February 21, 2018

Colorado Court of Appeals: Error to Allow Alternate Juror to Deliberate After Party’s Objection

The Colorado Court of Appeals issued its opinion in Johnson v. VCG Restaurants Denver, Inc. on Thursday, December 31, 2015.

Alternate Juror—Deliberations—Verdict—Objection.

Plaintiff was a patron at VCG’s adult nightclub. While waiting outside after the nightclub had closed, he was confronted by a VCG employee. An altercation ensued between the two men, and plaintiff sustained physical injuries. Plaintiff brought claims against several defendants, including the employee and VCG. The jury deliberated and found in favor of some of the defendants, but it returned a verdict in plaintiff’s favor with respect to the employee and VCG. The trial court entered a final judgment of $74,452.83 against the employee and $246,462 against VCG.

On appeal, defendants contended that the trial court erred in allowing an alternate juror to deliberate with the jury over their objection. CRCP 47(b) does not grant a trial court the discretion to permit an alternate juror to deliberate and participate fully with the principal jurors in considering and returning a verdict when one party objects. Further, erroneously permitting an alternate juror to do so is presumptively prejudicial. Therefore, the judgment was reversed and the case was remanded for a new trial.

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

Tenth Circuit: Plaintiff Bears Burden to Prove Constitutional Violation of Clearly Extant Law in Qualified Immunity Case

The Tenth Circuit Court of Appeals issued its opinion in Cox v. Glanz on Tuesday, September 8, 2015.

Charles Jernegan surrendered at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma in July 2009, and was asked several questions related to his physical and mental health as part of the intake process by the booking officer and nurse Faye Taylor. He reported that he was taking medication for paranoid schizophrenia but did not express any suicidal ideation. The next day, he filed a medical request through the jail’s kiosk system, reporting he needed to “speak to someone about problems.” Two days later, healthcare employee Sara Sampson attempted to check on him but because he had been moved to a different cell block she never contacted him. That same morning, Jernegan hanged himself and was found dead in his cell.

His mother, Carolyn Cox, brought a 42 U.S.C. § 1983 action against the Tulsa County Sheriff, Stanley Glanz, in his individual and official capacities, and also against the company that provided healthcare services to the jail and several of the jail’s healthcare employees, including Sampson and Taylor. As relevant to Sheriff Glanz, Ms. Cox alleged that his failure to provide adequate and timely mental health screening and care constituted deliberate indifference to Jernegan’s serious medical needs in violation of the Eighth Amendment. For the individual capacity claim, Ms. Cox relied on a supervisory-liability theory, alleging Glanz failed to properly train and supervise jail employees, including Sampson and Taylor. For the official capacity claim, Ms. Cox averred that Glanz had promulgated and administered an unconstitutional policy of providing insufficient mental health evaluation and treatment.

The sheriff moved for summary judgment, contending he was entitled to qualified immunity on the individual capacity claim because Ms. Cox had not established that any jail employee acted with deliberate indifference to Jernegan’s medical needs, he had not acted with the requisite state of mind to support a deliberate indifference claim, and he had not created any policy that produced constitutional harm. The district court denied Glanz’s motion, ruling that genuine issues of material fact precluded summary judgment. The district court did not explicitly focus on the framework of qualified immunity in its ruling. Glanz filed an interlocutory appeal.

The Tenth Circuit first addressed whether it had jurisdiction to entertain the sheriff’s interlocutory appeal, acknowledging that Ms. Cox’s jurisdictional arguments had merit because the district court did not follow the settled mode of decision-making regarding qualified immunity. Because the sheriff accepted Ms. Cox’s version of the facts as true, the Circuit had jurisdiction to evaluate the legal issues presented by the agreed-upon facts. The Tenth Circuit noted that the appropriate two-fold test for qualified immunity was whether there was a constitutional violation and whether that constitutional violation was grounded in clearly established law. The Tenth Circuit commented that neither party adequately briefed the question of whether the law was clearly established at the time of Jernegan’s suicide.

Turning to the merits of the appeal, the sheriff argued the district court committed reversible error when it denied him qualified immunity on his individual capacity claim and when it denied him summary judgment on his official capacity claim. The Tenth Circuit declined to reach the second argument, noting it lacked jurisdiction and declined to exercise pendent appellate jurisdiction. The Tenth Circuit dismissed the sheriff’s appeal on the official capacity claim.

As to the individual capacity claim, the Tenth Circuit elected to review whether clearly established law prohibited the constitutional violation suffered by Jernegan, i.e., whether an inmate’s right to proper suicide screening was clearly established in 2009. The Tenth Circuit noted that Ms. Cox failed to produce any case law support for her proposition, but conducted an independent review. The Tenth Circuit noted that its standard for the requisite state of mind for deliberate indifference was established in the mid-1990s and had not changed by 2009. The trend in the circuit was to require inmate-specific knowledge of suicide risk, and the circuit declined to hold jail officials responsible when the inmate did not demonstrate a particularized risk of suicide. Because Jernegan did not present a specific risk of suicide, no jail employee could have been found to have acted with deliberate indifference, so the sheriff could not be found to have acted with deliberate indifference under a supervisor liability theory. The Tenth Circuit held that Ms. Cox failed to satisfy the clearly-extant law prong of the qualified immunity analysis, and therefore the sheriff was entitled to qualified immunity on the individual capacity claim.

The Tenth Circuit reversed the district court’s denial of qualified immunity on the individual capacity claim against the sheriff and remanded with instructions to enter judgment in favor of the sheriff, and dismissed the part of the appeal related to the official capacity claim.

Top Ten Litigation Programs and Homestudies

We continue to inch closer to the end of the compliance period for a third of Colorado’s attorneys. As that mark draws near, we are profiling the Top Ten Programs and Homestudies in several practice areas. Last week, we featured the Top Ten Ethics Programs and Homestudies, the Top Ten Family Law Programs and Homestudies, the Top Ten Trust & Estate Programs and Homestudies, and the Top Ten Real Estate Programs and Homestudies.

Today we will review the Top Ten Litigation Programs and Homestudies. There were so many great programs to choose from that we have some runners up. Litigation programs include programs about federal practice, appellate practice, and tort law, as well as programs about general litigation skills such as motion practice and deposition skills. The five runners up are:

  • Hearsay — The Truth of the Matter Asserted. This program detailed the ins and outs of the hearsay rules, including the many exceptions. Four general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.
  • What’s New in Brain Injury Litigation? and Examining Medical Experts at Deposition and Trial. These two half-day programs explored the latest on diagnosing, treating, and presenting brain injury cases and how to effectively examine a medical expert at trial. Three general credits each; available as CD homestudy (AM/PM), MP3 audio download (AM/PM), and Video OnDemand (AM/PM).
  • Product Liability Fundamentals. This program discusses everything you need to know to try a product liability case. Attendees receive a PDF copy of the CLE book, Product Liability Law & Procedure in ColoradoSeven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.
  • E-Discovery. United States Magistrate Judges presented this program on the importance of electronic discovery. Learn about identifying and preserving electronic files, as well as keeping up with technological advances. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.
  • NEW Rules of Civil Procedure in Colorado: Effective July 1, 2015. The Colorado Rules of Civil Procedure underwent several dramatic changes in 2015, and this program details the changes and what they mean for your practice. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

And now, for the Top Ten Litigation Programs and Homestudies:

10. Join the Honorable John Webb on Better Appellate Writing, Briefing, and Oral Argument. Judge Webb returned to the CLE classroom for a refresher on appellate briefing and writing. Judge Webb has been teaching legal writing for many years, and has good tips on how to write more persuasively and how to give a powerful oral argument. Four general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Emerging Trends in Economic Damages, Business Valuation, and Lost Profits. The Society of CPAs co-sponsored this program, which discussed the cost of capital, lost profits and economic damages, the courts as gatekeeper of expert testimony, optimizing relationships between legal counsel and financial experts, and a view from the bench. Eight general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

8. Ethics and Electronically Stored Information / Electronically Stored Information and the Law. These two programs discuss electronically stored information, or ESI, and what that means for your litigation practice. Ethics and ESI focuses on social media use by attorneys and how to avoid ethical pitfalls when advising clients about social media. ESI and the Law is an update on the intersection of technology and privacy, especially in a litigation practice. Ethics and ESI—four general credits, including 3.6 ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand. ESI and the Law—seven general credits, including 1.5 ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Collecting Judgments: Strategies for Success. You’ve won at trial—congratulations! But how are you going to collect on your judgment? This program provides an overview of collections strategies within the bounds of the law and ethical obligations. The nuts and bolts of collections are reviewed, as well as bankruptcy and creditor representation, garnishments and post-judgment collections, the Fair Debt Collections Practices Act, and more. Six general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. Better Motion Practice — How to Argue, Present, and Write Motions More Effectively. This program is a great “how-to” guide for lawyers who want to sharpen their skills by learning about the various kinds of motions encountered in a litigation practice. Learn how to draft and organize better briefs, make more concise and persuasive arguments, present persuasive arguments using technology, and more. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

5. Winning at Deposition: Skills and Strategy. Have you ever been frustrated by a witness who pretends not to know the answer to a simple question or flat out lies? Do you dread taking a deposition against an obnoxious opposing counsel? Do your depositions lack focus and productivity? These issues and more are addressed by national speaker Shane Read, author of the award-winning textbook, Winning at DepositionEight general credits, including one ethics credit; available as DVD homestudy or Video OnDemand.

4. Annual Tort Law Update 2015. Back by popular demand, this program features short 25-minute segments on insurance bad faith, insurance law, subrogation law, product liability, nursing home litigation and elder abuse, premises liability, wrongful death, workplace torts, professional liability, and more. Five general credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

3. Appellate Practice Update 2015. Federal and state judges, as well as top attorneys, presented this helpful update. The program included discussions of when to appeal, trial advocacy versus appellate advocacy, briefing and oral argument from the judges’ perspectives, appellate ethics, rules updates, court statistics, a clerks’ panel, and more. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

2. Federal Practice Update 2015. The Chief Judge of the U.S. District Court for the District of Colorado provided perspective on federal practice in this annual program, and federal magistrates opined on successful federal court advocacy. Federal rule changes were discussed, as well as eDiscovery tips and trends, ethics, and tips for effective litigation strategy. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

1. Winning at Trial 2015: Skills and Tactics. The ultimate goal of every litigation attorney is to win at trial, and this program provides skills for successful litigation. Seasoned advocates present topics such as how to create winning trial graphics, taking useful depositions, jury selection tips, how to make persuasive opening statements, effective direct and cross-examinations, and much more. Eight general credits, including two ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

Tenth Circuit: Exception to Open and Obvious Doctrine Applies Where Employees Must Confront Danger for Work

The Tenth Circuit Court of Appeals issued its opinion in Martinez v. Angel Exploration, LLC on Tuesday, August 4, 2015.

Jesus Martinez was employed Smith Contract Pumping (SCP) to conduct routine inspections on oil wells in Oklahoma. While inspecting a well owned by Angel Exploration, LLC, Martinez dropped a tool. As he bent to retrieve it, the sleeve of his sweatshirt was caught in Angel’s unguarded pump jack and his hand was pulled into the well, severing his thumb. Martinez received workers’ compensation benefits from SCP but also filed tort claims against Angel, alleging that the lack of guarding was an unreasonably dangerous condition and Angel was negligent in failing to inspect its wells and to warn or take other precautions to protect Martinez. During discovery, SCP admitted Angel relied on SCP to report any needed repairs or adjustments to Angel, but also said that SCP’s employees were not trained on what guards were needed on a pump jack. And although Angel’s managing member admitted that the lack of a guard would be obvious to anyone who saw the well, he also said Angel never confirmed that SCP knew what was required by safety regulations, including a relevant OSHA regulation. Martinez testified that although he was aware the well was not guarded, he did not know he was supposed to report that, and another person testified that the well had not been guarded since 2003.

Martinez brought additional claims against Angel, averring that his claims fell within the Oklahoma Workers’ Compensation Act’s intentional tort exception. He sought actual and punitive damages and his wife brought derivative claims for loss of consortium and household services. Angel moved for summary judgment. The district court found the danger imposed by the unguarded well was open and obvious and therefore Angel had no duty to warn or otherwise remedy the condition. The court also found that the Oklahoma Workers’ Compensation Act’s intentional tort exception did not apply because there was no evidence Angel intentionally caused the tort. The district court also entered summary judgment on Martinez’ wife’s claims since they were derivative.

Martinez appealed, arguing (1) Angel’s failure to comply with the OSHA regulation constituted negligence per se; (2) because Martinez’ attention was distracted, fact issues exist as to whether the danger was open and obvious; (3) there were competing inferences as to whether Martinez fully appreciated the danger of the unguarded belt and whether it had a deceptively innocent appearance; and (4) even if the danger was open and obvious, Angel should have anticipated harm. The Tenth Circuit summarily dismissed the first two arguments as forfeited because they were not raised in district court. The Tenth Circuit also rejected the third argument, finding reasonable minds could not differ as to the open and obvious nature of the unguarded belt. As to the fourth argument, however, the Tenth Circuit reluctantly reversed due to an intervening Oklahoma Supreme Court decision that greatly changed application of the open and obvious doctrine.

The Tenth Circuit analyzed Wood v. Mercedes-Benz, 336 P.3d 457 (Okla. 2014), and found that it dramatically changed Oklahoma’s law regarding open and obvious dangers to invitees. Wood recognized an exception to the open and obvious doctrine where the invitee was required to confront the open and obvious danger as a condition of employment. The Tenth Circuit found Martinez’ case indistinguishable from Wood, and remanded for the parties to brief and argue the scope of Wood and how Oklahoma courts might resolve the question of whether Angel had notice that its well was unguarded.

The Tenth Circuit next turned to Martinez’ claim that Angel’s failure to guard the well constituted an intentional tort. The Tenth Circuit rejected this argument, finding that the district court correctly rejected this alternative theory of liability. Martinez resisted Angel’s argument that at the time of the accident he was a statutory employee of Angel and therefore the Workers’ Compensation Act’s exclusive remedy provision applied. The Tenth Circuit rejected Martinez’ argument.

The district court’s grant of summary judgment to Angel on the intentional tort claim was affirmed. The district court’s grant of summary judgment to Angel on the open and obvious claim was reversed and remanded for reconsideration in light of Wood.

Colorado Court of Appeals: Car Vendors Have No Duty to Inquire into Prospective Buyer’s Driving History

The Colorado Court of Appeals issued its opinion in Beasley v. Best Car Buys, LTD on Thursday, October 8, 2015.

Negligence—Summary Judgment—No Legal Duty to Inquire into a Buyer’s Driving History.

Best Car Buys, LTD (BCB) sold a car to Reynoso and Yancey. Eight days later, Reynoso, driving the new car, struck plaintiff Beasley, who was driving a motorcycle. Beasley sued BCB for negligence and negligent entrustment, claiming BCB should not have sold Reynoso the car because he did not have a driver’s license and was not a safe driver. BCB moved for summary judgment and the district court granted the motion.

On appeal, Beasley claimed that BCB negligently sold the car to Reynoso because BCB had a duty to investigate Reynoso’s driving history and declined to do so. To recover for negligent conduct of another, a plaintiff must establish that there was a duty owed by a defendant that was breached, and that the breach actually or proximately caused injury to the plaintiff. Here, the question was whether there was a duty that BCB breached. The Court of Appeals agreed with the district court that there is no legal requirement for automobile dealerships to conduct a search of a buyer’s driving history or to inquire as to the status of the buyer’s driver’s license. Because there was no duty on the part of BCB, there can be no negligence claim.

Beasley further argued that BCB negligently entrusted the car to Reynoso without requiring that he present a valid driver’s license. The Restatement (Second) of Torts, § 390, requires a finding that BCB had either actual knowledge or a reason to know that, in entrusting the car to Reynoso, there was a likelihood that he would use the car in a manner likely to cause harm. There was no evidence in the record that BCB had any actual knowledge that Reynoso would use the vehicle in a manner likely to cause harm. In addition, the Court could not conclude that BCB “had reason to know” that Reynoso would use the car in a manner likely to cause harm merely because he did not present a valid driver’s license. The judgment was affirmed.

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

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.

Colorado Court of Appeals: Zip Line at Public School Inherently Dangerous So CGIA Does Not Apply

The Colorado Court of Appeals issued its opinion in Loveland v. St. Vrain Valley School District RE-1J on Thursday, September 24, 2015.

Governmental Immunity—Recreation Area Waiver.

In 2008, 9-year-old Alexa Rae Loveland was playing in her public elementary school’s playground. While using a zip line, she fell and fractured her wrist and right forearm. Alexa and her parents filed a tort action against the school’s principal and St. Vrain Valley School District RE-1J (District).

The District moved to dismiss under CRCP 12(b)(1), asserting lack of subject matter jurisdiction because public school districts and their employees are immune from tort liability under the Colorado Governmental Immunity Act (CGIA). The Lovelands argued immunity was waived under CRS§ 24-10-106(1)(e) because the injury arose from a “dangerous condition” of a “public facility located in any park or recreation area maintained by a public entity.” The trial court granted the District’s motion, finding that playground equipment is not a public facility.

On interlocutory appeal, a division of the Court of the Appeals reversed, holding that the zip line constituted a public facility located in a recreation area. The Supreme Court granted certiorariand held that “an individual zip line apparatus on a public playground does not qualify as a ‘public facility’ under the recreation area waiver when that apparatus is divorced from the rest of the playground.” Because the trial court made no findings of fact regarding “the remaining requirements of the recreation area waiver,” however, the Supreme Court remanded the case. On remand, the District again moved to dismiss and the trial court again granted the motion.

On this second appeal, the Lovelands argued that it was error for the trial court to conclude they had not satisfied the requirement that the injury was a result of a dangerous condition that was a result of the physical condition of the public facility. The Court of Appeals agreed. The zip line was inherently dangerous and its mere presence was the physical condition of the playground, the use of which created the dangerous condition that caused Alexa’s injuries.

The trial court also found that the Lovelands had not shown that the particular zip line constituted an unreasonable risk to public health or safety. The Court held there was not enough evidence presented on this issue and, thus, it was error for the trial court to hold this was not shown as a matter of law. A hearing is therefore necessary to make factual findings on this issue.

The Court further held that the trial court properly dismissed the claims against the principal because there was no allegation that she was involved in the decision to install the zip line. Rather, the allegations went to claims of negligent supervision, which are barred by the CGIA. Because an award of attorney fees is mandatory when a trial court dismisses an action under CRCP 12(b), the principal is therefore entitled to her reasonable attorney fees on appeal as they relate to the claims against her. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

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

Colorado Court of Appeals: Test Drive Constituted Joint Venture Between Driver and Dealership

The Colorado Court of Appeals issued its opinion in American Family Mutual Insurance Co. v. AN/CF Acquisition Corp. on Thursday, September 10, 2015.

Summary Judgment—Vicarious Liability for Negligence—Joint Venture in Operating an Automobile.

Hart asked to test drive a car she was interested in buying from defendant Go Courtesy Ford, a car dealership. A salesman accompanied Hart as a passenger on the test drive. The salesman chose the route and told her where to turn. During the drive, Hart negligently attempted to turn left in front of oncoming traffic and collided with a car driven by Kelly.

Kelly filed a claim with her insurer (American Family) for damages. American Family paid the claim and then filed this negligence action as Kelly’s subrogee against Hart and Go Courtesy Ford to recover the amount it had paid and the deductible. Hart did not defend, and the court entered a default judgment against her. She did not appeal.

Cross-motions for summary judgment were filed. American Family argued the test drive was a joint venture between Go Courtesy Ford and Hart, making Go Courtesy Ford vicariously liable for Hart’s negligence. Go Courtesy Ford argued the test drive was not a joint venture because the participants had adverse financial interests. The district court granted Go Courtesy Ford’s motion and denied American Family’s.

The sole issue on appeal was whether, as a matter of law, the test drive constituted a joint venture. For a joint venture to exist in the operation of an automobile, “two or more persons must unite in pursuit of a common purpose” and “each person must have a right to control the operation of the automobile in question.” This doctrine has been used to hold defendant passengers vicariously liable for drivers’ negligence for nearly a century. No published Colorado case has considered the joint venture doctrine in the context of a test drive. The majority rule in other jurisdictions is that when a dealer’s representative is a passenger during the test drive, the dealer is liable for the prospective purchaser’s negligence.

The Court found the district court erred in finding that Go Courtesy Ford and Hart did not share a common purpose. The test drive itself constituted a common purpose. Further, Go Courtesy Ford’s salesman had a right to control the car because the dealership owned it. Therefore, the test drive constituted a joint venture and, as a matter of law, Go Courtesy Ford was liable for Hart’s negligence during the test drive. The judgment was reversed and the case was remanded with directions.

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

Colorado Court of Appeals: Instruction on Highest Degree of Care Unnecessary in Ambulance PI Case

The Colorado Court of Appeals issued its opinion in Bedee v. American Medical Response of Colorado on Thursday, September 10, 2015.

Negligence—Jury Instruction—Highest Degree of Care.

Bedee was a member of a medical team that transported a neonate in an ambulance owned by American Medical Response of Colorado (AMR). On the return trip, Bedee rode in the back of the ambulance, which was equipped with lap belts for occupants. The ambulance allegedly hit a series of dips in the road so severe that Bedee was lifted off her seat and slammed back down causing her lower back to twist and torque. Bedee sought damages for a lower back injury, alleging the drivers were negligent because they didn’t slow down when hitting the dips.

Before trial, Bedee submitted a trial brief arguing that a jury instruction should be given that the ambulance drivers owed its passengers the highest degree of care because of their control of the ambulance and her lack of freedom of movement during the ride. AMR rebutted this, arguing that ambulances are not common carriers under a Colorado statute and therefore the higher degree of care should not apply. The trial court did not give the instruction. The jury returned a verdict in favor of AMR, finding that AMR did not act negligently or cause Bedee’s injuries. Bedee appealed, arguing it was reversible error to not give the highest standard of care instruction.

The Court of Appeals discussed the elements of a negligence action and the factors set forth under Lewis v. Buckskin Joe’s, 396 P.2d 933 (Colo. 1964),for the highest degree of care instruction. It noted these factors have only been applied in Colorado to ski lift operators and operators of amusement rides. It also noted that a trial court may instruct a jury on the highest degree of care only where “all minds concur” that a business by its very nature is “fraught with peril to the public.” In addition, if a defendant is a “common carrier,” it has the duty to exercise the highest degree of care to its passengers.

Here, the Court found no evidence of an increased degree of risk on the return ambulance trip. Just as any other driver in Colorado, there was no reason to hold the ambulance driver to a higher degree of care than that of reasonable care. To hold otherwise would to establish precedent that every driver owes a higher degree of care than reasonable care to its passengers.

The Court also rejected the argument that the ambulance was a common carrier. The Court found that most jurisdictions based this determination on their statutes. In Colorado, the statutory definition in Title 40 does not encompass ambulances, and in fact, they are specifically excluded in CRS § 40-10.1-105(1)(d). The judgment was affirmed.

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

Colorado Court of Appeals: Municipality Waived Immunity for Dangerous Condition of On-street Parking Spot

The Colorado Court of Appeals issued its opinion in McKinley v. City of Glenwood Springs on Thursday, September 10, 2015.

Colorado Governmental Immunity ActInjuries—Parking Area—Municipal Street—Immunity—Waiver.

Linda McKinley pulled her car into a parking spot on a municipal street in the City of Glenwood Springs (City). She stepped out of her car and tripped in a four- to five-inch deep depression in the pavement of the parking area. The McKinleys filed a complaint seeking to hold the City liable for Linda McKinley’s injuries and William McKinley’s loss of consortium. The City moved to dismiss the complaint based on the Colorado Governmental Immunity Act (CGIA), which was denied by the trial court.

On appeal, the City argued that the trial court erred in denying its motion to dismiss based on the CGIA. CRS § 24-10-106(1)(d)(I) of the CGIA waives immunity for injuries occurring in parking areas of a municipal street. Because the trial court’s finding that the depression was a dangerous condition that interfered with traffic is supported by evidence in the record, the trial court’s order was affirmed.

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

Tenth Circuit: Nothing in Prior Tenth Circuit Remand Prevented Entry of Judgment on State Law Claims

The Tenth Circuit Court of Appeals issued its opinion in Cook v. Rockwell International Corp. on Tuesday, June 23, 2015.

In 1989, FBI agents discovered plant workers at the Rocky Flats nuclear plant had been carelessly mishandling radioactive waste for many years. Landowners neighboring the former nuclear plant brought a federal civil suit against Rockwell and Dow Chemical Corp., seeking relief under both the Price-Anderson Act and state nuisance law. After fifteen years of pretrial discovery, a jury returned a verdict for plaintiffs, including $177 million in compensatory damages, $200 million in punitive damages, and $549 million in prejudgment interest. Defendants appealed, arguing the court failed to properly instruct the jury on the terms of the Price-Anderson Act. A panel of the Tenth Circuit agreed in Cook I, vacating the judgment and remanding for further proceedings in light of the Act’s correct construction. Plaintiffs then argued that even without the Price-Anderson Act claim, their state law nuisance verdict survived. Defendants countered that (1) the Price-Anderson Act prevents state law recovery where an Act claim, albeit unsuccessful, is advanced, and (2) the Tenth Circuit’s mandate in Cook I independently barred plaintiffs from relief on their state law nuisance claims. The district court ruled for defendants and plaintiffs appealed.

On appeal, the Tenth Circuit first addressed defendants’ argument that any state law claim was preempted by the unsuccessful Price-Anderson Act claim. The Tenth Circuit characterized this as a structure where unless a nuclear claim was large enough to fall within the Act’s regulation, there could be no recovery for damages. Noting that the defendants forfeited this argument in their first appeal, the Tenth Circuit reaffirmed the first panel’s holding that Dow and Rockwell forfeited any field preemption argument long ago. The Tenth Circuit found it implausible that Congress would have intended remedies to exist only for large-scale “nuclear incidents” while foreclosing remedies for smaller claims. The Tenth Circuit could find nowhere in the Act preempting or precluding remedies for state law claims if federal claims were not proved, and found it rather seemed to imply the opposite.

Turning to defendants’ second argument, that the court mandate in the first appeal required dismissal of plaintiffs’ state law claims, the Tenth Circuit again rejected defendants’ arguments. The Tenth Circuit evaluated Cook I and noted the prior panel expressly found the jury was properly instructed on the elements of a state law nuisance claim. The Tenth Circuit found that at the end of the first trial there was a properly instructed jury, legally sufficient evidence, and a favorable jury verdict as pertains to a state law nuisance claim. The Tenth Circuit similarly rejected defendants’ proposition that the prior Tenth Circuit panel had vacated the entire verdict, including the state law portion. This panel of the Tenth Circuit averred that the state law portion of the trial court’s verdict was untouched in Cook I and therefore was the law of the case, and nothing prevented the trial court from entering a new verdict on the state law claim alone.

The Tenth Circuit remanded the case with instructions for the district court to enter judgment on the nuisance verdict promptly. Judge Moritz concurred in the judgment of remand but disagreed that the court would be able to simply reinstate the nuisance judgment without a new trial.

Tenth Circuit: No Qualified Immunity Where Officer Acted with Recklessly and with Deliberate Indifference

The Tenth Circuit Court of Appeals issued its opinion in Browder v. City of Albuquerque on Tuesday, June 2, 2015.

After finishing a shift, Sergeant Adam Casaus of the Albuquerque Police Department sped through city streets with his lights and sirens on, driving at an average of 66 miles per hour for 8.8 miles. He sped through a red light at one intersection and hit a car, killing Ashley Browder and causing serious injuries to her sister, Lindsay. Lindsay and her parents brought a § 1983 action in federal court, but Sergeant Casaus urged the district court to deny relief based on qualified immunity. The district court declined to dismiss the case and Casaus appealed.

The Tenth Circuit first noted that the parties did not dispute that Casaus’ conduct fell “under color of state law.” The Browders alleged a violation of their Fourteenth Amendment right to due process. The Tenth Circuit clarified that the alleged violation was a substantive due process claim, evaluating whether the claim was carefully described, whether the right is “fundamental,” and whether the government’s infringement was “direct and substantial,” next turning to the question of whether the government had substantial justification for its actions. Finally, the Tenth Circuit noted that when a state court claim can provide the same relief as a federal § 1983 claim, the federal court should abstain in favor of the state remedial process.

Evaluating the case at hand, the Tenth Circuit found no question that the Ashley’s death and Lindsay’s injuries qualified as direct and substantial impairments of their fundamental right to life, and that Sergeant Casaus’ actions were arbitrary in that they were performed capriciously or at his pleasure and without good reason. Although Casaus claimed he was acting on official business—pursuing a car operating in a dangerous manner—the facts in the complaint expressly contend Casaus was not pursuing official business of any kind. The Tenth Circuit also rejected Casaus’ contention that because he activated his lights and sirens he was not acting recklessly as a matter of law. Casaus argued he did not have time to form a reckless indifference to human life, because the accident occurred 2.5 seconds after he entered the intersection. However, the Tenth Circuit noted he had driven 8.8 miles at high speeds prior to the accident, and therefore he had about 8 minutes before the crash to form the requisite mens rea.

Finally, the Tenth Circuit evaluated whether the law was clearly established at the time of Casaus’ accident. Noting that “some things are so obviously unlawful that they don’t require detailed explanation and sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing,” the Tenth Circuit found that although there was not much case law regarding officers causing fatal accidents on their own time, the Supreme Court ruled in 1986 that when a private person suffers a serious injury due to an officer’s intentional misuse of his or her vehicle a viable due process claim can arise, and the Tenth Circuit ruled in 1996 that a Fourteenth Amendment claim can arise from an officer speeding at 60 miles per hour. The Tenth Circuit also ruled in 2006 that a police officer could be liable under the Fourteenth Amendment for driving recklessly and with deliberate indifference. Taking all these cases together, the Tenth Circuit found ample support that the law was clearly established at the time of the accident.

The Tenth Circuit affirmed the district court. Judge Gorsuch wrote a concurrence about the preference for tort claims to be resolved under state law rather than federal law.