Chapter 11 - § 11.2 RECOVERY OF ECONOMIC LOSSES ILLUSTRATIVE CASES

• Jurisdiction: Colorado

§ 11.2 RECOVERY OF ECONOMIC LOSSES ILLUSTRATIVE CASES

In Stevens v. Strauss, 364 P.2d 382 (Colo. 1961), the plaintiffs, George and Dorothy Strauss, brought a wrongful death action against Jerrold Stevens to recover for the wrongful death of their daughter. George Strauss recovered $7,676.96 and Dorothy Strauss $12,500. The death occurred as a result of a one-car accident on May 10, 1958. The defendant was driving a Thunderbird at 70 to 80 miles per hour on a winding mountain road. The vehicle struck a bridge abutment and the body of the deceased was thrown from the car into a stream. A partially consumed bottle of whiskey was found in the car. Although there was no direct evidence that the defendant had been driving, an investigating officer expressed the opinion that the nature of the defendant's injuries showed that he must have been the driver. At trial, the defendant denied any knowledge of the events and was unable to say that he had been driving. It was shown, however, that the defendant had been driving the car prior to the accident and that he had been drinking hard liquor in a saloon in Central City. At the time of her death, the decedent was a senior at the University of Colorado.

The case was tried to the court, which entered judgment in favor of the plaintiffs. The trial court found by a preponderance of the evidence that Stevens was the driver and had caused the decedent's death. Moreover, the trial court noted that pursuant to then-current C.R.S. § 40-12-18, an adult person who had a destitute parent and who was capable of doing so had a legal obligation to provide the parent with food, shelter, care, and clothing. The trial court also noted that in awarding damages, it was proper for the court to consider the loss of a legal obligation for future financial support. In addition, the trial court pointed out that the mental, moral, and physical characteristics of the child must be considered in determining the pecuniary aid he or she would probably give to the parents. Furthermore, the trial court recognized that absolute accuracy in determining the damages cannot be attained in this type of case, but common sense and sound discretion must prevail in determining damages.

The defendant argued that the trial court's judgment in favor of the plaintiffs should be set aside because the plaintiffs had failed to plead and prove freedom of the deceased from contributory negligence and, second, because the judgment was excessive. The Colorado Supreme Court rejected both of these contentions. First, the court held that "[n]o obligation rests upon a plaintiff to negative contributory negligence. Contributory negligence is not presumed." Id. at 384.

With regard to damages, the supreme court found that the decedent was well educated and died at the threshold of her earning career. It noted that the plaintiffs were approximately 50 years of age and had a life expectancy of 20 years. The court stated that "[i]n such circumstances it was entirely proper for the court to conclude that plaintiffs could reasonably expect to benefit from the earnings of the deceased in at least the sums awarded." Id. at 385.

In Mangus v. Miller, 535 P.2d 219 (Colo. App. 1975), the plaintiff, Wayne Mangus, appealed from a judgment awarding him damages for assault and battery and damages for the wrongful death of his wife. He asserted that the award of damages was grossly inadequate. The court of appeals agreed and reversed and remanded for a new trial on the issue of damages.

The decedent, Mary Louise Mangus, formerly was married to the defendant, Victor Miller. After a 10-year marriage and subsequent divorce, Mary Mangus married the plaintiff. During the marriage, she was employed as a business education teacher at an adult rehabilitation center. The decedent died on February 19, 1971. Her death occurred at the law office of an attorney who represented the defendant, where Mary Mangus and the defendant were negotiating over division of property from their marriage. At the end of the conference, the defendant fatally shot Mrs. Mangus and wounded the plaintiff. The plaintiff brought an action for assault and battery and wrongful death. The defendant asserted provocation as an affirmative defense. The plaintiff withdrew claims for exemplary damages and argued that such withdrawal removed the issue of provocation from consideration by the jury. At trial, the court refused to direct a verdict for the plaintiff and instructed the jury that provocation was a complete defense. However, the jury returned a verdict for the plaintiff on each claim, awarding damages of $13,000 for assault and battery and $30,000 for wrongful death.

Among other things, the plaintiff argued that the trial court had erred in instructing the jury that provocation was a complete defense and in sending the issue of provocation to the jury at all. The plaintiff argued that the effect of these errors was prejudicial because in...