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Kunkel v. Garrison

Court of Appeals of Colorado, First Division
Sep 29, 1970
475 P.2d 354 (Colo. App. 1970)

Opinion

         Sept. 29, 1970.

         Editorial Note:

         This case has been marked 'not for publication' by the court.

Page 355

         Martin, Brotzman, Caplan & Knapple, Gerald A. Caplan, Boulder, for plaintiff in error.


         Richard F. Hansen, Boulder, for defendants in error.

         SILVERSTEIN, Chief Judge.

         This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the supreme Court.

         Garrison, plaintiff in the trial court, Secured a judgment for $85,000 against Kunkel in an action arising out of a two-car accident which occurred at a street intersection in Boulder, Colorado. Trial was to the court without a jury.

         Kunkel. asserts as error the failure of the trial court to find that Garrison was guilty of contributory negligence as a matter of law, and further, that the damages were excessive.

         We affirm the trial court.

          Although there was some conflict in the testimony, the judgment of the trial court relative to the negligence of Kunkel and the absence of contributory negligence on the part of Garrison is amply supported by competent and relevant evidence and therefore will not be disturbed on review. McWilliams v. Bolster, 120 Colo. 196, 207 P.2d 822.

          On the question of damages, our Supreme Court has repeatedly stated that the trier of facts is clothed with a wide discretion in fixing the amount of damages in an action involving personal injuries and the award will not be disturbed on review unless it is grossly and manifestly excessive (or inadequate). Bohlender v. Oster, 165 Colo. 164, 439 P.2d 999.

          The record herein shows that as a result of the collision, Garrison sustained many severe injuries including fractures of his pelvis, sacrum, left hip and several ribs. Soon afterward, he underwent an operation to fuse the lower part of his spine to stabilize the broken pelvis and was completely immobilized for six months to allow the fractures to heal. He received extensive nerve damage which partially paralyzed his right leg and caused various neurological discomfort. Frequent therapy sessions were necessary to help him regain the use of his leg, but he still required, at time of trial, back and foot-drop braces as well as frequent medication to allay the effects of the nerve damage.

         Further, the medical experts of both parties substantially agreed that, despite his progress to that time, he would have a 'moderately severe degree' of permanent disability with a good possibility of secondary traumatic arthritis in his right knee and ankle. While surgery might eliminate the need for a foot-drop brace, its success would be 'totally unpredictable'. Although slight improvements could be expected over the next two years as the nerves in his leg healed, his condition would remain relatively static for the rest of his life.

         The record also shows although Garrison had resumed full-time work with his prior employer, the Public Service Company, at a lower wage and in a less responsible capacity, he would probably never be able to return to his previous position which had been 'outside' work. Since the accident, Garrison had not been able to resume his former recreations of hunting and fishing nor was he able to perform as many household duties as formerly. His wife testified that his disposition had worsened and that his sexual life had diminished.          The record further discloses that Garrison had incurred substantial medical bills and that further treatment would be necessary. He also had suffered a substantial loss in wages.

         Although we might have awarded a different amount, we cannot say that the sum awarded by the trial court was 'grossly and manifestly excessive.'

         Judgment affirmed.

         DWYER and ENOCH, JJ., concur.


Summaries of

Kunkel v. Garrison

Court of Appeals of Colorado, First Division
Sep 29, 1970
475 P.2d 354 (Colo. App. 1970)
Case details for

Kunkel v. Garrison

Case Details

Full title:Kunkel v. Garrison

Court:Court of Appeals of Colorado, First Division

Date published: Sep 29, 1970

Citations

475 P.2d 354 (Colo. App. 1970)