The Colorado Court of Appeals issued its opinion in Vanderpool v. Loftness on July 5, 2012.
Negligence and Battery—Nonmutual Offensive Issue Preclusion Waiver.
Plaintiff Adam Vanderpool appealed the district court’s judgment on jury verdicts in favor of defendant Jeremy Loftness on plaintiff’s negligence and battery claims. The Court of Appeals affirmed.
Vanderpool and Loftness, both students at Colorado State University, had a physical altercation near campus after attending a party. Loftness hit Vanderpool and claimed self-defense.
The District Attorney charged Loftness with second-degree assault. On September 8, 2009, Loftness pleaded guilty to added charges of attempted second-degree assault (a felony) and third-degree assault (a misdemeanor). His plea to the felony was subject to a stipulation for a deferred judgment. If he successfully fulfilled the conditions of the deferred judgment, in two years the guilty plea would be withdrawn and the charge dismissed with prejudice. His plea to the misdemeanor was unconditional.
Vanderpool filed this civil case against Loftness on August 19, 2009, asserting claims for negligence, assault, battery, and outrageous conduct. The jury found in Loftness’s favor on the negligence and battery claims.
On appeal, Vanderpool argued four points of error: (1) denying his motion for a directed verdict on the battery claim; (2) allowing one of Loftness’s medical expert witnesses to testify; (3) improperly instructing the jury on the elements of the battery claim; and (4) denying his motion for judgment notwithstanding the verdict on the battery claim. The Court rejected all these arguments.
On the second day of trial, Vanderpool’s attorney prematurely moved for a directed verdict on the battery claim on the ground that issue preclusion barred Loftness from denying that he had committed battery on Vanderpool and from claiming self-defense. This is offensive issue preclusion and, because it was asserted by a nonparty to the criminal case, it is “nonmutual.” This requires consideration not just of the four foundational requirements for issue preclusion but also consideration as to (1) whether the party seeking to assert preclusion could have joined the first action; (2) the extent to which the party sought to be stopped had incentive to litigate vigorously the prior case; (3) whether the decision sought to be relied on is inconsistent with another decision involving the party sought to be estopped; and (4) whether the second case affords the party sought to be estopped procedural protections that were unavailable in the first case.
Issue preclusion may be waived. Courts have held that a party waives offensive issue preclusion unless it is timely raised. Here, Vanderpool’s counsel was aware of Loftness’s guilty pleas, but did not assert issue preclusion until the second day of trial, eighteen months after filing the complaint and seventeen months after the guilty pleas. Given that time frame and the lack of any indication that the issue would be raised, the Court found that the trial court did not abuse its discretion in ruling that Vanderpool had waived issue preclusion.
Vanderpool argued it was error for the trial court to not rule on his motion to compel production of documents from one of Loftness’s expert witnesses, Dr. Ramos, or on his motion to prohibit him from testifying. Vanderpool did not preserve this issue for appellate review. He filed motions, but never requested rulings on them before or during trial.
Vanderpool argued that the instruction on battery that the jury had to find “harmful” physical contact should have been “harmful or offensive” physical contact. The Court did not address this argument because Vanderpool’s counsel tendered an elemental instruction on battery substantially identical to the one the court ultimately gave the jury and expressly stipulated to the court’s instruction. In addition, there was no objection to the instruction. The judgment was affirmed.
Summary and full case available here.