Filed: Patrick Fisher
Filed: Patrick Fisher
MAY 20 2004
PATRICK FISHER
Clerk
LOWELL FLAMING;
TERESA FLAMING,
Plaintiffs-Appellants,
v.
COLORADO SPRINGS PROPERTIES
FUNDS I, doing business as Apollo
Village Apartments, Ltd., a California
limited partnership; MERRILL R.
NEWTON; DARRYL MILLER,
No. 03-1079
(D.C. No. 99-B-942 (CBS))
(D. Colo.)
Defendants-Appellees.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
Plaintiffs Lowell and Teresa Flaming appeal from a jury verdict in favor of
defendants, Colorado Springs Properties Fund I, d/b/a Apollo Village Apartments,
Merrill Newton, and Darryl Miller, in their personal injury action. Jurisdiction in
the district court was based on diversity of citizenship under 28 U.S.C. 1332.
We have jurisdiction pursuant to 28 U.S.C. 1291 and affirm.
Background
The Flamings leased an apartment in the Apollo Village apartment
complex. Mr. Flaming alleged that he slipped in the shower and fell, cutting his
left arm on broken glass in the splashguard surrounding the shower, and suffering
permanent nerve damage. Plaintiffs alleged the glass had been broken for several
months, that they had reported the problem to defendants, but defendants failed to
repair the splashguard. Defendants denied any knowledge of the broken glass.
Following a trial, the jury found the defendants were not negligent.
Voir Dire
On appeal, plaintiffs first argue that the district court dismissed a potential
juror for cause without giving them the opportunity to supplement the voir dire
questioning in order to rehabilitate the juror. They contend the district court
violated a Colorado rule that requires the court to permit the parties or their
counsel to ask the prospective jurors additional questions to supplement the
courts voir dire.
295, 301 (Colo. 2000) (en banc) (interpreting similar requirement under
Colo. R. Civ. P. 24(a)(3)). Plaintiffs claim that there was insufficient evidence of
bias to strike this potential juror for cause, and that doing so effectively allowed
defendants an extra peremptory challenge. Further, they contend the district court
made more effort to rehabilitate jurors who had been landlords than those who
had been renters, thereby improperly shaping the jury. Plaintiffs contend these
errors violated their due process right to an impartial jury.
During voir dire, the court asked the jurors generally if they had any
experiences with respect to renting that would cause them to favor one party in
the case over the other. Venireperson Allen told the court that she had previously
rented from landlords who did not make repairs she believed they should have.
The court asked Allen if she would have difficulty deciding this case on its own
merits, and she responded, I sure hope not. Aplt. App., Appendix 1, at 17.
The court asked Allen if a claim were to be made against her as a landlord, would
she want someone sitting on the jury with the frame of mind that she now had,
and Allen responded, Probably not.
excused her for cause. Significantly, plaintiffs counsel did not ask the court if he
or the court could question Allen further in an attempt to rehabilitate her; did not
raise his Colo. R. Civ. P. 47(a)(3) concern to the court; did not object to Allens
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dismissal; and did not object in any way, at any time, to the courts conduct of the
voir dire or the composition of the jury.
Plaintiffs claimed voir dire errors are based on the erroneous legal premise
that Colorados procedural rule applies. In a diversity case, the court applies the
substantive law of the forum state, Colorado, in analyzing the underlying claim,
but applies federal law to procedural issues.
340 F.3d 1142, 1145 (10th Cir. 2003). The content of voir dire in a federal court
is a procedural issue, governed by federal law, specifically Fed. R. Civ. P. 47(a),
and is not controlled by any contrary state law.
816, 818 (10th Cir. 1997). The federal trial judge retains broad discretion under
Rule 47(a) to control the scope and extent of voir dire.
Id. at 817.
as it deems
proper . Id. (emphasis added); see also 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure
need not allow the attorneys to question jurors if it does not wish to do so.).
Thus, the district court was under no obligation to follow Colorados procedural
rule mandating that attorneys be given an opportunity to question potential jurors.
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See Vicorp , 107 F.3d at 817-18 (rejecting argument that court was required to ask
specific questions requested by counsel and required under state procedural
rules).
Furthermore, plaintiffs never presented any of their voir dire arguments to
the district court. Their failure to request any further questioning of Allen, either
by counsel or the court, or to raise any objection either to Allens dismissal or to
the conduct of the voir dire constitutes a waiver of these issues on appeal.
United States v. Diaz-Albertini
Cf.
when basis for juror challenge is timely shown, failure to object constitutes
waiver of right to attack jury composition). [A]ttorneys may not sit idly by,
observe the occurrence of error, and then fail to bring the matter promptly to the
attention of the trial court.
evidenced a clear indication that she doubted her own ability to be open-minded,
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See Staley v.
Bridgestone/Firestone, Inc. , 106 F.3d 1504, 1514 (10th Cir. 1997). We are
satisfied from our review of the entire voir dire that the courts questioning of all
the potential jurors was impartial and even-handed, and we find nothing in the
record to suggest that the jury impaneled was not impartial.
See Getter v.
Wal-Mart Stores, Inc. , 66 F.3d 1119, 1123 (10th Cir. 1995) (finding partys right
to an impartial jury not infringed, despite erroneous denial of for-cause challenge,
so long as the jury that sits is impartial). In short, we find no error in the courts
conduct of the voir dire.
Rebuttal Witness
Plaintiffs next allege that the district court improperly disallowed the
telephonic testimony of a rebuttal witness. The district courts refusal to allow
rebuttal testimony is reviewed for an abuse of discretion and will not be disturbed
absent a showing of manifest injustice to the parties.
See Aplt.
Opening Br., at 3, 15. Plaintiffs did not, however, make this proffer to the district
court, nor is there any indication in the pre-trial report of any such expected or
possible testimony.
Id.
Jury Instruction
Finally, plaintiffs contend the district court erred in not amending the civil
jury instruction defining causation. Plaintiffs contend the district court gave the
standard Colorado civil jury instruction defining causation:
The word cause as used in these instructions means an act or
failure to act which in natural and probable sequence produced the
claimed injury. It is a cause without which the claimed injury would
not have occurred.
Aplt. Opening Br. at 18.
Plaintiffs argue the instruction is overbroad, tenuous and confusing,
because any action could be a cause without which the claimed injury would not
have occurred. Aplt. Opening Br. at 18. They assert that the jury could go
back in time, as far as they deem fit, to find a cause, whether [or not] it is
relevant to the matter at hand.
this instruction, however. When read in context with the first sentence of the
instruction, it is clear the instruction requires that the injury be a natural and
probable result of the act in question, and that the instruction accurately informs
the jury of the governing law.
novo whether the instructions, as a whole, accurately stated the governing law);
see also Hall v. Walter , 969 P.2d 224, 238 n.12 (Colo. 1998) (defining causation
under Colorado law). Thus, we find no error in the given instruction.
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