24CA1164 Brown v Dillon Companies 07-31-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1164 Jefferson County District Court No. 23CV30404 Honorable Christopher C. Zenisek, Judge
Jadwiga Brown,
Plaintiff-Appellee,
v.
Dillon Companies, LLC, d/b/a King Soopers,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE BERGER* Welling and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 31, 2025
Ross Ziev, P.C., Ross Ziev, Greenwood Village, Colorado, for Plaintiff-Appellee
Nathan Dumm & Mayer, P.C., Michael R. Lancto, Daniel A. Jacobs, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Dillon Companies, LLC, appeals the judgment in
favor of plaintiff, Jadwiga Brown.1 King Soopers contends that the
district court erred when it (1) refused to instruct the jury on
Colorado Jury Instruction-Civil (CJI-Civ.) 8:8 (2025), which defines
when an employee is acting within the scope of employment; and (2)
prohibited King Soopers’ medical expert from referring to the dollar
amount of medical care provided to Brown. We conclude that (1)
any error committed by the district court in refusing to give CJI-Civ.
8:8 was harmless, and (2) the district court did not err by excluding
King Soopers’ medical expert’s testimony about the cost of Brown’s
medical care. Therefore, we affirm the judgment.
I. Background
¶2 On December 22, 2021, Brown was shopping at a King
Soopers store when she slipped and fell on what she believed to be
yogurt spilled on the floor. She did not see the substance before
she fell but noticed a white substance on her boots, right elbow,
and right knee afterward. Brown suffered a torn meniscus as a
1 Dillon Companies, LLC operates the King Soopers store where the
events in question occurred. We refer to the defendant as “King Soopers.”
1 result of the fall and received treatment from at least two medical
providers.
¶3 Video evidence presented at trial depicted a person wearing a
black apron and a King Soopers name tag carry a product through
the store. While carrying this product, this person apparently
dropped an item on the floor in the same location as Brown’s fall,
minutes before Brown slipped.
¶4 King Soopers admitted at trial that its employees remove
expired and otherwise unsaleable merchandise on a regular basis.
Other video evidence depicted employees stocking that area around
the same time as the spill.
¶5 Barbara Galvery, then King Soopers’ assistant store manager,
learned of Brown’s fall the day it happened. While King Soopers’
policy is to photograph any spill that causes an injury, that was not
done in this case. Nor did King Soopers search for additional video
evidence at or about the time of Brown’s fall to further identify the
person who created the spill. Galvery testified that the person
2 believed to have created the spill was an “associate” of King Soopers
(but she was unable to further identify the individual).2
¶6 Brown sued King Soopers under Colorado’s Premises Liability
Act (PLA). The parties do not dispute that Brown was an invitee
under the PLA. Brown initially sought to recover economic damages
(e.g., medical care costs), noneconomic damages, and damages for
physical impairment and disfigurement, but shortly before trial she
decided not to pursue economic damages.3
¶7 The jury awarded Brown $300,000 in noneconomic damages
and $50,000 for physical impairment losses or disfigurement
injuries, for a total judgment of $350,000.
2 King Soopers uses the term “associate” to describe its store
employees. 3 In its briefing, King Soopers complains about the late withdrawal
of the claim of economic damages but, so far as we can tell, does not contend that the district court should have done anything other than respect that withdrawal. We also note that King Soopers did not request a continuance of the trial in view of the claimed late withdrawal of the claim of economic damages. In the absence of any developed claim regarding the withdrawal of the claim for economic damages, we do not further address it.
3 II. Jury Instruction CJI-Civ. 8:8
¶8 King Soopers makes two arguments on appeal. First, it argues
that the district court erred when it refused to give jury instruction
CJI-Civ. 8:8. We reject this contention.
A. Standard of Review and Applicable Law
¶9 “We review jury instructions de novo to determine whether the
instructions as a whole accurately informed the jury of the
governing law.” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 266 P.3d
412, 418 (Colo. App. 2011). “As long as the instruction properly
informs the jury of the law, a trial court has broad discretion to
determine the form and style of the instructions.” Hendricks v.
Allied Waste Transp., Inc., 2012 COA 88, ¶ 15.
¶ 10 We review a district court’s refusal to give a particular jury
instruction for an abuse of discretion. Walker v. Ford Motor Co.,
2017 CO 102, ¶ 9. A court abuses its discretion when its ruling is
manifestly arbitrary, unreasonable, or unfair or it misapplies the
law. Nibert v. Geico Cas. Co., 2017 COA 23, ¶ 8.
¶ 11 We review preserved instruction errors under the harmless
error standard. In re Estate of Chavez, 2022 COA 89M, ¶ 22. A
court errs if it rejects “a tendered instruction that properly instructs
4 the jury on the applicable law in the case and the evidence at issue,
which are not adequately covered elsewhere.” Nibert, ¶ 9. But
absent a showing of substantial, prejudicial error, we will not
reverse the judgment. Vista Resorts, Inc. v. Goodyear Tire & Rubber
Co., 117 P.3d 60, 70 (Colo. App. 2004). “Prejudicial error exists
when the record shows that a jury might have reached a different
verdict if a proper instruction had been given.” Schuessler v.
Wolter, 2012 COA 86, ¶ 11. “However, it is not error for a trial
court to reject a party’s instruction when that instruction misstates
the law, is argumentative, improperly emphasizes specific evidence,
or when the court allows the party to otherwise argue its theory of
the case.” Nibert, ¶ 9.
B. Any Error by the District Court in Not Instructing the Jury on the Definition of Scope of Employment Was Harmless
¶ 12 King Soopers argues it was entitled to a CJI-Civ. 8:8
instruction and that the court erred when it refused to give the
instruction.
¶ 13 The CJI-Civ. Committee’s notes on the use of CJI-Civ. 8:8
provide that this instruction is appropriate in respondeat superior
claims. The only claim tried in this case was a claim under the
5 PLA; no respondeat superior claim was asserted. We cannot fault
the district court for refusing to give an instruction that the notes
on the use of CJI-Civ. 8:8 themselves say was not appropriate in
this case.
¶ 14 That, of course, does not necessarily decide the question of
whether, apart from CJI-Civ. 8:8, the court had a duty to instruct
the jury on the meaning of the term ”scope of employment,” a term
contained in an instruction that was given to the jury.
¶ 15 Assuming without deciding that the district court erred in that
regard, we conclude that any error was harmless.4 “Put another
way, even if the jury had been given a correct instruction, . . . we
conclude that the jury would probably have reached the same
verdicts.” Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1200 (Colo.
App. 2009); see also Cissell Mfg. Co. v. Park, 36 P.3d 85, 89 (Colo.
App. 2001) (“However, we are convinced that, even if the jury had
been instructed properly, the verdict against Park would have been
the same. Thus, the errors were harmless.”).
4 The reasons why any error was harmless also support a
determination that an instruction on scope of employment was unnecessary.
6 ¶ 16 The jury was instructed under CJI-Civ. 7:7 (2025) that “[a]ny
act or omission of [King Soopers’] employees while acting within the
scope of his or her employment is the act or omission of [King
Soopers].” (Emphasis added.) But the jury was not instructed on
the legal meaning of the “scope of his or her employment.”
¶ 17 Uncontroverted video evidence showed that the person who
allegedly created the spill was wearing a black apron and white
name tag.5 It is undisputed that that attire is the garb of King
Soopers associates or employees. Video evidence submitted at trial
showed other King Soopers employees wearing the same garb
stocking items around the area of the spill that same day.
¶ 18 King Soopers acknowledges that the person depicted in the
video was “wearing similar garb to [that of] an employee.” But King
Soopers speculates that even if the person depicted was a King
Soopers employee, no evidence showed that the person was acting
5 Brown presented an alternate theory of liability that was
supported by video evidence: an unknown person spilled the substance, but the spill was seen (or should have been seen) by two King Soopers employees passing by the area of the spill, who did nothing to mitigate the hazard. Because the jury returned a general verdict, it is impossible to know on what evidence the jury relied. Our job is only to determine if the record supports the verdict reached by the jury, not to speculate on what evidence it relied.
7 in the scope of her authority when she allegedly dropped the
substance on the floor (and then failed to clean it up). Of course,
virtually anything is possible, but when there is video evidence of a
person wearing King Soopers garb dropping a substance on the
floor of the store at the precise location where a customer slipped
and fell, the chances that the employee was acting outside of the
scope of her employment is both speculative and far-fetched.
¶ 19 Applying the controlling legal standard, we have no reasonable
basis to believe that the jury might have reached a different result if
it had been given a definition of “scope of employment.” See Pham
v. OSP Consultants, Inc., 992 P.2d 657, 658–59 (Colo. App. 1999)
(Scope of employment “is determined by the purpose of the
employee’s act, rather than the method of performance. Thus, if the
negligent act or omission was in the service of the employer’s
business, the employer is liable, even though the employer did not
authorize the manner of performance.”).
¶ 20 Nor did the district court prohibit King Soopers’ counsel from
arguing its theory to the jury. Schuessler, ¶ 11; Nibert, ¶ 9.
Therefore, we conclude that any error in declining to instruct the
8 jury on the meaning of the phrase “scope of employment” was
harmless.
III. Exclusion of Evidence of Brown’s Medical Care Costs
¶ 21 King Soopers next contends that the district court erred when
it prohibited its medical expert from relying on or testifying about
the relatively small amount of Brown’s medical expenses. Again, we
disagree.
¶ 22 “We review evidentiary rulings, including a ruling on the
admissibility of expert testimony, for an abuse of discretion.”
Dorsey & Whitney LLP v. RegScan, Inc., 2018 COA 21, ¶ 39. We give
deference to the court’s ruling on the admissibility of expert
testimony because the district court has a superior opportunity to
evaluate the competence of the expert and assess whether the
expert’s opinion would be helpful to the jury. City of Aurora v. Colo.
State Eng’r, 105 P.3d 595, 612 (Colo. 2005). We will overturn its
decision only when it is manifestly erroneous. Id.
¶ 23 We review a preserved claim of evidentiary error for harmless
error and will only reverse if the error “substantially influenced the
9 outcome of the case.” Genova v. Longs Peak Emergency Physicians,
P.C., 72 P.3d 454, 459 (Colo. App. 2003).
B. Preservation and Invited Error
¶ 24 At the outset, the parties disagree whether King Soopers
preserved this issue. Brown also alleges that the doctrine of invited
error precludes appellate review. We conclude that the issue is
preserved and that the doctrine of invited error is inapplicable.
¶ 25 The issue presented on appeal is whether the costs of Brown’s
medical care were “otherwise inadmissible” under CRE 703. This
argument was preserved because King Soopers adequately brought
this question to the district court’s attention and the court ruled on
the question. See Battle N., LLC v. Sensible Hous. Co., 2015 COA
83, ¶ 13 (“[W]here issue was brought to the district court’s attention
and the court ruled on it, it was preserved for appellate review; no
talismanic language is required to preserve an issue.” (citing Target
Corp. v. Prestige Maint. USA, Ltd., 2013 COA 12, ¶ 23)). Thus, the
claimed error was sufficiently preserved for our review.
¶ 26 The invited error doctrine is inapplicable here. “[I]nvited error
prevents a party from complaining on appeal of an error that he or
she has invited or injected into the case.” Bernache v. Brown, 2020
10 COA 106, ¶ 11. Invited error applies when a party (1) expressly
acquiesces in a proposed action by the court or the opposing
party; (2) implicitly agrees with a trial court’s rejection of the party’s
own tendered instruction; or (3) expressly declines a trial court’s
offer to replace a juror with an alternate juror. McGill v. DIA Airport
Parking, LLC, 2016 COA 165, ¶ 10. Because King Soopers did not
invite, inject, or induce the ruling that it seeks to challenge on
appeal, the doctrine of invited error does not apply here.
C. Evidence was “Otherwise Inadmissible”
¶ 27 King Soopers’ argument turns on the meaning of CRE 703,
which governs expert testimony. The rule permits an expert to rely
on information normally relied on by an expert in the field even
though that information may not be admissible under the rules of
evidence. But the rule also contains a significant limitation on that
general rule. It provides that the “[f]acts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of
the opinion or inference unless the court determines that their
probative value in assisting the jury to evaluate the expert’s opinion
substantially outweighs their prejudicial effect.” CRE 703 (emphasis
added).
11 ¶ 28 In lay terms, an expert may rely on information not admitted
in evidence (or admissible) if an expert of that type would ordinarily
rely on such information. But facts or data that are otherwise
inadmissible cannot be disclosed to the jury until the court
performs the balancing test prescribed by the rule.
¶ 29 King Soopers wanted its expert, Dr. Alison Fall, to testify about
the limited costs of Brown’s medical care arising from her fall at the
King Soopers. The only apparent purpose of that testimony would
be to support Dr. Fall’s central opinion that most of the damages
claimed by Brown were not caused by her fall at the King Soopers.6
¶ 30 Dr. Fall offered opinions on whether the treatments Brown
received for her injuries were “medically reasonable, necessary, and
causally related to the injuries sustained.” The cost of her medical
care would, of course, have been directly relevant if Brown had
proceeded to trial on a claim of economic damages. But, as noted
above, she did not.
6 King Soopers failed to make an adequate offer of proof regarding
the proposed testimony, and we could reject King Soopers’ claim of error on that ground alone. But we exercise our discretion to address and reject the merits of King Soopers’ argument. Maloney v. Brassfield, 251 P.3d 1097, 1105 (Colo. App. 2010).
12 ¶ 31 So, as the case was tried, the only relevance of the cost of
medical care that we can perceive was that it bore upon the amount
of noneconomic damages that were claimed (and awarded by the
jury).
¶ 32 While there is no definitive precedent on this question in
Colorado, we have found at least one jurisdiction that excludes
medical costs when the plaintiff seeks noneconomic damages. See
Martin v. Soblotney, 466 A.2d 1022, 1025 (Pa. 1983) (“Thus the fact
that a particular amount of money was expended to treat an injury
bears no logical correlation to the degree of pain and suffering
which accompanied the injury to the plaintiff in question . . . .”).
But we need not weigh in on this question because we conclude
that the district court correctly applied the CRE 703 balancing test
and did not abuse its discretion in its ruling.
¶ 33 Dr. Fall was the last witness to testify in the case. Neither
Brown nor King Soopers made any effort to admit Brown’s medical
bills through an appropriate witness prior to Dr. Fall’s testimony.
As a result, we conclude that the direct court correctly ruled that
the costs of care were “otherwise inadmissible” through the
testimony of Dr. Fall.
13 ¶ 34 Clearly the amount of medical costs was hearsay. And, on
this record, we are not convinced that merely because the medical
costs may have been admitted under a hearsay exception means
that the records were not “otherwise inadmissible.”
¶ 35 King Soopers argues that the medical costs were admissible
for two reasons. First, it contends that “[t]here is no legitimate
dispute that Plaintiff’s own disclosed medical billing for her claimed
injuries could have been admitted at trial for a proper substantive
purpose by the time Dr. Fall testified.” But King Soopers does not
explain what that “proper purpose” might have been.
¶ 36 Instead, King Soopers argues that the evidence should have
been allowed so the “jury [could] have critical evidence needed to
evaluate the credibility and weight the jury should give to Dr. Fall’s
sharply disputed opinions within her testimony.” As best as we can
tell, King Soopers appears to contend that the limited amount of
medical bills would have impeached the amount of Brown’s claimed
noneconomic damages.
¶ 37 King Soopers relies on Dorsey & Whitney LLP to support its
position that the district court erred by applying Rule 703’s
balancing test. In Dorsey & Whitney LLP, a division of this court
14 held that “otherwise inadmissible” under CRE 703 “refers to
information that can’t be admitted under the rules of evidence, not
facts or data that simply haven’t been admitted.” Dorsey & Whitney
LLP, ¶ 42.
¶ 38 But Dorsey & Whitney LLP is factually distinguishable because
King Soopers waited until Dr. Fall, the last witness at trial, to try to
admit evidence that was hearsay through a witness who clearly was
incompetent to testify regarding the records. As the district court
recognized, Dr. Fall was not a billing expert and obtained the
medical costs contained in her report from hearsay documents.
She lacked the proper foundation for the evidence to be admitted
through her. King Soopers also failed to attempt to call another
witness or admit additional exhibits that would have made the
medical costs admissible.
¶ 39 Because Dr. Fall was the last trial witness, we conclude that in
the posture presented, Brown’s medical costs were evidence that
was “otherwise inadmissible” within the meaning of Rule 703.
¶ 40 We thus conclude that the district court properly applied the
balancing test contained in CRE 703.
15 D. The District Court Did Not Abuse Its Discretion in Determining That the Probative Value of the Medical Costs Did Not Substantially Outweigh Their Prejudicial Effect
¶ 41 Under CRE 703, evidence that is “otherwise inadmissible” may
be admitted, but only if the district court finds that its “probative
value . . . substantially outweighs [its] prejudicial effect.”
¶ 42 The district court found that the medical costs’ probative value
did not substantially outweigh their prejudicial effect because, while
there was only a small risk of prejudice, the evidence reflecting
medical costs was not a “central component of the doctor’s analysis
in terms of formulating her opinion of whether [Brown’s medical
treatment was] reasonable care or not.” And because Brown was
not claiming economic damages, the district court found that
inquiry into the costs of Brown’s treatments did not have
“substantial probative value.”
¶ 43 While the district court initially indicated that the medical
costs might have some marginal relevance, simply because evidence
is relevant does not mean that it has significant probative value.
People v. Rath, 44 P.3d 1033, 1041 (Colo. 2002).
16 ¶ 44 King Soopers argues that testimony about medical costs was
probative because it would help the jury evaluate the “correctness
and credibility of Dr. Fall’s opinions.” We disagree.
¶ 45 As stated above, Dr. Fall was called to testify about what
treatment was medically necessary to treat Brown’s injuries. She
was not called to testify regarding the amounts of those treatments
or as a billing expert. Thus, we fail to see how excluding testimony
reflecting Brown’s medical costs would impede a jury’s ability to
evaluate Dr. Fall’s testimony regarding whether Brown’s treatments
were medically necessary to treat her injury. And given that both
the probative value and prejudicial effect were minimal, the district
court did not abuse its discretion in excluding evidence of the cost
of Brown’s medical care.
IV. Attorney Fees
¶ 46 In a cursory fashion, Brown requests her attorney fees
pursuant to C.A.R. 38. We deny the request for appellate attorney
fees because the request does not satisfy C.A.R. 39.1 (attorney fee
request must be stated under a separate heading and explain the
legal and factual basis for an award; mere citation to the rule or to a
statute, without more, does not satisfy the legal basis requirement).
17 V. Conclusion
¶ 47 The judgment is affirmed.
JUDGE WELLING and JUDGE TAUBMAN concur.