May 21, 2019

Archives for July 2015

Memorial Service Held for Hon. Scott T. Erickson

On Monday, July 27, 2015, a memorial service was held for Hon. Scott T. Erickson at the top of the gondola in Telluride, followed by an open house at Alpine Chapel. Judge Erickson, a county court judge in San Miguel County, died last week at age 53 after a battle with cancer. He was well liked in the legal community and his greater Telluride community.

Judge Erickson was appointed to the San Miguel County Court in 2012 where his docket consisted of traffic, misdemeanor, civil cases under $15,000, small claims, and temporary restraining orders. Prior to his appointment, he had been in private practice in Telluride, where he concentrated on civil litigation, business law, and real estate transactions. He had also been a municipal judge in Ophir and Rico. He received his law degree from the University of Denver Sturm College of Law and his bachelor’s degree from North Park University in Chicago.

The Colorado State Judicial Branch announced that applications are being accepted for the vacancy on the San Miguel County Court bench. Eligible applicants must be qualified electors of San Miguel County and must have graduated high school or attained the equivalent. Application forms are available on the State Judicial website and from the ex officio chair of the Seventh Judicial District Nominating Commission, Justice Brian Boatright. Applications must be received no later than 4 p.m. on August 10, 2015, and anyone wishing to nominate another must do so no later than 4 p.m. on August 3, 2015.

Tenth Circuit: No Error for Court to Find One Side’s Expert Witnesses More Persuasive

The Tenth Circuit Court of Appeals issued its opinion in Mathis v. Huff & Puff Trucking, Inc. on Tuesday, June 2, 2015.

Melvin Mathis was injured in February 2008 when the car he was driving was struck by a Huff & Puff truck driven by Donald Stewart. Mr. Stewart was at fault for the accident; he was driving too fast for the icy road conditions and the truck he was driving should not have been in the left lane. Mr. Mathis was awake and alert after the accident. He was transported by ambulance to a local hospital, where the emergency room doctor found no evidence of head trauma but diagnosed him with neck and back strains. Mr. Mathis sought further treatment from Dr. Schulze, who conducted MRIs of his back and neck and noted Mr. Mathis suffered multiple areas of sprain to his spine from the collision. Dr. Schulze referred Mr. Mathis to Dr. Cook, a neurosurgeon, because the accident had aggravated Mr. Mathis’s preexisting disc lesions. Dr. Cook treated Mr. Mathis non-surgically for several months and Mr. Mathis stopped treatment in May 2009.

Mr. Mathis returned to Dr. Cook’s office in April 2011 where he saw a different doctor, Dr. Beer. In the interim, Mr. Mathis had worked as a nighttime fuel delivery person, where he performed physically demanding tasks and was under no work restrictions. When he first evaluated Mr. Mathis, Dr. Beer performed repeat MRIs of his spine, which were essentially unchanged from those taken in 2008. Dr. Beer performed fusion surgery on Mr. Mathis’s spine to relieve his chronic pain.

In February 2012, Mr. Mathis filed this negligence action in federal district court, and an eight day bench trial was held in July 2013. Mr. Mathis alleged the accident caused permanent injuries to his spine, a mild traumatic brain injury (MTBI), emotional distress, and pain and suffering. The district court heard conflicting testimony regarding the extent of Mr. Mathis’s injuries. The district court issued findings of fact and conclusions of law, rejecting Mr. Mathis’s claims that his spine was permanently injured by the accident and that he suffered an MTBI, and awarding Mr. Mathis damages for reasonable out-of-pocket medical expenses, past emotional distress, pain and suffering, loss of enjoyment of life, and loss of income.

Two weeks after trial, Mr. Mathis’s counsel learned that the judge’s law clerk’s husband was retained by AIG to monitor the proceedings. After learning about the law clerk’s relationship, Mr. Mathis’s counsel filed a motion for a new trial and a motion to alter or amend the judgment, arguing the evidence did not support the district court’s ruling that Mr. Mathis suffered no MTBI and only minor spinal injuries; the court erroneously relied on the testimony of a biomechanical engineer; the law clerk had an undisclosed conflict of interest; and the judgment should be amended or altered to correct an inadequate damages award based on the trial court’s errors. When these motions were denied, Mr. Mathis appealed.

The Tenth Circuit first evaluated Mr. Mathis’s claims that the district court erroneously concluded he suffered only mild spinal injuries and no MTBI. Evaluating for clear error, the Tenth Circuit found that trial evidence supported the court’s conclusion that the spinal injuries were not significant. The court evaluated conflicting evidence from medical records, expert testimony, and lay witness testimony, and determined that Mr. Mathis’s spinal sprains resolved in approximately mid-2009. Although Mr. Mathis pointed to testimony contrary to the court’s finding, this does not imply clear error since such cases generally have conflicting testimony and the court’s duty is to sift through the competing narratives. The Tenth Circuit similarly found no clear error in the trial court’s finding that Mr. Mathis did not suffer an MTBI, since it weighed the evidence and determined that the defense evidence was more persuasive.

Next turning to Mr. Mathis’s criticisms of the biomechanical engineer, Dr. Hayes, the Tenth Circuit noted that Mr. Mathis failed to preserve his objections to Dr. Hayes’s testimony and therefore it would only evaluate for plain error. Mr. Mathis challenged only whether Dr. Hayes’s testimony exceeded the scope of his expertise. Defendants argued Mr. Mathis forfeited any objection because he failed to object to the defense’s pre-trial witness statement and did not object during the questioning of Dr. Hayes at trial. The Tenth Circuit agreed.

The Tenth Circuit turned then to Mr. Mathis’s motion for a new trial. Mr. Mathis argued the judge should have recused after the law clerk’s husband was retained by AIG to monitor the trial, averring the relationship created a conflict under Canon 3(F) of the Code of Conduct for Judicial Employees. The Tenth Circuit found no abuse of discretion by the district court because there was no actual conflict under Canon 3(F) and no appearance of impropriety. Canon 3(F) specifies that law clerks should not perform any official duties in cases in which their spouse has a financial interest, is acting as a lawyer in the proceeding, or has an interest that could be affected by the outcome of the proceeding. In this case, the husband had no financial or other interest in the outcome of the proceeding and was not acting as a lawyer for a party, but was merely retained by defendants’ insurer to monitor the proceedings. As to the appearance of impropriety, the law clerk informed the judge of her relationship prior to the first day her husband monitored the court proceedings. After that, the judge conducted all her own research and wrote the opinion by herself. Although the Tenth Circuit noted the better approach would have been for the judge to inform the parties of the relationship and for the clerk to stop attending the trial, there was no impropriety in the handling of the proceedings.

The district court’s judgment was affirmed.

Finalists Selected for Teller County Court Vacancy

On Friday, July 24, 2015, the Colorado State Judicial Branch announced the selection of three nominees to fill a vacancy on the Teller County Court. The vacancy was created by the appointment of Hon. Linda Billings-Vela to the Fourth Judicial District Court, effective July 1, 2015.

The three nominees were selected by the Fourth Judicial District Nominating Commission on July 23, 2015. Under the Colorado Constitution, Governor Hickenlooper has 15 days within which to appoint one of the nominees to the Teller County Court. The three nominees are William G. Edie, Jared J. Grabski and Theresa L. Kilgore, all of Woodland Park. Comments about any of the nominees may be emailed to the governor at gov_judicialappointments@state.co.us.

For more information about the selection and for contact information for the nominees, click here.

Tenth Circuit: Unpublished Opinions, 7/27/2015

On Monday, July 27, 2015, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Applications Being Accepted for Vacancy on Boulder County Court

The Colorado State Judicial Branch announced a vacancy on the Boulder County Court due to the appointment of Hon. Norma Sierra to the Twentieth Judicial District Court, effective August 1, 2015.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of Boulder County and must be admitted to practice law in Colorado. Application forms are available from the State Judicial website and are also available from the ex officio chair of the nominating commission, Justice Gregory Hobbs. Application forms are due no later than 4 p.m. on August 13, 2015. Anyone wishing to nominate another must do so no later than 4 p.m. on August 6, 2015.

For more information about the vacancy, click here.

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.

Colorado Court of Appeals: Announcement Sheet, 7/23/2015

On Thursday, July 23, 2015, the Colorado Court of Appeals issued no published opinion and 49 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 7/24/2015

On Friday, July 24, 2015, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Veloz-Luvevano v. Lynch

Serna v. Commandant

Brumfiel v. U.S. Bank

Sanders v. Mountain America Credit Union

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Business Use of Unmanned Aircraft Systems (Drones) Expanding Exponentially

DroneDrones, also known as Unmanned Aircraft Systems (UAS) or Unmanned Aircraft Vehicles (UAV), are not just for hobbyists anymore. Drones are devices that are used for flight in the air without an onboard pilot. Drones can be small and simple, such as remote-controlled aircraft popularized by hobbyists, or large and complex, like the surveillance aircraft used by the military in hostile areas. The military has been using drones for many years to conduct surveillance and deliver weapons in dangerous war zones. However, in the last several years, civilian and business use of drones has increased dramatically.

Non-military drone use is categorized into public aircraft operations and civil operations. Public aircraft operations are uses by public agencies or organizations of a particular aircraft for a particular purpose in a particular area. Public operation uses can include law enforcement, firefighting, border patrol, disaster relief, search and rescue, and military training. Civil operations are any operations that do not meet the statutory criteria for public aircraft operations, including business uses such as for agricultural purposes, construction, security, TV and movie industry uses, environmental monitoring, insurance, aerial photography, news media, and much more.

Because they utilize airspace for their operations, drones are regulated by the FAA. In 2013, the FAA issued a comprehensive plan for the safe integration of civil unmanned aircraft systems into the country’s airspace. In early 2015, the FAA issued a Notice of Proposed Rulemaking for small UAS. The goal of the proposed rules is to provide a framework of regulations to allow routine use of certain small UAS while maintaining flexibility to accommodate future changes in technology. The public comment period for the proposed rules ended April 24, 2015.

Businesses wishing to utilize drones must obtain a Section 333 Exemption from the FAA. Petitions for Section 333 Exemption must be filed with and approved by the FAA before the drone may be used for business purposes. The FAA can also grant businesses the right to use airspace via Special Airworthiness Certificates. Special Airworthiness Certificates are available for research and development or experimental aircraft.

Attorney Thomas Dougherty, II, head of Lewis Roca Rothgerber’s Unmanned Aircraft Systems Industry Team, will discuss drone law at CLE on July 28, 2015. Topics to be explored include potential drone uses, FAA regulations covering drones, required information for petitions for Section 333 Exemption, Certificates of Waiver or Authorization, the FAA’s enforcement authority, and legal issues arising out of state and local laws for the use of drones. Register now by clicking the links below or calling (303) 860-0608.

CLE Program: Drones for Lawyers: The Do’s and Don’ts for Clients

This CLE presentation will take place Tuesday, July 28, 2015 at the CLE offices. Click here to register for the live program or click here to register for the webcast.

Can’t make the live program? Order the homestudy here – Video OnDemand – MP3

 

Colorado Court of Appeals: Maintenance Awards Exempt from Attorney Charging Liens

The Colorado Court of Appeals issued its opinion in In re Marriage of Dixon v. Samuel J. Stoorman & Associates PC on Thursday, July 16, 2015.

Charging Lien—Maintenance—Attorney Fees.

Samuel J. Stoorman & Associates PC (law firm) sought to enforce its lien against the maintenance payments that husband was obligated to pay to the law firm’s former client (wife). The law firm had represented wife in the dissolution action giving rise to husband’s maintenance obligation. The trial court determined that the maintenance payments were exempt from enforcement of the attorney’s lien.

On appeal, the law firm contended that the trial court erred in finding that the law firm’s attorney’s lien could not be enforced against husband’s spousal maintenance obligations. A charging lien automatically attaches to the fruits of the attorney’s representation of the client, to the extent of the attorney’s reasonable fees remaining due and unpaid. An attorney may immediately enforce the lien against the client once judgment in favor of the client is entered. Maintenance payments and obligations are exempt from enforcement of the charging lien. Accordingly, an attorney’s charging lien may not be enforced against a court-ordered spousal maintenance obligation or payment. The trial court’s denial of the law firm’s motion to enforce the lien against husband’s maintenance obligations to wife was affirmed. Nevertheless, the law firm’s position did not lack substantial justification because the question whether a charging lien may be enforced against spousal maintenance payments or obligations had not been decided at the time of the law firm’s motion. Consequently, the award of attorney fees and costs to husband was reversed and husband’s request for an award of attorney fees and costs incurred on appeal was denied.

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

Colorado Court of Appeals: Seller in Installment Land Contract Not Landowner Under Premises Liability Act

The Colorado Court of Appeals issued its opinion in Lucero v. Ulvestad on Thursday, July 16, 2015.

Installment Land Contract—Landowner—Colorado Premises Liability Act—Trespasser—Injuries—Negligence.

This case arose from 15-year-old Lucero’s unsupervised use of a steam room in a home purchased by Landers from Ulvestad. The installment land contract provided Landers immediate possession of the property, but record title would remain in Ulvestad’s name until Landers paid the entire purchase price. With permission from Landers, Lucero entered the steam room and suffered a seizure rendering her unconscious. Before she was found, Lucero suffered severe burns to her face, head, and arm. Lucero brought this lawsuit against both Landers and Ulvestad. The trial court found that Ulvestad owed Lucero no common law duty of care and dismissed her negligence claim. The jury returned a verdict in favor of Ulvestad on Lucero’s claim under the Colorado Premises Liability Act (Act).

Lucero appealed the trial court’s determination that she was a trespasser on the property at the time she was injured. Based on the plain language of the installment land contract, Ulvestad, on the date possession of the property was transferred to Landers, was no longer a person “in possession of real property” or “legally responsible for the condition of real property.” Therefore, because Ulvestad was not a landowner under the Act, the trial court should have granted Ulvestad’s motion for a directed verdict. Therefore, Lucero was not harmed by the trespasser determination, and the judgment against Lucero was affirmed.

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

Colorado Court of Appeals: Red Rocks’ Creation Rock is Natural Condition of Unimproved Property

The Colorado Court of Appeals issued its opinion in Ackerman v. City & County of Denver on Thursday, July 16, 2015.

Personal Injury—Colorado Governmental Immunity Act—Waiver—Unimproved Property.

Plaintiffs filed this personal injury action after being struck and injured by rocks that fell from “Creation Rock,” a rock formation that abuts one side of the Red Rocks Park amphitheater, while attending a concert. The City and County of Denver (Denver) brought this interlocutory appeal after the trial court determined that Denver’s immunity from suit had been waived.

On appeal, Denver argued that the trial court erred in finding it had waived its immunity under the Colorado Governmental Immunity Act (CGIA). Creation Rock is a natural sandstone monolith that rises 300 feet and extends the entire length of the amphitheater on the north side. Therefore, Creation Rock is a natural condition of unimproved property. Denver’s voluntary efforts to protect the public from a natural condition does not render the government liable for injuries that occur when those efforts are inadequate. Further, plaintiffs’ location in the amphitheater does not support a waiver of immunity under CRS § 24-10-106(1)(e) for injuries caused by a natural condition. The order was reversed and the case was remanded with directions to dismiss plaintiffs’ claims against Denver for lack of subject matter jurisdiction under the CGIA and to award Denver its attorney fees.

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