Tian v. Newmont International Services Limited

Filing 95

ORDER on Jury Instructions. Plaintiff's objection is OVERRULED and Instruction No. 24 will apply to both of Plaintiff's negligence claims Entered by Judge John L. Kane on 08/24/15. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02515-JLK
FANG TIAN,
Plaintiff,
v.
NEWMONT INTERNATIONAL SERVICES LIMITED, a Delaware Corporation,
Defendant.

ORDER ON JURY INSTRUCTIONS

At the trial preparation conference on August 21, 2015, and in brief arguments submitted
by email to chambers, Plaintiff has objected to Jury Instruction No. 24 defining unreasonable
reliance on the grounds that unreasonable reliance is an affirmative defense to Negligent
Misrepresentation Causing Physical Harm, as to which the Defendant bears the burden of pleading
and proof. See CJI-CIV 9:3 n. 5. Because Defendant did not assert contributory negligence as
an affirmative defense in its answer, Plaintiff argues that Instruction No. 24 should not apply to
Plaintiff’s Negligent Misrepresentation Causing Physical Harm claim. Defendant argues that
Instruction No. 24 requiring Plaintiff to prove justifiable reliance should apply to both of
Plaintiff’s negligence claims.
Although neither the parties nor the Court have found any Colorado authority clearly
addressing this issue, Colorado cases suggest that justifiable reliance is an element for plaintiff to
prove rather than an affirmative defense in negligent misrepresentation cases in general. See
Colorado Pool Systems, Inc. v. Scottsdale Ins. Co., 317 P.3d 1262, 1272 (Colo. App. 2012) (“In

every negligent misrepresentation case, the plaintiff must show justifiable reliance on the alleged
misrepresentation.”); CJI-CIV 9:4 n. 9 (“Although unreasonable reliance may be considered a
form of contributory or comparative negligence and treated as an affirmative defense, in a number
of cases, the Colorado Court of Appeals has indicated that “justifiable” reliance is an element of a
plaintiff's claim.”). Accordingly, Plaintiff’s objection is OVERRULED and Instruction No. 24
will apply to both of Plaintiff’s negligence claims.

Dated: August 24, 2015

s/ John L. Kane
Senior U.S. District Judge