Opinion · Colorado Court of Appeals

Powell v. Brady

496 P.2d 328

Type
Opinion
Court
Colorado Court of Appeals
Jurisdiction
Colorado
Date
1972-05-08
Topic
litigation

How later courts describe this case

  • “In order for the [mitigation of damages affirmative defense] to be submitted tó the jury there must be competent evidence to the effect that plaintiff failed to take reasonable efforts to mitigate his damages.”

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36 opinions
POWELL v. BRADY,30 Colo. App. 406(1972)
496 P.2d 328
James A. Powell v. John W. Brady and Continental Trailways, Inc., a
Delaware corporation v. The City and County of Denver, a municipal
corporation
No. 70-498 No. 70-677
Colorado Court of Appeals.
Decided February 8, 1972. Rehearing denied February 29, 1972. Certiorari
granted May 8, 1972.
Personal injury action arising from automobile-pedestrian accident. Defendants filed third-party complaint seeking indemnification from city for complications suffered by plaintiff while hospitalized following the accident. From dismissal of third-party complaint and judgment against defendants, defendants appealed.Affirmed
1.NOTICE—Failure to Give — Third-Party Complaint — Indemnification —City's Negligence — Action Barred. Where defendants in personal injury action filed third-party complaint against city alleging city's negligence in caring for plaintiff at city hospital and seeking indemnification for any judgment which might be entered against defendant as result of that negligence, the third-party complaint set forth an issue solely of negligence, not of contract, and defendant's failure to give city notice as statutorily required in negligence actions was properly determined by the trial court to bar defendant's third-party action.
2.NEGLIGENCE—Negligent Actor — Liable — Additional Harm — Resulting —Other's Efforts — Rendering Aid. "If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner."
3.DAMAGES—Failure to Mitigate — Affirmative Defense — EvidenceNecessary — Jury Question. Failure to mitigate damages is an affirmative defense which must be proven by the defendant and in order for the issue to be submitted to the jury there must be competent evidence to the effect that plaintiff failed to make reasonable efforts to mitigate his damages.Page 407
4.EVIDENCE—Hospital Records — Federal Act — Removes HearsayObjections — — Relevancy Required — All Parts. Although the main thrust of the Federal Business Records Act is the removal of hearsay objections to the admission of hospital records into evidence, the Act does not abandon the requirement that the relevancy of the tendered records be established and the proper qualification of a hospital record as a whole does not necessarily make all parts thereof automatically admissible.
5.Plaintiff's Hospital Record — Blanket Admission — Properly Denied. Where trial court denied admission of plaintiff's entire hospital record on basis that the greater part of it was irrelevant and misleading as to the issue for which its admission was sought, and where defendants were given the opportunity to qualify any portions of the record they chose in order to have them admitted,held, the trial court ruled properly in denying blanket admission of plaintiff's hospital records into evidence.
6.DAMAGES—Collateral Source Doctrine — Defined. The collateral source doctrine provides that damages recoverable for a wrong are not diminished because the injured party has been wholly or partly indemnified or compensated for his loss by insurance effected by him and to which the wrongdoer did not contribute.
7.Medicare Payments — Not Entitle — Defendant — Reduction of Damages. Payments made for Medicare coverage are analogous to insurance payments; thus, trial court properly found that, by virtue of collateral source doctrine, defendants were not entitled to a reduction of damages based upon the amount of plaintiff's medical bills which had been paid by Medicare.
Appeals from the District Court of the City and County of Denver, Honorable Merle R. Knous, Judge.
Davies and Dikeou, George D. Dikeou, for plaintiff-appellee.

Berman, Friedrichs Young, J. Bayard Young, for defendants and third-party plaintiffs-appellants.

Duane O. Littell, I. Thomas Bieging, Lloyd K. Shinsato, Assistant City Attorney, for third-party defendant-appellee.
Division II.
Opinion by JUDGE PIERCE.Page 408
This is a consolidation of two appeals from an action for negligence arising from an automobile-pedestrian collision occurring at the intersection of 20th and Arapahoe Streets in Denver. The parties appear here in reverse of their order of appearance below and will be referred to by their trial court designations or by name. The record indicates that plaintiff Powell was crossing 20th Street at the intersection when he was struck by a car driven by defendant Brady, an employee of Continental Trailways Inc., (Continental) while Brady was making a right-hand turn onto 20th Street from Arapahoe. The vehicle was owned by Continental. Plaintiff was thereafter taken to Denver General Hospital, an agency of the City and County of Denver, where it was determined that he had suffered a broken hip.

While confined at Denver General Hospital following an operation on his hip, plaintiff developed severe decubiti ulcers, otherwise known as "bedsores" or "pressure sores." Treatment of a pressure sore located on plaintiff's sacrum required several surgical operations. Pressure sores located on plaintiff's hips and heels were treated without surgery.

After learning of the pressure sores, Brady and Continental brought a third-party complaint against the City and County of Denver (the city), alleging its negligence in the treatment of plaintiff and asserting a right of indemnification for any judgment that might enter against them as a result of the pressure sores. The third-party complaint was dismissed by the trial court on the ground that Brady and Continental had failed to give the city timely notice of the injury as required by statute. Powell proceeded to trial and obtained judgment against Brady and Continental whoPage 409prosecute this appeal, asserting numerous errors. We affirm.

NOTICE TO MUNICIPALITY

Defendants' first contention is that the trial court erred in dismissing their third-party complaint against the city prior to trial. It is defendants' position that their action against the city is one for indemnity, sounding in contract rather than tort, and is not barred by their failure to comply with the notice provisions of C.R.S. 1963, 139-35-1(1) which provides:

"No action for the recovery of compensation for personal injury or death against any city of the first or second class or any town,on account ofits negligence, shall be maintained unless written notice of the time, place and cause of injury is given to the clerk of the city, or recorder of the town, by the person injured, his agent or attorney, within ninety days and the action is commenced within two years from the occurrence of the accident causing the injury or death." (Emphasis supplied.)

Compliance with notice requirements of this, and similar statutes, is mandatory and a prerequisite to the maintenance of a suit against a municipality.Fisher v. City County of Denver,123 Colo. 158,225 P.2d 828;Armijo v. Denver,123 Colo. 304,228 P.2d 989; 18E.McQuillen, Municipal Corporations§ 53.154 (3rd ed. rev.). The purpose of this statute was expressed inFisher v. City County of Denver, supra, wherein the Colorado Supreme Court said:

"The purpose of requiring notice of injuries . . . is twofold: First, in order that the defendant may have full opportunity of investigating: thePage 410scene of the accident; the alleged cause thereof; the extent of the injuries; the correction of defective conditions, if such exist, so as to avoid dissipation of the city's assets in payment of claims alleged due to the city's negligence; and, second, so that the city having had a full opportunity of investigation, may determine therefrom its liability and settle the same without incurring needless expense of litigation."SeeDowell v. Schisler,143 Colo. 438,354 P.2d 152.[1]The policy reasons set forth above are particularly applicable to this case even though it is now framed as one for indemnification. The issue set forth by the pleadings was solely one of negligence and not contract, and it is our view that the trial court properly determined that this suit against the city was barred by defendants' failure to give the required statutory notice.American Automobile Ins. Co. v.Minneapolis,259 Minn. 294,107 N.W.2d 320;see White v. Johnson,272 Minn. 363,137 N.W.2d 674; Annot., 93 A.L.R.2d 1385.See also,Bituminous Casualty Corp. v. City of Evansville,191 F.2d 572.

REFUSAL OF PROFFERED EVIDENCE

Defendants Brady and Continental further contend that the trial court erred in ruling they could not offer evidence relating to the city's negligence in treating plaintiff and in refusing to instruct the jury concerning these issues. We disagree.[2]Even if negligence on the part of the city had been shown, this would not relieve Brady or Continental from liability.Restatement(Second) of Torts§ 457 (1965) sets forth the generally accepted rule with regard to subsequent negligence causing bodily harm as follows:Page 411

"If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner."

InDenver and Rio Grande Western R.R. Co. v. Conley,293 F.2d 612(10th Cir. 1961), plaintiff's husband was injured when he was thrown off a switch engine. Sometime after the injury he underwent surgery during the course of which a tooth was jarred loose. A resultant infection caused pneumonia and subsequent death. The defendant railroad company argued that it was free from liability because the death resulted from an injury which occurred on the operating table. That argument was rejected by the court. CitingRestatement of Torts§ 457, as the law in Colorado, the court stated that defendant was liable when due to its negligence decedent was placed in a position of necessarily relying upon the services of third persons. For other examples of the application of this principle,see Kansas City Southern R.R. v. Justis,232 F.2d 267,cert.denied,352 U.S. 833,77 S.Ct. 49,1 L.Ed.2d 53;Balancio v. U.S.,267 F.2d 135,cert. denied,361 U.S. 875,80 S.Ct. 139,4 L.Ed.2d 114. Under the facts of the case before us, the trial court properly ruled that the instructions should not be given and that testimony regarding the city's possible negligence was inadmissible.

MITIGATION OF DAMAGES

In their supplemental answer, defendants Brady and Continental raised the affirmative defense of plaintiff's alleged failure to mitigate damages. After presentation of all evidence, the trial court ruled that evidence ofPage 412plaintiff's failure to mitigate was insufficient to warrant submission to the jury. Defendants allege that this ruling was in error. We disagree.[3]Failure to mitigate damages is an affirmative defense which must be proven by the defendant.Hoehne Ditch Co. v. John Flood Ditch Co.,76 Colo. 500,233 P. 167. In order for the issue to be submitted to the jury there must be competent evidence to the effect that plaintiff failed to take reasonable efforts to mitigate his damages.See Brenaman v.Willis,136 Colo. 53,314 P.2d 691. Unreasonable or extraordinary efforts are not required. 22Am. Jur. 2d Damages§ 32. Reviewing all the evidence in this case and all inferences legitimately deducible therefrom, we find no evidence that Mr. Powell failed to exercise the reasonable diligence and ordinary care of a person in the same or similar circumstances to mitigate his damages. Although there was some testimony presented to the effect that plaintiff was uncooperative with an attending nurse, there was not sufficient evidence presented to suggest a finding that plaintiff's failure to cooperate caused the bedsores not then in existence. The issue was therefore properly removed from consideration by the jury.See J. C.Penney Co. v. Brown,155 Colo. 212,393 P.2d 575.

HOSPITAL RECORDS

Defendants next contend that the trial court erred in failing to admit the entire hospital record of plaintiff in order to impeach certain medical testimony. They argue that the entire record is admissible under C.R.C.P. 43, which states that all evidence admissible under federal statutes shall apply in state court. The Federal Business Records Act,28 U.S.C. § 1732(a) provides, in part:Page 413

". . . [A]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter."[4]The applicability of the Act to hospital records has been firmly established.See e.g., Gaussen v. United Fruit Co.,412 F.2d 72; Annot., 9 A.L.R. Fed. 457. The main thrust of the Federal Business Records Act is the removal of hearsay objections to the admission of hospital records into evidence. Under this Act, however, the proper qualification of a hospital record as a whole does not necessarily make all parts thereof automatically admissible.Bertanzetti v. PennsylvaniaR.R. Co.,278 F.2d 690;Terrell v. Missouri-Kansas-Texas R.R. Co.,327 S.W.2d 230(Mo.);Hermann v. St. Louis Public Service Co.,345 S.W.2d 399(Mo.App.);Allen v. St. Louis Public Service Co.,365 Mo. 677,285 S.W.2d 663, 55 A.L.R.2d 1022; 32C.J.S. Evidence§ 728(f); 40Am.Jur.2d Hospitals and Asylums§ 43. The statute does not abandon the requirement that the relevancy of the tendered records be established.Miller v. Weiner,298 F.Supp. 1016.[5]In the case at hand, the trial court's ruling was based upon the fact that the greater part of the entire hospital record offered was irrelevant and misleading as to the issue for which its admission was sought and that only limited portions thereof were relevant to thePage 414attempted impeachment. Brady and Continental were given the opportunity to qualify any part of the hospital records they chose in order to have them admitted. They chose not to do so. In view of the foregoing, we find that the trial court ruled properly in denying blanket admission of plaintiff's hospital records into evidence.

COLLATERAL SOURCE RULE

During trial of this action, the court ruled that the total amount of medical bills claimed by plaintiff as damages could not be reduced by the amount of compensation paid by Medicare. Defendants assert that this ruling was in error. We disagree.[6,7]The collateral source doctrine, as applied in Colorado, provides that damages recoverable for a wrong are not diminished because the injured party has been wholly or partially indemnified or compensated for his loss by insurance effected by him and to which the wrongdoer did not contribute.Kistler v. Halsey,173 Colo. 540,481 P.2d 722;Moyer v. Merrick,155 Colo. 73,392 P.2d 653;Carr v. Boyd,123 Colo. 350,229 P.2d 659. The record herein discloses that previous to the accident plaintiff obtained the Medicare and supplemental Blue Cross coverage in question, for which he paid $12 per month from his $92 per month social security benefits. Payments made for Medicare coverage are analogous to insurance payments and the trial court properly found that defendants were not entitled to a reduction of damages based upon the proceeds of Medicare coverage.OurLady of Mercy Hospital v. McIntosh,461 S.W.2d 377(Ky.).

Defendants' further assignments of error are found to be without merit.

Judgments affirmed.

JUDGE COYTE and JUDGE SMITH concur.Page 415