Brown v. Dillon Companies

24CA1164 Brown v Dillon Companies 07-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1164
Jefferson County District Court No. 23CV30404
Honorable Christopher C. Zenisek, Judge

Jadwiga Brown,

Plaintiff-Appellee,

v.

Dillon Companies, LLC, d/b/a King Soopers,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE BERGER*
Welling and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 31, 2025

Ross Ziev, P.C., Ross Ziev, Greenwood Village, Colorado, for Plaintiff-Appellee

Nathan Dumm & Mayer, P.C., Michael R. Lancto, Daniel A. Jacobs, 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. 2024.
¶1 Defendant, Dillon Companies, LLC, appeals the judgment in

favor of plaintiff, Jadwiga Brown.1 King Soopers contends that the

district court erred when it (1) refused to instruct the jury on

Colorado Jury Instruction-Civil (CJI-Civ.) 8:8 (2025), which defines

when an employee is acting within the scope of employment; and (2)

prohibited King Soopers’ medical expert from referring to the dollar

amount of medical care provided to Brown. We conclude that (1)

any error committed by the district court in refusing to give CJI-Civ.

8:8 was harmless, and (2) the district court did not err by excluding

King Soopers’ medical expert’s testimony about the cost of Brown’s

medical care. Therefore, we affirm the judgment.

I. Background

¶2 On December 22, 2021, Brown was shopping at a King

Soopers store when she slipped and fell on what she believed to be

yogurt spilled on the floor. She did not see the substance before

she fell but noticed a white substance on her boots, right elbow,

and right knee afterward. Brown suffered a torn meniscus as a

1 Dillon Companies, LLC operates the King Soopers store where the

events in question occurred. We refer to the defendant as “King
Soopers.”

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result of the fall and received treatment from at least two medical

providers.

¶3 Video evidence presented at trial depicted a person wearing a

black apron and a King Soopers name tag carry a product through

the store. While carrying this product, this person apparently

dropped an item on the floor in the same location as Brown’s fall,

minutes before Brown slipped.

¶4 King Soopers admitted at trial that its employees remove

expired and otherwise unsaleable merchandise on a regular basis.

Other video evidence depicted employees stocking that area around

the same time as the spill.

¶5 Barbara Galvery, then King Soopers’ assistant store manager,

learned of Brown’s fall the day it happened. While King Soopers’

policy is to photograph any spill that causes an injury, that was not

done in this case. Nor did King Soopers search for additional video

evidence at or about the time of Brown’s fall to further identify the

person who created the spill. Galvery testified that the person

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believed to have created the spill was an “associate” of King Soopers

(but she was unable to further identify the individual).2

¶6 Brown sued King Soopers under Colorado’s Premises Liability

Act (PLA). The parties do not dispute that Brown was an invitee

under the PLA. Brown initially sought to recover economic damages

(e.g., medical care costs), noneconomic damages, and damages for

physical impairment and disfigurement, but shortly before trial she

decided not to pursue economic damages.3

¶7 The jury awarded Brown $300,000 in noneconomic damages

and $50,000 for physical impairment losses or disfigurement

injuries, for a total judgment of $350,000.

2 King Soopers uses the term “associate” to describe its store

employees.
3 In its briefing, King Soopers complains about the late withdrawal

of the claim of economic damages but, so far as we can tell, does
not contend that the district court should have done anything other
than respect that withdrawal. We also note that King Soopers did
not request a continuance of the trial in view of the claimed late
withdrawal of the claim of economic damages. In the absence of
any developed claim regarding the withdrawal of the claim for
economic damages, we do not further address it.

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II. Jury Instruction CJI-Civ. 8:8

¶8 King Soopers makes two arguments on appeal. First, it argues

that the district court erred when it refused to give jury instruction

CJI-Civ. 8:8. We reject this contention.

A. Standard of Review and Applicable Law

¶9 “We review jury instructions de novo to determine whether the

instructions as a whole accurately informed the jury of the

governing law.” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 266 P.3d

412, 418 (Colo. App. 2011). “As long as the instruction properly

informs the jury of the law, a trial court has broad discretion to

determine the form and style of the instructions.” Hendricks v.

Allied Waste Transp., Inc., 2012 COA 88, ¶ 15.

¶ 10 We review a district court’s refusal to give a particular jury

instruction for an abuse of discretion. Walker v. Ford Motor Co.,

2017 CO 102, ¶ 9. A court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair or it misapplies the

law. Nibert v. Geico Cas. Co., 2017 COA 23, ¶ 8.

¶ 11 We review preserved instruction errors under the harmless

error standard. In re Estate of Chavez, 2022 COA 89M, ¶ 22. A

court errs if it rejects “a tendered instruction that properly instructs

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the jury on the applicable law in the case and the evidence at issue,

which are not adequately covered elsewhere.” Nibert, ¶ 9. But

absent a showing of substantial, prejudicial error, we will not

reverse the judgment. Vista Resorts, Inc. v. Goodyear Tire & Rubber

Co., 117 P.3d 60, 70 (Colo. App. 2004). “Prejudicial error exists

when the record shows that a jury might have reached a different

verdict if a proper instruction had been given.” Schuessler v.

Wolter, 2012 COA 86, ¶ 11. “However, it is not error for a trial

court to reject a party’s instruction when that instruction misstates

the law, is argumentative, improperly emphasizes specific evidence,

or when the court allows the party to otherwise argue its theory of

the case.” Nibert, ¶ 9.

B. Any Error by the District Court in Not Instructing the Jury on
the Definition of Scope of Employment Was Harmless

¶ 12 King Soopers argues it was entitled to a CJI-Civ. 8:8

instruction and that the court erred when it refused to give the

instruction.

¶ 13 The CJI-Civ. Committee’s notes on the use of CJI-Civ. 8:8

provide that this instruction is appropriate in respondeat superior

claims. The only claim tried in this case was a claim under the

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PLA; no respondeat superior claim was asserted. We cannot fault

the district court for refusing to give an instruction that the notes

on the use of CJI-Civ. 8:8 themselves say was not appropriate in

this case.

¶ 14 That, of course, does not necessarily decide the question of

whether, apart from CJI-Civ. 8:8, the court had a duty to instruct

the jury on the meaning of the term ”scope of employment,” a term

contained in an instruction that was given to the jury.

¶ 15 Assuming without deciding that the district court erred in that

regard, we conclude that any error was harmless.4 “Put another

way, even if the jury had been given a correct instruction, . . . we

conclude that the jury would probably have reached the same

verdicts.” Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1200 (Colo.

App. 2009); see also Cissell Mfg. Co. v. Park, 36 P.3d 85, 89 (Colo.

App. 2001) (“However, we are convinced that, even if the jury had

been instructed properly, the verdict against Park would have been

the same. Thus, the errors were harmless.”).

4 The reasons why any error was harmless also support a

determination that an instruction on scope of employment was
unnecessary.

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¶ 16 The jury was instructed under CJI-Civ. 7:7 (2025) that “[a]ny

act or omission of [King Soopers’] employees while acting within the

scope of his or her employment is the act or omission of [King

Soopers].” (Emphasis added.) But the jury was not instructed on

the legal meaning of the “scope of his or her employment.”

¶ 17 Uncontroverted video evidence showed that the person who

allegedly created the spill was wearing a black apron and white

name tag.5 It is undisputed that that attire is the garb of King

Soopers associates or employees. Video evidence submitted at trial

showed other King Soopers employees wearing the same garb

stocking items around the area of the spill that same day.

¶ 18 King Soopers acknowledges that the person depicted in the

video was “wearing similar garb to [that of] an employee.” But King

Soopers speculates that even if the person depicted was a King

Soopers employee, no evidence showed that the person was acting

5 Brown presented an alternate theory of liability that was

supported by video evidence: an unknown person spilled the
substance, but the spill was seen (or should have been seen) by two
King Soopers employees passing by the area of the spill, who did
nothing to mitigate the hazard. Because the jury returned a general
verdict, it is impossible to know on what evidence the jury relied.
Our job is only to determine if the record supports the verdict
reached by the jury, not to speculate on what evidence it relied.

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in the scope of her authority when she allegedly dropped the

substance on the floor (and then failed to clean it up). Of course,

virtually anything is possible, but when there is video evidence of a

person wearing King Soopers garb dropping a substance on the

floor of the store at the precise location where a customer slipped

and fell, the chances that the employee was acting outside of the

scope of her employment is both speculative and far-fetched.

¶ 19 Applying the controlling legal standard, we have no reasonable

basis to believe that the jury might have reached a different result if

it had been given a definition of “scope of employment.” See Pham

v. OSP Consultants, Inc., 992 P.2d 657, 658–59 (Colo. App. 1999)

(Scope of employment “is determined by the purpose of the

employee’s act, rather than the method of performance. Thus, if the

negligent act or omission was in the service of the employer’s

business, the employer is liable, even though the employer did not

authorize the manner of performance.”).

¶ 20 Nor did the district court prohibit King Soopers’ counsel from

arguing its theory to the jury. Schuessler, ¶ 11; Nibert, ¶ 9.

Therefore, we conclude that any error in declining to instruct the

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jury on the meaning of the phrase “scope of employment” was

harmless.

III. Exclusion of Evidence of Brown’s Medical Care Costs

¶ 21 King Soopers next contends that the district court erred when

it prohibited its medical expert from relying on or testifying about

the relatively small amount of Brown’s medical expenses. Again, we

disagree.

A. Standard of Review and Applicable Law

¶ 22 “We review evidentiary rulings, including a ruling on the

admissibility of expert testimony, for an abuse of discretion.”

Dorsey & Whitney LLP v. RegScan, Inc., 2018 COA 21, ¶ 39. We give

deference to the court’s ruling on the admissibility of expert

testimony because the district court has a superior opportunity to

evaluate the competence of the expert and assess whether the

expert’s opinion would be helpful to the jury. City of Aurora v. Colo.

State Eng’r, 105 P.3d 595, 612 (Colo. 2005). We will overturn its

decision only when it is manifestly erroneous. Id.

¶ 23 We review a preserved claim of evidentiary error for harmless

error and will only reverse if the error “substantially influenced the

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outcome of the case.” Genova v. Longs Peak Emergency Physicians,

P.C., 72 P.3d 454, 459 (Colo. App. 2003).

B. Preservation and Invited Error

¶ 24 At the outset, the parties disagree whether King Soopers

preserved this issue. Brown also alleges that the doctrine of invited

error precludes appellate review. We conclude that the issue is

preserved and that the doctrine of invited error is inapplicable.

¶ 25 The issue presented on appeal is whether the costs of Brown’s

medical care were “otherwise inadmissible” under CRE 703. This

argument was preserved because King Soopers adequately brought

this question to the district court’s attention and the court ruled on

the question. See Battle N., LLC v. Sensible Hous. Co., 2015 COA

83, ¶ 13 (“[W]here issue was brought to the district court’s attention

and the court ruled on it, it was preserved for appellate review; no

talismanic language is required to preserve an issue.” (citing Target

Corp. v. Prestige Maint. USA, Ltd., 2013 COA 12, ¶ 23)). Thus, the

claimed error was sufficiently preserved for our review.

¶ 26 The invited error doctrine is inapplicable here. “[I]nvited error

prevents a party from complaining on appeal of an error that he or

she has invited or injected into the case.” Bernache v. Brown, 2020

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COA 106, ¶ 11. Invited error applies when a party (1) expressly

acquiesces in a proposed action by the court or the opposing

party; (2) implicitly agrees with a trial court’s rejection of the party’s

own tendered instruction; or (3) expressly declines a trial court’s

offer to replace a juror with an alternate juror. McGill v. DIA Airport

Parking, LLC, 2016 COA 165, ¶ 10. Because King Soopers did not

invite, inject, or induce the ruling that it seeks to challenge on

appeal, the doctrine of invited error does not apply here.

C. Evidence was “Otherwise Inadmissible”

¶ 27 King Soopers’ argument turns on the meaning of CRE 703,

which governs expert testimony. The rule permits an expert to rely

on information normally relied on by an expert in the field even

though that information may not be admissible under the rules of

evidence. But the rule also contains a significant limitation on that

general rule. It provides that the “[f]acts or data that are otherwise

inadmissible shall not be disclosed to the jury by the proponent of

the opinion or inference unless the court determines that their

probative value in assisting the jury to evaluate the expert’s opinion

substantially outweighs their prejudicial effect.” CRE 703 (emphasis

added).

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¶ 28 In lay terms, an expert may rely on information not admitted

in evidence (or admissible) if an expert of that type would ordinarily

rely on such information. But facts or data that are otherwise

inadmissible cannot be disclosed to the jury until the court

performs the balancing test prescribed by the rule.

¶ 29 King Soopers wanted its expert, Dr. Alison Fall, to testify about

the limited costs of Brown’s medical care arising from her fall at the

King Soopers. The only apparent purpose of that testimony would

be to support Dr. Fall’s central opinion that most of the damages

claimed by Brown were not caused by her fall at the King Soopers.6

¶ 30 Dr. Fall offered opinions on whether the treatments Brown

received for her injuries were “medically reasonable, necessary, and

causally related to the injuries sustained.” The cost of her medical

care would, of course, have been directly relevant if Brown had

proceeded to trial on a claim of economic damages. But, as noted

above, she did not.

6 King Soopers failed to make an adequate offer of proof regarding

the proposed testimony, and we could reject King Soopers’ claim of
error on that ground alone. But we exercise our discretion to
address and reject the merits of King Soopers’ argument. Maloney
v. Brassfield, 251 P.3d 1097, 1105 (Colo. App. 2010).

12
¶ 31 So, as the case was tried, the only relevance of the cost of

medical care that we can perceive was that it bore upon the amount

of noneconomic damages that were claimed (and awarded by the

jury).

¶ 32 While there is no definitive precedent on this question in

Colorado, we have found at least one jurisdiction that excludes

medical costs when the plaintiff seeks noneconomic damages. See

Martin v. Soblotney, 466 A.2d 1022, 1025 (Pa. 1983) (“Thus the fact

that a particular amount of money was expended to treat an injury

bears no logical correlation to the degree of pain and suffering

which accompanied the injury to the plaintiff in question . . . .”).

But we need not weigh in on this question because we conclude

that the district court correctly applied the CRE 703 balancing test

and did not abuse its discretion in its ruling.

¶ 33 Dr. Fall was the last witness to testify in the case. Neither

Brown nor King Soopers made any effort to admit Brown’s medical

bills through an appropriate witness prior to Dr. Fall’s testimony.

As a result, we conclude that the direct court correctly ruled that

the costs of care were “otherwise inadmissible” through the

testimony of Dr. Fall.

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¶ 34 Clearly the amount of medical costs was hearsay. And, on

this record, we are not convinced that merely because the medical

costs may have been admitted under a hearsay exception means

that the records were not “otherwise inadmissible.”

¶ 35 King Soopers argues that the medical costs were admissible

for two reasons. First, it contends that “[t]here is no legitimate

dispute that Plaintiff’s own disclosed medical billing for her claimed

injuries could have been admitted at trial for a proper substantive

purpose by the time Dr. Fall testified.” But King Soopers does not

explain what that “proper purpose” might have been.

¶ 36 Instead, King Soopers argues that the evidence should have

been allowed so the “jury [could] have critical evidence needed to

evaluate the credibility and weight the jury should give to Dr. Fall’s

sharply disputed opinions within her testimony.” As best as we can

tell, King Soopers appears to contend that the limited amount of

medical bills would have impeached the amount of Brown’s claimed

noneconomic damages.

¶ 37 King Soopers relies on Dorsey & Whitney LLP to support its

position that the district court erred by applying Rule 703’s

balancing test. In Dorsey & Whitney LLP, a division of this court

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held that “otherwise inadmissible” under CRE 703 “refers to

information that can’t be admitted under the rules of evidence, not

facts or data that simply haven’t been admitted.” Dorsey & Whitney

LLP, ¶ 42.

¶ 38 But Dorsey & Whitney LLP is factually distinguishable because

King Soopers waited until Dr. Fall, the last witness at trial, to try to

admit evidence that was hearsay through a witness who clearly was

incompetent to testify regarding the records. As the district court

recognized, Dr. Fall was not a billing expert and obtained the

medical costs contained in her report from hearsay documents.

She lacked the proper foundation for the evidence to be admitted

through her. King Soopers also failed to attempt to call another

witness or admit additional exhibits that would have made the

medical costs admissible.

¶ 39 Because Dr. Fall was the last trial witness, we conclude that in

the posture presented, Brown’s medical costs were evidence that

was “otherwise inadmissible” within the meaning of Rule 703.

¶ 40 We thus conclude that the district court properly applied the

balancing test contained in CRE 703.

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D. The District Court Did Not Abuse Its Discretion in Determining
That the Probative Value of the Medical Costs Did Not
Substantially Outweigh Their Prejudicial Effect

¶ 41 Under CRE 703, evidence that is “otherwise inadmissible” may

be admitted, but only if the district court finds that its “probative

value . . . substantially outweighs [its] prejudicial effect.”

¶ 42 The district court found that the medical costs’ probative value

did not substantially outweigh their prejudicial effect because, while

there was only a small risk of prejudice, the evidence reflecting

medical costs was not a “central component of the doctor’s analysis

in terms of formulating her opinion of whether [Brown’s medical

treatment was] reasonable care or not.” And because Brown was

not claiming economic damages, the district court found that

inquiry into the costs of Brown’s treatments did not have

“substantial probative value.”

¶ 43 While the district court initially indicated that the medical

costs might have some marginal relevance, simply because evidence

is relevant does not mean that it has significant probative value.

People v. Rath, 44 P.3d 1033, 1041 (Colo. 2002).

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¶ 44 King Soopers argues that testimony about medical costs was

probative because it would help the jury evaluate the “correctness

and credibility of Dr. Fall’s opinions.” We disagree.

¶ 45 As stated above, Dr. Fall was called to testify about what

treatment was medically necessary to treat Brown’s injuries. She

was not called to testify regarding the amounts of those treatments

or as a billing expert. Thus, we fail to see how excluding testimony

reflecting Brown’s medical costs would impede a jury’s ability to

evaluate Dr. Fall’s testimony regarding whether Brown’s treatments

were medically necessary to treat her injury. And given that both

the probative value and prejudicial effect were minimal, the district

court did not abuse its discretion in excluding evidence of the cost

of Brown’s medical care.

IV. Attorney Fees

¶ 46 In a cursory fashion, Brown requests her attorney fees

pursuant to C.A.R. 38. We deny the request for appellate attorney

fees because the request does not satisfy C.A.R. 39.1 (attorney fee

request must be stated under a separate heading and explain the

legal and factual basis for an award; mere citation to the rule or to a

statute, without more, does not satisfy the legal basis requirement).

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V. Conclusion

¶ 47 The judgment is affirmed.

JUDGE WELLING and JUDGE TAUBMAN concur.

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