is
a question of statutory interpretation subject to de novo review.
Granite State Ins. Co. v. Ken Caryl Ranch Master Ass’n, 183 P.3d
563, 567 (Colo. 2008).
4
¶ 12 When construing a statute, a court strives to “ascertain and
effectuate the legislative intent, which is to be discerned . . . from
the plain and ordinary meaning” of the text. People v. Frazier, 77
P.3d 838, 839 (Colo. App. 2003), aff’d, 90 P.3d 807 (Colo. 2004). If
the language is plain, the court must apply the text as written and
not force or strain its interpretation. Williams v. Dep’t of Pub.
Safety, 2015 COA 180, ¶ 22. “Only where the statute’s language is
ambiguous may we turn to other principles of statutory
construction and consider the consequences of a certain
construction, the end to be achieved by the statute, and legislative
history.” People v. Vigil, 2013 COA 102, ¶ 14 (citing Bostelman v.
People, 162 P.3d 686, 690 (Colo. 2007)).1
1 At oral argument, plaintiff advanced an interpretation of the
statute similar to the one that we adopt, noting that the legislative
history supported it. Kliem claimed surprise because this
interpretation had not been presented in plaintiff’s answer brief and
asked for leave to submit a supplemental brief. We afforded the
parties an opportunity to submit supplemental briefs. As presented
in those briefs, the legislative history is at best equivocal.
Therefore, we decline to consider cases such as Lot Thirty-Four
Venture, L.L.C. v. Town of Telluride, 976 P.2d 303, 306 (Colo. App.
1998) (“If the statutory language is clear and unambiguous, the
statute should be applied as written. . . . Nevertheless, we may also
consider other indicia of legislative intent, such as the object to be
attained, the legislative history, and the consequences of the
particular construction.”), aff’d, 3 P.3d 30 (Colo. 2000).
5
2. Law
¶ 13 Section 42-4-1713 provides:
Except as provided in sections 42-2-201 to
42-2-208, no record of the conviction of any
person for any violation of this article [Article 4
— the “Regulation of Vehicles and Traffic”]
shall be admissible as evidence in any court in
any civil action.
(Emphasis added.) See Bullock v. Wayne, 623 F. Supp. 2d 1247,
1254 (D. Colo. 2009) (Section 42-4-1713 “prohibits any mention of
convictions for violating the vehicle and traffic statutes in Article
4.”).
¶ 14 More than fifty years ago, our supreme court said about a
prior version of section 42-4-1713: “the intent and purpose of such
a statute is too obvious to require discussion.” Ripple v. Brack, 132
Colo. 125, 129, 286 P.2d 625, 627 (1955). Since then, no Colorado
court has examined this statute in depth.
¶ 15 Still, in Bullock, 623 F. Supp. 2d at 1256, the United States
District Court expounded on that obviousness. It explained that
because traffic convictions “tend to be minor in nature, informally
adjudicated, and often uncontested,” by enacting section
42-4-1713, “[t]he Colorado legislature presumably did not want
6
these relatively small infractions to have grave consequences in civil
actions where significantly more could be at stake.” The court
further explained that by prohibiting evidence of these convictions
in civil actions, section 42-4-1713 “ameliorates docket congestion in
traffic courts.” Bullock, 623 F. Supp. 2d at 1256. This is so
because “were traffic convictions to carry with them the threat of
res judicata, the incentive to fight a traffic ticket would grow
dramatically and, along with it, the caseload of traffic courts.” Id.;
see Warren v. Marsh, 11 N.W.2d 528, 531 (Minn. 1943) (Because
“often citizens will plead guilty to minor offenses under the traffic
act rather than suffer loss of valuable time and the expense of a
trial . . . the legislature apparently concluded that a plea of guilty
should not prejudice one in any way in any civil proceeding, even
one involving the same facts out of which the violation of the traffic
act arose.”) (cited with approval in Ripple, 132 Colo. at 129, 286
P.2d at 627).
3. Analysis
¶ 16 Kliem concedes that section 42-4-1713 broadly prohibits
evidence of Article 4 convictions in civil actions. Even so, he argues
that the exception (“as provided in sections 42-2-201 to 42-2-208”)
7
allows a party in any civil action “to present evidence that the
adverse party has been deemed a danger to other motorists by
virtue of the party’s prior conviction as an habitual traffic offender.”
Here, because the proffered evidence consisted of both the
deceased’s status as an HTO and his associated driving convictions,
separate analysis is required. But this case does not support
admitting either type of evidence.
¶ 17 First, as to the deceased’s convictions that led to his HTO
status, the text unambiguously limits the exception: “as provided in
sections 42-2-201 to 42-2-208.” Id. The cross-referenced sections
make up the HTO statute, which “defin[es] who is an habitual
offender, authority for revocation, appeals, and other related
matters.” Lawrence v. Taylor, 8 P.3d 607, 610 (Colo. App. 2000).2
¶ 18 The administrative appeal described in section 42-2-203 for
challenging revocation of a driver’s license based on a determination
of HTO status by the Department of Revenue, Motor Vehicles
Division (DMV), is a civil proceeding. State v. Laughlin, 634 P.2d
2 To the extent Kliem argues Lawrence v. Taylor, 8 P.3d 607, 610
(Colo. App. 2000), supports his interpretation, the court merely
held, without discussion, that the decedent was not an HTO and his
traffic convictions were “not admissible in this negligence action.”
8
49, 51 (Colo. 1981). But without the exception in section
42-4-1713, evidence of Article 4 convictions would be prohibited.
And without this evidence, a hearing officer could not decide “[t]he
only issue to be determined at the license revocation hearing . . .
whether the licensee has sustained the requisite number of
convictions for specified traffic offenses within the prescribed period
of time.” Id.; see also People v. McKnight, 200 Colo. 486, 490, 617
P.2d 1178, 1181 (1980) (An HTO is defined “as one having a
designated number of convictions for specified traffic offenses
within a prescribed period of time.”).
¶ 19 Thus, providing an exception under these sections — to allow
evidence of Article 4 convictions in an HTO proceeding — is
necessary. By any fair reading, the exception does not apply to any
other civil action. Nor should it be interpreted more broadly. See
Brodak v. Visconti, 165 P.3d 896, 898 (Colo. App. 2007) (When a
“statute establishes a general rule, subject to [an] exception[], we
must construe the exception[] narrowly to preserve the primary
operation of the general rule.”).
¶ 20 Second, the DMV determination that a driver is an HTO does
not itself constitute a separate conviction. Rather, under the HTO
9
statute, the DMV has the authority to “immediately revoke the
license of any person whose record brings such person within the
definition of an habitual offender . . . .” § 42-2-203, C.R.S. 2016.
In doing so, the DMV must “immediately notify the licensee,” who,
in turn, may request a hearing. § 42-2-125(3), (4), C.R.S. 2016.
¶ 21 But at that hearing, “[t]he hearing officer’s determination is
made by reference to the licensee’s driving record, as reflected in
the department’s records.” Laughlin, 634 P.2d at 51. And while “it
is the licensee’s responsibility to challenge alleged mistakes in the
records of the department as to his driving history,” the licensee
“may not relitigate the issue of guilt as to the offenses shown on his
record.” Id.
¶ 22 Given all this, allowing evidence of the Article 4 convictions in
any other civil action — merely because those convictions formed
the basis of a person’s HTO status — would defeat the purpose of
section 42-4-1713, as explained in Bullock, 623 F. Supp. 2d at
1254. Specifically, such an interpretation would allow evidence of
traffic convictions that may have been uncontested and thus invite
10
challenges to many traffic convictions that could later have serious
consequences in civil actions.3
¶ 23 Turning to the admissibility of a driver’s status as an HTO,
that status is an administrative determination, not a separate or
additional conviction. Kliem cites no authority, nor are we aware of
any in Colorado, treating such an administrative determination as a
conviction. See McKnight, 200 Colo. at 493, 617 P.2d at 1183 (“The
administrative proceeding to revoke a driver’s license because of
habitual traffic offender status is a civil one.”); cf. People v. Kiniston,
262 P.3d 942, 944 (Colo. App. 2011) (discussing various uses of
“conviction”). Thus, the broad prohibition in section 42-4-1713
does not limit evidence of HTO status. Instead, the admissibility of
HTO status evidence remains subject to the rules of evidence,
primarily CRE 401 and CRE 403. And here, both rules weigh
against admission.
3 See generally Jay M. Zitter, Annotation, Admissibility of Traffic
Conviction in Later State Civil Trial, 73 A.L.R.4th 691 § 2[a]
(originally published in 1989) (Courts that generally preclude
evidence of traffic convictions “have reasoned that since tickets and
other traffic violations involve relatively small sums of money,
drivers often pay the fines or plead guilty rather than waste time in
court attempting to present a defense, and thus the reliability of the
conviction is certainly suspect.”).
11
¶ 24 As to CRE 401, the trial court found that evidence of the
deceased’s status as an HTO was not relevant. This finding is
supported by the fact that evidence of the deceased’s fault —
traveling at nearly double the posted speed limit — was undisputed.
Thus, even accepting Kliem’s position that the HTO statute reflects
a legislative determination of likely future irresponsible driving
behavior, whatever inference of irresponsibility the jury might draw
from evidence of the deceased’s HTO status would have added very
little. And the verdict shows that the jury gave considerable weight
to the undisputed evidence of the deceased’s proportionate fault.
¶ 25 The trial court did not address CRE 403. However, even
assuming that status evidence had some minimal probative value,
admission of evidence of HTO status — and its attendant license
revocation — might have led the jury to conclude that had the
deceased abided by the restriction, he would not have been
operating his motorcycle. And as a result, the accident would never
have occurred. But this inference is legally impermissible. See
Weaver v. Blake, 454 F.3d 1087, 1094 (10th Cir. 2006) (“Colorado’s
appellate courts appear to follow the majority rule that whether or
not a person has a valid driver’s license is irrelevant to the question
12
whether that person was driving negligently at the time of the
accident.”). Thus, any probative value was outweighed by the risk
of unfair prejudice.
¶ 26 In sum, we conclude the trial court did not abuse its
discretion by precluding evidence of the deceased’s status as an
HTO and his associated driving record.
C. Admitting Evidence of Kliem’s Two Prior DWI Offenses
¶ 27 Plaintiff moved to add a request for exemplary damages based
in part on Kliem’s “prior alcohol convictions and . . . his reckless
decision to consume alcohol and drugs the night of the crash and
then get behind the wheel of a car.” The trial court granted the
motion. Kliem then moved in limine to preclude any evidence of
those offenses.
¶ 28 The court denied Kliem’s motion. It held that Kliem’s prior
alcohol offenses were “clearly relevant to the determination of
exemplary damages.” Citing out-of-state authority, the court
explained:
Certainly there’s a knowledge that someone
gains from having lived through a DUI that
ought to influence their decision to drink and
drive in the future. Obviously, I’m not
reaching the conclusion that [Kliem] had the
13
alcohol that day or was impaired at the time of
the accident. It’s going to be for the jury based
on the evidence, but if they believe he was,
then those priors are clearly relevant to
exemplary damages.
¶ 29 Kliem tendered a limiting instruction on the prior offenses to
which plaintiff objected, arguing “I don’t believe that [Kliem’s] prior
driving offenses are only for the issue of [exemplary] damages.” The
court disagreed and told plaintiff’s counsel it would not allow him to
“try[] to prove [Kliem was] drunk by the fact that he has prior
[offenses].” Then, when the prior offenses were mentioned during
opening statement, the court instructed the jury:
Ladies and gentlemen, in certain
circumstances evidence may be admitted for a
limited purpose only. And the evidence that
[counsel] indicated you would hear during the
trial is an example of such evidence. It’s
evidence of . . . Kliem’s prior driving offenses.
It is offered solely for the limited purpose of
your evaluation of [plaintiff’s] punitive
damages claim against . . . Kliem. The
evidence is not to be considered by you in
deciding the facts of what occurred on June
26th, 2011, including the . . . second issue of
whether or not . . . Kliem ingested alcohol or
was impaired by alcohol at the time of the
June 26th, 2011, collision or whether or not
he drove negligently at the time of the collision.
14
During direct examination of Kliem — when he was asked about the
prior offenses — the court again gave this instruction.
¶ 30 Kliem argues, as he did before the trial court, that evidence of
his prior alcohol offenses was not relevant, even as to exemplary
damages, and any “probative value is far outweighed by the
potential to inflame or mislead the jury.”4
1. Law
¶ 31 Under CRE 404(b), “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show
that he acted in conformity therewith.” Thus, evidence of prior
similar incidents “cannot alone establish a prima facie case of
negligence.” Jacobs v. Commonwealth Highland Theatres, Inc., 738
P.2d 6, 9 (Colo. App. 1986) (noting that evidence of prior accidents
may be admissible “when relevant to a material issue, and when its
probative value outweighs any prejudice resulting from its
admission”).
4 Kliem did not argue below, nor has he argued in this court, that
the DWI evidence should have been excluded under section
42-4-1713. Therefore, we do not express any opinion on this
question.
15
¶ 32 Still, evidence of prior offenses may be admissible to support
an award of exemplary damages. Cf. Bennett v. Greeley Gas Co.,
969 P.2d 754, 761 (Colo. App. 1998) (recognizing a difference
between admissibility under CRE 404(b) and admissibility for
exemplary damages). These damages arise under section
13-21-102(1)(a), C.R.S. 2016, which provides:
In all civil actions in which damages are
assessed by a jury for a wrong done to the
person . . . and the injury complained of is
attended by circumstances of fraud, malice, or
willful and wanton conduct, the jury, in
addition to the actual damages sustained by
such party, may award him reasonable
exemplary damages.
(Emphasis added.) Under this section, “willful and wanton
conduct” means “conduct purposefully committed which the actor
must have realized as dangerous, done heedlessly and recklessly,
without regard to consequences, or of the rights and safety of
others, particularly the plaintiff.” § 13-21-102(1)(b); see Jacobs,
738 P.2d at 10 (evidence of prior accidents admissible to show the
defendant’s “awareness of the hazard” for purposes of “wanton and
reckless disregard”).
16
2. Analysis
¶ 33 Kliem argues that because the trial court found evidence of his
prior alcohol offenses was irrelevant as to negligence, “then such
evidence must be equally inadmissible for purposes of exemplary
damages.” He relies on Bennett, 969 P.2d at 761, where the
division held that “acts of the wrongdoer occurring after the event
creating liability ordinarily are not material to the jury’s award of
exemplary damages.”
¶ 34 But unlike in Bennett, Kliem’s alcohol offenses occurred before
the accident at issue. Kliem cites no Colorado authority, nor have
we found any, addressing the admissibility of such evidence for
purposes of exemplary damages. Other jurisdictions to have done
so, however, generally hold that prior alcohol offenses are relevant
as to whether a defendant acted with willful and wanton conduct —
the standard for exemplary damages. See generally Danny R.
Veilleux, Annotation, Intoxication of Automobile Driver as Basis for
Awarding Punitive Damages, 33 A.L.R.5th 303 (originally published
in 1995).
¶ 35 In Davidson v. Bailey, 826 N.E.2d 80, 86 (Ind. Ct. App. 2005),
for example, the court explained that “[a]n award of punitive
17
damages . . . is predicated on the intentional conduct of a defendant
and asks the fact-finder to focus on that defendant’s state of mind.”
As such, while a defendant’s “subsequent DUI convictions would
have no bearing on his state of mind the night of the accident, and
were, thus, properly excluded, the same cannot be said of his four
previous DUI convictions.” Id. Similarly, the court in Thompson v.
Moore, 329 S.E.2d 914, 916 (Ga. Ct. App. 1985), aff’d in part, rev’d
in part, 336 S.E.2d 749 (Ga. 1985), superseded by statute as stated
in Webster v. Boyett, 496 S.E.2d 459, 462 (Ga. 1998), explained:
We can think of no circumstance more willful
and wanton, more indicative of a conscious
indifference to consequences, than repeated
occurrences of driving while intoxicated. The
fact that no injuries had previously occurred is
largely irrelevant; the question for the jury
would be whether in this particular case the
appellee, having plead[ed] guilty to two
instances of driving while intoxicated, acted in
conscious disregard of consequences by again
driving while intoxicated.
See also Webster, 496 S.E.2d at 462 (“We agree . . . that . . . a
defendant’s prior . . . acts of driving under the influence are
relevant to whether the defendant acted with conscious indifference
to the consequences in again driving under the influence.”);
Angeron v. Martin, 649 So. 2d 40, 44 (La. Ct. App. 1994) (For
18
exemplary damages, “evidence of [the defendant’s] knowledge of
past acts [DWI offenses], and his disregard of the danger in the face
of that knowledge is admissible.”).
¶ 36 Consistent with the rationales in these cases, the trial court’s
finding that Kliem’s prior alcohol offenses were relevant for
exemplary damages was supported by Kliem’s testimony during
trial. He admitted that through attending alcohol education classes
and victim impact panels — as required by the sentences for his
prior offenses — he had learned about the dangers and
consequences of alcohol impairing the ability to drive safely. See
Flockhart v. Wyant, 467 N.W.2d 473, 478 (S.D. 1991) (Conduct was
willful and wanton where the defendant “had been through drunk-
driving classes, and in-patient alcoholic treatment programs [and]
[s]he must have known, with substantial certainty, the danger
which her conduct engendered.”); Huffman v. Love, 427 S.E.2d 357,
360 (Va. 1993) (Conduct was willful and wanton where defendant
“drove his vehicle in this highly intoxicated state, notwithstanding
the fact he had received court-ordered education, on the dangers of
drinking and driving, as a result of each of his prior drunk driving
convictions.”).
19
¶ 37 Still, Kliem argues that even if his prior alcohol offenses were
relevant to exemplary damages, the court should not have allowed
the jury to hear about them when determining negligence.
¶ 38 True, some courts have allowed evidence of prior alcohol
offenses only in a separate proceeding on exemplary damages. See,
e.g., Webster, 496 S.E.2d at 462 (recognizing that “although
relevant, the evidence [of prior alcohol offenses] is highly prejudicial
to the issue of the defendant’s liability in the underlying negligence
case”). But Kliem did not ask for a bifurcated trial. Nor does he
cite any Colorado authority supporting the notion that the trial
court should have bifurcated the issues sua sponte.
¶ 39 Instead, the trial court acknowledged the potential for
prejudice and gave an appropriate limiting instruction. And “absent
evidence to the contrary, we presume that a jury follows a trial
court’s instructions.” Qwest Servs. Corp. v. Blood, 252 P.3d 1071,
1088 (Colo. 2011). Kliem does not point to any such evidence.
¶ 40 For these reasons, we discern no abuse of the trial court’s
discretion in allowing evidence of Kliem’s prior alcohol offenses for
purposes of exemplary damages.
20
D. Admitting Evidence that Kliem Fled the Accident Scene
¶ 41 Kliem moved in limine to preclude evidence that he had fled
the accident scene. He argued that this evidence was “irrelevant to
the determination of which driver caused the accident.” The trial
court denied the motion, finding that the evidence was “relevant to
the state of mind and nature of driving . . . at the time of the
accident.”
1. Law
¶ 42 “Negligence may be established by facts and circumstances
surrounding an accident rather than by direct evidence.” Lindauer
v. LDB Drainlaying, Inc., 38 Colo. App. 266, 269, 555 P.2d 197, 199
(1976); see Holmes v. Gamble, 624 P.2d 905, 906 (Colo. App. 1980)
(“The facts constituting negligent conduct, however, like any other
facts, may be proven by circumstantial evidence.”), aff’d, 655 P.2d
405 (Colo. 1982). The relevancy of evidence — i.e., “whether it
renders the claimed inference more probable than it would be
without the evidence” — and not its stand-alone sufficiency
determines admissibility. Bush v. Jackson, 191 Colo. 249, 251, 552
P.2d 509, 511 (1976); see People v. Summitt, 132 P.3d 320, 324
(Colo. 2006).
21
¶ 43 One inference that may be drawn from “evidence of flight” is
“consciousness of guilt.” Bush, 191 Colo. at 251, 552 P.2d at 511.
This inference usually arises in criminal cases. See Summitt, 132
P.3d at 324. Yet, in Bush, the supreme court applied a similar
inference in a civil case. The court held that evidence of a property
transfer — its flight, at the owner’s behest — “after an occurrence
which may render that person liable in damages” was admissible “to
show a consciousness of liability and a purpose to evade
satisfaction of it.” Bush, 191 Colo. at 251, 552 P.2d at 511.
2. Analysis
¶ 44 Initially, Kliem argues that evidence of his post-accident flight
should not have been admitted because consciousness of guilt “is
not a material consideration in a civil case.” True, an actor’s
mental state when the act occurred — mens rea, in criminal cases
— is not relevant to proving negligence because the actor may have
intended to act reasonably and still failed to do so. But the
difference is timing, not substance. As explained in Bush, evidence
of concealing assets after an event potentially creating liability “is
admissible to show a consciousness of liability.” Id.
22
¶ 45 The modern view among courts that have addressed flight
evidence in civil cases supports this analysis. In Karl v. C. A. Reed
Lumber Co., 79 Cal. Rptr. 852, 854 (Cal. Ct. App. 1969), for
example, the court explained that “flight immediately after an
accident is a circumstance that may be considered with other facts
in the case as tending to show a consciousness of responsibility for
the accident.” Similarly, in Peterson v. Henning, 452 N.E.2d 135,
138 (Ill. App. Ct. 1983), the court explained that “[a] defendant’s
flight from the scene of the accident can be interpreted as an
admission of his negligence for if he were ‘guilt free’ it is reasonable
to assume he would stop to ascertain the nature of the accident or
the extent of the victim’s injuries.” See also Birch v. Birch, 755
N.W.2d 144, at *2 (Iowa Ct. App. 2008) (table) (“[A] driver’s failure to
stop creates an inference in the minds of reasonable people that the
driver does not wish to be identified and that his wish to be
unidentified stems from a fear of the consequences of being
known.”) (citation and alteration omitted); Rock v. McHenry, 115
S.W.3d 419, 421 (Mo. Ct. App. 2003) (“[I]n civil cases, other courts
have held that flight evidence is admissible upon a showing that a
defendant fled for the purpose of escaping liability.”).
23
¶ 46 Even so, Kliem argues that evidence of his flight “is simply not
probative of which party caused the accident in the first instance.”
Of course, a person’s “conduct in leaving the scene b[ears] no
causal connection to the collision.” Bellamy v. Edwards, 354
S.E.2d 434, 438 (Ga. Ct. App. 1987); accord Miller ex rel. Miller v.
Lewis, 963 N.Y.S.2d 533, 535 (N.Y. Sup. Ct. 2013) (“There can be
little dispute that conduct following the accident indeed bears little
if any ‘proximate relation’ to the cause of the accident.”). Still, such
evidence may be admitted “in connection with [the person’s] other
acts preceding the injury, as tending to establish [their] conduct in
causing the injury as being negligence.” Bellamy, 354 S.E.2d at
438; see Miller, 963 N.Y.S.2d at 536 (Evidence the defendant
“continued to drive further down the block, failed to call 911 and
placed and received numerous phone calls . . . are all admissible as
evidence of [the defendant’s] consciousness of liability.”).
¶ 47 This bridge between pre-accident and post-accident conduct
carries particular weight here. Evidence of Kliem’s flight was
relevant to explain why plaintiff was unable to present any direct
proof of Kliem having been impaired by alcohol, such as a breath
test or blood draw shortly after the accident had occurred. See
24
Edwards v. Cross, 64 S.E.2d 6, 7 (N.C. 1951) (“By rendering the
plaintiff unconscious and running away the motorist has forced her
to rely on circumstantial evidence.”).
¶ 48 Undaunted, Kliem argues that evidence of his flight should not
have been admitted because his “panicked reaction . . . could have
been triggered by any number of influences unrelated to
intoxication.” To be sure, as recognized in Johnson v. Austin, 280
N.W.2d 9, 13 (Mich. 1979), “it is possible that for personal reasons,
innocent as far as the law is concerned, a driver may wish to avoid
identifying himself.” See also Fisher By & Through Fisher v. Trapp,
748 P.2d 204, 207 (Utah Ct. App. 1988) (“Trapp’s flight could have
indicated fear or remorse just as easily as consciousness of guilt.”).
But when testing for relevancy, “it does not matter that other
inferences may be equally probable.” Bush, 191 Colo. at 251, 552
P.2d at 511. And Kliem was free to “present evidence to explain his
failure to stop.” Peterson, 452 N.E.2d at 138. Indeed, Kliem
testified that he drove away because he did not know what he had
hit and then he fled on foot because he panicked.
25
¶ 49 For these reasons, we discern no abuse of the trial court’s
considerable discretion in allowing evidence of Kliem’s post-accident
flight.
III. Sufficiency of the Evidence to Support the Exemplary Damages
Award
¶ 50 Kliem next contends that because “plaintiff’s theory that Kliem
had been intoxicated is built upon speculation and conjecture
alone” and “there was nothing improper about Kliem’s left turn,”
plaintiff failed to prove, beyond a reasonable doubt, that she was
entitled to exemplary damages. We conclude that the evidence was
sufficient.
A. Standard of Review and Law
¶ 51 The party requesting exemplary damages must prove the
statutory requirements beyond a reasonable doubt. See
§ 13-25-127(2), C.R.S. 2016. The “reasonable doubt burden is by
definition a heavy one,” Tri-Aspen Constr. Co. v. Johnson, 714 P.2d
484, 486 (Colo. 1986), and “whether the evidence was sufficient to
justify an award of exemplary damages is one of law that we review
de novo,” Qwest Servs. Corp., 252 P.3d at 1092. Still, an appellate
court views the evidence in the light most favorable to the party
26
awarded exemplary damages. Id. And exemplary damages may be
awarded based on evidence that “the accident occurred while the
defendant was driving under the influence of alcohol.” Ortivez v.
Davis, 902 P.2d 905, 911 (Colo. App. 1995).
B. Analysis
¶ 52 Plaintiff sought exemplary damages based on circumstantial
evidence that Kliem was intoxicated at the time of the accident. As
related to the sufficiency of this evidence, Kliem’s two arguments
are unpersuasive.
¶ 53 Kliem’s first argument — that the evidence is insufficient to
support an inference that he was intoxicated at the time of the
accident — falls short.
¶ 54 True enough, no direct evidence showed that Kliem was
intoxicated. Yet, from the following circumstantial evidence, a
reasonable jury could have concluded that he was.
Kliem testified that he learned in his “alcohol classes” that a
person’s blood alcohol content “reduces by 0.01 in an hour.”
Photographs of Kliem’s vehicle after the accident showed seven
bottles of beer, some empty, and a single-serving bottle of
vodka in the driver’s cup holder.
27
Kliem testified that he “was in severe pain” from “two broken
ribs and . . . one fractured rib,” yet he did not seek medical
attention until after he turned himself in.
The investigator testified that had Kliem not fled the scene,
part of the investigation would have been “to find out if [Kliem]
had anything in his body that may have affected the crash.”
Kliem testified that he “saw . . . on the news” that the police
were looking for him and had come “to [his] parents’ house the
night of the accident,” but still did not turn himself in until
two days after the accident.
¶ 55 Still persisting, Kliem argues that both passengers testified in
their depositions that the open beer bottles belonged to them and
Kliem did not consume any alcohol. But the jury could have
rejected this testimony entirely. See Vaccaro v. Am. Family Ins.
Grp., 2012 COA 9M, ¶ 34 (“The credibility of the witnesses, the
sufficiency, probative effect and weight of the evidence, and the
inferences and conclusions to be drawn therefrom are all within the
province of the fact finder.”). For example, the jury could have
discounted their testimony because neither passenger appeared at
trial, even though one of them had been served with a subpoena.
28
¶ 56 Kliem’s suggestion that exemplary damages can be awarded
only based on direct evidence of intoxication finds no support in
Colorado law. Imposing such a requirement would be especially
improper where the driver — like Kliem — fled the scene. As the
court in Owens v. Anderson, 631 So. 2d 1313, 1317-18 (La. Ct.
App. 1994), explained:
[I]n cases such as the instant one where the
driver fled the scene and was not apprehended
or otherwise timely tested, blood alcohol
evidence is not available. Does this mean that
all an intoxicated driver need do to avoid
[exemplary damages] liability is to successfully
flee the accident scene? We think not. . . .
Blood alcohol level is not the only way in which
intoxication can be established in a civil case.
The triers of fact can look to the totality of the
circumstances.
See also Matalon v. Lee, 847 So. 2d 1077, 1080 (Fla. Dist. Ct. App.
2003) (“Although there was no direct proof of intoxication on
[defendant’s] behalf (in no small part due to the fact that
[defendant] fled the scene of the accident), there was a wealth of
circumstantial evidence of intoxication.”).5
5Nor does Kliem cite any authority that exemplary damages
generally must be based on direct evidence. To the contrary, courts
have held that “the plaintiff need not present direct evidence;
punitive damages may be awarded based on circumstantial
29
¶ 57 Kliem’s second argument — that exemplary damages were
improper because his left-hand turn was legal — also misses the
mark.
¶ 58 True enough, the investigating officer and experts for both
Kliem and plaintiff all testified favorably about his initial decision to
turn left across the southbound lanes. The investigator said Kliem
could not have “anticipated the motorcycle as a hazard” in making
his decision. Kliem’s expert opined that no traffic law violations
had occurred in making the left-hand turn. And even plaintiff’s
expert did not “express[] any criticism” with regard to Kliem’s
“decision to make the left turn in the first instance.”
¶ 59 Yet, other evidence weighed against Kliem:
Plaintiff’s expert testified that Kliem “could have and should
have seen the oncoming motorcycle from a significant distance
away.” And he should have “observed the fact [the motorcycle]
was approaching faster than normal traffic.”
evidence and the reasonable inferences drawn therefrom.” Newman
v. Select Specialty Hosp.-Ariz., Inc., 374 P.3d 433, 437 (Ariz. Ct. App.
2016). Indeed, by comparison, proof beyond a reasonable doubt in
criminal cases can be solely circumstantial. See People v. Florez,
179 Colo. 176, 178, 498 P.2d 1162, 1163 (1972) (“Although guilt of
the crime of burglary may be established beyond a reasonable
doubt solely by circumstantial evidence.”).
30
This expert also testified that even after Kliem had initiated
the left turn, “[t]here was time for response.” Namely, “had the
brakes been applied when [Kliem] got halfway across lane two,
the vehicle could [have] stopped prior to entering lane number
one,” where the collision occurred.
The investigator testified that alcohol can “have a dramatic
impact on perception”; “influence personality changes”;
“increase[] risk judgment”; “affect muscular coordination”;
“affect a person’s peripheral vision”; and “affect critical
judgment.”
¶ 60 Kliem cites no authority, nor have we found any in Colorado,
requiring that a traffic law violation be shown before exemplary
damages can be awarded. Thus, viewing this testimony in a light
most favorable to the judgment, a reasonable juror could have
concluded that — even if the left-hand turn did not violate any
traffic laws — Kliem ultimately failed to avoid the motorcycle
because he was intoxicated.
¶ 61 Accordingly, we conclude that sufficient evidence supports the
exemplary damages award.
31
IV. Reducing Noneconomic Damages for Comparative Fault Before
Applying the Cap
¶ 62 Finally, Kliem contends the noneconomic damages cap in
section 13-21-203 must be applied to an award of noneconomic
damages before comparative negligence is apportioned. Under this
scenario, plaintiff’s noneconomic damages would be reduced to
$436,070 — the current noneconomic damages cap — and then
fifty-five percent of that amount would be apportioned to Kliem,
resulting in a net judgment of $239,838.50.
¶ 63 The trial court disagreed. It first apportioned fifty-five percent
of the total noneconomic damages to Kliem — $412,500.00 — and
then, because that amount was less than the damages cap, it did
not make a further reduction. We agree with the trial court.
A. Standard of Review and Law
¶ 64 This issue raises a question of statutory interpretation, which
is reviewed de novo. Granite State Ins. Co., 183 P.3d at 567.
¶ 65 The Colorado Wrongful Death Act (WDA), sections 13-21-201
to -204, C.R.S. 2016, allows a “decedent’s surviving spouse and
heirs to seek damages if death was caused by negligence.” Lanahan
v. Chi Psi Fraternity, 175 P.3d 97, 99 (Colo. 2008). Historically,
32
these damages “were limited to the net pecuniary loss suffered by
the survivors.” Id. But in 1989, the General Assembly amended
the WDA “to allow survivors to recover noneconomic damages as
well.” Id.
¶ 66 The WDA caps recovery of noneconomic damages at a
maximum of $250,000, adjusted for inflation. See id. at 100
(explaining that unlike section 13-21-102.5, “section 13-21-203
caps noneconomic damages at $250,000 even when there is clear
and convincing evidence to support a higher award”). Specifically,
section 13-21-203(1)(a) provides:
There shall be only one civil action under this
part 2 for recovery of damages for the wrongful
death of any one decedent. Notwithstanding
anything in this section or in section
13-21-102.5 to the contrary, there shall be no
recovery under this part 2 for noneconomic
loss or injury in excess of two hundred fifty
thousand dollars, unless the wrongful act,
neglect, or default causing death constitutes a
felonious killing . . . .
(Emphasis added.)
¶ 67 In Lanahan, 175 P.3d at 100, the supreme court rejected the
assertion that this section applies on a per defendant basis. It held
that section 13-21-203 “permits one action per decedent to recover
33
a maximum of $250,000 in noneconomic damages . . . regardless of
the number of Respondents from whom she may be entitled to
recover such damages.” Id. at 100-01. The court explained that
“the term ‘recovery,’ as used in section 13-21-203, is unambiguous
and refers to plaintiff’s recovery, which is expressly limited to
$250,000.” Id. at 101.
B. Analysis
¶ 68 Kliem argues that because in Lanahan the court applied the
noneconomic damages cap “before pro rata allocation among
defendants,” here plaintiff’s “comparative fault should be applied
using the same measure.” Lanahan does not support this result.6
¶ 69 “The purpose of comparative negligence is to apportion
negligence among those who caused the harm.” Nat’l Farmers
Union Prop. & Cas. Co. v. Frackelton, 662 P.2d 1056, 1059 (Colo.
1983). Under the comparative negligence statute, section
6 We agree with Kliem that General Electric Co. v. Niemet, 866 P.2d
1361, 1362 (Colo. 1994), which addressed section 13-21-102.5,
C.R.S. 2016, is not instructive. As explained in Lanahan v. Chi Psi
Fraternity, 175 P.3d 97, 102-03 (Colo. 2008), because “the language
of section 13-21-203 expressly recognizes that the cap on
noneconomic damages in wrongful death actions is to be given its
own meaning, regardless of anything stated to the contrary in
section 13-21-102.5 . . . Niemet’s rationale is inapposite.”).
34
13-21-111, C.R.S. 2016, “the relative degrees of the plaintiff’s and
defendant’s fault must be ascertained to determine whether and
what amount of recovery is proper.” Gordon v. Benson, 925 P.2d
775, 777 (Colo. 1996) (emphasis added) (citation omitted).
¶ 70 To determine that recovery, section 13-21-111(1) requires that
“any damages allowed shall be diminished in proportion to the
amount of negligence attributable to the person for whose injury,
damage, or death recovery is made.” (Emphasis added.) Thus,
comparative negligence reduces the amount of damages found by
the trier of fact, to determine the amount recoverable by a plaintiff.
¶ 71 Once the amount of a plaintiff’s recovery is determined, then
the noneconomic damages cap in section 13-21-203 comes into
play. Lanahan, 175 P.3d at 101 (Section 13-21-203 limits “the
monetary amount to which the plaintiff is entitled.”) (emphasis
added). The cap does not cause a plaintiff’s noneconomic damages
to disappear — it merely limits a plaintiff’s recovery to a specified
maximum amount. See McAdory v. Rogers, 264 Cal. Rptr. 71, 74
(Cal. Ct. App. 1989) (The statutory cap “does not cause those
noneconomic damages . . . suffered in excess of $250,000 to vanish.
35
Instead, that section merely reflects a legislative policy decision to
bar the recovery of more than $250,000 of those damages.”).
¶ 72 Applying the noneconomic damages cap in section 13-21-203
after damages have been reduced based on a plaintiff’s comparative
negligence makes sense for two reasons.
¶ 73 First, if a plaintiff’s percentage of negligence is applied after
damages have been reduced to the amount of the cap, “the jury’s
damages finding in most instances would be meaningless.” Atkins
v. Strayhorn, 273 Cal. Rptr. 231, 238 n.8 (Cal. Ct. App. 1990). This
is so because the cap would affect the amount of damages more
than the jury’s verdict. After all, the jury determines both the total
amount of damages and the comparative fault. But by applying
comparative negligence first, the amount of damages attributable to
a defendant is determined consistent with the verdict, although the
plaintiff is only entitled to recover up to the statutory cap. Cf.
People v. Fuentes, 258 P.3d 320, 326 (Colo. App. 2011) (“[W]e must
maximize the effect of the jury’s verdict.”).
¶ 74 Second, as recognized in McAdory, 264 Cal. Rptr. at 74,
because of the cap, a plaintiff “is already receiving an amount less
than the jury determined he was damaged by [the] tortious
36
conduct.” Atkins, 273 Cal. Rptr. at 238 (declining to apply
comparative fault after damages cap). Further reducing the capped
noneconomic damages based on the negligence of a plaintiff would
create an even greater disparity between the actual loss and the
recovery.
¶ 75 This reasoning was illustrated in McAdory, 264 Cal. Rptr. at
74, where, like here, the court addressed the interplay between
comparative fault and a damages cap that limited a plaintiff’s
recovery of noneconomic damages. The court rejected the argument
that comparative negligence should be applied after reducing the
verdict based on the cap:
[P]laintiff . . . is determined to be 10 percent
comparatively at fault and is awarded $1
million in noneconomic damages. [If
comparative fault was applied after the
damages cap], this plaintiff’s noneconomic
damage award, already reduced to $250,000,
will be further reduced by another $25,000
even though the jury found that the fault of
others proximately caused him $900,000 in
noneconomic damages.
Id. at 75.7 We consider McAdory well-reasoned and apply it here.
7 Other courts are in accord. See McCart v. Muir, 641 P.2d 384, 394
(Kan. 1982) (“In applying the comparative negligence statute . . . in
an action for death by wrongful act . . . the percentage of causal
37
¶ 76 Given all of this, we conclude the trial court properly
determined the amount of plaintiff’s recovery by first apportioning
the percentage of comparative negligence attributable to Kliem and
then applying the noneconomic damages cap in section 13-21-203
to that amount.
V. Conclusion
¶ 77 The judgment is affirmed.
JUDGE ASHBY and JUDGE NIETO concur.
fault attributable to decedent’s negligence plus the percentage of
additional causal fault attributable to any direct negligence of the
plaintiff are to be deducted from the amount of damages awarded
by the court or jury for nonpecuniary damages, rather than from
the maximum permissible recovery for nonpecuniary damages
allowable . . . .”); Collins v. Commonwealth of Ky. Nat. Res. & Envtl.
Prot. Cabinet, 10 S.W.3d 122, 127 (Ky. 1999) (Board “erroneously
reduced for comparative negligence from the statutory maximum
rather than from the total damages.”); see generally 4 John W.
Chandler, Handling Motor Vehicle Accident Cases § 15:4, Westlaw
(2d ed., database updated September 2016) (“One issue of some
importance that has been litigated in a few cases and is not
generally addressed explicitly by damages limitation statutes is the
interaction between a damages cap and principles of comparative
fault and allocation of liability. There have not been a large number
of reported cases on this issue, but most cases have held that any
reduction or allocation based on comparative fault must be done
before applying the statutory cap.”).
38