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 

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.
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 DefendantAppellant

*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

¶ 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 
2

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. 
3

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 
4

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.
5

¶ 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 
6

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.”
7

¶ 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 
8

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 
9

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 
10

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 
11

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.
12

¶ 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.
13

(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.
14

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 
15

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.
16

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 
17

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 
18

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 
19

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 
20

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 
21

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.
22

 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.
23

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 
24

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 
25

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 
26

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.
27

¶ 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.
28

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.
29

¶ 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 
30

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.
31

¶ 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 
32

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 
33

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 
34

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 
35

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).
36

¶ 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 
37

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 
38

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 
39

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 
40

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.
41

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 
42

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”;
43

 “[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 
44

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.
45

¶ 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 
46

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. 
47

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.
48

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 
49

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;
50

 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 
51

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.
52

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).
53

¶ 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, 
54

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 
55

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.
56

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 
57

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 
58

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 
59

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.