Opinion
No. 78-087
Decided March 22, 1979. Rehearing denied April 12, 1979. Certiorari granted July 23, 1979.
In personal injury action, trial court entered summary judgment for defendants on the basis of release executed by plaintiff's guardian. Plaintiff appealed.
Reversed
1. RELEASE — Mutual Mistake — Invalidate Release — Present or Past — Existing Fact — Not — Mistaken Opinion — Future Recovery. A release obtained as the result of a mutual basic mistake may be set aside as ineffective, and is not a defense in an action of tort, but for such a mistake to render a release invalid, it must be a mutual mistake that relates to a present existing fact or a past fact, and it does not extend to mistaken opinions as to the future course of recovery from known injuries.
2. Set Aside — Injured Party — Falsely Informed — Nature of Injuries. A release should be set aside where it is established that the injured party released his claims under a mistaken or false impression that he was fully informed as to the nature of his injuries.
3. Plaintiff — Symptoms Minor — Characterized — "Fully Recovered" — Issue — Basic Mistake — For Trier of Fact — Summary Judgment — Error. Where symptoms apparent to personal injury action plaintiff and her guardian at time her guardian signed release were minor, where she was characterized by probate judge as "fully recovered," and where it was one and one-half years later that plaintiff had first seizure indicative of ultimate diagnosis of epilepsy, the trier of fact could have concluded that the release was based on a basic mistake, and thus, trial court's entry of summary judgment for defendant was error.
4. TRIAL — Personal Injury Action — Validity of Release — At Issue — Not Change — Character of Action — Not Proper — Trial Court — Rule on Release Validity — Without Jury. In an action seeking damages for injuries sustained in an accident, the mere filing of a motion to set aside a general release is not enough reason to separate an issue as to the validity of the release from the other issues present in the action, and thus such filing did not change the basic character of the proceeding so that it was proper for the trial court to rule on issue of the validity of the release without the jury.
Appeal from the District Court of the County of Adams, Honorable Abraham Bowling, Judge.
Carroll Bradley, P.C., Rebecca L. Bradley, John S. Carroll, for plaintiff-appellant.
Walberg Pryor, Thomas L. Roberts, for defendants-appellees Irwin Duane Gleason and Coin Fresh, Inc.
Tilly Graves, Ronald H. Shear, for defendant-appellee Mannings, Inc.
In 1970, when she was 14 years old, the plaintiff, Darlene Benavidez Guzman, was struck on the head by a vending machine which fell from a truck, causing an open fracture and a left intra-temporal lobe hematoma. Shortly thereafter her father retained an attorney, and in 1972, the attorney negotiated a settlement with defendants' insurance carrier. The father was appointed guardian and the settlement was presented to the probate court which ultimately approved it. The guardian executed a general release. In May 1974, a year and one-half after the release had been signed, the girl experienced an epileptic seizure. At that time her condition was diagnosed as post-traumatic grand mal epilepsy.
In this action seeking damages for injuries sustained in the accident, the defendants asserted as an affirmative defense the general release that had been executed by the guardian, and moved for summary judgment. Thereupon plaintiff's counsel moved to set aside the release as having been predicated on a mutual mistake of the parties. Following a hearing on both motions at which evidence was taken, the court entered judgment in favor of the defendants. We reverse.
[1] In McCarthy v. Eddings, 109 Colo. 526, 127 P.2d 883 (1942), relying upon Restatement of Torts § 900, the Supreme Court adopted the general rule that "a release . . . obtained . . . as the result of a mutual basic mistake may be set aside as ineffective, and . . . is not a defense [in an action of tort]." This rule was amplified in Davis v. Flatiron Materials Co., 182 Colo. 65, 511 P.2d 28 (1973), wherein it was held that the mutual mistake must relate to a present existing fact or to a past fact and does not extend to mistaken opinions as to the future course of recovery from known injuries.
[2] Later, in Scotton v. Landers, 190 Colo. 27, 543 P.2d 64 (1975), the Supreme Court held that the trial court had erred in not setting aside a release. There, the only known injuries were fractured ribs and bruises. After the release had been signed, symptoms developed indicating a more severe injury. This was diagnosed as a ruptured spleen, and that organ was removed. The court stated that a release should be set aside "where it is established that the injured party released his claims under a mistaken or false impression that he was fully informed as to the nature of his injuries."
[3] In the instant case there was evidence upon which the trier of fact could well conclude the settlement was based on a basic mistake. The symptoms apparent to the plaintiff prior to her guardian signing the release were minor. Indeed, the probate judge who approved the settlement had been told that the girl "has fully recovered and she has lost absolutely no time in school . . . ." It was a year and one-half later that plaintiff had the first seizure indicative of the eventual diagnosis of post-traumatic grand mal epilepsy. This situation is indistinguishable from that in Scotton. Moreover, at the hearing on these motions, the totality of the neurologist's testimony about the etiology of the epilepsy was not conclusive. Under these circumstances the trial court erred in granting defendants' motion for summary judgment. The issue is one for the jury. McCarthy v. Eddings, supra.
Defendants advance three other contentions in support of the trial court's judgment. First, they assert that the literal language of the release, relating, as it does to all claims, known and unknown, requires, as a matter of law, that the release not be set aside. We disagree. In Scotton v. Landers, supra, the court was dealing with a release containing similar all encompassing language. The Supreme Court ordered the release set aside because the trial record showed that settlement had been made in contemplation of only the known injuries. The court explained that it was not holding that an injured party could never compromise a claim for unknown injuries, but that to do so, "it must appear from the circumstances surrounding the transaction that such was his clear intention." Thus this question, too, must go to the jury for its determination.
Defendants next assert that plaintiff's counsel stipulated that the issue of the validity of the release should be determined by the court and that, therefore, a jury trial on the issue was waived. It is true that plaintiff's attorney proffered a stipulation to that effect, but that offer was not accepted by defendants. Instead, one of defendants' attorneys responded: "I would like to hear the court's ruling before I make any stipulation as to what I will do before I know what the finality of the ruling is." Thus, there being no agreement to plaintiff's proposal, no binding stipulation resulted.
[4] Nor do we agree with defendants that the filing of a motion by plaintiff to set aside the release served to change the basic character of the proceedings so that it was proper for the trial court to rule on the matter without a jury. The mere filing of the motion is not enough reason to separate the mutual mistake issue from the other issues in the case. See Larsen v. Powell, 16 F.R.D. 322 (Colo. 1954); Grissom v. Union Pacific Ry., 14 F.R.D. 263 (Colo. 1953); Thorla v. Louisiana Midland Ry., 90 F.Supp. 553 (W.D. La. 1950).
The judgment is reversed and the cause is remanded with directions to reinstate the complaint and for further proceedings consistent with this opinion.
JUDGE BERMAN concurs.
JUDGE COYTE dissents.