Reif v. Priebe

24CA1600 Reif v Priebe 09-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1600
Douglas County District Court No. 21CV30871
Honorable Jeffrey K. Holmes, Judge
Honorable Gary M. Kramer, Judge

Carl J. Reif,

Plaintiff-Appellant,

v.

Paul Priebe,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE YUN
Tow and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 11, 2025

Bell & Pollock, P.C., Bradley P. Pollock, Dana N. Miller, Denver, Colorado, for
Plaintiff-Appellant

Patterson Ripplinger, P.C., Kevin G. Ripplinger, Greenwood Village, Colorado,
for Defendant-Appellee
¶1 In this car accident case, plaintiff, Carl J. Reif, appeals the

judgment entered in favor of defendant, Paul Priebe. Reif contends

that (1) the district court erred by bifurcating the trial as to liability

and damages; (2) the court erred by instructing the jury to consider

a series of collisions as a single accident; and (3) the jury returned

an irreconcilably inconsistent verdict. We affirm the judgment.

I. Background

¶2 In December 2018, Reif, Priebe, and a third driver, Heather

Morales, were involved in a car accident on a highway exit ramp.

Before the accident, the three cars were traveling with Morales in

front, Reif behind her, and Priebe behind him. According to Reif,

Priebe’s vehicle “crashed into the rear end of [Reif’s] vehicle,” and

“[t]he momentum of the crash . . . caused [Reif’s] vehicle to [crash]

into the rear end of . . . Morales’s vehicle.” Priebe admitted that he

was negligent for rear-ending Reif, but he asserted that, “at the time

of this impact, [Reif] had already struck [Morales’s] vehicle ahead of

him.”

¶3 Reif sued Priebe for negligence and negligence per se, and

Priebe asserted a comparative negligence defense, arguing that

Reif’s injuries and damages were the result of Reif’s own negligence,

1
which equaled or exceeded Priebe’s. Priebe then moved to bifurcate

the trial as to liability and damages, arguing that “[a] resolution of

the issue of fault/liability under the requested bifurcation could

ultimately serve to be dispositive of the entire case, since a finding

of fault as against . . . Reif which meets or exceeds 50% would

render any damages determination moot under Colorado’s

comparative fault standards.” Reif objected to bifurcation, arguing,

without elaboration, that the issue of “liability/fault [could not] be

separated from the damages claim” because “the mechanism of

injury [was] integral” to expert testimony about “how the collision(s)

occurred.” The district court granted Priebe’s motion to bifurcate

the trial.1

¶4 A new judge then took over the case and presided over a four-

day jury trial on liability. During a jury instruction conference on

the third day of trial, the parties agreed on a jury instruction asking

whether Priebe’s negligence was a cause of Reif’s collision with

Morales. The answer to this question, they agreed, would show

whether the jury believed Reif’s theory of the case (that Priebe had

1 The district court’s bifurcation order is not part of the record on

appeal.

2
hit him first, pushing him into Morales) or Priebe’s theory (that Reif

had hit Morales first, independent of Priebe, and Priebe had only

subsequently rear-ended him due to his sudden stop).

¶5 Priebe then advocated for a second jury instruction defining

the two collisions (the one between Reif and Morales and the one

between Priebe and Reif) as a single accident and asking the jury to

apportion liability between Priebe and Reif for the three-car accident

as a whole. If the jury found that Reif’s liability for the accident as

a whole was fifty percent or greater, he reasoned, the case would be

over. Reif objected, arguing that the negligence involved in causing

the two collisions had to be analyzed separately because, due to the

bifurcation, the jury had not heard evidence about which collision

caused which injuries.

¶6 The district court acknowledged Reif’s concern, noting that the

bifurcation had put the parties “in a jam” because Priebe’s

comparative negligence defense was that Reif’s injuries and

damages were the result of Reif’s own negligence, and “there isn’t

necessarily a correlation between the fault of an accident versus the

fault of an injury.” It reasoned, however, that Reif was claiming

injuries and damages from the three-car accident as a whole:

3
Mr. Reif’s claim is he was hurt in the accident,
right? He’s not parsing the hairs between the
first and the second [collisions]. He’s just
saying, “I was hurt. I got crunched between
two cars, and I got hurt.”

¶7 The court determined that it could either declare a mistrial or

allow the case to go to the jury, but that, if the case went to the

jury, it would include Priebe’s proposed question “defin[ing] the

accident as . . . both collisions, and hav[ing] the jury allocate a

percentage of fault for the accident.” At that point, Reif moved for a

mistrial. Priebe objected, and the court denied Reif’s motion.

¶8 Ultimately, the jury was provided with four special verdict

forms, labelled A, B, C, and D. Instruction No. 21 provided, in

relevant part, as follows:

1. Was [Priebe’s] negligence a cause of [Reif’s]
collision with Heather Morales?

If your answer is “no,” then your foreperson
shall complete only Special Verdict Form A and
all jurors shall sign it.

4
The jurors completed and signed special verdict form A, indicating

they had determined that Priebe’s negligence was not a cause of

Rief’s collision with Morales.2

¶9 Instruction No. 5 provided as follows:

As used in these Jury Instructions, the word
“Accident” shall mean the accident that
occurred on December 18, 2018, involving a
2018 Acura MDX driven by Heather Morales, a
2018 Subaru Outback driven by Plaintiff Carl
[Reif], and a 2018 Acura TLX driven by
Defendant Paul Priebe. The word “Accident”
shall include both collisions, one involving
Plaintiff, Carl Reif, and Defendant, Paul Priebe,
and one involving Plaintiff, Carl Reif, and
Heather Morales.

¶ 10 Instruction No. 22 provided as follows:

1. Was [Priebe’s] negligence a cause of the
Accident?

If your answer is “no,” then your foreperson
shall complete only Special Verdict Form C
and all jurors shall sign it.

2 If the jury had found that Priebe’s negligence was a cause of Reif’s

collision with Morales, it was instructed to complete special verdict
form B, which asked whether Reif was negligent; whether his
negligence was also a cause of his collision with Morales; and, if the
answers to the previous questions were all “yes,” what percentage of
the negligence involved in the collision between Reif and Morales
was Priebe’s and what percentage was Reif’s. The jury left special
verdict form B blank.

5
On the other hand, if your answer is “yes,”
then you shall answer this question as well as
the following questions on Special Verdict
Form D and all jurors shall sign it.

2. Was the plaintiff, Carl Reif, negligent?

3. Was [Reif’s] negligence, if any, a cause of the
Accident?

If your answer to all three questions 1, 2, and
3 is “yes,” then you shall also answer the
following question 4 on Special Verdict
Form D.

4. Taking as 100 percent the combined
negligence of [Priebe] and [Reif] that caused the
Accident, what percentage of the negligence
was [Priebe’s] and what percentage was
[Reif’s]?

¶ 11 The jurors left special verdict form C blank and completed and

signed special verdict form D, indicating they had determined that

(1) Priebe’s negligence was a cause of the accident; (2) Reif was

negligent; (3) Reif’s negligence was also a cause of the accident; and

(4) fifty percent of the negligence that caused the accident was

Priebe’s and fifty percent was Reif’s.

¶ 12 Priebe filed a motion for entry of judgment, arguing that,

under section 13-21-111, C.R.S. 2025, Reif could not recover any

damages because his negligence was equal to Priebe’s. Reif, in

turn, moved for a new, non-bifurcated trial, arguing that the court

6
had erred by denying his motion for a mistrial and that the jury’s

verdicts were irreconcilably inconsistent. The court denied Reif’s

motion for a new trial and entered judgment in favor of Priebe.

¶ 13 Reif now appeals.

II. Bifurcation

¶ 14 Reif contends that the district court erred by bifurcating the

trial so that liability and damages would be tried separately. We are

not persuaded.

A. Governing Law and Standard of Review

¶ 15 Under C.R.C.P. 42(b), the district court may order a separate

trial of any separate issue or claim if the court finds that separate

trials will “further convenience, avoid prejudice, or promote judicial

economy.” Martin v. Minnard, 862 P.2d 1014, 1016 (Colo. App.

1993). Before deciding to bifurcate a trial, the court must analyze

“the evidentiary and procedural nuances of [the] particular case,”

including potential prejudice to any party. Gaede v. Dist. Ct.,

676 P.2d 1186, 1188 (Colo. 1984).

¶ 16 The district court “has wide discretion to bifurcate trials, and

absent a clear showing of abuse of discretion, the court’s decision

will not be disturbed.” Martin, 862 P.2d at 1016 (citing Prudential

7
Prop. & Cas. Ins. Co. of Am. v. Dist. Ct., 617 P.2d 556, 558 (Colo.

1980)). But the court’s bifurcation order must “contain sufficient

findings to establish whether it is based on any of the prerequisites

[enumerated in] C.R.C.P. 42(b).” Gaede, 676 P.2d at 1189.

B. Discussion

¶ 17 Reif argues that the district court erred by bifurcating the trial

because his injuries were “highly probative of liability” and

supported his theory of how the accident occurred. The bifurcation

of liability and damages, he argues, prevented him from supporting

his theory of the case with testimony from his retained medical

expert, Dr. Rafer Leach, that his “injuries could only [have been]

caused by [Priebe] rear-ending [him] before [his] car rolled into

Morales’ vehicle.”3

3 In his reply brief, Reif further claims that Dr. Leach’s testimony

would have supported and corroborated the testimony of his
accident reconstruction experts regarding the order of the
collisions. But the trial testimony of these experts does not appear
to be included in the record. In any event, Dr. Leach’s opinions do
not address, much less corroborate, the order of the collisions.

8
¶ 18 Because the district court’s bifurcation order is not part of the

record on appeal, we are unable to review it.4 However, because the

record does not support Reif’s contention that Dr. Leach would have

testified that his injuries could only have been caused by a first

collision between Priebe and Reif followed by a second collision

between Reif and Morales, we conclude that the district court did

not abuse its discretion by ordering bifurcation.

¶ 19 Dr. Leach is an emergency room physician who was retained

by Reif to review his medical records, conduct a physical

examination, and provide a medical needs assessment report.

Dr. Leach’s report does not include any analysis pertinent to the

order of the collisions. Indeed, the totality of Dr. Leach’s opinion

regarding the cause of Reif’s injuries was that “[t]he motor vehicle

trauma occurring 12/18/2018 was clearly of sufficient mechanism

and associated forces to cause cerebral concussion with loss of

4 “It is the appellant’s responsibility to designate the record on

appeal, including such parts of the trial proceedings as are
necessary for purposes of the contentions on appeal.” In re
Marriage of Cardona, 321 P.3d 518, 526 (Colo. App. 2010), aff’d on
other grounds, 2014 CO 3. Accordingly, we generally “assume that
material portions omitted from the record would support the trial
court’s judgment.” Id. In this instance, however, it appears the
bifurcation order may be lost.

9
consciousness, as well as injury to the spine and extremities.”

Further, nothing in Reif’s expert disclosures — which included a

detailed summary of Dr. Leach’s anticipated testimony — suggests

that Dr. Leach would testify that Reif’s injuries were probative of the

order in which the two collisions occurred.5

¶ 20 Accordingly, we conclude that the district court’s decision to

bifurcate the trial was within its wide discretion. See Martin,

862 P.2d at 1016.

III. Jury Instruction

¶ 21 Reif contends that the instruction asking the jury to allocate

fault for the three-car accident as a whole (1) misrepresented the

law on comparative negligence; and (2) prejudiced him by “leav[ing]

no room for a determination that Priebe was over 50% liable for the

collision with [Reif],” independent of Reif’s collision with Morales.

Under the circumstances of this case, we disagree.

5 At the time the court ruled on the motion for bifurcation, Reif’s

expert disclosures, including Dr. Leach’s expert report, had already
been filed with the court. Thus, the court was presumably aware of
their contents.

10
A. Governing Law and Standard of Review

¶ 22 “Trial courts have a duty to correctly instruct juries on all

matters of law.” Banning v. Prester, 2012 COA 215, ¶ 9. We review

de novo whether the instructions as a whole accurately informed

the jury of the governing law, but we review a court’s decision to

give a particular instruction for an abuse of discretion. Id. “A trial

court necessarily abuses its discretion if it bases its ruling on an

erroneous view of the law or a clearly erroneous assessment of the

evidence.” Id.

¶ 23 “We review a properly preserved objection to a jury instruction

for harmless error.” Herrera v. Lerma, 2018 COA 141, ¶ 7 (citation

omitted). An instructional error is harmless unless it prejudices a

party’s substantial rights. Id. A party’s substantial rights are

prejudiced when the jury “might have answered differently if a

proper instruction had been given.” Banning, ¶ 10.

B. Comparative Negligence

¶ 24 Reif argues that, by instructing the jury to consider

“negligence . . . that caused the [a]ccident” rather than negligence

that caused his injuries, Instruction No. 22 misrepresented the law

11
on comparative negligence. We conclude that, under the facts of

this case, any error was harmless.

¶ 25 Section 13-21-111(1) provides that

[c]ontributory negligence shall not bar recovery
in any action by any person or his legal
representative to recover damages for
negligence resulting in death or in injury to
person or property, if such negligence was not
as great as the negligence of the person
against whom recovery is sought, but 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.

Accordingly, the negligence that must be considered when

comparing the negligence of a plaintiff and a defendant is

“negligence resulting in death or in injury” — in other words,

negligence that was a cause of the plaintiff’s claimed injuries,

damages, and losses. Id.; see City of Aurora v. Loveless, 639 P.2d

1061, 1063 (Colo. 1981) (“In Colorado a finding of negligence does

not create liability on the part of a defendant unless that negligence

is a proximate cause of the plaintiff’s injury.”); see also CJI-Civ.

9:26B (2025) (asking the jury to determine whether the defendant’s

negligence, if any, and/or the plaintiff’s own negligence, if any, was

a cause of the plaintiff’s injuries, damages, and losses). This

12
scheme is reflected in Priebe’s comparative negligence defense,

which asserted that Reif’s own negligence caused his “injuries and

damages.”

¶ 26 But Instruction No. 22 did not ask the jury to determine

whether Priebe’s negligence and/or Reif’s own negligence, if any,

was a cause of Reif’s injuries, damages, and losses. Rather, the

instruction asked whether each party’s negligence was “a cause of

the [a]ccident.” The problem, Reif argues, is that, as the district

court noted, “there isn’t necessarily a correlation between the fault

of the accident versus the fault of an injury.”

¶ 27 As we understand the implication of Reif’s argument, he is

suggesting a hypothetical scenario where his own negligence, while

a partial cause of the accident (i.e., Reif’s collision with Morales),

was not a cause of his injuries. That is, even if Reif was entirely at

fault for his collision with Morales, it is possible that he was not

injured in that collision and that all his injuries, damages, and

losses were the result of Priebe separately rear-ending him. In this

situation, the jury’s finding on special verdict form D that Reif’s

negligence was “a cause of the [a]ccident” would not equate to a

finding that Reif’s negligence was a cause of his injuries, making it

13
inappropriate for the jury to apportion negligence between Priebe

and Reif.

¶ 28 But the scenario described above was never Reif’s theory of the

case. Rather, his theory was that Priebe struck him from behind

and pushed him into Morales, and that, as the district court put it,

he was hurt by being “crunched between two cars.” Indeed, in his

complaint, Reif characterized the three-car accident the same way it

was characterized in Instruction No. 22, as a single “crash” or

“collision.” His claim was that “[Priebe] caused the entire crash”

and that he, Reif, was “injured in the subject collision.” As he

explained in his opening argument,

What you’re going to find is that throughout
the entire time period this case has gone
forward, Mr. Reif has always stated he . . . got
hit [by Priebe] from the rear, and that’s what
caused him to be propelled into Ms. Morales.
And that’s what we believe the evidence will
show.

¶ 29 Nor does Reif point to any evidence in the record that could

support an inference that the accident occurred as outlined in the

hypothetical above — a first, harmless collision between Reif and

Morales, followed by a second collision between Priebe and Reif that

caused all of Reif’s injuries. Although the complete trial transcripts

14
are not part of the record on appeal, the district court noted during

the jury instruction conference,

[I]f I’m on the jury, . . . I don’t only decide by a
preponderance of the evidence, I decide
beyond . . . a reasonable doubt that it was Reif
who was mostly at fault here by hitting
Morales. . . . [W]ith respect to [damage to] the
vehicles, . . . if you want to ask me to direct a
verdict now based on the evidence, I would say
that the . . . evidence shows that it was Reif
who slammed into Morales and . . . the effect,
the net impact from Priebe to Reif, was
negligible compared to the impact of Reif to
Morales.

¶ 30 Accordingly, while there is a hypothetical situation in which

“negligence . . . that caused the [a]ccident” would not equate to

negligence that caused Reif’s injuries, that is not the way this case

was ever presented or argued. We thus conclude that any error in

the way Instruction No. 22 represented the law on comparative

negligence was harmless.

C. Fault for the Priebe-Reif Collision

¶ 31 Next, Reif argues that Instruction No. 22 prejudiced him by

“leav[ing] no room for a determination that Priebe was over 50%

liable for the collision with [Reif],” independent of Reif’s collision

with Morales. That is, because the instruction treated the two

15
collisions as a single accident, “[t]he jury [was] not given an

opportunity to make findings on whether Reif was in any way at

fault for Priebe rear-ending him.” According to Reif, if the jury had

had a chance to make this determination, it might have found

either that Reif’s negligence was not a cause of the Priebe-Reif

collision or that Reif’s negligence in causing that collision was less

than Priebe’s.

¶ 32 But again, as discussed above, Reif’s claim was that he was

injured in a three-car accident in which Priebe pushed him into

Morales. He did not assert that there were two independent

collisions, with separate injuries attributable to each, nor did the

proposed testimony of his medical expert make such a distinction.

Similarly, Priebe did not contend that there were two independent

collisions. Priebe maintained that the Reif-Morales collision was an

“integral component” of this case and that he “would not have rear-

ended [Reif] had [Reif] not hit . . . Morales.” Thus, both parties

regarded the two collisions as part of a single interconnected

accident.

¶ 33 Moreover, Reif does not point to any evidence in the record to

support a jury instruction that would treat the Priebe-Reif collision

16
as a separate, independent collision.6 See Melton v. Larrabee,

832 P.2d 1069, 1072 (Colo. App. 1992) (“A party is entitled to a jury

instruction only when it is supported by the evidence . . . . Further,

there must be more than a mere scintilla of evidence to support an

instruction.” (citation omitted)); Devenyns v. Hartig, 983 P.2d 63, 70

(Colo. App. 1998) (affirming the trial court’s refusal to give a jury

instruction that lacked evidentiary support). Thus, Reif’s proposed

instruction asking the jury to determine the parties’ respective

negligence in causing the Priebe-Reif collision as a separate,

independent collision was not supported by the evidence.

¶ 34 At the jury instruction conference, Reif argued that a jury

should be given the opportunity to determine which of his injuries

were caused by the Reif-Morales collision and which of his injuries

were caused by the Priebe-Reif collision. But while “[t]here is some

debate over what is to be compared under comparative

negligence — negligence [culpability] or causation,” W. Page Keeton

et al., Prosser and Keeton on the Law of Torts § 67, at 474 (5th ed.

6 Parties “should not ‘expect the court to peruse the record without

the help of pinpoint citations.’” O’Quinn v. Baca, 250 P.3d 629, 632
(Colo. App. 2010) (citation omitted).

17
1984), Colorado’s comparative negligence statute provides for a

comparison of negligence, see § 13-21-111(1) (comparing the

plaintiff’s negligence with “the negligence of the person against

whom recovery is sought”); Reid v. Berkowitz, 2013 COA 110M,

¶ 52 (“[T]he court must instruct the jury on comparative negligence

and allow the jury to assess the relative degrees of the parties’

fault.”).

¶ 35 This view is consistent with other jurisdictions holding that in

a comparative negligence system, it is the culpability of the conduct

rather than the degree of causation by which damages are

apportioned between the plaintiff and the defendant. See State v.

Kaatz, 572 P.2d 775, 782 (Alaska 1977) (“What is to be compared is

negligen[t] conduct, fault, culpability not causation, either physical

or legal.”); Amend v. Bell, 570 P.2d 138, 142 (Wash. 1977)

(explaining that comparative negligence involves comparing the

fault of the plaintiff with that of the defendant and that any

damages awarded are reduced in proportion to the plaintiff’s degree

of fault); Zuern v. Ford Motor Co., 937 P.2d 676, 682 (Ariz. Ct. App.

1996) (“Although causation (or physical contribution to the injury)

is a necessary condition precedent to consideration of a person’s

18
fault — i.e., the fault must have ‘proximately caus[ed] or

contribut[ed]’ to the claimant’s injuries to be considered — once

causation is found the trier of fact must determine and apportion

‘the relative degrees of fault’ of all parties . . . .” (citations omitted));

see also William L. Prosser, Comparative Negligence, 51 Mich. L.

Rev. 465, 481 (1953) (“Although there is a great deal of rather

casual and careless language to the effect that the plaintiff’s

recovery must be diminished to the extent that his negligence has

been ‘causal,’ or has ‘contributed’ to his injury, there seems to be

little doubt that, once causation is found, the apportionment must

be made on the basis of comparative fault rather than comparative

contribution.” (footnote omitted)); 1 Victor E. Schwartz & Kathryn

Kelly, Comparative Negligence, § 17.01(a), at 336 (6th ed. 2020 &

Supp. 2025) (commenting that “the jury’s line of inquiry under

comparative negligence does not focus on physical causation;

rather, it considers and weighs culpability”).

¶ 36 The relevant question, then, was not allocation of physical

causation, as Reif argues — which collision caused which

injuries — but the allocation of negligence. And the jury found

that, “[t]aking as 100 percent the combined negligence of [Priebe]

19
and [Reif] that caused the [a]ccident,” fifty percent of the negligence

was Priebe’s, and fifty percent was Reif’s. This answer ended the

case. See § 13-21-111(3) (stating the court must “enter a judgment

for the defendant” if the plaintiff’s degree of negligence is found to

be “equal to or greater than the negligence” of the defendant).

¶ 37 For these reasons, we are not persuaded that the district court

reversibly erred by instructing the jury to consider the three-car

accident as a whole.

IV. Jury Verdicts

¶ 38 Reif contends that the jury’s answers on special verdict

forms A and D are “irreconcilably inconsistent.” We disagree.

¶ 39 “Jury verdicts will not be reversed for inconsistency if the

record reveals any basis to support them.” H & H Distribs., Inc. v.

BBC Int’l, Inc., 812 P.2d 659, 663 (Colo. App. 1990). “[I]f there is a

view of the case that makes the jury’s answers consistent, they

must be resolved that way.” Id.

¶ 40 On special verdict form A, the jury indicated that Priebe’s

negligence was not a cause of the collision between Reif and

Morales. On special verdict form D, the jury indicated that Priebe’s

negligence was a cause of the “accident,” defined as “the accident

20
that occurred . . . includ[ing] both collisions, one involving [Reif]

and [Priebe], and the other involving [Reif] and Heather Morales.”

Reif argues that “the verdicts are irreconcilable because where the

accident is a combination of events, [Priebe] cannot be found liable

for the [a]ccident (consisting of all collisions) but not liable in any

way for the collision between Morales and Reif.” Or, put another

way, “[Priebe] can’t be 50% responsible for the ‘[a]ccident’ but not

responsible at least in part for both collisions where the ‘[a]ccident’

is a combination of collisions.”

¶ 41 We discern no inconsistency in the verdicts. Rather, they

simply reflect that the jury believed Priebe’s theory of how the

accident occurred — namely, that Reif first struck Morales,

independent of Priebe, and thereby came to an abrupt stop, after

which he was struck from behind by Priebe. Priebe’s negligence

thus played no part in the collision between Reif and Morales, as

reflected in the jury’s answer to special verdict form A. But, as

Priebe admitted, his negligence was at least partly responsible for

his subsequent collision with Reif, who initially acted negligently by

braking suddenly and hitting Morales. Accordingly, as reflected in

the jury’s answer to special verdict form D, Priebe’s negligence —

21
despite not causing the first collision — was one cause of the three-

car accident.

¶ 42 Because the jury’s answers on the special verdict forms are

consistent, we discern no basis for reversal.

V. Disposition

¶ 43 The judgment is affirmed.

JUDGE TOW and JUDGE SULLIVAN concur.

22