COLORADO COURT OF APPEALS 2015COA82 Court of Appeals No. 14CA0254 City and County of Denver District Court No. 10CV8156 Honorable Kenneth M. Laff, Judge David Vititoe, Plaintiff-Appellant, v. Rocky Mountain Pavement Maintenance, Inc., n/k/a Polk Holdings Company, Inc., Defendant-Appellee. JUDGMENT AFFIRMED Division II Opinion by JUDGE CASEBOLT Bernard and J. Jones, JJ., concur Announced June 18, 2015 Riggs, Abney, Neal, Turpen, Orbison & Lewis, Richard P. Poorman, Steven Janiszewski, Denver, Colorado; Riggs, Abney, Neal, Turpen, Orbison & Lewis, Sharon K. Weaver, Tulsa, Oklahoma, for Plaintiff-Appellant Lasater & Martin, P.C., J. Scott Lasater, Janet B. Martin, April D. Moore, Highlands Ranch, Colorado, for Defendant-Appellee ¶ 1 In this personal injury action involving a motor vehicle collision, plaintiff, David Vititoe, appeals the judgment in favor of defendant, Rocky Mountain Pavement Maintenance, Inc., now known as Polk Holdings Company, Inc. Plaintiff asserts that reversal is required because some of the prospective jurors made prejudicial statements during voir dire, and that the trial court erred when it declined to canvass the jury, issue a limiting instruction, or declare a mistrial. He also contends that the jury’s verdict is not supported by the evidence and that the court erred by both giving and failing to give certain jury instructions. ¶ 2 We conclude that the prospective jurors’ statements were not prejudicial and therefore did not require any corrective action from the trial court. We also conclude that the jury’s verdict is supported by the evidence and that the court did not erroneously instruct the jury. Accordingly, we affirm. I. Factual Background and Procedural History ¶ 3 Plaintiff was riding his motorcycle eastbound on Colfax Avenue in Denver late one night when he made a U-turn. Shortly after he began to proceed westbound, his motorcycle collided with the rear 1 portion of a lowboy trailer that was connected to a tractor being driven by Larry Horton, defendant’s employee. The collision occurred in the left, westbound lane as Horton was either stopped at, or beginning to proceed through, the intersection of Colfax and Logan Street. The intersection was controlled by a traffic signal, which had turned green. Although the parties do not dispute these basic facts, the events that led to the collision are contested. ¶ 4 Plaintiff presented several theories of negligence at trial. He alleged that the collision occurred because of defendant’s negligent failure to abide by certain regulations that apply to truck drivers and their rigs. This theory centered on the amount of time Horton had remained stopped at the intersection. ¶ 5 Plaintiff’s expert witness Brooks Rugemer, an expert in truck driver operations and truck driver negligence, testified that defendant had violated regulations that limit truck drivers to a fourteen-hour work day by allowing Horton to work for approximately seventeen-and-one-half hours without requisite rest, and opined that Horton was likely very tired and inattentive at the time of the collision. Eyewitnesses testified that Horton had 2 remained stopped at the intersection after the traffic signal had turned green. Based on this testimony, plaintiff asserted that the collision occurred because Horton had failed to obey the traffic signal and was stopped at the intersection for an unreasonable time due to fatigue. ¶ 6 Plaintiff also asserted that the collision occurred because Horton’s truck was not visible at the time of the collision. Plaintiff’s witness Tom Feiereisen, who testified as an expert in accident reconstruction, opined that the taillights on the trailer did not comply with Colorado law because they were positioned too low. In addition, an eyewitness testified that she had watched as plaintiff followed another vehicle westbound before that vehicle swerved suddenly to another lane and saw plaintiff collide with an “invisible” object in the street. Based on this testimony, plaintiff contended that the collision occurred because he had not been able to see the tractor-trailer. ¶ 7 Defendant contended that the collision occurred solely because plaintiff had acted negligently. Horton testified that he was not fatigued at the time of the collision. He stated that plaintiff had 3 collided with his trailer just after the traffic signal turned green and while he was in the process of shifting gears to proceed through the intersection. He also testified that the trailer taillights were on at the time of the collision. Some of the eyewitnesses testified that the tractor-trailer was plainly visible from their perspectives. And a police detective testified that plaintiff had told him that he saw the tractor-trailer and accelerated towards it because he thought the rig was proceeding through the intersection. ¶ 8 The jury returned a special verdict form finding that defendant was negligent, but that defendant’s negligence was not a cause of plaintiff’s injuries. Accordingly, the court entered judgment for defendant. II. Jurors’ Statements During Voir Dire ¶ 9 Plaintiff contends that some of the prospective jurors made prejudicial statements concerning motorcyclists’ helmet use during voir dire. He asserts the trial court erred when it refused to canvass the jurors on that topic, give a limiting instruction, or declare a mistrial. We disagree. 4 A. Background ¶ 10 During voir dire, Juror H asked plaintiff’s counsel whether they could discuss motorcyclists’ helmet use. Plaintiff’s counsel responded by informing Juror H that the law in Colorado did not allow the jury to consider a motorcyclist’s helmet use. Later, plaintiff’s counsel asked the jurors whether they could disregard any evidence about plaintiff’s use of, or failure to use, a helmet in this case. ¶ 11 In response, Juror B stated that, as a former motorcyclist, she would hold plaintiff to a higher standard of care because a motorcycle lacks protective metal to shield a rider from a collision. Juror H also stated that that she would not follow the law regarding the jury’s consideration of helmet use. ¶ 12 The trial court told the jury, “We’re not supposed to consider [helmet use] for who’s at fault or for any of it, including the financial compensation for what happens.” Immediately thereafter, plaintiff’s counsel told the panel that because Colorado does not have a mandatory helmet law, evidence regarding helmet use is “not 5 relevant” and is not to be considered. Plaintiff’s counsel then requested other prospective jurors to share their views: . . . . Anybody else that, you know, and this is a wonderful opportunity because there may be other cases that are in need of your services right now. If this type of case violates a right to feel comfortable in following the law and not violating your ethical principles . . . . ¶ 13 Responding to counsel’s invitation, Juror K stated that he owned a scooter and that, although he “like[d] the fact that there’s a no helmet law in Colorado,” felt as though he was held to a higher “burden” when he rode it. Nevertheless, Juror K stated that he would try to listen to the evidence and determine the case fairly. ¶ 14 Juror F stated that he would have a “tough time” balancing the law against his notions of common sense, but acknowledged that a driver of any vehicle must exercise the same type of common sense. ¶ 15 Citing the prospective jurors’ statements about helmet use, plaintiff’s counsel asked the court to canvass the panel and, if the court determined that other jurors were biased, to declare a mistrial. The trial court declined to do so. It reasoned that plaintiff’s counsel had elected to voir dire the panel as he did and 6 chose not to limit his questioning to whether the prospective jurors could perform their duties without knowledge of plaintiff’s helmet use. It also reasoned that the jury was not going to hear any evidence regarding plaintiff’s helmet use and therefore the statements would not affect the jury. The court refused to issue a limiting instruction because plaintiff’s counsel had stated the law and that characterization stood unchallenged. ¶ 16 After some of the prospective jurors were excused for hardship, Juror M stated that, based on her prior experiences with collisions involving motorcycles, she would be unable to follow the law regarding evidence of helmet use, and that motorcyclists are held to a higher standard of care. ¶ 17 While defense counsel was questioning the prospective jurors, he told the jurors that they could draw any conclusions they wished, but they would not hear any evidence regarding helmet use. B. Preservation and Standard of Review ¶ 18 This issue is preserved. We review the trial court’s decision to deny each of plaintiff’s requests for an abuse of discretion. See Kinney v. People, 187 P.3d 548, 558 (Colo. 2008) (“[W]e review for 7 an abuse of discretion the trial court’s order denying [the defendant] a limiting instruction.”); People v. Wilson, 2013 COA 75, ¶ 11 (“We review a trial court’s decision to limit voir dire for an abuse of discretion.”); Wark v. McClellan, 68 P.3d 574, 578 (Colo. App. 2003) (A mistrial “is a drastic remedy, and we will not disturb the trial court’s decision absent a gross abuse of discretion and prejudice to the moving party.”). A trial court abuses its discretion only when its ruling is manifestly arbitrary, unreasonable, or unfair. Banning v. Prester, 2012 COA 215, ¶ 30. C. Law ¶ 19 “[U]nder the law of comparative negligence in Colorado, evidence of a plaintiff’s failure to wear a protective helmet is inadmissible to show negligence on the part of the plaintiff or to mitigate damages.” Dare v. Sobule, 674 P.2d 960, 962 (Colo. 1984). If the jury learns that a motorcyclist was not wearing a helmet, a limiting instruction may be required. See id. ¶ 20 “The purpose of voir dire is to determine whether any potential juror has beliefs that would interfere with a party’s right to receive a fair and impartial trial.” Black v. Waterman, 83 P.3d 1130, 1136 8 (Colo. App. 2003). When a prospective juror makes a potentially prejudicial statement during voir dire, the trial court may issue a curative instruction; canvass the jury; or declare a mistrial. People v. Mersman, 148 P.3d 199, 203-04 (Colo. App. 2006). ¶ 21 In Mersman, the defendant was charged with several offenses related to his operation of a vehicle while under the influence of alcohol. Id. at 201. After one of the prospective jurors stated that she knew the defendant’s only witness “‘through the drug scene,’” the trial court denied the defendant’s request for a mistrial. Id. at 203. ¶ 22 On appeal, a division of this court determined that the juror’s statements “may, in fact, have been prejudicial.” Id. However, the division concluded that the trial court had not plainly erred by failing to canvass the jury or issue a limiting instruction because the defendant had not asked the court to do so. Id. at 204. Because of that failure, the division concluded that the trial court had not abused its discretion in denying the request for a mistrial, which is “warranted only where the prejudice to the accused is too substantial to be remedied by other means.” See id. at 203. The 9