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The Supreme Court of Colorado reviewed Johnson v. Schonlaw on September 17, 2018. The case involved Albert Johnson, the petitioner, and Ryan Lee Schonlaw and VCG Restaurants Denver, Inc. as the respondents. Johnson sought a review of the appeals court’s judgment that reversed verdicts of the jury in his favor on personal injury claims against Schonlaw and VCG Restaurants. At the end of the trial, the district court overruled Schonlaw and VCG’s objections to its presented decision to permit the alternate to deliberate the verdict with the other jurors.

The court of appeals decided that the trial court was wrong in allowing an alternate juror to be a part in jury deliberations over a party’s objection, and that this error created a “presumption of prejudice” that required reversal. The court of appeals’ judgment is reversed, and the case is remanded.

Albert Johnson sustained a number of injuries outside of a nightclub at closing, and he filed suit against VCG Restaurants, PT’s All Nude, the management agency, and a number of its employees including Ryan Lee Schonlaw. One of the defendants was dismissed before trial, and out of the remaining defendants, the jury returned verdicts that proved Schonlaw was responsible on claims of intentional infliction of emotional distress and battery. They also found VCG liable for battery, negligent supervision and intentional infliction of emotional distress as well.

The testimonies involving the fight in which Johnson was injured were contradictory, but it was clear that Johnson suffered severe facial injuries that required surgery to fix, either resulting from a blow by Schonlaw or by Johnson’s face hitting the ground as the result of the blow or during another struggle between other employees. It was also clear that the employees were all larger than Johnson, and that a cab driver called 911 to report the incident as a guy getting “beaten and choked.”

The jury was told that the employees were “exercising their legal rights and the legal rights of their employer, VCG, in preventing Johnson from regaining access to the club and in escorting him away from the club.” The jury was also told about the affirmative defenses of consent, self-defense, defense of someone else, defense of real property, and comparative negligence.

Once the evidence was presented, the district court asked the multiple parties if they would allow the alternate juror to deliberate with the six regular jury members. Johnson agreed, but VCG and Schonlaw objected, and their objection was overruled. The district court found the matter to be in the court’s discretion, and it ordered all seven jurors (including the alternate) to deliberate on a verdict. On the last day of deliberations, the jury stated they could not agree on the amount of punitive damages, which moved Johnson to withdraw his punitive damages claim.

On appeal, the court of appeals reversed and remanded for a new trial by concluding that the trial court erred in allowing the alternate juror to deliberate with the regular jurors over an objection of a party. Johnson petitioned by asking if the error was subject to the “harmless error analysis.”

Under the Colorado Constitution, a jury in civil cases can consist of six people, unless the parties agree to a smaller number, which shall not be less than three. Alternate jurors are allowed to “deliberate and participate fully with the principal jurors in considering and returning a verdict” if the court and parties agree. It was also made clear that the harmless error standard needs an evaluation of the likely impact of any error on the outcome of the proceeding.

It was concluded that the error in the case did not actually affect the substantial rights of VCG or Schonlaw, and it should have been disregarded as “harmless.”  In this case, the parties did not argue that an alternate juror improperly or wrongly deliberated with the rest of the jury.

It was officially determined that Johnson offered no evidence or dispute sufficient to overcome the “presumption of prejudice” that occurred when the trial court wrongly permitted an alternate juror to deliberate with the jury. The judgment is reversed and the case is remanded for a new trial.

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