May 24, 2013

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

May 10, 2013 by Leave a Comment

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.

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Tenth Circuit: Government Waiver of Unconditional Guilty Plea’s Effect Did Not Deprive Court of Subject Matter Jurisdiction

September 5, 2012 by Leave a Comment

The Tenth Circuit published its opinion in United States v. De Vaughn on August 31, 2012.

The defendant, Jay De Vaughn, pleaded guilty to mailing threatening communications and made this plea unconditionally, without reserving a right to appeal. De Vaughn appealed, saying his statements did not constitute threats, and making an as-applied First Amendment argument. Because the government failed to raise the preclusive effect of his guilty plea, the court analyzed whether it had jurisdiction to hear the appeal before concluding that it did under 28 U.S.C. § 1291.

Generally, “a voluntary and unconditional guilty plea waives all non-jurisdictional defenses.” The Tenth Circuit applied United States v. Cotton to hold that an argument that an indictment or information does not charge a crime against the United States is not jurisdictional.

“A guilty plea waives all defenses except those that go to the court’s subject-matter jurisdiction and the narrow class of constitutional claims involving the right not to be haled into court.” The Tenth Circuit held that the defendant’s First Amendment argument did not involve subject matter jurisdiction.

Because the government waived the preclusive effect of defendant’s guilty plea, the court reviewed the defendant’s arguments for plain error and found none.

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Colorado Court of Appeals: Issue Preclusion Deemed Waived When Asserted for the First Time Two Days Into Trial and 19 Months After Pleas Entered

July 10, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Vanderpool v. Loftness on July 5, 2012.

Negligence and Battery—Nonmutual Offensive Issue Preclusion Waiver.

Plaintiff Adam Vanderpool appealed the district court’s judgment on jury verdicts in favor of defendant Jeremy Loftness on plaintiff’s negligence and battery claims. The Court of Appeals affirmed.

Vanderpool and Loftness, both students at Colorado State University, had a physical altercation near campus after attending a party. Loftness hit Vanderpool and claimed self-defense.

The District Attorney charged Loftness with second-degree assault. On September 8, 2009, Loftness pleaded guilty to added charges of attempted second-degree assault (a felony) and third-degree assault (a misdemeanor). His plea to the felony was subject to a stipulation for a deferred judgment. If he successfully fulfilled the conditions of the deferred judgment, in two years the guilty plea would be withdrawn and the charge dismissed with prejudice. His plea to the misdemeanor was unconditional.

Vanderpool filed this civil case against Loftness on August 19, 2009, asserting claims for negligence, assault, battery, and outrageous conduct. The jury found in Loftness’s favor on the negligence and battery claims.

On appeal, Vanderpool argued four points of error: (1) denying his motion for a directed verdict on the battery claim; (2) allowing one of Loftness’s medical expert witnesses to testify; (3) improperly instructing the jury on the elements of the battery claim; and (4) denying his motion for judgment notwithstanding the verdict on the battery claim. The Court rejected all these arguments.

On the second day of trial, Vanderpool’s attorney prematurely moved for a directed verdict on the battery claim on the ground that issue preclusion barred Loftness from denying that he had committed battery on Vanderpool and from claiming self-defense. This is offensive issue preclusion and, because it was asserted by a nonparty to the criminal case, it is “nonmutual.” This requires consideration not just of the four foundational requirements for issue preclusion but also consideration as to (1) whether the party seeking to assert preclusion could have joined the first action; (2) the extent to which the party sought to be stopped had incentive to litigate vigorously the prior case; (3) whether the decision sought to be relied on is inconsistent with another decision involving the party sought to be estopped; and (4) whether the second case affords the party sought to be estopped procedural protections that were unavailable in the first case.

Issue preclusion may be waived. Courts have held that a party waives offensive issue preclusion unless it is timely raised. Here, Vanderpool’s counsel was aware of Loftness’s guilty pleas, but did not assert issue preclusion until the second day of trial, eighteen months after filing the complaint and seventeen months after the guilty pleas. Given that time frame and the lack of any indication that the issue would be raised, the Court found that the trial court did not abuse its discretion in ruling that Vanderpool had waived issue preclusion.

Vanderpool argued it was error for the trial court to not rule on his motion to compel production of documents from one of Loftness’s expert witnesses, Dr. Ramos, or on his motion to prohibit him from testifying. Vanderpool did not preserve this issue for appellate review. He filed motions, but never requested rulings on them before or during trial.

Vanderpool argued that the instruction on battery that the jury had to find “harmful” physical contact should have been “harmful or offensive” physical contact. The Court did not address this argument because Vanderpool’s counsel tendered an elemental instruction on battery substantially identical to the one the court ultimately gave the jury and expressly stipulated to the court’s instruction. In addition, there was no objection to the instruction. The judgment was affirmed.

Summary and full case available here.

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Colorado Court of Appeals: Hospital’s Immunity Waived Under Governmental Immunity Act, But Not for Willful and Wanton Conduct; Claims Against Doctor Should Have Been Allowed

July 10, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Gray v. University of Colorado Hospital Authority on July 5, 2012.

Public Entity Immunity—Public Employee Immunity—Willful and Wanton Actions.

Charles Gray died while a patient of the University of Colorado Hospital and the University of Colorado Hospital Authority (collectively, the hospital). His family brought a medical malpractice suit against the hospital and some of its employees. Defendants moved to dismiss under the Colorado Governmental Immunity Act (Act), and the trial court granted the motion. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

It was undisputed that Gray suffered from epilepsy and checked into the epilepsy monitoring unit in October 2007 so that the nature and extent of his seizures could be monitored while he was weaned from his anti-seizure medications. This required Gray to stay in the hospital for several nights. Members of his family were assured that Gray would be monitored around the clock by hospital personnel during this process. The hospital later admitted this assurance was false. On the fifth night of the patient’s stay, he was left unattended for about an hour. The patient suffered a seizure, stopped breathing, and died.

The Act provides immunity to all public entities from suit for all actions that lie in tort or that could lie in tort, unless an enumerated exception applies. One exception is applicable in this case: injuries resulting from the “operation of any public hospital.” When immunity is waived, a plaintiff’s recovery is limited to $150,000 per occurrence from one or more public entities. The hospital deposited $150,000 in the court registry and the trial court declared the claim moot.

The Court held that the statute and case law clearly provide that the hospital is immune from suit for its own willful and wanton acts or omissions, or for the willful and wanton acts or omissions of its employees. However, the hospital and the Court recognized that its sovereign immunity was nonetheless waived under the statute. That liability is capped at $150,000 and the claim against the hospital was rendered moot when it deposited that amount into the court registry to be distributed to the patient’s family.

The patient’s family also made numerous allegations against various hospital employees. The Court affirmed the dismissal by the trial court of all those claims except for the claim against Dr. Mark Spitz. Public employees have qualified immunity, not sovereign immunity. Public employees are immune from liability for “injuries arising out of an act or omission occurring during the performance of his or her duties and within the scope of his or her employment, unless such act or omission was willful and wanton.” The $150,000 cap does not apply to limit a public employee’s liability if his or her acts or omissions were willful and wanton. In this case, the facts alleged support a reasonable inference that Dr. Spitz was aware that his acts or omissions created danger or risk to the patient’s safety and that the doctor acted, or failed to act, without regard to the danger or risk. The dismissal therefore was in error and the case was remanded for proceedings against the doctor.

The Court did not find the conduct of any of the other defendants as alleged in the complaint were of sufficient specificity to support a reasonable inference that they were willful and wanton. Accordingly, the Court affirmed their dismissal.

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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2013-05-24 12:23:45