Opinion
No. 73-186
Decided February 5, 1974.
In personal injury negligence action, trial court restricted plaintiff's closing argument. From judgment for plaintiff for $2,200, plaintiff appealed.
Reversed
1. TRIAL — Closing Statement — Counsel May Suggest — Per Diem Award — Pain and Suffering — Permanent Scarring — Not Changed — Change in Jury Instructions. Although the jury is no longer instructed on the total amount of damages requested by plaintiff in his complaint in a personal injury action, difficulty of measuring pain and suffering in monetary terms remains; thus, the rule permitting counsel to suggest a per diem amount to the jury for pain and suffering in a personal injury case is still in effect in Colorado, and counsel may use the per diem argument in closing statements to the jury, and, on the same basis, counsel should be allowed to suggest a dollar value for permanent scarring.
Appeal from the District Court of Boulder County, Honorable John B. Barnard, Judge.
Lee, Bryans, Kelly Stansfield, Richard W. Bryans., Joseph C. French, for plaintiffs-appellants.
Zarlengo, Mott Zarlengo, David C. Scheibach, Albert Zarlengo, Jr., for defendant-appellee.
In this appeal plaintiff Marie Rodigue alleges as error a ruling by the trial court which restricted closing arguments in a negligence case tried to a jury.
Plaintiff claimed damages for and presented evidence to show injuries consisting of multiple face and head lacerations, concussion, pain and suffering, and permanent facial scarring received in an automobile collision with defendant. Plaintiff appeals from the judgment entered on the jury's verdict for plaintiff in the amount of $2,200. We reverse.
Following presentation of evidence and prior to closing arguments, the trial court ruled that counsel would not be allowed to refer to specific dollar amounts claimed by plaintiff for pain and suffering and permanent injury by reason of scarring. The trial court announced two reasons for its ruling. First, although our Supreme Court in Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811, held that counsel could suggest a per diem amount to the jury for pain and suffering in a personal injury case, the trial court interpreted that decision to be limited to situations in which there is a jury instruction which sets forth the total amount claimed by plaintiff in his complaint. Since it is no longer appropriate for an instruction to contain any reference to the damages requested in the complaint, see Colorado Jury Instructions (1973 Supp.) 2:1 (Notes on Use) and 6:1 (Notes on Use), the trial court concluded that the per diem argument authorized by Newbury is no longer permissible. We disagree.
[1] Although under prior case law it was considered proper to include in the jury instructions the total amount of damages requested by a plaintiff, see Liber v. Flor, 160 Colo. 7, 415 P.2d 332, this was only one factor which persuaded the Supreme Court in Newbury to permit the per diem arguments. Another reason was that:
"The jury must reach its verdict by the process of reasoning and upon the inferences to be drawn from the facts before it. That pain and suffering will continue permanently and that the plaintiff has a certain life expectancy is before the jury. The per diem argument is nothing more than a course of reasoning suggested by the plaintiff for translating pain and suffering into reasonable compensation . . . ."
Even though the jury is no longer instructed on the total amount of damages requested by plaintiff in his complaint, the difficulty of measuring pain and suffering in monetary terms remains. We conclude the Newbury rule is still the rule in Colorado, and counsel may use the per diem argument in closing statements to the jury. On the same basis, counsel should be allowed to suggest a dollar value for permanent scarring.
As a second basis for its ruling, the trial court reasoned that counsel may not comment in closing arguments on information not introduced in evidence. Since no evidence was introduced attributing any dollar value to pain and suffering and permanent scarring, the trial court concluded that counsel's statements as to dollar value would constitute introduction of new evidence. The court in Newbury rejected this reasoning with the following:
"It is contended that jurors often mistake the argument of counsel for evidence and are thereby misled into making excessive awards. Juries in this jurisdiction are always instructed that arguments of counsel are not evidence . . . . We are not inclined to attribute to any jury a lack of sufficient mentality or discrimination to recognize the difference between evidence and argument."
The judgment is therefore reversed, and the cause remanded for a new trial on the issue of damages only.
JUDGE ENOCH and JUDGE PIERCE concur.