May 24, 2013

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Colorado Court of Appeals: Personal Injury Plaintiff Should Receive Statutory Interest on Damages, Not Market Rate Interest

January 22, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Averyt v. Wal-Mart Stores, Inc. on Thursday, January 17, 2013.

Post-Judgment Interest Rate Personal Injury Tort Case.

In general, if a plaintiff obtains a money judgment in a personal injury tort case, CRS § 13-21-101(1) requires the trial court to add post-judgment interest to the amount of damages the jury awards, at the rate of 9%, compounded annually. However, if the judgment debtor appeals the money judgment, then the court must calculate post-judgment interest at a market-determined rate. This appeal raised the question of whether the exception applies when the judgment creditor—here, the plaintiff—appeals after (1) the jury has awarded the plaintiff money damages; (2) the trial court enters judgment in plaintiff’s favor; (3) the judgment debtor—here, the defendant—files a motion for a new trial; and (4) the trial court grants the defendant’s motion for a new trial and vacates the judgment. In this case, the applicability of the exception is particularly meaningful because the post-judgment interest rate established by the general rule is much higher than the market determined rate (9% versus 3%). The Court of Appeals held that the exception did not apply and affirmed the trial court’s judgment.

Holly Averyt drove a commercial truck. She slipped and fell on grease-coated ice on a loading dock when she was making a delivery to Wal-Mart Stores, Inc. (Wal-Mart). The fall ruptured a disc in her spine and injured her shoulder and neck, rendering her unable to do her job and unable to control her bladder or bowel.

Averyt sued Wal-Mart for negligence and premises liability. The jury returned a verdict in her favor, assessing total damages at $15 million. In December 2010, the trial court entered judgment and reduced the damages to $9,866,250 to reflect the statutory cap on noneconomic damages. Wal-Mart moved for a new trial based on an evidentiary issue, and the motion was granted. Averyt sought relief in the Supreme Court under CAR 21. The Supreme Court reversed the trial court’s order granting Wal-Mart a new trial.

In February 2012, the trial court entered judgment for the driver in the amount of $9,866,250, pre-judgment interest in the amount of $2,794,788.47, and costs of roughly $45,000. It also awarded post-judgment interest at the statutory rate of 9%, accruing from December 1, 2010 and compounding annually until the judgment was satisfied. Wal-Mart appealed.

Wal-Mart argued that the premises liability verdict was not supported by sufficient evidence. However, the Court found sufficient facts in the record to support the verdict.

Wal-Mart also argued that the market-based interest rate of 3% should apply. It contended that the trial court should have treated Averyt’s CAR 21 original proceeding after the trial court vacated the judgment (an appeal by the judgment creditor) like an appeal by a judgment debtor for the purposes of determining the rate of post-judgment interest. The Court disagreed. CRS § 13-21-101(1) refers only to judgment debtors, not to judgment creditors. The 9% rate was affirmed.

Averyt contended that she should be awarded attorney fees because Wal-Mart’s appeal was frivolous. The Court disagreed. The appeal was not frivolous because there was a basis for Wal-Mart’s argument.

Summary and full case available here.

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Colorado Court of Appeals: Claims Under Dog Bite Statute Not Excluded by Predator Control Dog Exclusion; Judgment Affirmed as to All Other Counts

October 31, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Legro v. Robinson on Thursday, October 25, 2012.

Summary Judgment—Civil Dog Bite Statute—Premises Liability Act—“Landowner.”

Plaintiffs Renee and Stephen Legro appealed the district court’s entry of summary judgment in favor of defendants Samuel and Cheri Robinson. The Legros also appealed the court’s denial of their motions to amend their complaint and to enforce an alleged settlement agreement. The Court of Appeals affirmed the summary judgment in part and reversed it in part; declined to address the motion to amend; affirmed the order denying enforcement of a settlement agreement; and remanded the case with directions.

On July 9, 2008, Renee Legro was in a bicycle race sponsored by the Vail Recreation District (District) when she was attacked by two of the Robinsons’ predator control dogs and sustained significant injuries. The attack was on a public road in the White River National Forest. The Robinsons had a permit, issued by the U.S. Forest Service, to graze sheep in the area of the attack. The District had a permit for the race on the road where the attack occurred.

The Legros sued, alleging negligence, negligence per se, loss of consortium, and strict liability pursuant to the civil dog bite statute, CRS § 13-21-124. The Robinsons moved for summary judgment, arguing that the common law claims were barred by the premises liability act (PLA) and that they could not be held liable under the predator control dog exclusion of the dog bite statute. The district court granted the Robinsons’ motion, agreeing with both arguments.

On May 25, 2011, the day of the district court’s order, the Legros filed a motion to reconsider, requesting the case proceed to trial as a PLA case and a separate motion to file an amended complaint alleging a PLA claim. The court never ruled on the motions; therefore, they were denied as a matter of law.

Twelve days after the summary judgment order, the Legros filed a motion to enforce a settlement agreement allegedly accepted by them fewer than two hours after the court’s summary judgment order. The district court did not rule on this either, but after remand from the Court of Appeals for that express purpose, the district court denied it on January 30, 2012.

On appeal, the Legros argued that it was error to conclude that the Robinsons were PLA landowners. The Court disagreed. The term “landowner” is broadly defined in the PLA. Under their sheep grazing permit, the Robinsons had a legal entitlement to be on the property. They were responsible for creating a condition, or conducting an activity, on the property that injured Legro;therefore, they qualified as landowners under the PLA.

The district court failed to determine whether the dog bite statute may prevail over the PLA, assuming the PLA abrogated the statutory dog bite claim. The Court held that the PLA does not abrogate the Legros’ statutory claim, nor does the dog bite statute prevail over the PLA; rather, both statutes may be given effect in this case.

Under the dog bite statute, a dog owner may be held strictly liable for economic damages if the dog bites a person who is lawfully on public or private property absent one of the statutory exclusions. If the incident occurs on a property where the defendant also qualifies as a PLA landowner, the plaintiff may seek damages beyond economic damages under the PLA and the landowner may avoid liability by demonstrating he or she met the duties imposed under the PLA.

The Legros further argued that the district court erred in finding that the undisputed facts supported application of the predator control dog exclusion to grant summary judgment under the dog bite statute. The Court agreed. The question was whether the predator control dogs were on “property of or under the control of” the Robinsons. The property was owned by the Forest Service, so the Court had to determine whether it was “under the control of” the Robinsons. The Court held that “control” of property as used in the statute means, at a minimum, sufficient control over the property such that a dog owner has the right to exclude persons from the property. Here, the Robinsons had a Taylor Grazing Act permit (43 USC § 315b), which is nonexclusive. The Court held they did not have control of the property within the meaning of the exclusion because they could not exclude others from the property. Therefore, it was error to enter summary judgment based on the exclusion.

The Court affirmed summary judgment barring the Legros’ common law claims under the PLA because the Robinsons are landowners. Because the dog bite statute also applies and the predator dog exclusion is not supported by the undisputed facts, the summary judgment was reversed as to that claim and the case was remanded, with specific instructions allowing the Legros to amend their complaint to state a PLA claim. The Court affirmed the order denying the Legros’ motion to enforce the alleged settlement agreement, because it was clearly withdrawn before its acceptance.

Summary and full case available here.

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Colorado Court of Appeals: Landowner May Consent to Entry of Neighbor by Actions Absent Express Verbal Consent

October 16, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Corder v. Folds, Jr.  on Thursday, October 11, 2012.

Premises Liability—Summary Judgment—Express and Implied Consent.

In this premises liability case, plaintiff Gerald Corder (neighbor) appealed from the summary judgment dismissing his complaint against defendant William Folds, Jr. (landowner). The judgment was reversed and the case was remanded for further proceedings.

Neighbor and landowner were next-door neighbors. In August 2008, neighbor entered landowner’s backyard to return a propane tank he had borrowed from him. He walked up the stairs leading to landowner’s deck, and left the tank on the deck. On his way down the stairs, the stairs collapsed and he was injured. Landowner was not home at the time.

Neighbor sued landowner under the premises liability act (Act), alleging he was either an invitee or licensee at the time of his injury and that landowner failed to exercise reasonable care with respect to a dangerous condition on his property. Landowner filed a motion for determination of law, asserting neighbor was a “trespasser,” as that term is used in CRS § 13-21-115(5)(c). The trial court agreed and entered summary judgment in favor of the landowner because there was no evidence suggesting he had injured the neighbor willfully or deliberately. Neighbor appealed.

The Act provides the exclusive remedy against a landowner for injuries sustained on the landowner’s property. A landowner’s standard of care is determined by the classification of the injured party.

Landowner maintained that neighbor was a trespasser because he was not given express consent to enter the property at the time of the injury. Neighbor countered that he had implied consent because: (1) landowner gave him a key to his home to perform maintenance projects and care for landowner’s home when he was away (2) landowner and neighbor were close friends who had a long history of entering each other’s property without express permission; and (3) the loan of the propane tank gives rise to a logical inference that neighbor was permitted to return it without contemporaneous, express permission.

The Court of Appeals held that a landowner may consent to entry, absent express words, by his or her course of conduct. Therefore, “consent” in the Act may include implied consent. Accordingly, the summary judgment was reversed and the case was remanded.

Summary and full case available here.

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Colorado Court of Appeals: Homeowners’ Liability to Injured Contractor Limited by Statutory Damages Cap

July 24, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Cavaleri v. Anderson on July 19, 2012.

Premises Liability—CRS § 8-41-401(3).

In this premises liability case, Chris Cavaleri (contractor) and Magdalena Cavaleri (wife) appealed the trial court’s judgment dismissing their personal injury claims against Aaron and Heidi Anderson (homeowners) with prejudice. The judgment was affirmed.

Contractor was the sole proprietor of a business and did not carry workers’ compensation insurance on himself. He was hired by homeowners to do some tiling work on their home. As he walked down their front steps after completing the work, he leaned on a wooden railing and it gave way, causing him to fall and sustain injuries. Contractor and his wife brought this premises liability action, seeking economic and noneconomic damages.

Before trial, the court asked the parties about the impact of CRS § 8-41-401(3) on contractor’s claims. The court ruled that the $15,000 limitation on damages applied to contractor’s claims. Homeowners immediately tendered the statutory limit. The trial court dismissed the action with prejudice and contractor appealed.

Contractor argued that CRS § 8-41-401(3) did not apply because homeowners were not required to obtain workers’ compensation insurance covering contractor and, because no coverage was required, homeowners were not among the individuals protected by the statutory damages cap. The Court of Appeals disagreed. The Court noted that “the purpose of the section is to encourage participation in the workers’ compensation system and limit exposure of contractors who obtain coverage from lawsuits or claims brought by uncovered independent contractors injured on the job.” [Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1215 (Colo.App. 2009).]

Here, homeowners are not general contractors and are excluded from the Workers’ Compensation Act. However, contractor provided no support for his argument that this somehow kept him from obtaining workers’ compensation insurance for himself. Contractor’s argument failed to address the express inclusion of “sole proprietor[s] who [are] not covered under a policy of workers’ compensation insurance” among the individuals who may bring an action against a negligent third party, but whose damages will be limited to $15,000 if they elect to forego workers’ compensation insurance. The dismissal with prejudice was affirmed.

Summary and full case available here.

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Colorado Court of Appeals: Playground Equipment at a Public School Considered “Public Facility” for Purposes of Waiver of Colorado Governmental Immunity Act

July 10, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Loveland v. St. Vrain Valley School District RE-1J on July 5, 2012.

Governmental Immunity—Subject Matter Jurisdiction—Injuries on School Playground.

During lunch recess on November 21, 2008, a 9-year-old minor child (the minor) suffered a compound fracture of her left arm when she fell from a playground apparatus. The minor, through her parents and next friends, sued defendants St. Vrain Valley School District RE-1J (school district) and Cathy O’Donnell, alleging claims of premises liability and negligent supervision. The trial court dismissed all claims against defendants. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

The common law doctrine of sovereign immunity was abrogated by the Colorado Supreme Court in a 1971 trilogy of cases. The General Assembly responded by enacting the Colorado Governmental Immunity Act (Act), which includes an immunity waiver for a “dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity. . . .” Defendants filed a CRCP 12(b)(1) motion, arguing lack of subject matter jurisdiction. The trial court granted the motion, holding that the playground apparatus did not constitute a “public facility” under the Act.

On appeal, plaintiffs argued it was error to conclude the apparatus is not a “public facility” under the Act, and the Court agreed. The Court found the phrase “public facility” ambiguous and therefore looked to rules of statutory construction and legislative history to ascertain intent. The Court found that the apparatus clearly was “public,” given its availability to all, and that it was a “facility,” because it was a man-made, mechanical device installed on a playground for the purpose of providing recreation. The legislative history supported this conclusion. The trial court decision was reversed and remanded on this issue.

Plaintiffs also argued that it was error to conclude that the tort of negligent supervision is not a recognized exception to sovereign immunity under the Act. The Court disagreed and affirmed on this issue. The Court noted that all parties agreed that injuries resulting from negligent supervision were not among the tortious injuries for which sovereign immunity has been expressly waived. Plaintiffs’ arguments for an implied waiver are of no avail because the case law is clear that, absent specific language unambiguously waiving sovereign immunity, implied waiver is disallowed by the Act.

Summary and full case available here.

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Colorado Court of Appeals: Attractive Nuisance Doctrine Applies Only to Children Who Trespass and Not to Licensees

May 2, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in SW v. Towers Boat Club, Inc. on April 26, 2012.

Attractive Nuisance Doctrine—Child Licensee—Not Trespassing Child Enticed Onto Property.

Plaintiffs SW, David Wacker, and Rhonda Wacker appealed the trial court’s summary judgment in favor of defendant Towers Boat Club, Inc. (landowner). The judgment was affirmed.

On August 2, 2008, SW, who was 11 years old, attended a social gathering at Poudre Reservoir Number 6. While he was playing on an inflatable structure rented by landowner for the gathering, wind lifted the structure into the air and SW fell to the ground, sustaining severe injuries. Plaintiffs asserted claims against the landowner, including a claim for attractive nuisance.

Plaintiffs contended that the trial court erred in granting landowner’s motion for summary judgment and dismissing their attractive nuisance claim against landowner. As an issue of first impression, the Court of Appeals held that under the premises liability statute, a child licensee may not assert a claim based on the attractive nuisance doctrine. The doctrine unequivocally applies only to children enticed by an attractive nuisance to trespass on another’s property. Because SW was not a trespassing child who was enticed onto the property by an attractive nuisance, he could not assert a claim for attractive nuisance.

Summary and full case available here.

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Colorado Court of Appeals: In Premises Liability Case, the Court Appropriately Rejected Insurance Evidence, Proposed Jury Instructions, Expert Witness, and Models

August 22, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Lombard v. Colorado Outdoor Education Center, Inc. on August 18, 2011.

Premises Liability—Jury Instructions—Evidence—Mistrial—Insurance Coverage—Expert Witness Fees—Copy Costs.

In this premises liability action, plaintiffs Turene Lombard (invitee) and Pueblo School District #60 (school district) appealed from the judgment entered on a jury verdict and the order awarding costs in favor of defendants Colorado Outdoor Education Center, Inc. and Sanborn Western Camps, Inc. (owners).The judgment was affirmed, and the order awarding costs was affirmed in part and vacated in part.

In February 2000, at the request of the school district, invitee, who was a teacher employed by the district, attended an overnight training session at a conference facility and resort owned and operated by owners. Invitee was injured when she fell from a ladder inside her unit while coming down from the unit’s loft area.

Invitee argued initially that the trial court erred in failing to deliver additional instructions to the jury. Two of the proposed instructions by their terms were contrary to law, which provides that violation of a statute or ordinance may be considered merely as “evidence of a failure to exercise reasonable care.” The jury otherwise was adequately and correctly instructed as to the other proposed instruction. Therefore, the trial court did not err in rejecting the proposed instructions.

Invitee next contended that the trial court erred in denying admission of a set of plans for the construction of additional units showing the loft was to be converted to a storage area. The trial court did not abuse its discretion in denying admission of the plans, because this evidence was irrelevant and capable of misleading the jury and confusing the issues.

Invitee also contended that the trial court erred in prohibiting her third endorsed expert witness from testifying on the building code. However, invitee did not demonstrate that this expert’s testimony added anything substantive to the evidence. Because the testimony was cumulative, the trial court did not abuse its discretion in disallowing invitee’s third expert witness.

Invitee next argued that the trial court erred in permitting owners to show to the jury a video recording of a person climbing up and down the ladder to one of the lofts. Whether to allow the use of models or other materials for the purpose of demonstration is a matter within the discretion of the trial court. Therefore, the trial court did not abuse its discretion in admitting the video after the court reviewed it.

Invitee further argued that the trial court erred in denying her motion for a mistrial after owners’ counsel implied during his examination of witnesses and in closing argument that any money judgment would be paid by owners, when, in fact, owners were well insured. Evidence that a party did, or did not, carry liability insurance, is not admissible. Because invitee was not prejudiced by any of the comments, the trial court did not abuse its discretion in denying the motion for a mistrial.

Invitee argued that the award of costs for expert witness fees for witnesses who were not called at trial was error. The trial court did not abuse its discretion to award the costs of experts who were not called to testify when those experts contributed to the cross-examination of invitee’s experts.

Invitee argued that the trial court erred in awarding owners’ costs for copying owners’ client file after the discharge of owners’ first counsel. An attorney is obligated, on termination of the representation, to take reasonable steps to protect the client’s interests, including surrendering the client’s papers and property. Because owners agreed to pay that which they had no other obligation to pay, the order of the trial court awarding the cost of photocopying owners’ client file was vacated.

The school district contended that the trial court erred in awarding costs against it because it is a political subdivision of the state of Colorado and is exempt from an award of costs by C.R.C.P. 54(d). The Court agreed. The judgment was affirmed, and the orders awarding costs for copying owners’ client file on a change of counsel and awarding costs against the school district were vacated. The cost order otherwise was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

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2013-05-25 03:18:17