## Facts

- Mary Garcia owned and personally operated “Mary’s Burritos,” performing early-morning preparation, heavy lifting, and deliveries.
- On January 25, 1995, while shopping at a Wal-Mart in Colorado, Garcia was struck by a cart pushed by a Wal-Mart employee and fell, injuring her back.
- Garcia had preexisting back problems, including chronic degenerative disc disease, and some experts suggested part of her pain might be psychological or “non-organic,” though physical injury-related pain was not excluded.
- Garcia claimed she could no longer perform the physical work required for her business and transferred operations to her sister-in-law.
- An economist testified regarding Garcia’s economic losses; Wal-Mart offered medical testimony that Garcia could perform light or sedentary work but did not identify specific alternative jobs.
- Garcia did not obtain psychological treatment, testifying she could not afford it.

## Issues

1. Whether Wal-Mart preserved appellate review of the district court’s failure to give a mitigation-of-damages instruction under Federal Rule of Civil Procedure 51.
2. Whether the district court erred by refusing to instruct the jury to apportion damages between Garcia’s preexisting condition and the accident-related injury.
3. Whether Colorado’s offer-of-settlement cost-shifting statute, Colo. Rev. Stat. § 13-17-202(1)(a)(I), applies in federal diversity litigation and required an award of “actual costs.”

## Decision

- The court affirmed the judgment on liability and damages.
- The court held Wal-Mart waived the mitigation-instruction issue by failing to make a timely, specific Rule 51 objection after the jury instructions were given; no reversible fundamental error was shown.
- The court held the district court properly refused an apportionment instruction because the record lacked competent evidence permitting the jury to segregate damages between the preexisting condition and the accident.
- On Garcia’s cross-appeal, the court held § 13-17-202 is substantive for Erie purposes and applies in diversity cases.
- The court remanded for determination and award of Garcia’s “actual costs” under § 13-17-202.

## Legal Principles

- Under Federal Rule of Civil Procedure 51, submitting proposed instructions is insufficient; a party must timely and distinctly object to an omission or error in the charge to preserve the issue for appeal.
- A trial court may refuse an apportionment instruction where the evidence does not provide a non-speculative basis to allocate damages between a preexisting condition and injury caused by the defendant.
- Under Colorado tort law, when an injury is indivisible and damages cannot reasonably be apportioned, the defendant may be liable for the entire harm.
- Colorado’s offer-of-settlement cost-shifting statute, Colo. Rev. Stat. § 13-17-202(1)(a)(I), is substantive under Erie and must be applied by federal courts sitting in diversity when its conditions are met.

## Conclusion

The Tenth Circuit left intact a $350,000 jury verdict for Garcia, holding Wal-Mart waived any challenge based on omitted mitigation instructions and failed to show an evidentiary basis for apportionment, while requiring the district court on remand to award Garcia “actual costs” under Colorado’s offer-of-settlement statute because it applies in diversity cases.


Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170 (10th Cir. 2000)