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Two Treatments of Rebuttable Presumptions

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  • legalbear7
    [45] The status and strength of a rebuttable presumption vary according to the strength of the policies which motivate a court or a legislature to
    Message 1 of 1 , Apr 27, 2009

      [45]        The status and strength of a rebuttable presumption vary according to the strength of the policies which motivate a court or a legislature to create it. Cline v. City of Boulder, 35 Colo. App. 349, 353, 532 P.2d 770, 772 (1975). When a party introduces evidence rebutting such a presumption, the presumption is treated in one of two ways. First, if the presumption is one that remains in the case as "some evidence" of the presumed fact even when there is evidence rebutting the presumption, the fact finder considers the presumption together with all the evidence in the case when determining its ultimate finding of fact. See, e.g., Ravin v. Gambrell, 788 P.2d 817, 822 (Colo. 1990)(trial court must instruct jury on presumption of negligence embodied in doctrine of res ipsa loquitur where plaintiff introduces sufficient evidence to establish presumption); Cline, 35 Colo. App. at 354, 532 P.2d at 773 (presumption of validity of city council special assessment); see also CJI-Civ. 4th 3:5 (1998) (CJI 3:5) (version 2). Second, if the presumption is one that "disappears" from the case when rebutting evidence is introduced, the case goes to the fact finder free from the presumption. See, e.g., City & County of Denver v. DeLong, 190 Colo. 219, 223, 545 P.2d 154, 157 (1976) ("presumption of due care instruction should not be given when direct and credible evidence supports a contrary conclusion, and the presumption is only operative when no reliable proof to the contrary exists"); Schenck v. Minolta Office Sys., Inc., 802 P.2d 1131, 1133-34 (Colo. App. 1990)(instruction on presumption of probable cause in malicious prosecution case not required where presumption rebutted with evidence); 1st Charter Lease Co. v. McAl, Inc., 679 P.2d 114, 116 (Colo. App. 1984)(presumption that value of repossessed collateral is at least equal to amount of outstanding debt not considered where evidence rebutting presumption introduced); see also A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1037 (Fed. Cir. 1992)(under "bursting bubble" theory adopted by Fed. R. Evid. 301, "a presumption is not merely rebuttable but completely vanishes upon introduction of evidence sufficient to support a finding of the nonexistence of the presumed fact");CJI 3:5 (version 3).

      Krueger v. Ary,  2007.CO.0000370< http://www.versuslaw.com>ΒΆ 45;  No. 06CA2142 (Colo.App. 2007).

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