     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

  an invitee under the PLA.

                      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).

                              2.    Legal Authority

¶ 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

  accident.

¶ 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.

                         1.   Standard of Review

¶ 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

  disagree.




                                    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.

                             2.    Legal Authority

¶ 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.




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