August 20, 2017

Bills Enacting Uniform Unsworn Declarations Act, Exemption from Mandatory Advisement Requirements, and More Signed

On Thursday, April 13, 2017, Governor Hickenlooper signed ten bills into law. To date, he has signed 147 bills into law this 2017 legislative session. Some of the bills signed Thursday include a bill adopting the Uniform Unsworn Declarations Act, a bill granting immunity to a person who renders emergency assistance to a person or animal in a locked vehicle, a bill exempting certain traffic violations from the mandatory advisement requirements for municipal judges, and more. The bills signed Thursday are summarized here.

  • HB 17-1021“Concerning an Employer’s Violation of Wage Laws,” by Rep. Jessie Danielson and Sen. John Cooke. The bill clarifies that information obtained by the Division of Labor Standards and Statistics that relates to a finding of a violation of wage laws is not confidential and shall be released to the public or for use in a court proceeding, unless the Director of the Division makes a determination that the information includes specific information that is a trade secret.
  • HB 17-1081“Concerning Authority to Offer In-state Tuition Classification at State-supported Institutions of Higher Education for Athletes Training in Colorado in Programs Approved by the United States Olympic Committee,” by Rep. Dan Nordberg and Sen. Stephen Fenberg. The bill allows a state-supported institution of higher education to charge in-state tuition to an athlete residing anywhere in Colorado and training in an elite level program in Colorado approved by the United States Olympic committee and the governing body of an Olympic, Paralympic, Pan American, or Parapan American sport.
  • HB 17-1083“Concerning an Exemption for Certain Traffic Violations of the Requirement that a Municipal Judge Inform a Defendant of Certain Rights,” by Rep. Larry Liston and Sen. Bob Gardner. The bill excludes cases involving traffic infractions or violations for which the penalty is only a fine and for which jail is not a possibility from the requirement that municipal judges inform defendants of certain rights.
  • HB 17-1125“Concerning Eliminating the Duty of the Division of Correctional Industries to Provide Certain Services for the State’s Correctional Facilities,” by Reps. Dan Nordberg & Faith Winter and Sens. Jim Smallwood & Cheri Jahn. The bill removes a requirement that the Division of Correctional Industries in the Department of Corrections establish programs for vehicle maintenance, physical plant and facility maintenance, and food and laundry services for each of the state’s correctional facilities.
  • HB 17-1144“Concerning Amendments to the Automatic Cash Fund Funding Mechanism for Payment of Future Costs Attributable to Certain of the State’s Capital Assets,” by Rep. Daneya Esgar and Sen. Randy Baumgardner. The bill requires the General Assembly to include an annual depreciation-lease equivalent payment line item payable from the cash fund that is the funding source for the capital construction appropriation in the operating section of the annual general appropriation act for each state agency.
  • HB 17-1145“Concerning Authorization for Amateur Winemakers to Enter Wines in Organized Events,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill authorizes amateur winemakers to enter their wine in organized events, such as contests, tastings, or judgings at licensed premises.
  • HB 17-1179“Concerning Immunity for a Person who Renders Emergency Assistance from a Locked Vehicle,” by Reps. Lori Saine & Joann Ginal and Sens. Lois Court & Vicki Marble. The bill provides immunity from civil and criminal liability for a person who forcibly enters a locked vehicle for the purpose of rendering assistance to an at-risk person or animal.
  • HB 17-1194“Concerning Technical Changes Relating to the Operation of Pathways in Technology Early College High Schools,” by Rep. Mike Foote and Sen. John Cooke. The bill amends the definition of a pathways in technology early college (p-tech) high school to include a p-tech program that operates within a host school.
  • HB 17-1196“Concerning Changes to the Training Requirements for Applicants for Licensure under the ‘Barber and Cosmetologist Act’,” by Rep. Jeni Arndt and Sen. Kevin Priola. The bill requires the Director of the Division of Professions and Occupations in the Department of Regulatory Agencies to promulgate rules for applicants for cosmetologist or barber licensure to furnish proof of training, not to exceed 50 credits or 1,500 contact hours.
  • SB 17-154“Concerning  the ‘Uniform Unsworn Declarations Act’, by Sen. Bob Gardner and Rep. Cole Wist. The bill adopts in Colorado the Uniform Unsworn Declarations Act,expands the uniform law to include domestic unsworn declarations as contemplated, and clarifies that the act applies only to the use of unsworn declarations in state courts.

For a list of all Governor Hickenlooper’s 2017 legislative actions, click here.

Class Action Headaches: The Intersection of Mild Traumatic Brain Injury and Sports Concussion Litigation

Iron Mike Webster

“Iron Mike” Webster played for the Pittsburgh Steelers from 1974-1988 and the Kansas City Chiefs from 1989-1990, and played in 245 games during his career. He died at the age of 50 in 2002 from a heart attack. At his death, Iron Mike was suffering from dementia, self-mutilating, and living out of his pickup truck. A doctor named Bennet Omalu performed his autopsy, which showed chronic traumatic encephalopathy, or CTE. Dr. Omalu examined the remains of several other former NFL players who had similar symptoms to Iron Mike, including Terry Long, Andre Waters, and Justin Strzelczyk. He presented his findings to the NFL Commissioner, Roger Goodell, but was largely ignored until Chris Henry of the Cincinatti Bengals died in 2006 at age 26 due to CTE.

Will Smith and Alec Baldwin starred in a December 2015 movie, “Concussion,” which detailed Dr. Omalu’s findings and his struggle to be taken seriously by the NFL. In April 2015, a federal district court judge approved a class-action settlement of former NFL players for long-term neurological problems associated with repeated concussions. All eligible retired former NFL players will receive a baseline neuropsychological and neurological examination, and additional medical testing, counseling, or treatment if they are diagnosed with moderate cognitive impairment. The settlement also provides for monetary awards, conceivably into the millions of dollars, for diagnoses of certain neurocognitive diseases or impairments, such as ALS, Parkinson’s disease, Alzheimer’s disease, or certain levels of dementia. Fewer than 200 retired NFL players have opted out of the settlement.

Other sports organizations have filed class actions, as well. A number of former college athletes have filed suit against the NCAA, alleging long-term injuries from concussions experienced while playing NCAA sports. The U.S. Soccer Federation, U.S. Water Polo, the NHL, and the World Wrestling Federation have also been the subjects of concussion-related lawsuits. Many states, including Colorado, have passed measures intended to protect young athletes from second-impact syndrome, a rare and potentially fatal consequence of repeated concussions.

Reid Neureiter of Wheeler Trigg O’Donnell has researched concussion litigation extensively. On Thursday, March 9, from noon to 1 p.m., he will present “Concussions in the Courts,” a one-hour lunch program to highlight the continuing litigation between athletes and athletic organizations. Register by calling (303) 860-0608 or by clicking the links below.

 

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CLE Program: Concussions in the Courts

This CLE presentation will occur on March 9, 2017, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Court of Appeals: Colorado Does Not Recognize Negligence Arising Out of Inherently Dangerous Sports

The Colorado Court of Appeals issued its opinion in Laughman v. Girtakovskis on Thursday, October 8, 2015.

Inherently Dangerous Sport—Negligence—Duty of Care.

Laughman suffered serious facial and visual damage during a martial arts sparring match with Girtakovskis. Laughman initiated the underlying action, asserting a claim for negligence. Girtakovskis filed a motion for summary judgment, arguing that Colorado does not recognize negligence claims in cases involving inherently dangerous sports. The trial court granted the motion, and Laughman appealed.

Co-participants in a martial arts sparring activity, an inherently dangerous sport, do not owe each other a duty of ordinary care that would support a negligence claim. Because the determination of the existence of a legal duty is a question of law, and not an issue for the jury’s consideration, the trial court properly resolved this matter. The order granting summary judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Particular Circumstances Leading to Fall from Horse Should Be Analyzed for Liability Determination

The Tenth Circuit Court of Appeals issued its opinion in Kovnat v. Xanterra Parks & Resorts on Tuesday, October 21, 2014.

Corrine Kovnat and her husband vacationed in Yellowstone National Park in Wyoming in June 2012. While there, Kovnat and her husband went on a horseback ride at the Canyon Corral, operated by Xanterra Parks & Resorts. While on the trail, Kovnat’s saddle slipped and she fell, striking her back on the ground and fracturing three vertebrae. Kovnat filed a diversity action against Xanterra, claiming Xanterra negligently operated Canyon Corrals because Kovnat’s horse was improperly saddled, and that Xanterra negligently failed to maintain the saddle in a safe condition or warn Kovnat of its unsafe condition. Xanterra filed a motion for summary judgment, asserting that under the Wyoming Recreation Safety Act (WRSA), Xanterra owed no duty of care to protect Kovnat from the injuries alleged in her complaint. The district court granted summary judgment to Xanterra, and Kovnat appealed.

The Tenth Circuit first examined the WRSA, and found that in general, claims like Kovnat’s would not be allowed. The Tenth Circuit reviewed a similar case involving a Wyoming horseback rider injured in a saddle accident, where it ruled that the particular circumstances leading to the rider’s injury needed to be examined on a case-by-case basis. Turning to Kovnat’s claims, the Tenth Circuit found no error in the district court’s summary judgment regarding Kovnat’s claim that the saddle cinch was not tight enough, because there was a great deal of evidence that employees of Xanterra checked the cinch and it was too tight to slip the saddle back around after Kovnat’s fall, therefore any slipping of the cinch was an inherent risk of horseback riding. However, the Tenth Circuit evaluated Kovnat’s claim that her stirrups were uneven and determined that the uneven stirrups may not have been a result of the inherent risks of horseback riding. It remanded for further proceedings on this issue.

As to Kovnat’s negligent training and supervision claims, the Tenth Circuit affirmed the district court’s summary judgment as to the cinch issue and reversed as to the stirrup issue. The case was remanded for further findings regarding whether the uneven stirrups were an inherent risk of horseback riding or some extenuating circumstance in which Xanterra may have been liable.

Colorado Court of Appeals: Avalanche is Inherent Risk of Skiing Under Ski Safety Act

The Colorado Court of Appeals issued its opinion in Fleury v. IntraWest Winter Park Operations Corp. on Thursday, February 13, 2014.

Ski Resort—Avalanche—Wrongful Death—Negligence—Inherent Risk—Ski Safety Act.

This case arose from the death of Christopher Norris, who was killed by an avalanche while skiing on a run known as Trestle Trees/Topher’s Trees (Trestle Trees) at Winter Park Resort, which is operated by IntraWest Winter Park Operations Corporation(IntraWest). Norris’s wife, Salynda E. Fleury, individually and on behalf of her minor children, asserted claims for negligence and wrongful death. The district court granted IntraWest’s motion for determination of law and judgment on the pleadings, ruling that an avalanche is an inherent danger or risk of skiing under the Ski Safety Act (Act) and therefore IntraWest was not liable for Christopher Norris’s death.

On appeal, Fleury contended that the district court erred in determining that the avalanche was an inherent risk of skiing under the Act. The Act provides examples in defining the inherent dangers and risks of skiing; however, this list in not exclusive. Giving effect to the plain meanings of the words in the Act, an avalanche fits the definition of inherent dangers and risks of skiing.

Fleury also argued that IntraWest was liable for her husband’s death because it failed to close Trestle Trees and failed to warn skiers about the avalanche danger on the day he was killed. The Act enumerates specific sign requirements and does not require ski area operators to warn skiers of possible avalanches or to close slopes with avalanche danger. Therefore, IntraWest was under no duty to post a warning sign at Trestle Trees or to close it on the day in question. Therefore, the district court properly dismissed Fleury’s claims against IntraWest, and the judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Printout of Liability Waiver Not Necessary Where Waiver Prerequisite to Playing in League

The Colorado Court of Appeals issued its opinion in Berenson v. USA Hockey on Thursday, October 10, 2013.

Summary Judgment—Best Evidence Rule—Exculpatory Agreement in Online Registration Process.

Annette Berenson appealed the summary judgment in favor of USA Hockey, Inc. and the Colorado Ice Hockey Referees Association (collectively, USA Hockey). The judgment was affirmed.

Berenson played in an amateur hockey league that required participants to register annually through the USA Hockey website. Players were required to signify agreement to the league’s terms by inserting their initials on a Web page with a liability waiver and release. Berenson was injured during a game and sued, seeking to hold USA Hockey liable for her injuries.

USA Hockey filed a motion for summary judgment based on the liability waiver and release Berenson had executed. Berenson testified that she could not remember whether she had agreed to the terms. USA Hockey submitted an affidavit from an employee stating that the online registration process could not be completed without executing the page with the waiver and release and confirming that Berenson had registered the year she was injured. The district court granted USA Hockey’s motion for summary judgment.

On appeal, Berenson argued that the facts stated in the employee’s affidavit were inadmissible as a matter of law and should not have been considered by the court. She contended that under the best evidence rule (codified in CRE 1002), the only admissible evidence showing she had executed the waiver and release would have been a printout of it, which was never produced. The Court of Appeals disagreed.

The Court noted that the primary purpose of the rule is “to prevent error and to guard against fraud in the ascertainment of content.” [See 5 Mueller and Kirkpatrick, Federal Evidence§ 10:17 (3d ed., 2007).] Based on the employee’s affidavit as to how the online registration process worked, there could be no issue of material fact as to whether Berenson had executed an exculpatory agreement with USA Hockey; she had to execute the liability waiver and release to complete the registration process and play in the league.

Summary and full case available here.

Tenth Circuit: Signed Release Barred Plaintiff’s Negligence Claim Against Outdoor Education Center

The Tenth Circuit published its opinion in Squires v. Breckenridge Outdoor Education Center on Tuesday, May 7, 2013.

In 2008, Plaintiff, a legally blind child with cerebral palsy and cognitive delays, was severely injured while skiing at Breckenridge Ski Resort in Colorado. Before the trip, Defendant sent documents regarding the trip to the participants’ parents, including Plaintiff’s mother, Mrs. Squires. The documents included a Letter to Students and a Release. Plaintiff and her mother signed the Release.

On the first day of skiing, Plaintiff was injured when another skier lost control and skied into the tethers connecting Plaintiff and her instructor. Plaintiff filed this action claiming Defendant’s negligence and gross negligence caused her injuries. Defendant moved for summary judgment, arguing the Release barred Plaintiff’s negligence claim and there was no evidence to support her gross negligence claim. The magistrate judge granted summary judgment in favor of Defendant on Plaintiff’s negligence claim, and denied Defendant’s motion on Plaintiff’s gross negligence claim. This claim proceeded to a jury, which found Defendant not liable. Plaintiff appealed.

On appeal, Plaintiff argued the Release was unenforceable. She reasoned that the Release was invalid under the four-part test articulated in Jones v. Dressel, 623 P.2d 370 (Colo. 1981), and that her mother did not make an informed decision as required by C.R.S. § 13-22-107.

In determining whether an exculpatory agreement is valid, Colorado courts consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones, 623 P.2d at 376.

Plaintiff challenged only the magistrate judge’s conclusion on the fourth factor. In making this  determination, Colorado courts examine “the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the Release provisions.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). The Tenth Circuit found the Release signed by Plaintiff and her mother clearly and unambiguously waived any negligence claims Plaintiff might have brought against Defendant. Contrary to Plaintiff’s argument, Colorado law does not require that exculpatory agreements refer to the specific activity in which the plaintiff participated and was injured.

The Tenth Circuit then turned to whether Mrs. Squires’s consent to the Release was voluntary and informed, as required by C.R.S. § 13-22-107. Plaintiff argued it was not voluntary and informed, because her mother did not understand the risks involved with adaptive skiing and, specifically, the use of bi-skis. Considering not only the language of the Release, but also the information Defendant provided to Plaintiff and Mrs. Squires in connection with the Release, as well as Mrs. Squire’s actual knowledge on the date she signed the Release, the Tenth Circuit concluded Mrs. Squires’s decision to Release Plaintiff’s prospective negligence claims against Defendant was informed. Mrs. Squires had sufficient information from which to evaluate the degree of risk Plaintiff faced.

The Court concluded the Release satisfied both the Jones test and the voluntary and informed requirement of § 13-22-107 and was, therefore, enforceable.

The magistrate judge’s order granting summary judgment to Defendant on Plaintiff’s negligence claim is AFFIRMED.

SB 13-012: Adding Certain Personnel of Youth Sports Organizations to List of Mandatory Reporters of Suspected Child Abuse and Neglect

On Wednesday, January 9, 2013, Sen. Rollie Heath introduced SB 13-012 – Concerning Reporting of Suspected Child Abuse and Neglect by Youth Sports Organizations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill adds directors, coaches, assistant coaches, and athletic program personnel for private sports programs or organizations to the list of persons required to report suspected child abuse or neglect to the county or district department of social services or local law enforcement agency. Assigned to the Judiciary Committee.

HB 12-1295: Creating a Colorado Rockies License Plate

On February 9, 2012, Rep. Kevin Priola and Sen. Lois Tochtrop introduced HB 12-1295 – Concerning the Creation of a Colorado Rockies License Plate, and, In Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the Colorado Rockies special license plate. A person becomes eligible to use the plate by donating $52.80 to the Colorado Rockies baseball club foundation. In addition to the normal motor vehicle fees, the plate requires 2 one-time fees of $25. One of the fees is credited to the highway users tax fund and the other to the licensing services cash fund. The bill passed out of the House on March 28. The Senate finance Committee approved the bill on March 29 and sent it to the Appropriations Committee on March 29.

Since this summary, the bill made it through the Appropriations Committee and passed three readings on the Senate floor. It was signed by the Speaker of the House at 4:20 p.m. on April 5 and is now awaiting the governor’s signature.

Summaries of other featured bills can be found here.

American Needle v. NFL: Collective Commercial Efforts of Professional Leagues

Editor’s Note: CBA CLE Legal Connection staff track U.S. Supreme Court cases and reactions, but we only post on select cases. We do, however, welcome and encourage members of the Colorado legal community to submit guest posts on recent cases. Please email your submissions to legalconnection@cobar.org.

In American Needle v. NFL, the United States Supreme Court considered whether the NFL’s business organization was properly classified as a single-entity with thirty-two franchises, similar to other franchise businesses like Taco Bell or McDonald’s. American Needle contended that the NFL was more properly classified as thirty-two individual organizations that operate independently, but toward a common goal.

Under the NFL’s business model, NFL Properties was created to develop and promote the NFL brand. Part of this marketing strategy included a new merchandizing agreement and, in 2000, the NFL signed a ten-year licensing agreement with Reebok, giving them exclusive rights to all manufacturing and sales of the sport’s paraphernalia for all thirty-two teams in the NFL. As part of the agreement, the thirty-two teams were prohibited from competing with each other in the licensing of merchandise and were not to contract with any Reebok competitors for that period of time. American Needle was a company that made apparel for the NFL before the exclusive contract with Reebok was signed, and brought suit against the NFL for violation of Section 1 of the Sherman Antitrust Act, claiming the agreement unreasonably restrained competition.

As Casey McLaughlin explains, in defense of American Needle’s claims, the NFL claimed that its organization was not a collection of thirty-two individual businesses, but was a single business entity that was comprised of thirty-two teams; these teams act collectively, not combatively, in promoting the NFL brand and competing against products of other sports and entertainment organizations like the MLB and NBA. If such a classification were to be successful in court, the NFL would be exempt from the Sherman Antitrust Act.

While the Seventh Circuit accepted this business model, holding that the teams act as a single source of economic and promotional power for the NFL through the licensing, the Supreme Court disagreed. Justice Stevens, writing for a unanimous court, found that while the teams as a collective whole have a common interest in promoting the NFL brand, “they are still separate, profit-maximizing entities, and their interests in licensing team trademarks are not necessarily aligned.” The Court determined that because each individual team competed in the market for intellectual property, a manufacturing company would find each individual team to be “potentially competing suppliers of valuable trademarks.”

However, as Kristi Dosh affirms, the Supreme Court did not decide the merits of the case as to whether the NFL teams colluded to exclude American Needle from manufacturing NFL merchandise, creating unfair competition under Section 1 of the Sherman Antitrust Act. A lower court will again take up this issue, evaluating the NFL’s business organization based on the Supreme Court’s findings. The lower court will have to discern whether the any anticompetitive behavior by the NFL is outweighed by business justifications. The NFL has some strong arguments in its favor here, including a showing of evidence that “they garner greater bargaining power when all [thirty-two] teams join together to license their trademarks.” In Justice Stevens’ opinion, he noted that there would be certain times, conditions, and decisions in which collective action might be justified. Additionally, Dosh contends that the bidding process for the exclusive manufacturing contract was a seemingly fair one and was simply awarded to the highest bidder.

Ultimately, American Needle’s win at the Supreme Court does not necessarily foretell a win on remand to determine the underlying issues of the case. However, the Supreme Court’s decision does offer some insight into how the collective commercial efforts of other professional leagues like the NFL may be considered by the Court (excluding MLB, which has specifically been exempt from antitrust laws since 1922), according to Lyle Denniston.

See SCOTUSblog and SCOTUSwiki for more details and analysis of this case, and all recent U.S. Supreme Court cases.

(image source: United States Supreme Court)