CJI-Civ. 11:12

Committee’s Note: Although approved in a 2015 Court of Appeals decision (see Note on Use 5),

this instruction appears to be inconsistent with Chapman v. Harner, 2014 CO 78, 339 P.3d 519,

and Krueger v. Ary, 205 P.3d 1150 (Colo. 2009). In those cases, the Supreme Court held that a

rebuttable presumption “shifts the burden of going forward to the party against whom it is

raised.” Krueger, 250 P.3d at 1154. If the presumption applies and is not rebutted by legally

sufficient evidence, then the presumed fact is established as a matter of law. Id. at 1156. If the

presumption applies and is rebutted by legally sufficient evidence, the presumption is destroyed

and leaves only a permissible inference of the presumed fact. Chapman, ¶ 25; Krueger, 205

P.3d at 1154, 1156. In neither scenario is the jury instructed about the presumption. See

Instruction 3:5 and its Notes on Use.

However, these two cases address only: (a) the presumption of negligence arising from res ipsa

loquitur (Chapman) and (b) the presumption of undue influence when a beneficiary of a will is

in a fiduciary or confidential relationship with the testator (Krueger). The Supreme Court has

not yet considered whether to apply these holdings beyond the specific presumptions at issue in

those two cases.

When a driver of a motor vehicle hits another vehicle in the rear, the law presumes

[, and you must find,] that the driver was negligent.