rg v. Excel Elec., Inc

2020 COA 103

• Court: Colorado Court of Appeals
• Decided: July 9, 2020
• Docket: 18CA2358, Warembou
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY July 9, 2020

2020COA103

No. 18CA2358, Warembourg v. Excel Elec., Inc. — Evidence — Spoliation — Sanctions — Adverse Inference Instruction

A division of the court of appeals analyzes whether a trial

court abused its discretion in giving an adverse inference jury

instruction containing an irrebuttable presumption of causation

and liability as a sanction after finding that the defendant engaged

in spoliation by destroying a critical piece of evidence, in breach of

its duty to preserve that evidence. The division holds that Colorado

law authorizes the imposition of such an instruction for the

pre-litigation destruction of evidence and that the trial court did not

abuse its discretion in imposing the instruction as a sanction for

spoliation.

The division additionally holds that the trial court did not err

in classifying the plaintiff as an invitee under the Premises Liability Act, § 13-21-115, C.R.S. 2019; in its evidentiary rulings; in

declining to instruct the jury on the plaintiff’s alleged assumption of

risk; and in ruling that the cap on noneconomic damages in the

Construction Defect Action Reform Act, § 13-20-806(4)(a), C.R.S.

2019, does not limit the plaintiff’s damages. COLORADO COURT OF APPEALS 2020COA103

Court of Appeals No. 18CA2358 Boulder County District Court No. 17CV30891 Honorable Nancy W. Salomone, Judge

Brian Warembourg,

Plaintiff-Appellee,

v.

Excel Electric, Inc.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE LIPINSKY Freyre and Graham*, JJ., concur

Announced July 9, 2020

Zaner Harden Law, LLP, Kurt Zaner, Sara McEahern, Denver, Colorado; Levin Sitcoff, PC, Nelson A. Waneka, Denver, Colorado, for Plaintiff-Appellee

Walberg Law, PLLC, Wendelyn K. Walberg, Morrison, 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. 2019. ¶1 Spoliation — a party’s failure to preserve evidence —

jeopardizes adverse parties’ ability to obtain justice. The

truth-seeking function of our legal system is thwarted if a party is

deprived of material evidence during discovery or if the finder of fact

is denied that evidence at trial. Thus, upon learning that he or she

is likely to be involved in litigation, a person has a legal duty to

preserve all potentially relevant evidence within his or her

possession.

¶2 Courts possess the inherent authority to impose sanctions for

spoliation. Judges have the power to enter a broad range of

penalties against spoliators, depending on whether the destruction

of the evidence was intentional, the prejudice to the other party,

how spoliation affects the judicial process, and whether lesser

sanctions would be effective. These penalties can range from

monetary sanctions to the most drastic sanction of all — the entry

of a default judgment. Adverse inference jury instructions fall in

the middle of the spectrum of sanctions.

¶3 In this case, we consider whether a trial court abused its

discretion in giving an adverse inference jury instruction containing

an irrebuttable presumption of causation and liability (the subject

1 instruction) as a sanction after finding that the defendant destroyed

a critical piece of evidence, in breach of its duty to preserve that

evidence.

¶4 Because we discern no abuse of discretion, and disagree with

the defendant’s other arguments, we affirm.

I. Background Facts and Procedural History

A. Warembourg’s Injury

¶5 Brian Warembourg, an employee of Schmidt Custom Floors,

Inc., provided flooring for a new home being constructed by Feller

Homes, Inc. Excel Electric, Inc., performed the electrical work at

the construction site. It installed a temporary electrical box (the

box) to supply power to the subcontractors.

¶6 While working at the site on September 9, 2015, Warembourg

was unable to power his equipment using the home’s interior

outlets. He plugged a tool into the box, which was located outside

the home, but discovered that the exterior outlets on the box also

were not working. To troubleshoot the problem, he removed the

box’s front cover and began toggling the circuit breakers inside the

box. While toggling one of the breakers, the box “exploded,”

shooting an “intense release” of electricity into Warembourg’s hand.

2 Warembourg suffered permanent and disabling injuries as a result

of the electrocution.

¶7 Warembourg’s coworker photographed the damaged box

shortly after the accident. The pictures depict a weathered

electrical box lacking legible warning stickers. Although the box’s

cover had been removed, the photographs show that none of the

box’s internal wiring had been disconnected.

B. Excel’s Pretrial Conduct and the Spoliation Sanction

¶8 On the day of the incident, Excel learned that someone had

been injured at the job site. Excel retrieved the damaged box and

took it to its warehouse. The next morning, Shane and Corey Heil,

Excel’s owners, inspected the box. (For clarity, and without

intending any disrespect, we refer to the members of the Heil family

by their first names.) Neither Shane nor Corey wrote any notes

about or photographed the box. Excel discarded the box sometime

during the next eight months.

¶9 An investigator for Warembourg’s worker’s compensation

carrier, Pinnacol Assurance, called Shane on October 27, 2015, “in

regards to an injury that one of [its] . . . injured workers had . . . .”

The investigator explained, “There was a temporary power pole that

3 was set up. And we’re just trying to figure out if there w[ere] any

circumstances that contributed to his injury.” Shane told the

investigator that his “shop guy” “probably” threw the box away

because it was unrepairable. Shane later added, “And when I heard

[Warembourg] got hurt, it’s like, he probably shouldn’t have been in

[the box] in the first place.”

¶ 10 On April 29, 2016, Warembourg’s counsel sent Excel a letter

introducing himself, referencing his client’s injury claim, and

putting Excel on notice of its duty to preserve evidence. The letter

specifically mentioned the need to preserve “the temporary electrical

box” and other “evidence relating to this incident.”

¶ 11 Excel tendered a claim to its liability insurance carrier on May

13, 2016. Shane sent the insurance carrier a letter discussing the

cause of Warembourg’s injuries. In the letter, Shane speculated

that Warembourg had been using a power cord lacking an industry

standard end and attempted to overcome his lack of proper

equipment by hooking the deficient cord directly to a breaker in the

box. Shane claimed that Warembourg removed the cover to the

box, reached into the electrified box, and unhooked live wires.

4 ¶ 12 Warembourg filed suit against Excel. In its answer, Excel

pleaded contributory negligence and assumption of risk as

affirmative defenses, and designated Schmidt Floors as a nonparty

at fault. It “admit[ted] that approximately six months after the [box]

. . . was returned, the [box] was thrown away.”

¶ 13 In interrogatory responses, Excel claimed that “[t]he exact date

the box was disposed of is not known, but it was approximately six

months after the date of the incident when [Excel’s] storage unit

underwent its customary six month cleanout. Shane Heil would

have been the individual responsible for authorizing the disposal of

the box.” Excel added, “[a]fter the date of the incident, Excel did

not hear anything about the accident or about [Warembourg] until

it received a phone call from an attorney over a year later.”

¶ 14 Warembourg deposed several of Excel’s employees, including

Shane, Matthew O’Connell, Corey, and Chris Heil. (O’Connell was a

longtime employee of Excel. Chris is Corey’s son and Shane’s

nephew.)

¶ 15 Shane testified during his deposition that Excel retained the

box for approximately six months “[b]ecause we cleaned out our

warehouse sometime in May after the accident.” He reiterated, “We

5 threw it out six months after we brought it back to the shop.”

When Warembourg questioned Shane’s timeline, Shane said the

box was destroyed in March or April 2016. Shane admitted,

however, that he was guessing the date because Excel did not have

any records concerning the cleaning. Shane further testified that

he ordered Chris to throw away the box because it was taking up

space.

¶ 16 During his deposition on March 28, 2018, O’Connell testified

that Excel currently displayed a damaged electrical panel (the

panel) on a wall at its warehouse as a warning to Excel’s employees

about the dangers of electricity. Someone had written “IGNORANT

FLOORING GUY” next to the panel. O’Connell explained that the

panel had been there for years.

¶ 17 During Corey’s deposition, he stated that Excel threw away the

box between six to eight months after Warembourg’s accident. He

said he was present when the box was thrown away and probably

made the decision to do so. However, Corey conceded that the last

time he remembered seeing the box was September or October

2015, and that he could not “even say that it was [in Excel’s

warehouse] in December [2015] to be honest.”

6 ¶ 18 Corey further testified that Excel held the box in the “job

room,” which was not subject to periodic cleanings and would not

have been cleaned until three months after Excel’s work with Feller

Homes concluded in late 2016 or early 2017. Finally, Corey

admitted that he knew Warembourg suffered a “major injury” based

on the information Shane received from Pinnacol Assurance in the

October 27, 2015, call.

¶ 19 Following these depositions, Warembourg served a request to

inspect the panel at Excel’s warehouse. Excel objected, claiming

that it destroyed the panel in late March 2018 — apparently within

hours of O’Connell’s revelation about the existence of the

“IGNORANT FLOORING GUY” label and the panel.

¶ 20 Warembourg next deposed Chris. Chris testified that he threw

away the panel after Shane told him to remove it from the

warehouse wall and Corey told him to dispose of it. Chris also said

he did not remember seeing the box.

¶ 21 Excel moved for a ruling that the Premises Liabilities Act

(PLA), § 13-21-115, C.R.S. 2019, provided Warembourg’s sole

remedy and for a determination of Warembourg’s status under the

PLA. Excel asserted that Warembourg was a trespasser because he

7 had lacked its permission to “break into” its box and had engaged

in criminal activity under sections 18-4-506.5 or 18-2-101, C.R.S.

2019, by removing the box’s cover. The court agreed that the PLA

provided Warembourg’s exclusive remedy, but classified

Warembourg as an invitee at the time of the accident because both

parties presented evidence that he had the authority to access the

breakers within the box.

¶ 22 In addition, Warembourg moved for entry of a default

judgment against Excel as a sanction for its destruction of the box

and the panel and lack of candor regarding these items. The

district court found that Excel provided inconsistent accounts of the

date it destroyed the box and, consequently, found that Excel

engaged in spoliation when it destroyed the box in bad faith. The

court further found that Excel’s spoliation prejudiced Warembourg

because an exemplar panel and photographs of the box were

inadequate substitutes for the box itself. The court also determined

that Excel’s destruction of the panel during litigation adversely

impacted its credibility concerning its destruction of the box.

¶ 23 After determining that it could not impose “the ultimate

sanction of default in absence of a rule or court order,” the district

8 court announced it would give an adverse inference jury instruction

as a sanction for Excel’s spoliation. The court asked the parties to

tender proposed language for the instruction and submit briefs on

the times during the trial when the court should read the

instruction to the jury.

¶ 24 At the trial management conference, the district court ruled

that Excel could not present evidence that Warembourg had

engaged in criminal conduct.

¶ 25 Shortly before trial, the district court conducted a hearing to

determine the language of the subject instruction. Based on its

previous findings that Excel destroyed the box intentionally and in

bad faith, the court concluded that the appropriate sanction was an

instruction that the jury must presume Excel failed to use

reasonable care to protect Warembourg against the danger the box

presented and, therefore, was a cause of the accident. The

instruction stated,

[d]ue to the Defendant’s destruction of the electrical box, the Court has previously made a legal finding that the electrical box is presumed to have been a danger on the property about which [Excel] knew or, as an entity using reasonable care, should have known; that [Excel] failed to use reasonable

9 care to protect against the danger of the electrical box on the property, and [Excel’s] failure was a cause of [Warembourg’s] injuries, if any. You must regard those facts as proven.

Therefore, you need only consider whether plaintiff has proven by a preponderance of the evidence that he had injuries.

¶ 26 In addition, the court specifically barred Excel from presenting

evidence that it acted with due care and announced it would read

the subject instruction each time Excel defied its order by

introducing evidence of its due care.

¶ 27 The court did not strike Excel’s contributory negligence

defense, however. For this reason, the court declined to give

Warembourg’s proposed instruction that the box was “the cause” of

his injuries. (Emphasis added.) The court also rejected

Warembourg’s request for a standalone instruction. Finally, the

court determined that evidence of the condition of the box was

admissible because it was relevant to the credibility of Excel’s

employees and to its contributory negligence defense.

C. The Trial and Excel’s Motion to Cap Warembourg’s Damages

¶ 28 The district court enforced the spoliation sanction against

Excel by reading the subject instruction to the jury after Excel’s

10 expert opined that Warembourg had engaged in dangerous actions

when he removed the box’s cover. The court also read the subject

instruction to the jury during voir dire — upon Excel’s request —

and after the completion of the evidentiary portion of the trial.

Consistent with its pretrial rulings, the court allowed Warembourg

to present testimony about the panel and the likely condition of the

box before the accident.

¶ 29 Further, the court rejected Excel’s tendered assumption of risk

instruction because the evidence showed that Warembourg lacked

knowledge of the specific danger associated with toggling the

breaker and, thus, did not consent to the risk of injury. The court

also struck Excel’s assumption of risk defense because it was

inconsistent with its contributory negligence defense and

designation of a nonparty at fault.

¶ 30 The jury returned a verdict in favor of Warembourg. It

concluded that neither Warembourg nor Schmidt Floors acted

negligently or caused Warembourg’s injuries. Rather, it found Excel

to be 100% at fault. The jury awarded Warembourg damages

totaling approximately $16 million, of which approximately $5.3

million was for his noneconomic injuries.

11 ¶ 31 Excel moved to cap the jury’s award of noneconomic damages

under the Construction Defect Action Reform Act (CDARA),

§§ 13-20-801 to -808, C.R.S. 2019, arguing that CDARA’s statutory

cap applied to construction professionals such as itself. The district

court disagreed, ruling that CDARA’s cap did not limit

Warembourg’s damages because this was not a construction defects

case. Instead, the court applied the general cap on noneconomic

damages found in section 13-21-102.5(3)(a), C.R.S. 2019, which

was nearly twice as high as CDARA’s cap. The court then doubled

the general cap due to Warembourg’s “profound, severe, and

life-altering” injuries. See § 13-21-102.5(3)(a).

¶ 32 Excel also filed a motion for new trial, which the district court

denied.

II. Discussion

¶ 33 Excel advances five primary contentions of error:

(1) The district court improperly classified Warembourg as

an invitee under the PLA.

(2) The district court erred in giving the subject instruction

as a sanction for Excel’s spoliation.

12 (3) The district court abused its discretion by barring Excel’s

evidence that it had acted with due care and that

Warembourg had violated the criminal code, and by

allowing Warembourg to testify about the condition of the

box, which Excel claimed amounted to improper

advocacy by the court.

(4) The district court erred in declining to instruct the jury

on Excel’s assumption of risk defense.

(5) The district court should have capped Warembourg’s

noneconomic damages under CDARA.

A. Warembourg’s Status Under the PLA

¶ 34 Excel contends that the district court erred by ruling that

Warembourg was an invitee for purposes of the PLA. Excel

specifically asserts that, because he was not authorized to “break

into” its box, Warembourg was a trespasser or, at best, a licensee.

And, because Warembourg failed to present evidence that Excel

knew of any dangers created by the box, Excel argues that he is not

entitled to recover any damages. We discern no error in the court’s

classification of Warembourg as an invitee under the PLA, however.

13 1. Standard of Review

¶ 35 We review a trial court’s ruling on whether a plaintiff was an

invitee, licensee, or trespasser at the time of injury as a mixed

question of fact and law. Legro v. Robinson, 2015 COA 183, ¶ 15,

369 P.3d 785, 789; see § 13-21-115(4). “We defer to the court’s

credibility determinations, and will disturb its findings of historical

fact only if they are clearly erroneous and not supported by the

record.” Legro, ¶ 15, 369 P.3d at 789. But we review de novo the

court’s application of the facts to the governing legal standards. Id.

2. Legal Authority

¶ 36 The General Assembly enacted the PLA to “establish a

comprehensive and exclusive specification of the duties landowners

owe to those injured on their property.” Vigil v. Franklin, 103 P.3d

322, 328 (Colo. 2004); see § 13-21-115(2) (“In any civil action

brought against a landowner by a person who alleges injury

occurring while on the real property of another and by reason of the

condition of such property, or activities conducted or circumstances

existing on such property, the landowner shall be liable only as

provided in” section 13-21-115(3).) The statute “preempts prior

common law theories of liability, and [is] the sole codification of

14 landowner duties in tort.” Vigil, 103 P.3d at 328; see Wycoff v.

Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1265

(Colo. App. 2010) (“The [PLA] provides the sole remedy against

landowners for injuries on their property.”).

¶ 37 A “‘landowner’ includes, without limitation, an authorized

agent or a person in possession of real property and a person legally

responsible for the condition of real property or for the activities

conducted or circumstances existing on real property.”

§ 13-21-115(1). “Thus, a ‘person need not hold title to the property

to be considered a “landowner.”’” Wycoff, 251 P.3d at 1266 (quoting

Burbach v. Canwest Invs., LLC, 224 P.3d 437, 441 (Colo. App.

2009)).

We read the statute as intending to define and limit the liability of property owners. Such protection is, in our view, available to authorized agents or parties in possession of the property and also to parties legally responsible for the condition of the property or activities conducted on it. Since the protections of the statute are broad-reaching, its responsibilities must be coextensive. Therefore, an independent contractor . . . is a “landowner” for purposes both of the protections and the responsibilities of the statute.

15 Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1216 (Colo.

2002) (emphasis added).

¶ 38 Section 13-21-115(3) “outlines the respective duties that a

landowner owes to trespassers, invitees, and licensees and provides

that a breach of those duties may result in liability for damages

caused.” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565,

574 (Colo. 2008); see Legro, ¶ 19, 369 P.3d at 789 (“[T]he ability of

an injured party to recover is correlated with his status as a

trespasser, licensee, or invitee.” (quoting § 13-21-115(1.5)(a))).

¶ 39 A landowner owes the greatest duty of care to an invitee, a

lesser duty to a licensee, and the least duty to a trespasser. Wycoff,

251 P.3d at 1265; see § 13-21-115(3). The PLA defines invitee,

licensee, and trespasser as follows:

(a) “Invitee” means a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.

(b) “Licensee” means a person who enters or remains on the land of another for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s

16 permission or consent. “Licensee” includes a social guest.

(c) “Trespasser” means a person who enters or remains on the land of another without the landowner’s consent.

§ 13-21-115(5).

¶ 40 A plaintiff’s status may change if he or she exceeds the scope

of the landowner’s invitation to access the property. Chapman v.

Willey, 134 P.3d 568, 569-70 (Colo. App. 2006).

3. Analysis

a. Warembourg’s Status Under the PLA Is Not a Moot Issue

¶ 41 As an initial matter, Warembourg claims that his status under

the PLA is moot because this determination concerns only the

standard of care Excel owed to him, which the district court

conclusively resolved through the subject instruction. We reject

this argument, however, because it assumes that the court would

have imposed an identical sanction regardless of its ruling on

Warembourg’s status under the PLA.

¶ 42 The subject instruction specifically said that Excel “knew, or

as an entity using reasonable care, should have known” that the

box presented a danger of injury. The “knew or should have

known” language mirrors the standard to which landowners must

17 adhere to protect invitees under the PLA. See § 13-21-115(3)(c)(I).

Thus, it appears the district court fashioned the sanction based on

its previous ruling that, pursuant to the PLA, Warembourg was an

invitee. Had the court’s PLA ruling differed, the sanction likely

would have differed too. Thus, because the court’s PLA ruling

informed its sanction, which impacted the later proceedings in the

case, we conclude that Warembourg’s status under the PLA is not

moot.

b. Warembourg Was an Invitee at the Time of His Injury

¶ 43 Because the record shows that Warembourg and Excel were

mutually interested in providing construction services for Feller

Homes and supports the district court’s finding that Excel did not

tell Warembourg he could not toggle the box’s internal breakers, we

hold that Warembourg was an invitee under the PLA at the time of

his injury. See § 13-21-115(5)(a) (An “[i]nvitee” is a person “who

enters or remains on the land of another to transact business in

which the parties are mutually interested.”).

¶ 44 The parties do not dispute that Excel owned the box and was

responsible for its condition and providing electrical access to

subcontractors at the construction site. Thus, we conclude that

18 Excel was a property owner for purposes of the PLA because it was

legally responsible for the condition of the box. See Pierson, 48 P.3d

at 1216.

¶ 45 Nor do the parties dispute that Feller Homes hired Schmidt

Floors and Excel to provide construction services for the new home

and that Warembourg was Schmidt Floors’ employee. Further, the

record supports the district court’s finding that “each party

require[d] the existence of the other in order to perform a service for

which it [could] be compensated: [Warembourg] require[d] electricity

in order to install floors; and [Excel] need[ed] subcontractors, such

as [Schmidt Floors], for whom construction site electricity is a

commodity.” For this reason, given that the parties were “mutually

interested” in “transacting business,” Warembourg was Excel’s

invitee under the PLA for purposes of accessing power from the box.

§ 13-21-115(5)(a).

¶ 46 The parties’ agreement on the facts ends here, however. Excel

concedes that Warembourg was initially its invitee but contends

that Warembourg lost that status when he “broke into” the box. In

response, Warembourg asserts that Excel’s briefs addressing the

PLA failed to provide any evidence that he had lacked the authority

19 to toggle the box’s internal breakers. (Warembourg argues that our

review is limited to the arguments presented in the parties’ briefs on

Warembourg’s status under the PLA and, thus, we may not

consider evidence Excel introduced at trial regarding Warembourg’s

authority to access the interior of the box).

¶ 47 Neither party apparently contends that the district court

misapplied the law. Rather, Excel claims that the court erred in

finding that Warembourg had the authority to access the interior of

the box. Thus, the resolution of this issue turns on whether

Warembourg had such authority: if he did, he was an invitee; if not,

he was either a licensee or a trespasser. See § 13-21-115(5).

¶ 48 We need not resolve Warembourg’s contention that Excel

waived the right to present evidence regarding Warembourg’s status

under the PLA because, regardless of whether we consider the

evidence introduced at trial, the record supports the district court’s

finding that Warembourg had the authority to troubleshoot power

problems by removing the box’s cover and toggling its internal

breakers. Although Excel’s employees testified that they had not

given Warembourg permission to “break into” and “mess with” the

box, there is no evidence that any of these employees — or anyone

20 else — told Warembourg he could not troubleshoot the

malfunctioning box in the exact manner he did.

¶ 49 Indeed, the deposition and trial testimony show that

Warembourg operated within the scope of his authority:

 Warembourg testified that he thought he had permission

to use the box and troubleshoot the power problem, that

he had toggled breakers “well over a thousand” times in

his fourteen years as a subcontractor, and that nobody

had ever told him he lacked such permission.

 Shane testified that Excel installed the box to provide

power to subcontractors working at the construction site;

subcontractors commonly troubleshoot power problems

by removing the panel on temporary boxes to toggle the

internal breakers; and Excel did nothing to stop other

subcontractors from troubleshooting in this manner.

 O’Connell testified similarly, explaining that

subcontractors have access to temporary boxes,

commonly remove the boxes’ covers to troubleshoot

problems, and have not been told they are not authorized

to do so.

21  Corey testified that Excel does not tell subcontractors

that they may not access the interior of its temporary

boxes.

 The Inspection Supervisor for the City of Westminster

opined that subcontractors commonly remove the panel

on boxes and toggle the internal breakers to troubleshoot

power issues.

Moreover, contrary to Excel’s assertions, the photographs of the

damaged box in the record prove it lacked legible warning stickers.

Based on this evidence, we conclude that Excel did not limit

Warembourg’s authority to access the box.

¶ 50 Because Warembourg possessed the authority to troubleshoot

the power problem by removing the box’s cover and toggling its

internal breakers, the district court did not err in classifying him as

B. The Spoliation Sanction

¶ 51 Excel contends that the district court erred in instructing the

jury on an irrebuttable presumption of causation and liability as a

sanction for Excel’s destruction of the box. We disagree.

22 1. Standard of Review

¶ 52 Because “trial courts enjoy broad discretion to impose

sanctions for spoliation of evidence, even if the evidence was not

subject to a discovery order permitting sanctions under C.R.C.P.

37[,] . . . we will not overturn the trial court’s determination unless

it is manifestly arbitrary, unreasonable, or unfair.” Castillo v. Chief

Alt., LLC, 140 P.3d 234, 236 (Colo. App. 2006); see Pfantz v. Kmart

Corp., 85 P.3d 564, 567 (Colo. App. 2003). If a court imposes an

adverse inference instruction as a sanction for spoliation, “the form

and style of the instruction [are] within the trial court’s discretion.”

Rogers v. Westerman Farm Co., 29 P.3d 887, 909 (Colo. 2001).

¶ 53 “The ability to provide the jury with an adverse inference

instruction as a sanction for spoliation of evidence derives from the

trial court’s inherent powers.” Aloi v. Union Pac. R.R. Corp., 129

P.3d 999, 1002 (Colo. 2006) (citing Pena v. Dist. Court, 681 P.2d

953, 956 (Colo. 1984)). Although courts’ inherent powers to

sanction spoliation may differ between jurisdictions, see Silvestri v.

Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001), “we are

persuaded by Colorado cases involving discovery violations, as well

23 as by more recent federal precedent,” for guidance on whether a

court abuses its discretion by imposing a particular sanction,

Pfantz, 85 P.3d at 568.

¶ 54 “In determining whether the trial court abused its discretion,

we must examine whether the rationales underlying the adverse

inference supported giving the instruction as a sanction for

spoliation.” Aloi, 129 P.3d at 1002.

[A]dverse inference instructions serve both a punitive and a remedial purpose. The punitive function serves to deter parties from destroying evidence in order to prevent its introduction at trial. The remedial function serves to restore the putative prejudiced party to the position it would have held had there been no spoliation.

Id. (citations omitted).

¶ 55 To effectuate these purposes, the supreme court adopted the

Fourth Circuit’s rationale that a court need not find bad faith or

that the content of the destroyed evidence would have been

unfavorable to the spoliator before imposing a sanction in the form

of an adverse instruction. See id. at 1003-04 (“To draw an adverse

inference from the absence, loss[,] or destruction of evidence, it

would have to appear that the evidence would have been relevant to

24 an issue at trial and otherwise would naturally have been

introduced into evidence.” (quoting Vodusek v. Bayliner Marine

Corp., 71 F.3d 148, 156 (4th Cir. 1995))).

¶ 56 Thus, “[t]he trial court need not find that the evidence was

destroyed in bad faith; it may sanction a party who willfully

destroys evidence relevant to a contested issue” if “the party knew

or should have known that the destroyed evidence was relevant to

pending, imminent, or reasonably foreseeable litigation.” Castillo,

140 P.3d at 236 (citing Aloi, 129 P.3d at 1003); Pfantz, 85 P.3d at

568-69; Rodriguez v. Schutt, 896 P.2d 881, 884-85 (Colo. App.

1994), aff’d in part and rev’d in part on other grounds, 914 P.2d 921

(Colo. 1996).

¶ 57 Further, the spoliator’s state of mind is an important

consideration when determining the appropriate severity of the

adverse inference sanction. See Pfantz, 85 P.3d at 568 (“The

sanction should be ‘commensurate with the seriousness of the

disobedient party’s conduct.’” (quoting Newell v. Engel, 899 P.2d

273, 276 (Colo. App. 1994))).

[A]n adverse inference instruction can take many forms, again ranging in degrees of harshness. The harshness of the instruction

25 should be determined based on the nature of the spoliating party’s conduct — the more egregious the conduct, the more harsh the instruction. In its most harsh form, when a spoliating party has acted willfully or in bad faith, a jury can be instructed that certain facts are deemed admitted and must be accepted as true. At the next level, when a spoliating party has acted willfully or recklessly, a court may impose a mandatory presumption. Even a mandatory presumption, however, is considered to be rebuttable. The least harsh instruction permits (but does not require) a jury to presume that the lost evidence is both relevant and favorable to the innocent party.

Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am.

Secs., 685 F. Supp. 2d 456, 470 (S.D.N.Y. 2010) (footnotes omitted),

abrogated on other grounds by Chin v. Port Auth., 685 F.3d 135 (2d

Cir. 2012).

3. The District Court Did Not Abuse Its Discretion in Imposing the Subject Instruction as a Sanction for Excel’s Spoliation

¶ 58 As explained above, the district court imposed the subject

instruction as a sanction for Excel’s intentional destruction of the

box in bad faith. The court noted that this sanction served the

punitive purpose of deterring misconduct and the remedial purpose

of reducing the “profound[] prejudice” to Warembourg.

26 ¶ 59 Excel concedes that it discarded the box and that the box

would have be relevant to the litigation. However, Excel claims that

its actions were benign: its employees were not “litigation-savvy”

and did not understand the importance of retaining a damaged

piece of equipment for months when Warembourg had not divulged

the extent of his injuries or the significance of the box to those

injuries. It further asserts that its employees’ inconsistent and

contradictory statements concerning the box’s destruction resulted

from their “possible incomplete memor[ies]” and Warembourg’s

engagement in “semantics.”

¶ 60 In the alternative, Excel contends that, even if the record

supports the court’s finding, the court abused its discretion

because Colorado law does not authorize the sanction it imposed.

Excel further asserts that the subject instruction impermissibly

took the issues of credibility, causation, and liability away from the

jury, thereby wrongfully precluding the jury from deciding the case

on the merits. We consider and reject each argument.

27 a. The District Court Did Not Err in Finding that Excel Intentionally Destroyed the Box in Bad Faith

¶ 61 Excel had a legal duty to preserve the box upon learning that

litigation arising from Warembourg’s accident was likely. See Cache

La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 621 (D.

Colo. 2007) (“In most cases, the duty to preserve evidence is

triggered by the filing of a lawsuit. However, the obligation to

preserve evidence may arise even earlier if a party has notice that

future litigation is likely.”); Scott v. IBM Corp., 196 F.R.D. 233, 249

(D.N.J. 2000) (“While a litigant is under no duty keep or retain every

document in its possession, even in advance of litigation it is under

a duty to preserve what it knows, or reasonably should know, will

likely be requested in reasonably foreseeable litigation.”).

¶ 62 The analysis of when litigation was “reasonably foreseeable” is

“a flexible fact-specific standard that allows a district court to

exercise the discretion necessary to confront the myriad factual

situations inherent in the spoliation inquiry.” Micron Tech., Inc. v.

Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011). That analysis

was stymied here due to Excel’s conflicting accounts of the box’s

destruction.

28 ¶ 63 The district court meticulously reviewed the record in

determining that Excel had destroyed the box while under a duty to

preserve it. In support of its conclusion, the district court made the

following findings of fact:

 “[Excel] knew within days of September 9, 2015 that

[Warembourg] had sustained an injury related to the

electrical box in question”;

 “[Excel] was on notice as of October 27, 2015, that the

box had relevance to an investigation of this injury”; and

 “[s]ometime between May 1 and 17, 2016, [Excel

acquired] actual knowledge that litigation was imminent.”

¶ 64 Based on these findings, the court concluded that Excel

“disposed of the electrical box sometime after it had actual

knowledge that the box had potential evidentiary value . . . .

Conflicting evidence and testimony provided by [Excel], however,

make[] it impossible to definitely establish the date of destruction.”

Due to the Excel employees’ conflicting testimony regarding when

the box was discarded, who destroyed it, and where it was kept

before its destruction, the court inferred that “at the time [Excel]

destroyed the electrical box involved in [Warembourg’s] injury, it

29 knew or should have known that the destroyed evidence was

relevant to pending, imminent, or reasonably for[e]seeable

litigation.”

¶ 65 The record supports the district court’s findings of fact and

inferences from those facts. See People in Interest of L.M., 2018

COA 57M, ¶ 17, 433 P.3d 114, 118 (“[T]he inferences and

conclusions to be drawn from [the facts] are within the [trial] court’s

discretion.”). First, Corey testified that Excel knew somebody had

been injured “a couple days after” the accident. Corey’s testimony

is consistent with the evidence that an Excel employee retrieved the

damaged box the day of the accident and Excel inspected the box

the next day.

¶ 66 Second, following Shane’s call with Pinnacol Assurance, Excel

was on notice that the box was relevant to Warembourg’s injuries.

The investigator explained who he was, for whom he worked, and

why he was calling. Their conversation focused on the condition of

the box, its whereabouts, and Warembourg’s alleged actions

preceding the accident. Further, Shane said he knew Warembourg

had been injured.

30 ¶ 67 If there was any doubt that Excel knew the box was relevant,

Shane later testified that he knew it was prudent to retain

injury-causing equipment for potential worker’s compensation

claims. Moreover, Corey conceded that, at the time of the Pinnacol

Assurance call, Excel knew that a “major injury” had occurred and

that a worker’s compensation carrier was investigating the cause of

Warembourg’s injuries and the condition of the box.

¶ 68 Third, the record evidence establishes that Excel had actual

knowledge that litigation was imminent when it received the letter

from Warembourg’s counsel in early May 2016. The letter

specifically referenced Warembourg’s claim against Excel and

included an express request that Excel preserve “any . . . evidence

relating to this incident.” Further, the record shows that Excel

tendered a claim for Warembourg’s injuries to its insurance carrier

on May 13, 2016.

¶ 69 Thus, the record supports the district court’s finding that

Excel intentionally “disposed of the electrical box sometime after it

had actual knowledge that the box had potential evidentiary value.”

¶ 70 The record also supports the district court’s inference that

Excel destroyed the box in bad faith. Excel inconsistently described

31 when it disposed of the box. Shane first told the investigator for

Pinnacol Assurance on October 27, 2015, that Excel had “probably”

already thrown away the box. He initially testified in his deposition

that Excel retained the box for approximately six months, but later

testified that Excel kept the box until March or April 2016. Shane

also testified that Excel discarded the box during a routine cleaning

of its warehouse, which occurred sometime in May 2016. Yet Excel

represented in interrogatory responses that it disposed of the box

approximately six months after Warembourg’s accident. And Corey

testified that Excel retained the box for six to eight months after the

accident.

¶ 71 As the district court correctly noted, “[a]t least one of these

statements [wa]s necessarily false . . . [and] prevented an interested

party from inspecting the box for physical evidence regarding the

circumstances of [Warembourg’s] injury.”

¶ 72 Excel also inconsistently described who destroyed the box.

During the call with Pinnacol Assurance, Shane stated that his

“shop guy” discarded the box. Shane later testified that he was

responsible for discarding the box and that either he or Chris did

so. However, Chris testified that he did not remember seeing the

32 box. Meanwhile, Corey testified that he was present when the box

was thrown away and probably made the decision to do so.

Further, in interrogatory responses, Excel certified that “Shane Heil

would have been the individual responsible for authorizing the

disposal of the box.” Thus, at least one of Excel’s sworn statements

concerning who destroyed the box must also have been false.

¶ 73 Finally, Excel inconsistently described where it kept the box

after Warembourg’s injury. Shane initially told Pinnacol Assurance

that Excel did not have the box and later testified that he directed

its destruction during a routine cleaning. Corey gave a different

account, however, testifying that Excel held the box in the “job

room,” which was not subject to periodic cleanings.

¶ 74 The district court found that Excel intentionally destroyed the

box in bad faith in anticipation of litigation, based on Excel’s

numerous inconsistent statements, its destruction of the

“IGNORANT FLOORING GUY” label and the panel within hours

following O’Connell’s deposition testimony about this potentially

damaging evidence, and its demonstrably false representations

throughout the litigation, including its statement that “[a]fter the

date of the incident, Excel did not hear anything about the accident

33 or about [Warembourg] until it received a phone call from an

attorney over a year later.”

¶ 75 We cannot assume the district court’s role to find facts and

determine credibility. Legro, ¶ 15, 369 P.3d at 789 (“We defer to the

court’s credibility determinations, and will disturb its findings of

historical fact only if they are clearly erroneous and not supported

by the record.”). The district court was free to believe or disbelieve

the witnesses. We conclude that it did not err in disbelieving

Excel’s representations and finding that Excel intentionally

destroyed the box in bad faith.

b. The District Court Did Not Abuse Its Discretion in Giving the Subject Instruction

¶ 76 As an initial matter, we reject Excel’s assertion that Colorado

law does not authorize a court to give an adverse inference jury

instruction containing an irrebuttable presumption as a sanction

for a party’s pre-litigation destruction of evidence. Excel provides

no authority, and we can find none, that circumscribes a court’s

power in this manner. To the contrary, Colorado and federal case

law overwhelmingly indicates that courts possess broad discretion

in fashioning the appropriate sanction for spoliation. See Aloi, 129

34 P.3d at 1002; see also Vodusek, 71 F.3d at 156; Gates Rubber Co. v.

Bando Chem. Indus., Ltd., 167 F.R.D. 90, 102 (D. Colo. 1996)

(Because the imposition of sanctions is essentially a judgment call,

courts’ rulings “cannot be tied down to a fixed rule or formula. If

such were the case, courts would lose their flexibility in the

sanctions process, and discretion would lose its meaning.”).

¶ 77 A court has the option to fashion an adverse inference jury

instruction against the spoliator. See Rodriguez, 896 P.2d at 884

(“Where a party intentionally destroys evidence to prevent its

introduction at trial, the trial court clearly has the power to employ

an adverse inference as a sanction.”); see also Pension Comm., 685

F. Supp. 2d at 470. The adverse inference instruction can take

different forms; “[i]n its most harsh form, when a spoliating party

has acted willfully or in bad faith, a jury can be instructed that

certain facts are deemed admitted and must be accepted as true.”

Pension Comm., 685 F. Supp. 2d at 470; see Pfantz, 85 P.3d at

568-69 (affirming the trial court’s rulings, including its decision to

give an adverse inference jury instruction containing an irrebuttable

presumption as a sanction for spoliation).

35 ¶ 78 For these reasons, we hold that Colorado trial courts have the

authority to give an adverse inference jury instruction containing an

irrebuttable presumption as a sanction for a party’s pre-litigation

spoliation of evidence. See Lauren Corp. v. Century Geophysical

Corp., 953 P.2d 200, 204 (Colo. App. 1998) (“We note that the

opposite result — denying the court the inherent power to award

sanctions . . . — would only encourage unscrupulous parties to

destroy damaging evidence before a court order has been issued.”).

¶ 79 We decline to address Warembourg’s contention that the

district court also had the authority to enter a default judgment as

a sanction for Excel’s pre-litigation spoliation. Such a

determination “would have no practical legal effect upon the

existing controversy” — whether the district court abused its

discretion in imposing a jury instruction containing an irrebuttable

presumption. Am. Drug Store, Inc. v. City & Cty. of Denver, 831 P.2d

465, 469 (Colo. 1992) (quoting Van Schaack Holdings, Ltd. v.

Fulenwider, 798 P.2d 424, 426-27 (Colo. 1990)).

¶ 80 Having concluded that the spoliation sanction was within the

district court’s authority, we now turn to whether the court abused

its discretion in imposing it. We hold that the court did not abuse

36 its discretion because the sanction served the punitive function of

deterring Excel’s bad faith misconduct and the remedial function of

restoring Warembourg to the position in which he would have been

had Excel not discarded the box. See Aloi, 129 P.3d at 1002.

¶ 81 The court’s finding that Excel intentionally destroyed the box

in bad faith alone provides a sufficient punitive purpose for

imposition of the subject instruction. See Pension Comm., 685

F. Supp. 2d at 470; Pfantz, 85 P.3d at 568-69. Moreover, the

district court’s findings regarding Excel’s destruction of the panel

during litigation underscore the appropriateness of the sanction.

The court needed to “deter [Excel] from destroying evidence” that

would naturally have been “introduc[ed] at trial.” Aloi, 129 P.3d at

1002.

¶ 82 The subject instruction also properly served as a remedial

measure to limit prejudice to Warembourg. See id. The district

court found that the box was “the key item of physical evidence,”

that it “would have been relevant to an issue at trial and otherwise

would naturally have been introduced into evidence,” and that

Warembourg was “profoundly prejudiced” by its destruction. Id. at

1004 (quoting Vodusek, 71 F.3d at 156). The court noted that an

37 exemplar panel and photographs of the box were inadequate

substitutes for the box itself because the “proffered substitutes

cannot resolve the disputed question of the condition of [the box],

and all its constituent parts, when [Warembourg] came upon it.”

¶ 83 The record supports the district court’s finding of prejudice

and need for remedial measures. Excel destroyed the box without

recording any notes or taking any photographs of it, thereby

precluding Warembourg and Pinnacol Assurance from examining it.

Excel subsequently misrepresented the condition of the box, stating

that it found no issues during its inspection, and speculated that

Warembourg’s attempt to compensate for his own lack of proper

equipment caused his injuries. However, Excel failed to introduce

any evidence supporting its contention that Warembourg either

lacked the proper equipment or injured himself while trying to hook

an improper cord to the breaker. Thus, without access to the box,

Warembourg could not defend himself against Excel’s accusations

that he, and not the box, caused his injuries. For this reason, we

conclude that a lesser sanction would not have adequately

remedied the prejudice to Warembourg. An adverse inference jury

instruction articulating a rebuttable presumption of causation and

38 liability, for which Excel advocates, would have carried little weight

given that Excel had the opportunity to examine the box and

Warembourg did not. Under this hypothetical scenario,

Warembourg would have had no way to refute Excel’s statements

that the box was functioning properly and did not cause the

¶ 84 Because the district court had the authority to impose the

subject instruction as a sanction for Excel’s spoliation of the box,

and because the sanction served punitive and remedial functions,

we hold that the court did not abuse its discretion in giving the

adverse inference jury instruction.

c. The District Court Did Not Preclude the Jury from Deciding the Case on the Merits

¶ 85 Finally, we reject Excel’s contention that the sanction

impermissibly precluded the jury from deciding the case on the

merits. As we perceive it, Excel has recloaked its previous abuse of

discretion argument in the guise of a right to a jury trial argument.

But Excel’s contention misses the mark because courts are

empowered to enforce their lawful rulings. See Pena, 681 P.2d at

956 (“The inherent powers which courts possess consist of: ‘[A]ll

39 powers reasonably required to enable a court to perform efficiently

its judicial functions, to protect its dignity, independence, and

integrity, and to make its lawful actions effective.’” (quoting Jim R.

Carrigan, Inherent Powers and Finance, Trial, Nov.-Dec. 1971, at

22)) (emphasis added). Thus, because we held above that the court

did not abuse its discretion in imposing an adverse inference jury

instruction containing an irrebuttable presumption, we conclude

that its enforcement of the sanction did not impermissibly take the

factfinding role from the jury. Indeed, the federal and Colorado

courts have affirmed trial courts’ instructions that certain facts are

deemed admitted and must be accepted as true. See Smith v. Kmart

Corp., 177 F.3d 19, 28-29 (1st Cir. 1999); Pfantz, 85 P.3d at 567.

¶ 86 Moreover, the district court allowed Excel to present its

contributory negligence defense and nonparty at fault argument.

These arguments required the jury, and not the court, to determine

whether Warembourg or Schmidt Floors were partly at fault for the

accident. Thus, we disagree that the subject instruction precluded

the jury from deciding the case on the merits.

40 C. The District Court’s Evidentiary Rulings

¶ 87 Excel argues that the district court abused its discretion by

barring Excel’s experts from testifying about, and Excel’s counsel

from discussing, the cause of Warembourg’s injuries; by allowing

Warembourg’s allegedly speculative testimony about the condition

of the box; and by precluding Excel from introducing evidence that

Warembourg violated the criminal code when he accessed the box.

Excel claims that the court’s evidentiary rulings, in conjunction

with the subject instruction, sanctioned Excel multiple times for the

same act, which amounted to improper advocacy by the court. We

disagree.

1. Standard of Review

¶ 88 We review a trial court’s evidentiary rulings for an abuse of

discretion. Wal-Mart Stores, Inc. v. Crossgrove, 2012 CO 31, ¶ 7,

276 P.3d 562, 564. “A trial court has considerable discretion in

ruling upon the admissibility of evidence, and we will find an abuse

of discretion only if its ruling is manifestly arbitrary, unreasonable,

or unfair.” Leaf v. Beihoffer, 2014 COA 117, ¶ 9, 338 P.3d 1136,

1138 (quoting Wark v. McClellan, 68 P.3d 574, 578 (Colo. App.

2003)). “In weighing those dangers and considerations, the

41 proffered evidence ‘should be given its maximal probative weight

and its minimal prejudicial effect.’” Alhilo v. Kliem, 2016 COA 142,

¶ 9, 412 P.3d 902, 906 (quoting Murray v. Just In Case Bus.

Lighthouse, LLC, 2016 CO 47M, ¶ 19, 374 P.3d 443, 451).

2. The District Court Did Not Abuse Its Discretion in Preventing Excel’s Witnesses from Opining About the Safety of the Box

¶ 89 Excel specifically asserts that the district court erred by

reading the subject instruction to the jury after Excel’s expert

opined that Warembourg had engaged in dangerous actions. Excel

also contends that the court’s rulings improperly precluded its

witnesses from testifying that

 other contractors had safely used the box the previous

year;

 “[t]he box was assembled, installed[,] and maintained

according to the applicable standards of care”;

 “[t]he accident’s cause was not an unreasonable failure of

Excel to protect against a danger of which it knew or

should have known”;

42  “[r]easonable protection was provided by Excel against

dangers which were known or should have been known”;

and

 “[n]o unreasonable failure to protect caused the injury in

this case.”

¶ 90 We reject Excel’s assertions. The district court read the

subject instruction after Excel’s expert testified that, because

“[Warembourg] was hurt,” “the work was dangerous.” The court’s

action was consistent with its decision — and obligation — to

enforce the subject instruction. At the pretrial hearing, the court

informed the parties,

now that the Court has made this determination about the conclusive presumption, it is no longer relevant to assert or argue that [Excel] exercised due care. The Court has taken that question from the jury. And so a circumstance where the Court might give this instruction would be an event that [Excel] argued or one of the witnesses, perhaps an expert, attempted to offer testimony about [Excel] having exercised due care. The Court would give the instruction in the event that that was – that testimony would lead the jury to infer that there was due care exercised.

Given our holding that the court did not abuse its discretion in

imposing the subject instruction, supra Part II.B.3.b, we conclude

43 that the court’s reading of the instruction, just as it warned Excel it

would do, was not “manifestly arbitrary, unreasonable, or unfair.”

Leaf, ¶ 9, 338 P.3d at 1138 (quoting Wark, 68 P.3d at 578); see

Pena, 681 P.2d at 956 (explaining that courts have the inherent

power “to make [their] lawful actions effective”); see also Pfantz, 85

P.3d at 568 (explaining that a party that destroys evidence in bad

faith is precluded from presenting secondary evidence concerning

the characteristics of the evidence (citing CRE 1004(1))).

¶ 91 Further, although the district court said that “it [wa]s no

longer relevant to assert or argue that [Excel] exercised due care,”

the record indicates that the instruction did not preclude Excel

from introducing evidence of its alleged exercise of due care

regarding the condition of the box. For example, Excel presented

evidence that

 Shane inspected and tested the box before installing it at

the construction site;

 the box passed inspection; and

 more than a dozen other subcontractors had used the

box without reporting any issues.

44 ¶ 92 For this reason, we disagree with Excel’s blanket statement

that the court precluded it from presenting evidence of its alleged

exercise of due care. Accordingly, we hold that the court did not

abuse its discretion when it precluded Excel’s expert from testifying

that Excel exercised due care concerning the condition of the box.

3. The District Court Did Not Abuse Its Discretion in Permitting Warembourg’s Witnesses from Opining About the Box’s Condition and Destruction

¶ 93 Excel next asserts that the district court erred in permitting

Warembourg to present speculative evidence about the condition of

the box, Excel’s destruction of the panel, and Excel’s alleged

knowledge concerning its destruction of the box, which was

irrelevant as a consequence of the court’s imposition of the subject

instruction. The court addressed Excel’s contention in denying

Excel’s motion for new trial, explaining that Excel’s comparative

fault defense and nonparty at fault argument made this evidence

relevant. The court also noted that it had permitted both parties to

present evidence concerning Excel’s destruction of the box, and that

Excel chose to do so.

¶ 94 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

45 the action more probable or less probable than it would be without

the evidence.” CRE 401. Relevant evidence is generally admissible.

CRE 402.

¶ 95 In advancing its assertion that the condition of the box was

irrelevant after the court imposed the subject instruction, Excel

focuses on Warembourg’s PLA claim and ignores its own defenses.

Evidence of the condition of the box would have been irrelevant had

the subject instruction stated that Excel was the sole cause of

Warembourg’s injuries and had Excel not argued comparative fault

and that Schmidt Floors was a nonparty at fault. But, by stating

that Excel was “a cause” of the accident, the subject instruction left

the door open for Excel’s presentation of evidence that

Warembourg’s and Schmidt Floors’ actions contributed to the

accident. Thus, the condition of the box was relevant to Excel’s

own defenses at trial.

¶ 96 Excel’s destruction of the panel and knowledge of when it

destroyed the box were also relevant to Excel’s theory of the case.

As the district court correctly noted, the jury “had to determine

[Excel’s] degree of liability in comparison to [Warembourg’s] and

[Schmidt Floors’] alleged liability.” See § 13-21-111(1), (2)(b), C.R.S.

46 2019 (providing that, in actions where the plaintiff’s negligence

contributed to his or her injuries, “any damages allowed shall be

diminished in proportion to the amount of negligence attributable to

the person for whose injury, damage, or death recovery is made,”

which is determined “by the degree of negligence of each party,

expressed as a percentage”); § 13-21-111.5(1), C.R.S. 2019 (stating

that, in applying the nonparty designation statute, “no defendant

shall be liable for an amount greater than that represented by the

degree or percentage of the negligence or fault attributable to such

defendant . . . .”). Evidence concerning Excel’s destruction of the

panel during the pendency of the litigation and its knowledge of

when it discarded the box were relevant to its credibility on all other

issues, including its representations about the condition of the box

and its percentage of fault for the accident.

¶ 97 Accordingly, we hold that the district court did not abuse its

discretion in permitting Warembourg to present evidence

concerning the condition of the box, Excel’s destruction of the

panel, and Excel’s alleged knowledge when it discarded the box.

47 4. We Do Not Address Excel’s Remaining Contentions of Error Concerning the District Court’s Evidentiary Rulings

¶ 98 Excel contends that the district court abused its discretion by

precluding Excel from introducing evidence that Warembourg

allegedly violated the criminal code and by barring Excel’s counsel

from arguing in closing that the box was safe. But Excel devotes a

mere conclusory sentence to each of these issues. We decline to

address these arguments because they are “unsupported by any

substantial argument” and, thus, are insufficiently developed for

appellate review. Taylor v. Taylor, 2016 COA 100, ¶ 13, 381 P.3d

428, 431.

5. The District Court Did Not Improperly Act as an Advocate

¶ 99 Excel argues that the district court’s evidentiary rulings

improperly sanctioned Excel multiple times for the same act and,

thus, amounted to improper advocacy by the court. Because we

held above that the court correctly applied the subject instruction,

we reject Excel’s argument.

¶ 100 Moreover, despite the severity of Excel’s conduct that led to

Warembourg’s inability to prove that the box caused his injuries,

the district court went out of its way to ensure that the sanction

48 would not preclude the jury from deciding the case on the merits.

See Aloi, 129 P.3d at 1006 (“The test which must be applied here is

whether the trial judge’s conduct so departed from the required

impartiality as to deny the [party] a fair trial.” (quoting People v.

Adler, 629 P.2d 569, 573 (Colo. 1981))). The court

 denied Warembourg’s request for language in the

instruction stating that the box was “the cause” of the

accident;

 denied Warembourg’s request for a standalone

instruction highlighting Excel’s spoliation;

 permitted Excel to present evidence that the “destruction

[of the box] was due to a good faith accidental loss”;

 never informed the jury of its finding that Excel destroyed

the box in bad faith;

 permitted Excel to raise its contributory negligence

defense and argue that Schmidt Floors was a nonparty at

fault;

 read the adverse inference jury instruction to the jury

only three times over an eight-day trial, one time at

Excel’s request;

49  did not read the instruction in many instances where

Excel presented evidence of its alleged exercise of due

care concerning the condition of the box; and

 expressly invited Excel to object to Warembourg’s

presentation of evidence about the box if such evidence

became cumulative, which Excel did not do.

Thus, we agree with the court’s assessment that “the spoliation

instruction was not unduly highlighted” and did not deprive Excel

of a fair trial. See Aloi, 129 P.3d at 1006.

¶ 101 Moreover, in each of the its actions listed above, the district

court addressed Excel’s objections and articulated the reasoning

behind its decision. See id. Accordingly, when we view the totality

of the court’s actions, we conclude that it did not act as an advocate

because its actions were “motivated by a desire to remedy prejudice

caused by spoliation of evidence rather than by partiality.” Id.

D. The Rejected Assumption of Risk Instruction

¶ 102 Excel contends that the district court erred in failing to

instruct the jury on Excel’s assumption of risk defense, given that

Warembourg presented evidence that he was qualified to

troubleshoot the problems with the box; Excel introduced evidence

50 that Warembourg ignored a warning sticker on the box; and the

parties agreed he voluntarily removed the box’s cover and accessed

the breaker. Excel further asserts that the court erroneously

concluded that the tendered instruction was inconsistent with

Excel’s contributory negligence defense and argument that Schmidt

Floors was a nonparty at fault. We discern no error.

¶ 103 Trial courts must correctly instruct the jury on all matters of

law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). We review

de novo whether the “instructions as a whole accurately informed

the jury of the governing law.” Id. However, because trial courts

have broad discretion to fashion the form and style of instructions,

“we review a trial court’s decision to give a particular jury

instruction for an abuse of discretion.” Id. “A trial court abuses its

discretion only when its ruling is manifestly arbitrary,

unreasonable, or unfair, or the instruction is unsupported by

competent evidence in the record.” Vititoe v. Rocky Mountain

Pavement Maint., Inc., 2015 COA 82, ¶ 78, 412 P.3d 767, 782.

51 2. Legal Authority

¶ 104 A party may plead an assumption of risk defense in PLA cases.

See Tucker v. Volunteers of Am. Colo. Branch, 211 P.3d 708, 711

(Colo. App. 2008) (“The PLA . . . does not exclusively limit defenses

and does not abrogate statutorily created defenses . . . .”), aff’d and

remanded sub nom. Volunteers of Am. Colo. Branch v. Gardenswartz,

242 P.3d 1080 (Colo. 2010). “[A] person assumes the risk of injury

or damage if he voluntarily or unreasonably exposes himself to

injury or damage with knowledge or appreciation of the danger and

risk involved.” § 13-21-111.7, C.R.S. 2019; see Carter v. Lovelace,

844 P.2d 1288, 1289 (Colo. App. 1992).

3. The District Court Did Not Abuse Its Discretion in Declining to Instruct the Jury on Excel’s Assumption of Risk Defense

¶ 105 We conclude that the district court did not abuse its discretion

in rejecting Excel’s tendered assumption of risk instruction because

the evidence at trial showed that Warembourg lacked knowledge

that toggling a breaker in the box presented a danger of injury and,

thus, did not consent to that danger. See Wark, 68 P.3d at 581

(explaining that a court may instruct the jury on the assumption of

risk defense if the facts of the case support giving the instruction).

52 ¶ 106 Contrary to Excel’s contention, the record evidence does not

indicate that Warembourg knew of the danger or consented to it.

Rather, Warembourg testified that he was not aware of the danger

of being electrocuted by toggling the breaker. There is a difference

between generally appreciating the danger of electricity and

knowing that a particular electrical component presents a danger of

electrocution. See Carter, 844 P.2d at 1290 (holding that the trial

court erred in instructing the jury on assumption of the risk when

the plaintiff did not assume the specific risk that caused his

injuries). A finding that Warembourg’s testimony was credible

alone would have been sufficient for the court to reject Excel’s

tendered assumption of risk instruction. See Wark, 68 P.3d at 581

(explaining that a party’s subjective knowledge of the danger is

necessary for an assumption of risk instruction); see also Legro,

¶ 15, 369 P.3d at 789 (“We defer to the court’s credibility

determinations . . . .”).

¶ 107 Moreover, additional evidence supported Warembourg’s

subjective belief that his actions were not dangerous. Shane and

Corey conceded that toggling a breaker in a properly functioning

box would not be a dangerous act. Warembourg’s flooring expert,

53 his coworker, and the Inspection Supervisor for the City of

Westminster confirmed this point. Further, Shane and O’Connell

testified during their depositions and the Inspection Supervisor

opined in his expert report that subcontractors commonly remove

the panel on boxes and toggle the internal breakers to troubleshoot

issues with power.

¶ 108 Excel’s arguments conflate the assumption of risk and

contributory negligence defenses. The distinction between these

defenses reinforces our conclusion that the district court did not

abuse its discretion in rejecting Excel’s tendered instruction. See

Appelhans v. Kirkwood, 148 Colo. 92, 99, 365 P.2d 233, 237 (1961)

(“[A]ssumption of risk is a matter of knowledge of the danger and

intelligent acquiescence in it, while contributory negligence is a

matter of some fault or departure from the standard of reasonable

conduct . . . .” (quoting Prosser on Torts § 305 (2d ed. 1955)));

Carter, 844 P.2d at 1289 (“[A]ssumption of risk requires knowledge

of the danger and consent to it. Contributory negligence does not.”).

Each of Excel’s assertions rests on the subjective belief of one of its

employees — not Warembourg’s belief — that Warembourg

assumed the risk of electrocution by opening the box. These

54 arguments potentially support the conclusion that Warembourg

acted negligently, but do not support the conclusion that

Warembourg assumed the risk of injury.

¶ 109 Moreover, as noted above, the photographs of the box in the

record establish that it lacked legible, if any, warning stickers. We

therefore reject Excel’s contention that Warembourg assumed the

risk of injury by ignoring the warning stickers on the box. And

given our holding that the court did not abuse its discretion in

rejecting Excel’s tendered assumption of risk instruction because

Warembourg lacked knowledge of, and did not consent to, the box’s

danger, we need not address the court’s alternate rationale that the

proposed assumption of risk instruction was inconsistent with

Excel’s other defenses.

E. Caps on Noneconomic Damages

¶ 110 Excel contends that the district court erred by not applying

the cap on noneconomic damages set forth in CDARA. Excel

asserts that the CDARA cap applies because it “was a construction

professional whom the statute was intended to protect.” We

55 1. Standard of Review

¶ 111 Statutory interpretation is a question of law that we review de

novo. Colo. Oil & Gas Conservation Comm’n v. Martinez, 2019 CO 3,

¶ 19, 433 P.3d 22, 28. “In doing so, we look to the entire statutory

scheme in order to give consistent, harmonious, and sensible effect

to all of its parts, and we apply words and phrases in accordance

with their plain and ordinary meanings.” Id.

¶ 112 The General Assembly has proscribed a general cap on

noneconomic damages:

In any civil action other than medical malpractice actions in which damages for noneconomic loss or injury may be awarded, the total of such damages shall not exceed the sum of two hundred fifty thousand dollars, unless the court finds justification by clear and convincing evidence therefor. In no case shall the amount of noneconomic loss or injury damages exceed five hundred thousand dollars.

§ 13-21-102.5(3)(a). This cap is adjusted for inflation. § 13-21-

102.5(3)(c).

¶ 113 The General Assembly has also capped noneconomic damages

in construction defect cases: “In an action asserting personal injury

56 or bodily injury as a result of a construction defect in which

damages for noneconomic loss or injury or derivative noneconomic

loss or injury may be awarded, such damages shall not exceed the

sum of two hundred fifty thousand dollars.” § 13-20-806(4)(a),

C.R.S. 2019. The CDARA cap is also adjusted for inflation. § 13-

20-806(4)(b).

3. The General Cap on Noneconomic Damages — Not the Cap in CDARA — Applies to Warembourg’s Damage Award

¶ 114 Based on the plain language of CDARA, we hold that its cap

on noneconomic damages does not apply to Warembourg’s

judgment because this is not a construction defects case. See § 13-

20-802.5, C.R.S. 2019. Rather, this case represents the

quintessential premises liability action: Warembourg alleged that

Excel was legally responsible for the condition of the property or

activities conducted on it and failed to use reasonable care to

protect him against a dangerous condition that caused his injury.

Indeed, Warembourg could not have presented any other theory of

liability after the district court ruled that the PLA provided his sole

means of recovery. And this was the exact relief Excel sought in its

57 pretrial motion for a declaration that the PLA applied to

Warembourg’s claims.

¶ 115 Moreover, regardless of the district court’s ruling on the

appropriate legal theory, the facts demonstrate that CDARA does

not apply. The General Assembly enacted CDARA to proscribe the

rights and remedies of property owners who allege that

professionals in the construction industry are responsible for

construction defects on their property. § 13-20-802, C.R.S. 2019.

As the district court found, Warembourg was not a property owner

and his claims did not arise from a defect impacting his property.

¶ 116 Further, Excel did not intend for its injury-causing property —

the box — to be an “improvement to real property.” See

§ 13-20-802.5(1) (providing that CDARA applies to actions “against

a construction professional . . . caused by a defect in the design or

construction of an improvement to real property”). The General

Assembly “intended [CDARA] to apply only to negligence in

planning, design, construction, supervision, or inspection that

results in a defect in an improvement to real property that causes an

injury, and to limit actions against building professionals only for

claims of injury arising from defects in the improvement they

58 create.” Two Denver Highlands Ltd. P’ship v. Dillingham Constr.

N.A., Inc., 932 P.2d 827, 829 (Colo. App. 1996) (emphasis added).

Given that the term “improvement to real property” is not defined in

CDARA, “[t]he principal factor to be considered in making a

determination of whether an activity constitutes an improvement to

real property is the intention of the owner.” Id.; see Enright v. City

of Colorado Springs, 716 P.2d 148, 150 (Colo. App. 1985) (“[A]

permanent fixture . . . must be construed as an improvement to real

property.”). Here, the record indicates that Excel intended to

remove the box at the end of construction. Because the box was

temporary, it was not an “improvement to real property.”

¶ 117 Thus, CDARA’s cap on noneconomic damages does not limit

Warembourg’s recovery. Accordingly, the general cap on

noneconomic damages, which can be doubled due to Warembourg’s

“profound, severe, and life-altering” injuries, applies to this case.

See § 13-21-102.5(3)(a).

III. Conclusion

¶ 118 The district court’s judgment is affirmed.

JUDGE FREYRE and JUDGE GRAHAM concur.