Langley v. Van Eaton

19CA2124 Langley v Van Eaton 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA2124

City and County of Denver District Court No. 17CV34847

Honorable Martin F. Egelhoff, Judge

James Langley,

Plaintiff-Appellee,

v.

Heidi Van Eaton and Team Industrial Services, Inc.,

Defendants-Appellants.

JUDGMENT AFFIRMED, ORDER VACATED,

AND CASE REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE GROVE

Navarro and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 20, 2022

Bachus & Schanker LLC, J. Kyle Bachus, Denver, Colorado, for Plaintiff-

Appellee

Hall & Evans, L.L.C., Malcom S. Mead, Kenneth H. Lyman, Bryan Gogarty,

Denver, Colorado, for Defendants-Appellants

1

¶ 1 Plaintiff, James Langley, was injured when defendant, Heidi

Van Eaton, negligently ran into him in a pickup truck while Langley

was bicycling on the road. The truck was owned by Van Eaton’s

employer.

¶ 2 Van Eaton and her employer, Team Industrial Services, Inc.

(collectively, Van Eaton), appeal the judgment entered on the jury’s

verdict finding them liable for ninety percent of Langley’s damages

and allocating the remaining ten percent to Northern Colorado

Traffic Control (NCTC), a company that designed the traffic flow in

the construction zone where the collision occurred. We affirm the

judgment but remand the case for recalculation of postjudgment

interest.

I. Background

¶ 3 Van Eaton collided with Langley as he lawfully rode his bicycle

through a construction zone adjacent to a freeway off-ramp. Van

Eaton, who was exiting from the freeway in a pickup truck, failed to

yield as required by two signs at the end of the off-ramp and

collided with Langley. Langley sustained serious injuries.

¶ 4 Langley sued Van Eaton and her employer. Van Eaton then

designated NCTC as a nonparty at fault. In response, Langley

2

amended his complaint to include claims against both NCTC and

Lawrence Construction (collectively, NCTC). Before trial, Van Eaton

admitted that she was negligent, leaving the amount of damages

and the allocation of comparative fault between herself, NCTC, and

Langley as the only issues for the jury to decide.

¶ 5 Also before trial, Langley entered into a written high-low

agreement with NCTC, in which NCTC agreed that, notwithstanding

the jury’s verdict, it would pay Langley no less than $125,000 and

no more than $350,000. Neither party disclosed the agreement

before trial, either to the trial court or to Van Eaton. And because it

was not disclosed to Van Eaton or to the court, the jury was not

made aware of it either.

¶ 6 In his opening statement, Langley’s attorney argued that both

Van Eaton and NCTC were at fault. However, Langley presented no

evidence of NCTC’s fault for his injuries except for showing a

videotaped deposition of Van Eaton, during which she blamed

NCTC for its poor design of the interchange. Accordingly, once

Langley rested his case-in-chief, NCTC moved for a directed verdict.

Because Langley had presented no substantive evidence against it,

the trial court granted the motion, and NCTC became a nonparty.

3

¶ 7 This order prompted Van Eaton to move for a mistrial. Van

Eaton’s attorney argued that he had been “sandbagged” and

expressed concern that Langley would now switch tactics and argue

that NCTC bore no responsibility for the crash so as to minimize the

possibility that the jury would allocate NCTC a substantial portion

of the comparative fault. During a lengthy colloquy with the court

and counsel, Van Eaton’s attorney also told the court that he had

learned that Langley and NCTC had reached some sort of

agreement, and, although he had been unable to learn its details,

he suspected that it was collusive. As counsel put it: “[T]his is a

soft presentation and basically a rollover on [Langley’s] claims

against [NCTC], because [Langley] want[s] to argue next that there

has been a judicial determination of insufficient evidence with

regard to [NCTC’s] liability.”

¶ 8 The trial court denied Van Eaton’s motion for a mistrial, and

instead ruled that Langley had already made “a clear judicial

admission with respect to [his] allegations that [NCTC was]

negligent.” The court thus prohibited Langley’s attorney from

arguing that NCTC did not bear any causal fault for the accident.

Langley complied with this order, and at the end of the trial the jury

4

found that Van Eaton, NCTC, and Langley were all negligent. It

apportioned ninety percent of the award to Van Eaton and ten

percent to NCTC. The jury apportioned zero percent of the award to

Langley because, in response to an interrogatory on the verdict

form, it found that Langley’s negligence was not a cause of his own

claimed damages or losses.

¶ 9 After the verdict, Van Eaton filed a motion to depose counsel

for NCTC “concerning the existence of a settlement agreement

between [NCTC] and [Langley].” At the same time, Van Eaton filed a

motion for a new trial in which she argued that she had been

prejudiced by the other parties’ failure to promptly disclose the

high-low agreement and by the trial court’s corresponding failure to

instruct the jury as to the agreement’s existence, consistent with

Greenemeier v. Spencer, 719 P.2d 710 (Colo. 1986). In response,

Langley disclosed the high-low agreement to Van Eaton. Later, the

court issued an order denying the motion for a new trial. With

respect to the nondisclosure of the high-low agreement, the court

pointed out that it could not have instructed the jury about its

existence because it had no idea that the agreement existed and

Van Eaton never requested a Greenemeier instruction.

5

II. Nondisclosure of Settlement Agreement

¶ 10 Van Eaton contends that she is entitled to a new trial because

neither Langley nor NCTC timely disclosed their high-low agreement

to her or to the court, as she contends was required by our supreme

court’s holding in Greenemeier. While we agree that the agreement

should have been disclosed, we conclude that reversal is not

required because Van Eaton cannot establish that she was

prejudiced by the lack of disclosure.

A. Preservation

¶ 11 Van Eaton’s argument on appeal concerning the high-low

agreement is best understood as presenting two independent, but

related, contentions. She first argues that the trial court erred by

failing to provide a Greenemeier instruction to the jury. Second, she

maintains that the trial court erroneously denied her motion for a

new trial, which was based in part on her argument that she was

prejudiced by Langley’s and NCTC’s failure to disclose the high-low

agreement.

¶ 12 Langley urges us to deem Van Eaton’s arguments unpreserved

and thus unreviewable. We agree in part. Because counsel for Van

Eaton never asked the trial court to provide a Greenemeier

6

instruction nor asked the court to inquire further once he inferred

that some sort of agreement had been reached, the court had no

information upon which it could have based a Greenemeier

instruction. See C.R.C.P. 51; McLaughlin v. BNSF Ry. Co., 2012

COA 92, ¶ 21 n.2 (declining to review instruction-related contention

of error because the party “did not request such an instruction in

the district court, and therefore failed to preserve the issue for

review”). We therefore are not in a position to review the trial

court’s failure to instruct the jury of the existence of the high-low

agreement.

¶ 13 On the other hand, the propriety of Langley’s nondisclosure of

the high-low agreement is properly before us insofar as it formed

the basis for Van Eaton’s motion for a new trial. Citing C.R.C.P.

59(d)(1), Van Eaton contends that the failure of Langley and NCTC

to disclose the high-low agreement was an “irregularity in the

proceedings” that deprived her of a fair trial. Because this issue is

preserved, we examine Van Eaton’s contentions through the lens of

her C.R.C.P. 59 motion.

7

B. Standard of Review

¶ 14 We review a trial court’s ruling on a motion for new trial under

C.R.C.P. 59(a) for an abuse of discretion. Buckley Powder Co. v.

State, 70 P.3d 547, 564 (Colo. App. 2002). A trial court abuses its

discretion when its actions are manifestly arbitrary, unreasonable,

or unfair, or are based on an erroneous understanding or

application of the law. Sch. Dist. No. 12 v. Sec. Life of Denver Ins.

Co., 185 P.3d 781, 786-87 (Colo. 2008).

C. Analysis

¶ 15 The precise issue before us is whether the trial court erred

when it denied Van Eaton’s motion for a new trial because Langley

and NCTC did not disclose their high-low agreement, thus depriving

her of the opportunity to request a Greenemeier instruction. We

first consider whether a high-low agreement is the type of

settlement agreement contemplated in Greenemeier. After

concluding that it is and observing that it should have been

promptly disclosed to the court and opposing parties, we hold that,

nonetheless, Van Eaton was not prejudiced by Langley’s

nondisclosure, and is therefore not entitled to a new trial.

8

1. High-Low Agreements

¶ 16 At the outset, we consider whether the high-low agreement is

the type of settlement agreement that should have been disclosed to

the court and any parties not made part of the settlement. Langley

argues that disclosure was unnecessary because a high-low

agreement is a “conditional settlement” that, at least in this case,

did not excuse NCTC from participating in the trial, and in fact

substantially incentivized it to do so by providing for a large

difference between the agreement’s $125,000 and $350,000

bookends.

¶ 17 A number of other jurisdictions have considered this question

and have held — universally, as far as we can tell— that high-low

settlement agreements should be disclosed to courts and other

litigants. See, e.g., Monti v. Wenkert, 947 A.2d 261, 276 (Conn.

2008) (“All verdict contingent settlement agreements promptly must

be disclosed to the court and any nonsettling defendants.”); In re

Eighth Jud. Dist. Asbestos Litig., 872 N.E.2d 232, 236 (N.Y. 2007)

(“To ensure that all parties to a litigation are treated fairly, we hold

that whenever a plaintiff and a defendant enter into a high-low

agreement in a multi-defendant action which requires the agreeing

9

defendant to remain a party to the litigation, the parties must

disclose the existence of that agreement and its terms to the court

and the nonagreeing defendant(s).”); Corn Exch. Bank v. Tri-State

Livestock Auction Co., 368 N.W.2d 596, 599 (S.D. 1995) (holding

that the disclosure of a high-low agreement to the court and

nonagreeing defendants is “imperative” because “without prior

disclosure the trial court never arrives at the question of whether

the agreement should be revealed to the jury”); Ratterree v. Bartlett,

707 P.2d 1063, 1076 (Kan. 1985) (“When a settlement agreement is

entered into between the plaintiff and one or more, but not all,

alleged defendant tortfeasors, the parties entering into such

agreement shall promptly inform the court in which the action is

pending and the other parties to the action of the existence of the

agreement and its terms.”).

¶ 18 Although it addressed a somewhat different question,

Greenemeier is consistent with this reasoning. In fact, in that case,

our supreme court went one step further than many states have

done by holding that “the fact of settlement, but not the amount

paid, should be brought to the jury’s attention, absent special

circumstances.” 719 P.2d at 714 (emphasis added). Under

10

Greenemeier then, there is a presumption that juries should be

instructed concerning a codefendant’s settlement. And it flows from

that presumption that the court and other parties will be made

aware of the settlement in the first place. After all, a court cannot

formulate and provide an instruction about the settlement if it is

unaware that it exists. Thus, the existence and terms of the high-

low agreement should have been promptly disclosed to Van Eaton

and the court.

2. Prejudice

¶ 19 We turn next to whether Van Eaton was prejudiced by the

nondisclosure such that a new trial is warranted.

¶ 20 Most courts to have considered the question have held that

while disclosure is mandatory, failure to comply with that

requirement will lead to reversal only if the lack of disclosure

prejudices the nonagreeing party. See, e.g., Monti, 947 A.2d at 277

(holding that nonagreeing defendant was not prejudiced by

nondisclosure because “the agreement did not change the

adversarial alignment of the parties”); Ryals v. Hall-Lane Moving &

Storage Co., 468 S.E.2d 69, 72 (N.C. Ct. App. 1996) (holding that

the nonagreeing party was “not prejudiced by ignorance until mid-

11

trial of a settlement agreement between plaintiff and the co-

defendants such that exclusion of evidence of that agreement

constituted reversible error”). We conclude that this approach is

consistent with Greenemeier, which held that the failure to disclose

a settlement agreement to the jury is not reversible error unless the

lack of disclosure prejudices the nonsettling party. 719 P.2d at

717. We find no prejudice here.

¶ 21 To be sure, Van Eaton was apparently not expecting Langley’s

eleventh-hour change in trial strategy, and counsel for NCTC and

Langley both had ample opportunity to disclose the existence of the

high-low agreement to Van Eaton or the court.

1

But a party seeking

a new trial faces a high bar. The motion should be denied “where

the error ‘did not prejudice or harm the party seeking a new trial, or

where the trial resulted in substantial justice.’” McLaughlin, ¶ 17

(citation omitted); see also Greenemeier, 719 P.2d at 717.

1

While we conclude that counsel should have disclosed the

agreement, we recognize that there is arguably some fault on both

sides here. Van Eaton’s last-minute disclosure that she was not

going to contest negligence substantially changed the trial calculus

for Langley’s counsel and appears to have prompted efforts to

ensure at least a minimal recovery in the event that the jury

allocated fault unfavorably with respect to Langley.

12

¶ 22 We conclude that the trial court did not abuse its discretion by

denying Van Eaton’s motion for a new trial because (1) even if it

were appropriate,

2

a Greenemeier instruction would not have

avoided the specific prejudice Van Eaton alleges on appeal; and (2)

the agreement did not change the adversarial posture of the parties.

a. Greenemeier Instruction

¶ 23 Van Eaton contends that because the jurors understood that

the claims against NCTC were dismissed, but did not know why,

they would naturally infer that there was little or no evidence to

support those claims and thus allocate minimal fault to NCTC. She

asserts that, had she known of the high-low agreement, she “would

have asked the court to tell the jury that the claims against NCTC

had been dismissed because Plaintiff and NCTC had reached a

settlement — in other words, a Greenemeier instruction.”

2

The propriety of a Greenemeier instruction is an issue distinct

from the question whether the agreement should have been

disclosed to the parties and the court. We do not consider whether

a Greenemeier instruction would have been appropriate here

because we conclude that Van Eaton was not prejudiced by its

absence. Thus, any error was harmless.

13

¶ 24 The trial court, however, did not grant NCTC’s motion for a

directed verdict because “Plaintiff and NCTC had reached a

settlement.” Instead, the court granted the motion because Langley

failed to carry his burden of proof against NCTC during his case-in-

chief. While Van Eaton speculates that Langley’s decision not to do

so was the result of collusion, jury instructions must be tied to

evidence in the record. See Bedor v. Johnson, 2013 CO 4, ¶ 50 (“A

trial court has a duty to properly instruct the jury on law applicable

to the case if there is evidence in the record to support it.”).

¶ 25 Moreover, the record tends to undermine Van Eaton’s claim of

manipulation. The high-low agreement itself, for example, stated

that the parties entered into the agreement “in an effort to protect

their respective interests and not for any other purpose or collusive

effect as to the remaining parties.” And while the self-serving

nature of that statement may make it less persuasive, the high-low

agreement backed it up by establishing a large gap — $225,000 —

between its two extremes. This incentivized both sides to make

their respective cases, see Asbestos Litig., 872 N.E.2d at 234 n.2

(“[T]he narrower the range, the more likely it seems that the parties’

true motive for entering into a high-low agreement is to gain a

14

tactical advantage at the expense of the nonagreeing defendant.”),

as was apparent from the appropriately adversarial posture that

NCTC took in its opening statement and while conducting cross-

examination. See Gen. Motors Corp. v. Lahocki, 410 A.2d 1039,

1044-45 (Md. 1980) (relying on settling defendant’s failure to

vigorously cross-examine plaintiff’s expert as support for “GM’s

assertion that the [high-low] agreement effected a change in its

relationship as a co-defendant”).

¶ 26 Finally, the jury was instructed “to consider only the evidence

received at trial” and not to “be influenced by sympathy, bias, or

prejudice for or against any party in this case.” Because we

presume a jury will follow the trial court’s instructions, see Rego Co.

v. McKown-Katy, 801 P.2d 536, 539 (Colo. 1990), we presume that

its verdict was based on the evidence presented at trial, and not

influenced by the dismissal of NCTC.

b. Burden of Proof

¶ 27 Van Eaton also contends that when NCTC was dismissed mid-

trial, the burden of proof shifted. As she frames the argument, at

the beginning of the trial, Langley had the burden to prove that

NCTC was liable, but once NCTC became a nonparty, the burden of

15

proof shifted to Van Eaton, who was then tasked with proving

nonparty fault. Because this happened mid-trial, Van Eaton

contends, it was too late to subpoena additional witnesses, which

prejudiced her.

¶ 28 What this argument overlooks is that Van Eaton’s strategy all

along — and particularly after she admitted her own negligence at

the outset of trial — was to shift blame away from herself and

toward both Langley and NCTC. Van Eaton originally designated

NCTC as a nonparty at fault. At trial, she presented evidence that

NCTC bore blame for the accident. And during closing argument,

her attorney argued that NCTC was liable because the traffic plan

for the construction zone was designed incorrectly and did not take

safety into account.

¶ 29 Therefore, it is not clear how Van Eaton was prejudiced by

NCTC’s dismissal and shift to nonparty status. She could have

asked for a continuance or other leeway from the court to subpoena

additional witnesses, but she did not. Her trial strategy — which

included presentation of an expert witness who opined that NCTC

was at fault for the accident — remained largely the same, and she

continued to place blame for the accident on Langley and NCTC.

16

¶ 30 In sum, under the circumstances here, we cannot find that

Van Eaton was prejudiced by the nondisclosure of the high-low

settlement agreement. In accordance with C.R.C.P. 61, the trial

court thus did not abuse its discretion by disregarding a defect in

the proceedings because it did not affect Van Eaton’s substantial

rights. Therefore, the trial court did not err by denying Van Eaton’s

motion for a new trial.

III. Exclusion of Expert in Safe Bicycling Practices

¶ 31 At trial, Van Eaton called Jeffrey Broker, Ph.D., to testify

about safe bicycling practices. After Van Eaton attempted to qualify

Broker as an expert, Langley objected. The court then held a

lengthy discussion with both parties as to the admissibility of the

testimony, after which it concluded that the “testimony that was

going to be offered by the witness wasn’t a proper subject of expert

testimony.”

¶ 32 Van Eaton contends that the trial court erred by ruling that

(1) Broker was not qualified; (2) if Langley’s actions were legal, they

could not be considered unreasonable; and (3) Broker’s testimony

would not be necessary or helpful to the jury. We disagree.

17

A. Standard of Review

¶ 33 We review the district’s court decision to exclude expert

testimony for an abuse of discretion. Core-Mark Midcontinent, Inc.

v. Sonitrol Corp., 2012 COA 120, ¶ 29; see also People v. Fasy, 829

P.2d 1314, 1317-18 (Colo. 1992) (trial courts have broad discretion

to determine the admissibility of expert testimony). A court abuses

its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or is based on application of an erroneous

legal standard. Core-Mark Midcontinent Inc. v. Sonitrol Corp., 2016

COA 22, ¶ 49; Core-Mark, 2012 COA 120, ¶ 29.

¶ 34 CRE 702 provides that “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.” It thus

establishes a two-part approach to admissibility. A court must first

determine whether the proffered expert testimony will be helpful to

the trier of fact in the understanding of evidence or resolution of a

fact at issue in the case. See Melville v. Southward, 791 P.2d 383,

18

387 (Colo. 1990). Second, the court must determine whether the

witness is qualified to give the proposed testimony. Id.

¶ 35 Expert testimony is helpful to the trier of fact if it explains a

relevant matter that is outside the understanding of the ordinary

juror. People v. Williams, 790 P.2d 796, 798 (Colo. 1990); see also

Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 932 (Colo. 1997)

(expert testimony is required to establish the standard of care only

if the standard is not within the “common knowledge and

experience of ordinary persons”); 3 Christopher B. Mueller & Laird

C. Kirkpatrick, Federal Evidence § 7:9, at 759 (4th ed. 2013) (The

helpfulness standard is satisfied “if the subject is technical and lies

beyond common experience, and [with] experts who are versed in

fields of specialized or technical knowledge that are well beyond the

common experience of lay people.”); 4 Jack B. Weinstein & Margaret

A. Berger, Weinstein’s Federal Evidence § 702.03[2][a], at 702-42

(Mark S. Brodin ed., 2d ed. 2015) (“Expert testimony is generally

not permitted concerning factual issues that are within the

knowledge and experience of ordinary lay people, because it would

not help the trier of fact to understand the evidence or determine a

fact in issue. The trier of fact is, under those circumstances, fully

19

capable of understanding the evidence and deciding the issues

through the use of its common knowledge and common sense.”).

Determining whether particular expert testimony meets that

standard involves an inquiry as to “whether the untrained

[layperson] would be qualified to determine intelligently and to the

best possible degree the particular issue without enlightenment

from those having a specialized understanding of the subject

involved.” Williams, 790 P.2d at 798 (quoting Fed. R. Evid. 702

advisory committee’s note to 1972 proposed rule).

B. Analysis

¶ 36 Van Eaton contends that the trial court erred when it found

Broker to be unqualified to testify and also when it determined that

Broker could not opine that Langley was acting unreasonably even

though he was following the law. Having examined the entire

colloquy concerning Van Eaton’s attempt to qualify Broker as an

expert, including the pinpoint citations that Van Eaton provides, we

do not agree that the trial court made either of these rulings so we

decline to address them.

¶ 37 Instead, the trial court based its ruling on Van Eaton’s third

contention of error and concluded that Broker’s prospective

20

testimony would have been neither necessary nor helpful for the

jury. Broker was planning to testify that Langley could have been

safer if had he worn brighter clothing, had not entered the

intersection immediately after the light turned green, and had made

eye contact with Van Eaton before entering the intersection. After

discussing this prospective testimony with the parties, the trial

court raised the concern that the topics Broker planned to cover

were ones that the jurors were capable of understanding using

common sense and their own life experiences. The court gave both

parties an opportunity to respond to this concern, and the following

colloquy occurred:

THE COURT: But this just doesn’t strike me

as a proper area for expert testimony. So if

there’s something based upon his expertise

that’s beyond the understanding of an

ordinary juror, then let’s hear it, but . . . what

I’m hearing . . . doesn’t strike me as being a

proper subject for expert testimony.

VAN EATON’S ATTORNEY: I’d like an

opportunity to submit a supplemental offer of

proof, probably his report, maybe his

deposition, just so we have a record on that.

THE COURT: Well, now is your chance to

convince me that he’s got something relevant

and admissible to say.

21

¶ 38 Van Eaton’s attorney declined to articulate any additional

reasons for the admissibility of Broker’s testimony, did not ask for a

recess, and did not ask for an opportunity to consult with Broker.

The trial court continued: “And I’m talking to the Court of Appeals

right now saying that I can only rule on what I have. Okay? So

let’s move on.”

¶ 39 The trial court gave Van Eaton ample opportunity to explain

why Broker’s opinions were appropriately expert testimony instead

of issues that lay jurors could be expected to understand based on

their own common sense and life experiences. Yet Van Eaton

declined to do so. We conclude that the trial court appropriately

exercised its discretion when it concluded that the three topics Van

Eaton articulated that Broker would opine on — conspicuous

clothing, timing the light, and eye contact — could reasonably be

understood through common knowledge and experience of ordinary

persons; thus expert testimony was not required. See 4 Weinstein

& Berger, § 702.03[2][a], at 702-42.

¶ 40 Van Eaton also contends that Broker would have offered other

opinions that were beyond what the jury could have determined

through common sense. For example, Broker could have discussed

22

his line-of-sight analysis or how Langley could have taken a safer

route with a dedicated bicycle lane. But as we have already noted,

Van Eaton did not identify either of these opinions as subjects of

Broker’s expertise, even when the trial court made clear that it was

looking for more. We therefore decline to address them. See

O’Connell v. Biomet, Inc., 250 P.3d 1278, 1282 (Colo. App. 2010)

(“Arguments never presented to, considered by, or ruled upon by a

trial court may not be raised for the first time on appeal.”).

Accordingly, we conclude that the trial court did not abuse its

discretion when it ruled that Broker could not testify.

IV. Jury Instructions

¶ 41 Next, Van Eaton contends that the trial court erred by failing

to instruct the jury on both a bicyclist’s duty of care and

assumption of the risk. We are not persuaded.

A. Preservation and Standard of Review

¶ 42 Because Van Eaton tendered instructions to the court on both

a bicyclist’s duty of care and assumption of the risk, both issues are

preserved for our review.

¶ 43 It is within the trial court’s discretion to determine the form

and style of jury instructions. Harris Grp., Inc. v. Robinson, 209

23

P.3d 1188, 1195 (Colo. App. 2009) (citing Williams v. Chrysler Ins.

Co., 928 P.2d 1375, 1377 (Colo. App. 1996)). “We will not overturn

such a determination absent a showing of an abuse of that

discretion.” Id. (citing Williams, 928 P.2d at 1377). “A court’s

ruling on jury instructions is an abuse of discretion only when the

ruling is manifestly arbitrary, unreasonable, or unfair.” Id. (citing

Williams, 928 P.2d at 1377).

¶ 44 A court erroneously instructs the jury when the instruction at

issue misleads or confuses the jury. Id. However, a court’s

erroneous instruction is reversible only when it prejudices a party’s

substantial rights. Id. If a jury probably would have decided a case

differently if given a correct instruction, then the error is reversible.

Id. (citing Webb v. Dessert Seed Co., 718 P.2d 1057, 1066-67 (Colo.

1986)).

B. Duty of Care

¶ 45 Van Eaton provided the trial court with the following stock

instruction: “Although a bicycle operator may have the right of way,

the bicycle operator must exercise reasonable care considering the

existing conditions.” CJI-Civ. 11:3 (2021).

24

¶ 46 She first contends that because C.R.C.P. 51.1 says that the

court “shall use” the instructions from the Colorado Jury

Instructions “as are applicable to the evidence and the prevailing

law,” the court erred by not using this particular instruction

because it was most applicable to the facts of the case. We reject

this argument because it is settled that, if the other instructions

adequately inform the jury of the applicable law, a trial court does

not err in refusing a legally correct tendered instruction. Vista

Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 70 (Colo.

App. 2004).

¶ 47 The trial court declined to use the tendered bicycle-specific

instruction because it found that the concept that the instruction

explained was covered by the general negligence instruction, which

defined negligence and reasonable care and explained, among other

things, that a driver has a duty to “maintain a proper lookout” and

“drive at a speed no greater than is reasonable under the conditions

then existing.” The general negligence instruction also included the

following: “Bicyclists in Colorado have all the same rights and

responsibilities applicable to drivers of any other vehicle.”

25

¶ 48 The primary difference between these two instructions was

that the rejected bicycle-specific instruction explicitly stated that a

bicyclist still has a duty of reasonable care even if he has the right-

of-way. But that concept was already encompassed in the

instructions that the court provided. As noted above, the

negligence instruction defined “reasonable care” as it potentially

applied to Van Eaton’s conduct as a driver, and then informed the

jury that the same principles also applied to Langley, as a bicyclist.

The trial court reasonably concluded that the negligence instruction

as provided would require the jury to decide, as part of its

comparative negligence analysis, whether Langley exercised

reasonable care under the conditions by riding through an

intersection while he had the right-of-way. See Vikman v. Int’l

Brotherhood of Elec. Workers, Local Union No. 1269, 889 P.2d 646,

662 (Colo. 1995) (“In determining whether jury instructions

adequately inform the jury of the legal principles to be applied to

the facts of the case, all of the instructions should be considered as

a whole.”). Because the concepts in the bicycle-specific instruction

were covered by instructions that the jury received, the trial court’s

choice not to give the tendered instruction was not manifestly

26

arbitrary, unreasonable, or unfair. See Harris Grp., Inc., 209 P.3d

at 1195.

C. Assumption of the Risk

¶ 49 Van Eaton also tendered the following instruction on

assumption of the risk: “Negligence may also mean assumption of

risk. A person assumes the risk of injury or damage if the person

voluntarily exposes himself to such injury or damage with

knowledge or appreciation of the danger and risk involved.” This

instruction was taken from section 13-21-111.7, C.R.S. 2021,

which requires a court to provide an instruction on the elements of

assumption of risk “[i]n any trial to a jury in which the defense of

assumption of risk is an issue for determination by the jury.” The

trial court rejected the instruction because it concluded that issues

of comparative negligence

3

were more applicable to the case than

assumption of the risk.

3

The trial court actually used the phrase “contributory negligence,”

but neither party assigns a contention of error to this verbiage and

we assume that the court simply misspoke. See Watson v. Reg’l

Transp. Dist., 762 P.2d 133, 136 (Colo. 1988) (“Colorado, by statute,

replaced the doctrine of contributory negligence with a statutory

system of comparative negligence. § 13–21–111, 6A C.R.S.

(1987).”).

27

¶ 50 Van Eaton contends that the instruction was required because

— notwithstanding the fact that he broke no traffic laws — Langley

assumed the risk that Van Eaton would hit him when he timed the

light, entered the construction zone of a busy intersection, did not

make eye contact with Van Eaton, wore inconspicuous clothing,

and did not use a headlight. We disagree.

¶ 51 Assumption of risk requires “knowledge of the danger and

consent to it.” Carter v. Lovelace, 844 P.2d 1288, 1289 (Colo. App.

1992). On the other hand, like its predecessor contributory

negligence, comparative negligence applies when a plaintiff takes

risks “which he merely might have discovered by the exercise of

ordinary care.” Appelhans v. Kirkwood, 148 Colo. 92, 99, 365 P.2d

233, 237 (1961) (quoting William L. Prosser, Law of Torts 305 (2d

ed. 1955)). In Carter, the plaintiff legally tried to pass two vehicles

on a two-lane road but was injured when the driver of one of them

made a left-hand turn into a gravel lot. The trial court instructed

the jury on assumption of risk, but the division reversed, holding

that the plaintiff “did not assume a ‘known and obvious’ risk when

he attempted to pass the vehicles because the road ahead was clear

28

when he began passing the vehicles and the gravel turn-off was not

visible.” Carter, 844 P.2dat 1290.

¶ 52 In reaching this holding, the division cautioned against

construing assumption of the risk too broadly, noting that doing so

would create the possibility that all drivers assume the risk of any

accident resulting from such a passing maneuver. Id. Instead, the

court determined that a jury instruction on contributory negligence

(which was the law at the time) was sufficient to capture the

plaintiff’s fault because, while “plaintiff’s attempt to pass

defendant’s vehicle may have occurred in a negligent manner,” he

“did not assume a known risk that the defendant would make a left

turn in front of him since he did not know of such a risk, and could

not have reasonably consented to take such a risk.” Id.

¶ 53 Van Eaton attempts to distinguish her situation from Carter

by arguing that it is more akin to Vititoe v. Rocky Mountain

Pavement Maintenance, Inc., 2015 COA 82. In Vititoe, the court

found an assumption of the risk jury instruction was justified

because the plaintiff saw the defendant’s vehicle at a stoplight, and,

under the mistaken impression that it had begun moving forward

as the light turned green, accelerated toward the intersection before

29

crashing into the back of a trailer that the vehicle was towing. Id.

at ¶ 72. Vititoe is distinguishable, however, because the plaintiff in

that case “acknowledged that he saw [the defendant’s] truck in his

lane of traffic and accelerated nevertheless.” Id. at ¶ 74. Because

the plaintiff was an experienced motorcyclist, “a reasonable juror

could conclude that any driver of such experience understands the

risk and danger posed by a collision with another vehicle.” Id. at

¶ 72.

¶ 54 Here, by contrast, Langley did nothing but ride his bicycle

legally in his lane. As the trial court instructed the jury, he had the

right to believe that, when doing so, others — including drivers of

vehicles around him — would obey applicable laws and regulations

(unless there were reasonable grounds to believe otherwise). See

CJI-Civ. 11:9 (2021); see also Prentiss v. Johnston, 119 Colo. 370,

376-77, 203 P.2d 733, 736 (1949). Those laws include those that

required Van Eaton to comply with the yield signs at the merge

point. § 42-4-703(4), C.R.S. 2021 (“[I]f a driver is involved in a

collision with a vehicle in the intersection or junction of roadways

after driving past a yield sign without stopping, such collision shall

be deemed prima facie evidence of the driver’s failure to yield right-

30

of-way.”). Because there were no reasonable grounds to believe that

other drivers would fail to comply with the traffic signage, Langley

cannot be said to have had knowledge of the danger and to have

consented to its outcome. Carter, 844 P.2d at 1289. The trial court

accordingly did not abuse its discretion by declining to instruct the

jury on Van Eaton’s affirmative defense of the assumption of risk.

V. Admissibility of Subsequent Remedial Measures

¶ 55 On the day of the accident, yield signs stood on both sides of

the street at the merge point where the collision happened. Two

weeks after the accident, NCTC removed the yield signs and put

stop signs in their place. Before trial — while it was still a party —

NCTC filed a motion in limine to exclude evidence of that change,

arguing that it “explicitly qualif[ied] as a subsequent remedial

measure” because experts for both sides had “opined that the stop

sign would have made the event less likely to occur.” The trial court

granted the motion in a brief written order.

¶ 56 Van Eaton challenges that order, arguing that the bar on

subsequent remedial measures does not apply to (1) the actions of a

nonparty and (2) evidence that shows the existence of a dangerous

31

condition. The first argument is not preserved and the second

argument fails on the merits.

A. Preservation

¶ 57 Van Eaton preserved her contention that the change from yield

signs to stop signs is evidence of a dangerous condition, which

should be exempt from the general rule excluding evidence of

subsequent remedial measures, because she raised the issue in

response to NCTC’s motion in limine, which the trial court granted.

¶ 58 But Van Eaton did not preserve her contention that this

evidence was admissible once NCTC was dismissed from the case.

Indeed, during the trial, she did not attempt to introduce this

evidence after NCTC became a nonparty. Therefore, the trial court

never had an opportunity to rule on the question whether the

change in NCTC’s status altered the admissibility of the evidence of

its subsequent remedial measures. Banning v. Prester, 2012 COA

215, ¶¶ 24-27 (appellate courts decline to address arguments that

have not been adequately preserved).

B. Standard of Review

¶ 59 We review a district court’s evidentiary rulings for an abuse of

discretion. Leaf v. Beihoffer, 2014 COA 117, ¶ 9. A court abuses

32

its discretion when its ruling is manifestly arbitrary, unreasonable,

or unfair. Id.

C. Analysis

¶ 60 Under CRE 407, “[w]hen, after an event, measures are taken

which, if taken previously, would have made the event less likely to

occur, evidence of the subsequent measures is not admissible to

prove negligence or culpable conduct in connection with the event.”

Evidence of subsequent remedial measures can be offered for other

purposes, however, “such as proving ownership, control, or

feasibility of precautionary measures, if controverted, or

impeachment.” Id.; see also Core-Mark, 2012 COA 120, ¶ 28.

¶ 61 Two of the public policy goals served by Rule 407 are to

encourage defendants to make repairs after an accident and to

recognize that some accidents are caused by contributory (or

comparative) negligence, the effects of which can be mitigated by

additional safety measures. Rimkus v. Nw. Colo. Ski Corp., 706 F.2d

1060, 1064 (10th Cir. 1983) (interpreting the analogous federal

rule).

¶ 62 Van Eaton contends that evidence of NCTC’s subsequent

remedial measures was admissible to show that a dangerous

33

condition existed at the scene at the time of the accident. We

disagree because, under the circumstances here, that is precisely

the type of evidence that the rule prohibits. CRE 407 bars the

introduction of subsequent remedial measures to prove negligence,

and whether a dangerous condition existed at the scene relates

directly to the question whether the defendant breached a duty to

the plaintiff by failing to address the dangerous condition before the

accident. See Smit v. Anderson, 72 P.3d 369, 372 (Colo. App. 2002)

(the elements of a negligence claim are duty, breach, causation, and

damages). Langley’s own complaint alleges that the traffic control

plan was “design[ed] and implement[ed] . . . in a negligent and

dangerous manner, and fail[ed] to ensure a safe route of travel for

bicyclists, such as Plaintiff.” Because the existence of a dangerous

condition is inextricable from whether NCTC breached its duty, and

therefore inextricable from the concept of negligence, the trial court

properly excluded the evidence for this purpose.

¶ 63 Van Eaton relies on two cases to support her argument that

the challenged evidence was admissible under Rule 407, Rimkus

and Martinez v. W.R. Grace Co., 782 P.2d 827 (Colo. App. 1989). In

Rimkus, applying the analogous federal rule, the Tenth Circuit

34

Court of Appeals affirmed the district court’s admission of the

defendant’s post-accident conduct. 706 F.2d at 1064. The district

court had ruled that where a skier was injured in a collision with an

unmarked hazard, and the ski patrol marked the hazard the day

after the accident in accordance with its policy of marking hidden

hazards, the post-accident conduct was admissible for the purpose

of showing “the feasibility of marking the area.” Id. The Tenth

Circuit affirmed the admission of the evidence on different grounds,

holding that the testimony “was received not for the purpose of

proving the negligence of the defendant, but rather was for the

purpose of showing that the plaintiff was not guilty of contributory

negligence,” and “for the purpose of undermining the testimony of

[another witness] that he could see the outcropping” from some

distance away. Id. at 1065.

¶ 64 Similarly, in Martinez, the division held that where a store

owner painted a bump in the parking lot after the plaintiff tripped

on it, evidence of this safety precaution was admissible to impeach

the safety manager’s testimony that there was already a significant

difference between the color of the asphalt and the color of bump,

35

and that if there had not been a difference, the bump would have

been painted pursuant to the store’s policies. 782 P.2d at 829.

¶ 65 Consistent with the text of CRE 407, Rimkus and Martinez

both stand for the proposition that evidence of subsequent remedial

measures can be admissible for some purposes other than showing

a defendant’s negligence. Van Eaton, however, did not seek to

introduce the evidence of the subsequent remedial measure for any

of the non-negligence purposes enumerated in the Rule. Instead,

as she puts it in her opening brief, “[e]vidence that NCTC replaced

the yield signs with stop signs after the accident supports a

reasonable inference that the confluence of traffic . . . in this

construction zone[] created a dangerous condition and that the yield

signs did not provide adequate warning of this danger.” In other

words, Van Eaton wanted to introduce evidence of NCTC’s removal

of the yield signs in order to show that the accident would have

been less likely if stop signs had been there in the first place. But

that is no more than a reframed negligence argument. And because

CRE 407 expressly prohibits a party from introducing evidence of a

defendant’s subsequent remedial measures to demonstrate

36

negligence, the trial court did not abuse its discretion in excluding

it.

VI. Closing Argument

¶ 66 Van Eaton contends that the trial court improperly restricted

the scope of her closing argument. Because she did not preserve

this issue, however, we decline to consider it on the merits.

¶ 67 At the close of evidence, Langley’s attorney moved for a

directed verdict on the question whether he was negligent and thus

could have any award reduced under a theory of comparative

negligence. He argued that “[t]he totality of the evidence regarding

the conduct of Mr. Langley” was that, at the time of the accident, he

was riding a properly equipped bicycle lawfully on the road, and

that there was “zero evidence that conspicuity was even an issue.”

Because there was no “prima facie evidence that [Langley] acted

unreasonably,” his attorney argued, Langley was entitled to a

directed verdict on the question of his comparative negligence.

¶ 68 In response, Van Eaton’s attorney argued that “there was

plenty of evidence for the jury to find comparative negligence.”

Asserting that “the standard isn’t whether he complied with

statutory law, [but instead] whether he acted reasonably under the

37

circumstances,” counsel noted that the jury could consider, among

other things, whether it was reasonable for Langley to maintain his

“speed of 17 miles an hour in that stretch of roadway,” whether he

“appropriately scanned his surroundings,” and whether he was

wearing conspicuous enough clothing under the circumstances.

¶ 69 The trial court denied the motion for a directed verdict, but

then went on to say that “if there’s going to be argument about that

what Mr. Langley did, which he was legally entitled to do, is

somehow negligent . . . if there’s an objection to that kind of

argument, you can probably expect that to be sustained.” This

prompted Langley’s attorney to “present a motion in limine”

regarding the argument “that somebody lawfully on a roadway

traveling within the speed limit in the correct direction at the right

location is somehow negligent or is doing something wrong in the

conduct you just described.”

¶ 70 The court neither granted nor denied Langley’s request,

pointing out that it was not clear exactly what arguments Van

Eaton would present. Instead, the court responded much more

generally, saying that it was “signaling what [it] consider[ed] to be

proper argument,” “anticipating that everyone’s going to comply

38

with that,” and stating that “there [would] be a correction in open

court in front of the jury” if counsel’s closing was inappropriate.

¶ 71 Van Eaton’s attorney remained silent throughout this entire

exchange. He did not ask the court to rule on Langley’s motion in

limine, did not explain which arguments he planned to present, and

did not ask the court clarify the bounds of what arguments it would

deem acceptable.

¶ 72 During closing argument the next day, Van Eaton’s attorney

told the jury that “nobody is disputing that Mr. Langley had a legal

right to ride his bike through this area, but it doesn’t mean that it

was the safe thing to do. There’s a difference between legally being

allowed to do something —” At this point, Langley’s attorney

objected and the court and counsel had the following exchange at

the bench.

[LANGLEY’S ATTORNEY]: Yesterday you asked

if I had any objection to him making the

argument that perfectly legal behavior was

somehow less safe, that he was not to go into

that area and to make an objection, so that’s

what I’m doing. He’s now arguing that

although it’s completely legal and permissible

that it was less safe for him to enter into this

area.

39

[VAN EATON’S ATTORNEY]: I’m not going to

argue any of the facts. It is a valid statement

of law. I’m not going to address the green

light, I’m not going to talk about any of that –

[LANGLEY’S ATTORNEY]: He had a right to be

on the road there.

[VAN EATON’S ATTORNEY]: I’m not going to

dispute that.

THE COURT: Under those circumstances go

ahead.

¶ 73 Thus, the court overruled Langley’s objection and Van Eaton’s

attorney immediately followed up by “reiterat[ing]” to the jury that

“just because doing something is legal does not mean it is safe.”

Again, however, counsel did not ask the court to clarify the bounds

of what would be permissible in closing, and he presented the

remainder of his argument on this point without interruption from

the court or opposing counsel.

¶ 74 Van Eaton argues that, although “defense counsel told the

jury that something which is legal may not be safe, . . . he was not

allowed to apply this abstract principle to the facts of the case (for

example, to Plaintiff’s act of ‘timing the light’).” But counsel never

attempted to make the argument that Van Eaton outlines on

appeal, nor did he ask the court to rule on exactly what he could

40

and could not say. Absent an explicit ruling by the court or any

attempt by defense counsel to get one, we are left with nothing to

review. See Liberty Bankers Life Ins. Co. v. First Citizens Bank & Tr.

Co., 2014 COA 151, ¶ 25 (finding that the appellant’s contention of

error was not sufficiently preserved because the appellant did not

give the trial court notice of the issue or an opportunity to rule on

it). Accordingly, because Van Eaton did not preserve this issue, we

will not consider it. See Giguere v. SJS Fam. Enters., Ltd., 155 P.3d

462, 470 (Colo. App. 2006) (we do not address arguments raised for

the first time on appeal).

VII. Postjudgment Interest

¶ 75 Finally, Van Eaton contends that the trial court erred by

awarding Langley postjudgment interest accruing at a rate of nine

percent, instead of at the market-determined rate, as required by

statute. Langley concedes this error.

¶ 76 Section 13-21-101, C.R.S. 2021 imposes different statutory

interest rates on damage awards depending on whether the

judgment is appealed. When a judgment debtor files a notice of

appeal, “the rate at which postjudgment interest accrues becomes

the market-determined rate, rather than the [prejudgment interest]

41

rate of nine percent.” Rodriguez v. Schutt, 914 P.2d 921, 928 (Colo.

1996). This means that once the judgment debtor files a notice of

appeal, the right to continuing prejudgment interest is

extinguished, and the statutory postjudgment rate instead begins to

apply — retroactively — as of the date of the judgment. Because,

notwithstanding her appeal, the court erroneously ordered Van

Eaton to pay interest at the prejudgment rate of nine percent, we

vacate that portion of the judgment and remand the case so that

the court may award interest at the statutory postjudgment rate.

VIII. Conclusion

¶ 77 We vacate the award of postjudgment interest at a fixed rate of

nine percent and remand the case for the court to award

postjudgment interest at the market rate. In all other respects, we

affirm the judgment.

JUDGE NAVARRO and JUDGE PAWAR concur.