In a case involving injuries to a pedestrian, the failure of the defendants to preserve an argument at the trial court level barred the assertion of that claim upon appeal. In Witherell v. Larimer, the parties took issue with a jury verdict concerning noneconomic damages. During trial, the jury was provided with evidence showing that one defendant was operating a vehicle when she struck the plaintiff as he crossed the street. Neither party accepted liability for the accident, with each blaming the other for the injuries the plaintiff sustained. The plaintiff asserted that the defendant driver failed to operate her vehicle in an attentive manner, while the defendants contended that the plaintiff had been using alcohol.
At the conclusion of trial, the jury deliberated as to liability and damages. Ultimately, the jury returned a verdict, holding each party equally at fault. However, the jury concluded that the plaintiff sustained a permanent injury as a result of the accident and awarded him approximately $89,000 in damages for medical expenses. With regard to noneconomic damages, the jury awarded nothing.
The trial court instructed the jury to reconcile its holding that the plaintiff suffered from a permanent injury with the fact that it awarded no pain and suffering damages whatsoever. As a result, the jury modified its award to $1 for noneconomic damages. The trial court then entered the verdict and judgment.