Opinion
No. 76-305
Decided July 21, 1977. Rehearing denied August 18, 1977. Certiorari granted October 24, 1977.
Following shooting incident, injured youth brought action against other youths involved and against one youth's parents. Jury apportioned negligence: 35% to one defendant, 20% to other youth, 35% to youth's parents, and 10% to plaintiff. Youth found 35% negligent appealed.
Affirmed
1. COMPARATIVE NEGLIGENCE — Apportionment of Negligence — Various Defendants — Various Percentages — No Error — Entry of Judgment — All Defendants — Jointly and Severally. Colorado adheres to the common law rule that joint tortfeasors are jointly and severally liable, and that no contribution among them is permitted; thus, in comparative negligence action, where defendant was found 35% negligent, and another youth and his parents found 20% and 35% negligence, respectively, the trial court did not err in entering judgment against all the defendants jointly and severally.
2. Shooting Incident — Defendant Pointed Gun — Pulled Trigger — Reasonable Finding — Defendant 35% Negligent — Plaintiff 10% Negligent — Not Set Aside. In trial of comparative negligence action arising out of shooting incident in which plaintiff was injured, the record shows that the defendant pointed the ostensibly unloaded weapon at plaintiff and pulled the trigger, and from that fact the jury could reasonably conclude that this act was more negligent than plaintiff's negligence in remaining in the line of fire; accordingly, it was not unreasonable for the jury to find the plaintiff 10% negligent, and the defendant 35% negligent, and thus those determinations may not be set aside on review.
Appeal from the District Court of Jefferson County, Honorable Ronald J. Hardesty, Judge.
Frickey, Cairns Wylder, P.C., Earl S. Wylder, for plaintiffs-appellees.
Hansen, Anstine Hill, Robert W. Hansen, for defendant-appellant.
In this tort action, defendant David Martinez appeals the judgment entered on a jury verdict in favor of plaintiff David Stefanich. We affirm.
Plaintiff was injured in a shooting incident occurring in April 1974. He commenced suit against defendant, against the other youth involved in the occurrence, and against that youth's parents. Under a comparative negligence instruction, the jury found plaintiff was 10% negligence, defendant 35% negligence, and the other youth and his parents 20% and 35% negligent, respectively.
Defendant first contends that the trial court erred in refusing to instruct the jury on the doctrine of assumption of risk. In Brown v. Kreuser, 38 Colo. App. 554, 560 P.2d 105 (1977), we held that an instruction concerning assumption of risk should not be given in cases tried under comparative negligence principles. Brown is dispositive of defendant's argument here.
Defendant next maintains that the trial court erred in entering judgment against the defendants jointly and severally rather than apportioning the judgment according to the percentage of fault ascribed to each defendant. We disagree.
[1] Regardless of the principles obtaining in other jurisdictions, e.g., American Motorcycle Ass'n v. Superior Court, 65 Cal. App. 3d 694, 135 Cal. Rptr. 497 (1977), Colorado adheres to the common law rule that joint tortfeasors are jointly and severally liable, Dunham v. Kampman, 37 Colo. App. 233, 547 P.2d 263 (1975), aff'd, Kampman v. Dunham, 192 Colo. 488, 560 P.2d 91 (1977), and that no contribution among them is permitted. Ringsby Truck Lines, Inc. v. Bradfield, 193 Colo. 151, 563 P.2d 939 (1977); Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73 (1960); Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo. App. 99, 517 P.2d 406 (1973). As our Supreme Court observed in Ringsby:
"It has not been the policy of this state to distribute the loss between joint tortfeasors according to their degree of fault. This would amount to a form of contribution. Under traditional Colorado law, contribution between joint tortfeasors has not been permitted."
The principle logically obtains even when, as here, the plaintiff is also negligent; and, in this case, we perceive no viable distinction between apportionment and contribution among the joint tortfeasors. In any event plaintiff should not be barred from collecting the full amount of his judgment from any person found to be liable to plaintiff. Accordingly, the trial court did not err in entering judgment against the defendants jointly and severally. And, should the California rule adopted in American Motorcycle Ass'n, supra, be deemed the preferable approach to the joint tortfeasor situation under a comparative negligence system, that decision is not within the province of this court.
Defendant last contends that the verdict is not supported by the evidence. His argument is predicated on the supposition that defendant logically could not have been more negligent than plaintiff, inasmuch as both were acting on the same belief that the pistol causing the injury was unloaded.
[2] However, the record shows that the defendant pointed the ostensibly unloaded weapon at plaintiff and pulled the trigger. The jury could reasonably conclude that this act was more negligent than plaintiff's negligence in remaining in the line of fire. Only where reasonable minds could not have arrived at the allocation made by the jury can such determinations be set aside on review. Dunham v. Kampman, supra. The allocation here was not clearly unreasonable.
The judgment is affirmed.
JUDGE SMITH concurs.
JUDGE VAN CISE dissents.