August 18, 2019

Colorado Court of Appeals: Claim for Destruction of Property Could Lie in Tort and Therefore is Likely Barred by CGIA

The Colorado Court of Appeals issued its opinion in Foster v. Board of Governors of Colorado State University System on Thursday, February 27, 2014.

Breach of Oral Bailment Contract—Tort—Colorado Governmental Immunity Act.

This case arose from a fire at Colorado State University’s Equine Reproduction Laboratory (Lab) that destroyed plaintiff Heather Foster’s property. Foster sued the Lab, asserting a claim for breach of an oral contract for bailment. Defendant, the Board of Governors of the Colorado State University System (CSU) filed a motion to dismiss Foster’s claim for breach of an oral bailment contract based on immunity under the Colorado Governmental Immunity Act (CGIA), which the trial court denied.

The sole issue on appeal was whether Foster’s claim for damages for the destruction of her bailed property lies in tort or could lie in tort for purposes of the CGIA. The bailee’s liability will depend on whether the bailor establishes that the bailee acted negligently regardless of whether such a claim is pleaded in contract or in tort. Here, the allegations in Foster’s complaint sound in tort or could support a tort claim.

First, though Foster has phrased her claim as one for breach of contract, CSU’s liability for damage to the bailed goods would depend on proof of negligence. Second, the duty CSU allegedly breached is one implied by law—a duty to act with reasonable care—not one that arises from promises made between the parties. Third, an action against a bailee for damage to or destruction of bailed property can be pleaded alternatively in contract or in tort. Therefore, because Foster’s claim for the destruction of her bailed property lies in tort or could lie in tort, it is barred by the CGIA, unless an exception to immunity applies. The district court’s order was reversed and the case was remanded to consider and rule on Foster’s assertion that the exception to immunity applies.

Summary and full case available here.

Print Friendly, PDF & Email

Speak Your Mind

*