C.r.c.p. 50
A party may move for a directed verdict at the close of the evidence offered by an opponent or at the close of all the evidence. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.
C.r.c.p. 50
Annotation I. General Consideration. Law reviews. For article, "Trials: Rules 38-53 ", see 23 Rocky Mt. L. Rev. 571 (1951). For article, "One Year Review of Civil Procedure", see 34 Dicta 69 (1957). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962). For article, "The One Percent Solution", see 11 Colo. Law. 86 (1982). For article, "Federal Practice and Procedure", which discusses a Tenth Circuit decision dealing with a motion for directed verdict, see 62 Den. U. L. Rev. 230 (1985). For article "There is Still a Chance: Raising Unpreserved Arguments on Appeal", see 42 Colo. Law. 29 (June 2013). This rule is substantially the same as F.R.C.P. 50. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952). This rule follows the rule and practice in federal courts. Klipp v. Grusing, 119 Colo. 111, 200 P.2d 917 (1948). This rule governing the direction of a verdict is identical to the former rule controlling a motion for nonsuit in effect prior to the adoption of the rules of civil procedure. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952). Motions for directed verdict present a question of law, not of discretion. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950). Motion of both sides for a directed verdict no longer amounts to a waiver of jury trial. Am. Nat'l Ins. Co. v. Gregg, 123 Colo. 476, 231 P.2d 467 (1951). This rule specifically provides that "a motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts". Klipp v. Grusing, 119 Colo. 111, 200 P.2d 917 (1948). It becomes the duty of the trial court to direct a verdict in favor of defendant and grant a dismissal of the action when a review of all the evidence establishes that there is not basis upon which a verdict in favor of plaintiff may be supported as a matter of law. Montes v. Hyland Hills Park, 849 P.2d 852 (Colo. 1992). Granting a directed verdict is a final and legal determination of the controversy. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955). Direction of verdict by trial court is presumed regular and valid. Where the trial court in directing a verdict exercises sound judicial discretion, its action is entitled to the same presumption of regularity and validity as is accorded to any other type of judgment; that error may have been committed by the trial court is never presumed, but must affirmatively be made to appear. French v. Haarhues, 132 Colo. 261, 287 P.2d 278 (1955). A jury's subsequent verdict to the contrary cannot stand if a trial court appropriately directs a verdict on an issue. Pinell v. McCrary, 849 P.2d 848 (Colo. App. 1992). "Motion for directed verdict" is actually motion to dismiss. When the court is the trier of fact, a motion denominated a "motion for directed verdict" is actually a motion to dismiss pursuant to C.R.C.P. 41(b). Campbell v. Commercial Credit Plan, Inc., 670 P.2d 813 (Colo. App. 1983); Frontier Exploration v. Am. Nat., 849 P.2d 887 (Colo. App. 1992). There are standards for directed verdict versus motion for new trial. The standards for directing a verdict and setting one aside for new trial are widely different and should not be controlled by the same conditions and circumstances. The entry of a judgment notwithstanding the verdict involves a legal standard, while the authority to grant a new trial rests in the discretion of the trial court. Whitlock v. Univ. of Denver, 712 P.2d 1072 (Colo. App. 1985), rev'd on other grounds, 744 P.2d 54 (Colo. 1987). The result of setting aside a verdict and the event of directing one are entirely different and are not controlled by the same conditions or circumstances; the matter of a retrial of the issue rests, within limitations, in the discretion of the trial court, while the matter of a directed verdict rests upon legal right. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952); Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955). There is a difference between the legal discretion of the court to set aside a verdict as against the weight of evidence and the obligation which the court has to withdraw a case from the jury, or direct a verdict, for insufficiency of evidence; in the latter case it must be so insufficient in fact as to be insufficient in law, while in the former case it is merely insufficient in fact. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952). This rule does not provide for a partial directed verdict within a single claim. The language of this rule does not empower a trial court to parse evidence presented in support of a single claim against a single defendant by granting a partial directed verdict on that claim and then instructing the jury to consider only a portion of the evidence presented in support of that claim. Such actions are contrary to the claim-by-claim approach to litigation created by the rules of civil procedure. Rodgers v. Bd. of County Comm'rs of Summit County, 2013 COA 61, __ P.3d __. Interpreting this rule to preclude partial directed verdicts does not preclude trial courts from assisting the jury in examining multiple actions within a single claim. Rodgers v. Bd. of County Comm'rs of Summit County, 2013 COA 61, __ P.3d __. Applied in Simon v. Williams, 123 Colo. 505, 232 P.2d 181 (1951); Durango Sch. Dist. No. 9 -R v. Thorpe, 200 Colo. 268, 614 P.2d 880 (1980); In re Van Camp, 632 P.2d 1062 (Colo. App. 1981); Marks v. District Court, 643 P.2d 741 (Colo. 1982); Conrad v. City & County of Denver, 656 P.2d 662 (Colo. 1982); Mucci v. Falcon Sch. Dist. No. 49 , 655 P.2d 422 (Colo. App. 1982); Safeway Stores, Inc. v. Smith, 658 P.2d 255 (Colo. 1983); Yoder v. Hooper, 695 P.2d 1182 (Colo. App. 1984); Daly v. Observatory Corp., 759 P.2d 777 (Colo. App. 1988), rev'd on other grounds, 780 P.2d 462 (Colo. 1989). II. Evidence. In passing upon a motion for a directed verdict, the trial court must view the evidence in the light most favorable to the party against whom the motion is directed. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952); Bradley Realty Inv. Co. v. Shwartz, 145 Colo. 65, 357 P.2d 638 (1960); Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964 (1961); Gonzales v. Safeway Stores, Inc., 147 Colo. 358, 363 P.2d 667 (1961); Hildyard v. Western Fasteners, Inc., 33 Colo. App. 396, 522 P.2d 596 (1974); Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975); Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990); Lorenz v. Martin Marietta Corp., Inc., 802 P.2d 1146 (Colo. App. 1990), aff'd Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo. 1992); Herrera v. Gene's Towing, 827 P.2d 619 (Colo. App. 1992). Every reasonable inference to be drawn from the evidence presented is to be considered in the light most favorable to such party. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952); Bradley Realty Inv. Co. v. Shwartz, 145 Colo. 65, 357 P.2d 638 (1960); Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964 (1961); Gonzales v. Safeway Stores, Inc., 147 Colo. 358, 363 P.2d 667 (1961). Reasonable inference may be drawn from circumstantial evidence. Kopeikin v. Merchants Mortg. & Trust Corp., 679 P.2d 599 (Colo. 1984). A motion for a directed verdict admits the truth of the adversary's evidence and of every favorable inference of fact which may legitimately be drawn from it. Western-Realco Ltd. v. Harrison, 791 P.2d 1139 (Colo. App. 1989). Co., 806 P.2d 388 (Colo. App. 1990). Every factual dispute supported by credible evidence must be resolved in his favor, and the strongest inferences reasonably deducible from the most favorable evidence must be indulged in his favor. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950). In ruling on whether an activity is inherently dangerous as a matter of law, if the state of the evidence is such that when viewed in a light most favorable to the plaintiff, the court is convinced that a jury could not find that all the following elements have been proven by a preponderance of the evidence, then it should direct a verdict against the plaintiff and in favor of the employer: (1) that the activity in question presented a special or peculiar danger to others inherent in the nature of the activity or the particular circumstances under which the activity was to be performed; (2) that the danger was different in kind from the ordinary risks that commonly confront persons in the community; (3) that the employer knew or should have known that the special danger was inherent in the nature of the activity or in the particular circumstances under which the activity was to be performed; and (4) that the injury to the plaintiff was not the result of the collateral negligence of the defendant's independent contractor. Huddleston v. Union Rural Elec. Ass'n, 841 P.2d 282 (Colo. 1992). Where defendant moves for directed verdict, the court views the evidence in the light most favorable to plaintiff. Jasko v. F. W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972); Klein v. Sowa, 759 P.2d 857 (Colo. App. 1988). Motion for directed verdict in a jury trial admits the truth of the adversary's evidence and of every favorable inference of fact which may legitimately be drawn therefrom. Comtrol, Inc. v. Mountain States Tel. & Tel. Co., 32 Colo. App. 384, 513 P.2d 1082 (1973); Salstrom v. Starke, 670 P.2d 809 (Colo. App. 1983). In passing upon a motion to direct a verdict, a judge cannot properly undertake to weigh the evidence. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952); Roberts v. Bucher, 41 Colo. App. 138, 584 P.2d 97 (1978), rev'd on other grounds, 198 Colo. 1, 595 P.2d 239 (1979); Fagerberg v. Webb, 678 P.2d 544 (Colo. App. 1983); Christie v. San Miguel Cty. Sch. Dist., 759 P.2d 779 (Colo. App. 1988). Party seeking to reopen evidence after party has rested and after motion for directed verdict has been made must make an offer proof as to what specific evidence the party would present and demonstrate that the evidence would cure any deficiencies in party's case. Failure to offer such proof and make such demonstration waives the right of the party to present future evidence. Justi v. RHO Condo. Ass'n, 277 P.3d 847 (Colo. App. 2011). Court should not judge credibility of witnesses. On a motion for directed verdict at the close of a party's case, it is not for the court to judge as to the weight of the evidence or the credibility of witnesses. Bradley Realty Inv. Co. v. Shwartz, 145 Colo. 65, 357 P.2d 638 (1960). The judge's duty is to take that view of the evidence most favorable to the party against whom it is moved to direct a verdict and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not under the law a verdict might be found for the party having the onus. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952). When a plaintiff makes out a prima facie case, even though the facts are in dispute, it is for the jury, and not the judge, to resolve the conflict under this section. Herrera v. Gene's Towing, 827 P.2d 619 (Colo. App. 1992). A motion for directed verdict should be granted only in the clearest of cases when the evidence is undisputed and it is plain no reasonable person could decide the issue against the moving party. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991). Whether new trial would be granted is not a proper test. It is not a proper test of whether the court should direct a verdict that the court, on "weighing" the evidence, would grant a new trial, upon motion. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952). III. Grant of Motion. Directed verdict is proper only where there are no factual disputes. Williamson v. Sch. District No. 2, 695 P.2d 1173 (Colo. App. 1984). A directed verdict may be granted only when, disregarding conflicting evidence and giving to nonmovant's evidence all the value to which it is legally entitled by indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality and materiality to support a verdict in favor of the nonmovant if such a verdict were given. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950). It becomes the court's duty as a matter of law to direct a verdict. Where a trial court, from a review of all the evidence adduced, is convinced that there is no basis upon which a verdict in favor of a party may be supported and that even though a jury should return a verdict in his favor it could not be permitted to stand, it becomes the duty of the trial court, as a matter of law, to direct a verdict in favor of the other party. French v. Haarhues, 132 Colo. 261, 287 P.2d 278 (1955). A motion for directed verdict can only be granted where the evidence, when considered, compels the conclusion that the minds of reasonable men could not be in disagreement and that no evidence, or legitimate inference arising therefrom, has been received or shown upon which a jury's verdict against the moving party could be sustained. Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964 (1961); Gonzales v. Safeway Stores, Inc., 147 Colo. 358, 363 P.2d 667 (1961); Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975); Western-Realco Ltd. v. Harrison, 791 P.2d 1139 (Colo. App. 1989); Pierce v. Capitol Life Ins. Co., 806 P.2d 388 (Colo. App. 1990); Burgess v. Mid-Century Ins. Co., 841 P.2d 325 (Colo. App. 1992). A motion for a directed verdict should not be granted unless the evidence compels the conclusion that reasonable men could not disagree and that no evidence or inference had been received at trial upon which a verdict against the moving party could be sustained. Comtrol, Inc. v. Mountain States Tel. & Tel. Co., 32 Colo. App. 384, 513 P.2d 1082 (1973). A verdict should be directed only when the evidence has such quality and weight as to point strongly and overwhelmingly to the fact that reasonable men could not arrive at a contrary verdict. Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975). A motion for directed verdict should not be granted unless the evidence compels the conclusion that reasonable jurors could not disagree and that no evidence or inference has been received at trial upon which a verdict against the movant could be sustained. Salstrom v. Starke, 670 P.2d 809 (Colo. App. 1983); Mahoney Marketing Corp. v. Sentry Builders, 697 P.2d 1139 (Colo. App. 1985); Smith v. Denver, 726 P.2d 1125 (Colo. 1986); United Bank v. One Center Joint Venture, 773 P.2d 637 (Colo. App. 1989). Trial court's grant of motion for directed verdict on the theory of strict liability was proper since evidence was offered by plaintiff to prove that the product of defendants was unreasonably dangerous and carried no warning to that effect. Fenton v. Fibreboard Corp., 827 P.2d 564 (Colo. App. 1991). Trial judge may only direct verdict in clearest cases. A trial judge may only invade the fact-finding province of the jury to grant a directed verdict in the clearest cases. Romero v. Denver & R. G. W. Ry., 183 Colo. 32, 514 P.2d 262 (1973). Court is justified in usurping function of jury. Where the evidence is undisputed and where reasonable men could reach but one conclusion from that evidence, the court is justified in usurping the function of the jury and directing a verdict for either party. Pioneer Constr. Co. v. Richardson, 176 Colo. 254, 490 P.2d 71 (1971). If the evidence is of such a character as to establish willful and wanton conduct as a matter of law, the court should direct a verdict and should not submit the matter to the jury. Rennels v. Marble Prods., Inc., 175 Colo. 229, 486 P.2d 1058 (1971). Where there is evidence of the occurrence of an accident accompanied by "prima facie" evidence of defendant's negligence, and there is no evidence of facts absolving the defendant of negligence or of facts showing negligence on the part of the plaintiff, a directed verdict in favor of the plaintiff is proper. Moore v. Fischer, 31 Colo. App. 425, 505 P.2d 383 (1972), aff'd, 183 Colo. 392, 517 P.2d 458 (1973). Where no evidence of damages has been introduced, a trial court properly directs a verdict against plaintiffs on their claim. Greenleaf, Inc. v. Manco Chem. Co., 30 Colo. App. 367, 492 P.2d 889 (1971). Where the court errs in submitting case to the jury, then, since it should have granted a motion for a directed verdict, it should sustain a motion for judgment under this rule. First Nat'l Bank v. Henning, 112 Colo. 523, 150 P.2d 790 (1944). IV. When Grant of Motion Improper. Where there is substantial evidence tending to establish cause of action, it is error to direct a verdict in favor of defendant at the close of plaintiff's case. Bradley Realty Inv. Co. v. Shwartz, 145 Colo. 65, 357 P.2d 638 (1960). When a plaintiff makes out a "prima facie" case, even though the facts are in dispute, it is for the jury, and not the judge, to resolve the conflict, and a direction of a verdict is error. Romero v. Denver & R. G. W. Ry., 183 Colo. 32, 514 P.2d 626 (1973). Directed verdict held reversible error where plaintiff established "prima facie" case. Kennedy v. City & County of Denver, 31 Colo. App. 564, 506 P.2d 764 (1972). If conduct does not, as a matter of law, establish that it was willful and wanton, the matter necessarily has to be submitted to the jury. Rennels v. Marble Prods., Inc., 175 Colo. 229, 486 P.2d 1058 (1971). Where a factual dispute exists, although both sides have moved for a directed verdict, the trial court has no alternative but to submit the matter to the jury. Rennels v. Marble Prods., Inc., 175 Colo. 229, 486 P.2d 1058 (1971). Where there is conflicting testimony and reasonable men might draw different conclusions from the testimony, the question of proximate cause is properly one for the jury. Pioneer Constr. Co. v. Richardson, 176 Colo. 254, 490 P.2d 71 (1971). When the evidence concerning a material fact is such that reasonable minds could differ with reference thereto, it should be submitted to the jury for its determination, and a trial court's refusal to submit the matter to the jury is error calling for reversal. Gonzales v. Safeway Stores, Inc., 147 Colo. 358, 363 P.2d 667 (1961). Where a doctor in a malpractice suit presents evidence that his failure to inform plaintiff of all the risks attendant to an operation was consistent with community medical standards, the determination of the adequacy of his disclosures then becomes one for the jury, and a directed verdict in favor of plaintiff would not be warranted. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971). Directed verdict on issue on contributory negligence held error. Where, under conflicting evidence, a factual issue was presented as to whether plaintiff was contributorily negligent by virtue of a sudden and abrupt stopping of his vehicle in an unexpected location, the trial court erred in directing a verdict on the issue of plaintiff's contributory negligence. Hildyard v. Western Fasteners, Inc., 33 Colo. App. 396, 522 P.2d 596 (1974). Whether assault and battery occurred are jury questions. Issues of whether officer or arrestee initiated force, whether officer's force was unreasonable, and whether arrestee used reasonable force in self-defense in resisting arrest should have been submitted to jury. Valdez v. City and County of Denver, 764 P.2d 393 (Colo. App. 1988). Where the evidence presented raised disputed issues of fact, the trial court's refusal to grant a directed verdict was correct. Horton v. Mondragon, 705 P.2d 977 (Colo. App. 1984). V. Review of Motion. In reviewing a motion for directed verdict, the court must consider the evidence in a light most favorable to the party against whom the motion is directed. Sanchez v. Staats, 34 Colo. App. 243, 526 P.2d 672 (1974), aff'd, 189 Colo. 228, 539 P.2d 1233 (1975); Evans v. Webster, 832 P.2d 951 (Colo. App. 1991). The reviewing court does so by considering all evidence in the light most favorable to the party against whom the motion is directed and by indulging every reasonable inference that can be legitimately drawn from the evidence in that party's favor. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991); Gast v. City of Fountain, 870 P.2d 506 (Colo. App. 1993). If there is no conflicting evidence with respect to the particular issue raised by the motion for directed verdict and the only concern is the legal significance of undisputed facts, then the appellate court may make an independent determination of the issue. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991). Appellate court will not consider denial of motion for directed verdict when grounds are not stated by movant. Sharoff v. Iacino, 123 Colo. 456, 231 P.2d 959 (1951). Where the evidence does not warrant the direction of a verdict for either party, but the trial court directs a verdict for one of the parties, the judgment must be reversed and a new trial granted, notwithstanding a motion by both sides for a directed verdict. Klipp v. Grusing, 119 Colo. 111, 200 P.2d 917 (1948).