Torres v. Barnhart

23CA2052 Torres v Barnhart 07-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2052
El Paso County District Court No. 22CV30633
Honorable Gregory R. Werner, Judge

Melissa Torres,

Plaintiff-Appellant,

v.

Matthew Barnhart,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE MOULTRIE
J. Jones and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2025

Blain Myhre LLC, Blain Myhre, Englewood, Colorado, for Plaintiff-Appellant

Pearl Schneider Young, LLC, Mark Gauthier, Lakewood, Colorado, for
Defendant-Appellee
¶1 Plaintiff, Melissa Torres, appeals the judgment entered on a

jury verdict finding that the defendant, Matthew Barnhart, wasn’t

negligent in a motor vehicle accident. We affirm.

I. Background

¶2 In April 2019, Barnhart’s vehicle collided with the back of

Torres’s vehicle (the collision). The parties dispute who was at fault

for the collision.

¶3 Torres was driving through Colorado Springs on I-25 in the

northbound right-hand merge lane when a white SUV cut her off,

causing her to brake suddenly to avoid hitting the white SUV.

Barnhart was driving directly behind Torres before the collision.

Barnhart testified that “[he] looked to [his] right to check to see if

[he] was clear to merge,” and when he looked back to the front, he

saw Torres’s car stopped, so “[he] slammed on the brakes [and] did

what [he] could to avoid [Torres’s car].” Despite his efforts to brake,

Barnhart’s vehicle hit the back of Torres’s vehicle. Police responded

to the scene. Torres gave a statement to the police in which she

noted that the white SUV that cut her off sped up and out of sight

after the collision.

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¶4 Three years after the collision, Torres filed a complaint in

which she asserted that Barnhart’s negligence caused the collision

and her resulting injuries and damages. In Barnhart’s answer to

the complaint, he asserted the following affirmative defense

(affirmative defense statement) relevant to this appeal:

The alleged injuries and damages, if any, were
proximately caused by unforeseeable
intervening acts of third parties over whom
[Barnhart] had no control nor right of control.
Specifically, [Barnhart] names the unknown
driver of the vehicle that cut [Torres] off
causing her to brake suddenly as a non-party
at fault for all or part of [Torres’s] claimed
injuries and damages.

¶5 At a case management conference the week before trial, the

parties asked the district court to rule on whether Barnhart’s

affirmative defense statement was a sufficient nonparty designation

under section 13-21-111.5(3)(b), C.R.S. 2024 (the statute). Torres’s

counsel argued that the affirmative defense statement in Barnhart’s

answer was insufficient as a nonparty designation because it failed

to include the name, address, or a detailed description of the

nonparty at fault, as required by the statute. Torres’s counsel also

argued that Barnhart needed to disclose his nonparty designation

in a pleading separate from his answer. Barnhart’s counsel

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disagreed, arguing that the statute doesn’t require a separate

pleading. Barnhart’s counsel also said that the name and address

of the driver of the white SUV were unknown because — as Torres

indicated in her statement to police — that driver fled the scene.

Thus, Barnhart’s counsel argued that his affirmative defense

statement was a sufficient nonparty designation under the statute.

¶6 The court concluded that the statute doesn’t require that

notice of a nonparty at fault be given in a separate pleading. And

relying on Pedge v. RM Holdings, Inc., 75 P.3d 1126 (Colo. App.

2002), the court concluded that Barnhart’s affirmative defense

statement sufficiently described the nonparty at fault.

¶7 The matter was tried before a jury in October 2023. At trial,

Barnhart asserted that either Torres’s sudden braking or the

nonparty driver of the white SUV (the unknown driver) caused the

collision. The jury returned a verdict in Barnhart’s favor, finding

that Torres had injuries, damages, or losses, but that Barnhart

wasn’t negligent and didn’t cause any of Torres’s injuries, damages,

or losses. Thereafter, the court entered an “Order of Judgment”

(the judgment) in Barnhart’s favor regarding Torres’s negligence

claim.

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¶8 Torres appeals the judgment, asserting that the court erred by

concluding that Barnhart’s nonparty designation was sufficient

under the statute because (1) a nonparty designation must be made

by filing a stand-alone document separate from a party’s answer,

and (2) Barnhart failed to provide the best identification of the

unknown driver under the circumstances or adequately explain

“why the unknown driver was at fault, i.e., negligent.”

¶9 As discussed below, we reject Torres’s first contention. We

agree with Torres’s second contention, but we conclude that the

court’s error in allowing the designation was harmless and therefore

affirm the judgment.

II. The Nonparty Designation Statute Doesn’t Require a Separate
Document

A. Applicable Legal Principles and Standard of Review

¶ 10 Section 13-21-111.5(1) provides, in part, that

[i]n an action brought as a result of a death or
an injury to person or property, no defendant
shall be liable for an amount greater than that
represented by the degree or percentage of the
negligence or fault attributable to such
defendant that produced the claimed injury,
death, damage, or loss . . . .

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¶ 11 And as relevant here, the statute allows a defendant to

designate a negligent or at-fault nonparty as follows:

Negligence or fault of a nonparty may be
considered . . . if the defending party gives
notice that a nonparty was wholly or partially
at fault within ninety days following
commencement of the action unless the court
determines that a longer period is necessary.
The notice shall be given by filing a pleading in
the action designating such nonparty and
setting forth such nonparty’s name and
last-known address, or the best identification
of such nonparty which is possible under the
circumstances, together with a brief statement
of the basis for believing such nonparty to be
at fault.

§ 13-21-111.5(3)(b).

¶ 12 When we interpret a statute, “we attempt to discern the

General Assembly’s intent first by looking to the text of the statute

and giving words and phrases their plain and ordinary meaning.”

Munoz v. Am. Fam. Mut. Ins. Co., 2018 CO 68, ¶ 9. “Only if the

language is ambiguous do we then resort to other interpretive rules

of statutory construction; if the language is clear, we apply it as

written.” Id.

¶ 13 “Statutory interpretation is a question of law that we review de

novo.” Averyt v. Wal-Mart Stores, Inc., 2013 COA 10, ¶ 22.

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B. Analysis

¶ 14 Torres asserts that a strict-construction reading of the statute

requires a party to file a separate document providing notice to the

opposing party of a nonparty designation. We disagree.

¶ 15 The relevant portion of the statute says, “The notice shall be

given by filing a pleading in the action designating such

nonparty . . . .” § 13-21-111.5(3)(b) (emphasis added). C.R.C.P.

7(a) explicitly identifies an answer as a pleading. The plain

language of the statute doesn’t require that a nonparty designation

be separate from a party’s answer, and we decline to read such a

requirement into the statute. See Spahmer v. Gullette, 113 P.3d

158, 162 (Colo. 2005).

III. Barnhart’s Nonparty Designation Was Insufficient, But
Reversal Is Not Required

A. Applicable Legal Principles and Standard of Review

¶ 16 The General Assembly’s adoption of section 13-21-111.5

effectively abolished the concept of joint and several liability in tort

cases in favor of a comparative negligence regime. Suydam v. LFI

Fort Pierce, Inc., 2020 COA 144M, ¶ 40.

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¶ 17 Under this comparative negligence regime, a plaintiff may

designate a nonparty for the purposes of apportioning liability.

Pedge, 75 P.3d at 1128. However, “[b]efore the finder of fact may

consider the negligence or fault of a nonparty, the issue must be

properly raised by a defendant in a pleading that complies with

[section] 13-21-111.5(3).” Id.

¶ 18 In Redden v. SCI Colorado Funeral Services, Inc., 38 P.3d 75,

80 (Colo. 2001), the supreme court held, “Courts should construe

designation requirements strictly to avoid a defendant attributing

liability to a non-party from whom the plaintiff cannot recover.”

The Redden court also held that “to satisfy the third element of

section 13-21-111.5(3)(b), a party must allege the basis for believing

the non-party legally liable to the extent the non-party’s acts or

omissions would satisfy all the elements of a negligence claim.” Id.

at 81; see Stone v. Satriana, 41 P.3d 705, 709 (Colo. 2002) (noting

that a nonparty designation is “improper when the moving

defendant fails to establish a prima facie case that the potential

nonparty breached a legal duty to the plaintiff”).

¶ 19 A simple statement that only supports causation doesn’t

satisfy the statutory requirement of an allegation of “fault or

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negligence.” Redden, 38 P.3d at 80 (“[A] claimant alleging

negligence of another party must establish the existence of a duty, a

breach of that duty, causation, and damages.”). Rather, a proper

nonparty designation “must go beyond [a] bald allegation” to

“connect[] alleged facts with the established elements of negligence.”

Id. at 81.

¶ 20 We review de novo whether a defendant’s nonparty designation

complied with the requirements of section 13-21-111.5(3). Pedge,

75 P.3d at 1128. If we determine that the district court erred, we

disregard the error if it did not affect the parties’ substantial rights.

C.R.C.P. 61; see also C.A.R. 35(c). We won’t reverse a court’s

judgment “unless the party challenging the judgment shows the

existence of error and that the error had a prejudicial effect.”

Moody v. Corsentino, 843 P.2d 1355, 1375 (Colo. 1993).

B. Analysis

¶ 21 Torres argues that Barnhart’s nonparty designation, as

contained in his affirmative defense statement, was insufficient

under the statute because it lacked adequate detail identifying the

unknown driver and explaining why the unknown driver was

negligent. Conversely, Barnhart argues that the record supports a

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prima facie case that the unknown driver was negligent based on

the information contained in (1) the complaint; (2) the answer,

which contained his admissions and affirmative defenses; (3) the

case management order (CMO); (4) Torres’s counsel’s opening

statement at trial; and (5) Torres’s statement to the police after the

collision. We aren’t persuaded by Barnhart’s reliance on the record

to support his argument that his nonparty designation was

sufficient and conclude that his nonparty designation was

insufficient, for two reasons.

¶ 22 First, Redden requires strict construction of the statute. See

Redden, 38 P.3d at 80. And Barnhart concedes that a nonparty

“designation must contain facts sufficient to ‘satisfy all elements of

a negligence claim.’” (Quoting id. at 81.) This means that Barnhart

was required to allege in his nonparty designation the unknown

driver’s duty, breach of that duty, causation, and damages. See id.

at 80.

¶ 23 When any driver takes to the road, they have a duty to drive

with reasonable care under the circumstances. Hesse v. McClintic,

176 P.3d 759, 762 (Colo. 2008). But Barnhart’s nonparty

designation only addressed causation and damages; it didn’t

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address the unknown driver’s duty to Torres or breach thereof.

Thus, his nonparty designation wasn’t sufficient to establish the

unknown driver’s negligence. See Redden, 38 P.3d at 80 (“A

designation that alleges only causation is insufficient as a matter of

law . . . .”).

¶ 24 Second, Barnhart fails to identify how the portions of the

record he relies on in support of his position — which are primarily

pleadings other than his own, the court’s CMO, Torres’s statement

to the police, and counsel’s arguments at trial — abide by the

statute’s plain language requirements. The statute expressly

requires that Barnhart provide “a brief statement of the basis for

believing such nonparty to be at fault” within ninety days after the

start of the action. § 13-21-111.5(3)(b). Thus, another party’s

pleadings, the court’s CMO, or the arguments presented at trial

could not satisfy the statute’s requirements. Moreover, Barnhart

doesn’t reconcile how his asserted record-supported showing of a

prima facie case complies with the statute’s requirement that the

nonparty designation be made within ninety days of the

commencement of the case, since most of the portions of the record

he relies on are dated well beyond the ninety-day deadline.

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¶ 25 Accordingly, we conclude that the court erred by ruling that

Barnhart’s nonparty designation was sufficient.

C. The Court’s Error Was Harmless

¶ 26 Barnhart argues that, even if he didn’t properly plead the

nonparty designation, the court’s error was harmless because the

jury concluded that he wasn’t negligent and didn’t cause Torres’s

claimed injuries, damages, or losses. We agree.1

¶ 27 Relying on Paris v. Dance, 194 P.3d 404, 406 (Colo. App.

2008), Torres asserts that the court’s error in allowing Barnhart’s

insufficient nonparty designation wasn’t harmless. In Paris, a

division of this court concluded, “If the designation of a nonparty is

improper, it is error to admit evidence of the fault of the improperly

designated nonparty.” Id. Torres argues that the court’s error

substantially affected her rights because “there was significant

evidence and argument of the unknown driver being the cause of

and at fault for the accident.”

1 Because we agree with this argument, we decline to address

Barnhart’s alternative argument that Torres impliedly consented to
trying the issue of the unknown driver’s negligence under C.R.C.P.
15(b).

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¶ 28 In Paris, a couple’s dog bit a young girl who accompanied her

mother on a visit to the couple’s home. 194 P.3d at 405. The

mother brought a negligence suit against the couple and the animal

shelter from which the couple had adopted the dog. Id. The animal

shelter “designated [the] mother as a nonparty at fault for failing to

properly supervise the [young girl] during the visit.” Id. at 405-06.

The jury found the couple not negligent and found that the animal

shelter had acted negligently, but that its negligence didn’t cause

the girl’s injuries. Id. at 406. The jury did not apportion fault

between the defendants and the mother. Id. Because of the split

verdict and the jury’s failure to apportion damages, the Paris

division couldn’t conclude that the district court’s error in

designating the mother as a nonparty at fault was harmless as it

couldn’t “ascertain from the record whether the jury’s decision to

find no negligence or proximate cause on the part of [the]

defendants was influenced by evidence of [the] mother’s negligence

in supervising her child.” Id.

¶ 29 Torres asserts that the Paris division’s reasoning is applicable

in this case because the record demonstrates that “the jury’s

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finding of no negligence by [Barnhart] was arguably influenced by

evidence of the unknown driver’s negligence.”

¶ 30 Torres’s arguments that the court’s error wasn’t harmless are

focused on the potential impact that evidence of the unknown

driver’s fault had on the jury’s determination of causation. She

argues, “Like [in] Paris, here there was significant evidence of and

argument on the unknown driver being the cause of and at fault for

the accident and therefore for Torres’s injuries.”

¶ 31 But regardless of the unknown driver’s actions, Torres was

required to prove that Barnhart breached a duty he owed to her

that caused her injuries and claimed damages. See HealthONE v.

Rodriguez, 50 P.3d 879, 888 (Colo. 2002) (“In order to establish a

prima facie case for negligence, a plaintiff must show a legal duty of

care on the defendant’s part, breach of that duty, injury to the

plaintiff, and causation, i.e., that the defendant’s breach caused the

plaintiff’s injury.”). Because the jury determined that Barnhart

wasn’t negligent, it necessarily determined that Barnhart didn’t

breach a duty he owed to Torres.

¶ 32 Furthermore, Torres acknowledges that she would have

needed to address the unknown driver’s actions regardless of the

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nonparty designation and concedes that some of her testimony

about the unknown driver may have been introduced even without

the nonparty designation. But she contends that there was

“substantial evidence [during trial] placing the fault for the accident

on the negligence of the unknown driver” and argues that the

nonparty designation altered her trial strategy because “trial

counsel could have focused more on demonstrating [Barnhart’s]

negligence in rear-ending [Torres’s] car than on the actions of the

unknown driver” if the court hadn’t allowed the faulty nonparty

designation. Our review of the record belies these assertions.

¶ 33 Torres’s counsel’s opening statement reveals that counsel had

to reference the unknown driver in some way to explain the

collision. And trial counsel focused primarily on Torres’s injuries

and damages, while also arguing that Barnhart was at fault for the

collision that caused Torres’s injuries and damages; counsel didn’t

argue that the unknown driver was at fault. In Barnhart’s

counsel’s opening statement, counsel briefly addressed the

unknown driver by telling the jury that Torres would testify about

having to slam on her brakes to avoid hitting a car that cut her off,

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but the remainder focused on Torres’s credibility and whether her

injuries were caused by a previous car accident.

¶ 34 Torres’s counsel called Barnhart as a witness during Torres’s

case-in-chief. During counsel’s direct examination of Barnhart,

Barnhart testified as to his memory of the collision but said he

didn’t know what happened in front of Torres’s car before he hit

her. On cross-examination of Torres, Barnhart’s counsel did elicit

some testimony about the unknown driver and the circumstances

leading up to the collision, but most of the cross-examination was

spent attacking Torres’s credibility by focusing on inconsistencies in

her statements about her medical history, the severity of the

collision, and the severity of her claimed injuries. Similarly, most of

Torres’s presentation of evidence was spent detailing her medical

history, prior car accidents, and alleged physical and economic

injuries resulting from the collision.

¶ 35 We thus reject Torres’s assertion that the nonparty

designation forced her to alter her trial strategy to focus on the

unknown driver’s negligence rather than Barnhart’s and conclude

that the court’s error in admitting evidence of the unknown driver

as a nonparty at fault was harmless. Leaf v. Beihoffer, 2014 COA

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117, ¶ 12 (“If a plaintiff fails to establish any one of [the negligence]

elements, any errors related to other elements are necessarily

harmless because the plaintiff cannot prevail in any event.”).

IV. Disposition

¶ 36 We affirm the judgment.

JUDGE J. JONES and JUDGE KUHN concur.

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