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Warembourg v. Excel Electric, Inc.

2020 COA 103. No. 18CA2358. Premises Liability Act—Invitee—Adverse Inference Jury Instruction—Irrebuttable Presumption of Causation and Liability—Sanction—Spoliation of Evidence—Evidence.

July 9, 2020


Warembourg, an employee of Schmidt Custom Floors, Inc. (Schmidt Floors), provided flooring for a new home being constructed by Feller Homes, Inc. (Feller). Excel Electric, Inc. (Excel) performed the electrical work at the construction site and installed a temporary electrical box (the box) to supply power to the subcontractors. Warembourg was unable to power his equipment using the home’s outlets, so he toggled the circuit breakers inside the box to troubleshoot the problem. When toggling one of the breakers, the box exploded and caused Warembourg permanent and disabling injuries.

Shortly after the accident, Warembourg’s coworker photographed the damaged box. The photos showed that the box lacked legible warning stickers and that none of the box’s internal wiring had been disconnected. After Excel learned of the accident, it took the damaged box to its warehouse and inspected it. Excel discarded the box sometime during the next eight months.

Warembourg filed suit against Excel and 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 destroyed the box intentionally and in bad faith. While the court determined that it could not impose the sanction of default, it 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 court specifically barred Excel from presenting evidence that it acted with due care and announced it would read the instruction each time Excel defied its order by introducing such evidence. The court enforced the spoliation sanction by reading the instruction to the jury after Excel’s expert opined that Warembourg had engaged in dangerous actions when he removed the box’s cover. The court also read the instruction to the jury during voir dire and after the completion of the evidentiary portion of the trial.

The jury returned a verdict in favor of Warembourg, finding Excel to be 100% at fault, and awarded Warembourg damages of approximately $16 million, of which approximately $5.3 million was for his noneconomic injuries.

On appeal, Excel contended that the district court erred by ruling that Warembourg was an invitee for purposes of the Premises Liabilities Act (PLA). Excel was a property owner for purposes of the PLA because it was legally responsible for the condition of the box. 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, Warembourg was an invitee under the PLA at the time of his injury.

Excel also contended 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. 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. Here, Excel had a legal duty to preserve the box upon learning that litigation arising from Warembourg’s accident was likely. The record supports the district court’s finding that Excel intentionally disposed of the box after it had actual knowledge that the box had potential evidentiary value and supports the court’s inference that Excel destroyed the box in bad faith. The court did not abuse 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.

Excel also argued that the court’s evidentiary rulings, in conjunction with the instruction, sanctioned Excel multiple times for the same act, which amounted to improper advocacy by the court. First, Excel maintained that the district court abused its discretion by barring its experts from testifying about the cause of Warembourg’s injuries. The district court read the instruction after Excel’s expert testified that because Warembourg was hurt, “the work was dangerous,” and the court’s action in reading the instruction was consistent with its decision and obligation to enforce the instruction, as had been explained to the parties. Accordingly, 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.

Second, Excel asserted that the district court abused its discretion in permitting Warembourg to present speculative evidence about the box’s condition, Excel’s destruction of the panel, and Excel’s alleged knowledge concerning its destruction of the box. However, the condition of the box was relevant to Excel’s own defenses at trial that Warembourg’s and Schmidt Floors’ actions contributed to the accident. Similarly, Excel’s destruction of the panel and knowledge of when it destroyed the box were also relevant to Excel’s theory of the case. Accordingly, the district court did not err. Further, given the totality of the court’s actions, it did not act as an advocate because its actions were designed to remedy prejudice caused by the spoliation of evidence rather than by partiality.

Excel further argued that the district court erred in failing to instruct the jury on its assumption of risk defense. 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; thus, he did not consent to that danger.

Excel further contended that the district court erred by not applying the cap on noneconomic damages set forth in the Construction Defect Action Reform Act (CDARA). Based on CDARA’s plain language, its cap on noneconomic damages did not apply to Warembourg’s judgment because this is not a construction defects case.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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