July 17, 2019

Archives for May 10, 2013

Justice Gregory Hobbs Named a Colorado Author’s League Award Finalist

Justice HobbsGregory Hobbs, Colorado Supreme Court justice and author extraordinaire, was nominated for a 2013 Colorado Author’s League award for his book Into the Grand, a beautiful collection of poetry, prose, essays, and photography. We are proud of Justice Hobbs and congratulate him on his nomination.

Always humble, Justice Hobbs noted that he is honored to have been nominated, saying “It’s great to be listed! I’m pleased at the way the book looks. It’s satisfying to be one of CLE’s authors.” Justice Hobbs continued that he loves this beautiful state we live in and wishes that attorneys, who are usually very creative and artistic people, would share their gifts with the wider community more often.

Justice Hobbs is known for his work on the Colorado Supreme Court, but he is also a prolific poet and author. He has published three books through CBA-CLE: Into the GrandPublic’s Water Resource, and Living the Four CornersHe is active in Colorado’s water law community, and was a proud participant in last year’s Water 2012 book club programs.

For more information about Justice Hobbs’ books, click the links below or stop by the CLE offices.

CLE Book: Into the Grand

Justice Hobbs’ collection of poetry, prose, essays, and artwork is now available. Click here to order online or call (303) 860-0608.

To order all three of Justice Hobbs’ books as a discounted bundle — Into the GrandPublic’s Water Resource, and Living the Four Cornersclick here or call (303) 860-0608.

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.

Tenth Circuit: Unpublished Opinions, 5/9/13

On Thursday, May 9, 2013, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Dorf v. Pena

Padilla v. Colvin

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 5/8/13

On Wednesday, May 8, 2013, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

Murphy v. Samson Resources Company

Federal Trade Commission v. Loanpointe

Jaremko v. ERISA Administrative Committee

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

SB 13-288: Revising the Process by Which the General Assembly Approves Payments to Claimants in Excess of the Limits of the CGIA

On Monday, April 29, 2013, Sen. Bill Cadman introduced SB 13-288 – Concerning the Process by Which the General Assembly Approves Recommendations Made by the State Claims Board for an Additional Payment to Claimants that Exceeds the Maximum Liability Under the “Colorado Governmental Immunity Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law authorizes a person with tort claims against the state brought under the “Colorado Governmental Immunity Act” (CGIA) to recover an additional payment against the state where the state claims board (board) compromises or settles a claim on behalf of the state for the maximum liability limits under the CGIA and determines, in its sole discretion, to recommend to the general assembly that the general assembly, by bill, authorize all or any portion of the additional payment.

The bill makes the following modifications to these provisions:

  • The bill clarifies the existing method for exceeding the CGIA limit based on the board recommendation and authorization through a bill.
  • In connection with a recommendation made by the board to make a payment to one or more claimants resulting from a claim of an injury arising out of the lower north fork wildfire in March 2012 that is received by the general assembly while the general assembly is adjourned sine die, upon certification from the department of law that the board process has been satisfied and on or after July 1, 2013, the bill authorizes the office of the state controller to pay one or more additional payments to such claimants from moneys previously appropriated by bill until such specifically appropriated moneys are exhausted or replenished.
  • In connection with any claim arising out of an injury occurring on or after the effective date of the bill that does not arise out of the lower north fork wildfire, where the board has made a recommendation to the general assembly for an additional payment while the general assembly has adjourned sine die, the payment is authorized where all of the members of the joint budget committee have voted to authorize the additional payment; except that the bill prohibits payment from being made until the general assembly has ratified by bill the authorization to make the payment.

The bill was introduced on April 29 and assigned to the Finance Committee. The Finance Committee approved the bill on May 2 and sent it to the Senate consent calendar for consideration on 2nd Reading. On May 3, the Senate approved the bill on 2nd Reading; the bill is now on the 3rd Reading calendar in the Senate.

Since this summary, the bill passed the Senate on Third Reading and was introduced in the House. It was assigned to the State, Veterans, & Military Affairs Committee, which referred it unamended to the House Committee of the Whole. It then passed the House on Second and Third Readings.

SB 13-287: Amending Certain Provision Relating to Telecommunications

On Monday, April 29, 2013, Sen. Jeanne Nicholson introduced SB 13-287 – Concerning Telecommunications. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The high cost support mechanism reimburses some of the cost of providing telephone services to rural areas. The bill adds broadband internet service in unserved and underserved areas to the services that are reimbursable.

As introduced, the bill exempts voice-over-internet-protocol service and internet-protocol-enabled service from regulation by the Public Utilities Commission (PUC) and exempts broadband service from state sales tax. It also exempts basic local exchange service from regulation in geographic areas in which the PUC has determined that effective competition exists.

The bill clarifies that this exemption does not affect an entity’s rights and obligations under federal law, nor does it affect the PUC’s authority with respect to: Wholesale telecommunications rates; services; agreements; providers; tariffs; the resolution of disputes regarding intercarrier compensation; or oversight of the implementation of a next-generation 911 plan with regard to interoperability and performance, operational, and system standards.

The bill was introduced on April 29 and assigned to the State, Veterans, & Military Affairs Committee. On May 1, the State, Veterans, & Military Affairs amended the bill and sent it to the full Senate for consideration on 2nd Reading.

Since this summary, the bill lost with amendments on Second Reading in the Senate. It was laid over until May 10, 2013.