August 13, 2018

Archives for February 8, 2018

Colorado Supreme Court: Petitioners’ Tort Claims for Airborne Asbestos Injuries Not Barred by Colorado Governmental Immunity Act

The Colorado Supreme Court issued its opinion in Smokebrush Foundation v. City of Colorado Springs on Monday, February 5, 2018.

Colorado Governmental Immunity Act—Sovereign Immunity.

In this case, the Colorado Supreme Court reviewed the Colorado Court of Appeals division’s conclusion that petitioners’ claims against respondent city were barred under the Colorado Governmental Immunity Act (CGIA). Petitioners asserted a number of tort claims for alleged injuries resulting from airborne asbestos released during demolition activities on the city’s property in 2013 and from the subsurface migration of coal tar pollutants created by historical coal gasification operations on the city’s property. The division concluded that each of these claims was barred under the CGIA.

The supreme court first addressed whether petitioners’ asbestos-related claims fell within the waiver of immunity set forth in C.R.S. § 24-10-106(1)(c) for injuries resulting from the dangerous condition of a public building. The CGIA defines a “dangerous condition,” in pertinent part, as a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public and that is proximately caused by the negligent act or omission of the public entity in “constructing or maintaining” such facility. C.R.S. § 24-10-103(1.3). Because the complete and permanent demolition of a building does not come within the plain meaning of the terms “constructing” or “maintaining” a facility, the court concluded that the dangerous condition of a public building exception does not apply.

Next, the court addressed whether petitioners’ coal tar-related claims fell within the waiver of immunity set forth in C.R.S. § 24-10-106(1)(f) for injuries resulting from the operation and maintenance of a public gas facility when, as here, petitioners’ cause of action accrued after the CGIA’s enactment but the operation and maintenance of the facility that caused the injury occurred before that enactment. Because petitioners have established that (1) the facility at issue was a public gas facility, (2) petitioners’ claimed injuries from the coal tar contamination resulted from the operation and maintenance of that facility, and (3) petitioners’ coal tar-related claims accrued after the CGIA’s enactment, the court concluded that under the plain language of C.R.S. § 24-10-106(1)(f), the city waived its immunity for these claims.

Accordingly, court affirmed the portion of the division’s judgment requiring the dismissal of petitioners’ asbestos-related claims but reversed the portion of the judgment requiring the dismissal of petitioners’ coal tar-related claims.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: District Court Erred in Stripping Documents of Attorney-Client Privilege Without Satisfying Test

The Colorado Supreme Court issued its opinion in In re 2015–2016 Jefferson County Grand Jury on Monday, February 5, 2018.

Privileged Communications and Confidentiality—Crime–Fraud exception—Wiretapping.

A grand jury investigating M.W. and his company I.I. issued a subpoena duces tecum to I.I.’s attorney ordering her to produce all documents related to her representation of I.I. Along with the subpoena, the People served a notice of hearing to determine whether the documents were protected by the attorney-client privilege. In the notice, the People provided wiretap summaries as an offer of proof that the crime-fraud exception to the attorney-client privilege applied. Reasoning that I.I.’s entire endeavor was illegal, the district court ordered all of the attorney-client communications stripped of privilege without reviewing them in camera.

The Colorado Supreme Court held that a two-step process applies when a party seeks disclosure of attorney-client-privileged documents under the crime-fraud exception. First, before a court may review the privileged documents in camera, it must “require a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney-client privilege has occurred.” Caldwell v. Dist. Court, 644 P.2d 26, 33 (Colo. 1982). Second, the court may strip a communication of privilege only upon a showing of probable cause to believe that (1) the client was committing, or attempting to commit, a crime or fraud, and (2) the communication was made in furtherance of the putative crime or fraud. Because the People failed to make such a showing here, the district court abused its discretion in stripping the documents of privilege. The court also held that, based on the facts of this case, the district court should have required the People to disclose the applications and authorizations for the intercepts that it provided to support the subpoena under C.R.S. § 16-15-102(9) of Colorado’s wiretap statutes.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Foster Parents Lacked Standing to Challenge District Court Denial of Parental Rights Termination

The Colorado Supreme Court issued its opinion in People in Interest of C.W.B., Jr. on Monday, February 5, 2018.

Children’s Code—Dependency or Neglect Proceedings—Standing on Appeal.

The Colorado Supreme Court reviewed whether the foster parents in this case had standing to appeal the trial court’s denial of a motion to terminate the parent–child legal relationship. The foster parents intervened in the trial court proceedings pursuant to C.R.S. § 19-3-507(5)(a) and participated in a hearing on the guardian ad litem’s (GAL) motion to terminate the parent-child legal relationship between the mother and the child. The trial court denied the motion. Neither the state nor the GAL appealed the trial court’s ruling, but the foster parents did. The court of appeals concluded that the foster parents had standing to appeal the trial court’s ruling.

The supreme court concluded that the foster parents in this case did not have a legally protected interest in the outcome of termination proceedings, and that C.R.S. § 19-3-507(5)(a) did not automatically confer standing on them to appeal the juvenile court’s order denying the termination motion, where neither the Department of Social Services nor the GAL sought review of the trial court’s ruling. Because the GAL was statutorily obligated to advocate for the best interests of the child, including on appeal, there was no need to confer standing on the foster parents to represent the best interests of the child on appeal. The court therefore reversed the judgment of the court of appeals and remanded the case with instructions to dismiss the appeal.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/8/2018

On Thursday, February 8, 2018, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Thyberg

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

Too True to be Too Funny

Did you see the Sprint Super Bowl ad (click the image), where a scientist gets laughed out of his lab by his impertinent artificially intelligent robots? It was funny, but in that groaning kind of way when humor is just a bit too true. Let’s break down the punchline: “My coworkers” says the scientist, talking about robots “laughed at me.” He responds to the robotic peer pressure with the human feeling of shame, and changes his cell phone provider to conform.

Wow. Get used to it. It could happen to you. True, the robots’ sense of humor was pretty immature. He chastises them, “Guys, it wasn’t that funny.” But they’ll learn — that’s what artificial intelligence does — it learns, really fast. They’ll be doing sarcasm and irony soon — that is, when they’re not busy passing a university entrance exam, managing an investment portfolio, developing business strategy, practicing medicine. practicing law, writing up your news feeds… and generally doing all those other things everybody knew all along that robots surely would never be able to do.

Miami lawyer Luis Salazar used to think that way, until he met Ross. This is from a NY Times article from last March:

Skeptical at first, he tested Ross against himself. After 10 hours of searching online legal databases, he found a case whose facts nearly mirrored the one he was working on. Ross found that case almost instantly.

Ross is not a human. “He” never went to law school, never took a legal methods class, never learned to do research, never had a professor or partner critique his legal writing. “He” is machine intelligence. Not only did he find the clincher case in a fraction of the time Salazar did, he also did a nice job of writing up a legal memo:

Mr. Salazar has been particularly impressed by a legal memo service that Ross is developing. Type in a legal question and Ross replies a day later with a few paragraphs summarizing the answer and a two-page explanatory memo.

The results, he said, are indistinguishable from a memo written by a lawyer. ‘That blew me away,’ Mr. Salazar said. ‘It’s kind of scary. If it gets better, a lot of people could lose their jobs.’

Yes, scary — especially when you consider the cost of legal research: click here and enter “legal research” in the search field. Among other things, you’ll get an article about Ross and another about the cost of legal research. If Ross is that good, he could save a lot of firms a lot of money… and eliminate a lot of jobs along the way. (The Ross Intelligence website is worth a visit — there’s attorney Salazar on video, and an impressive banner of early adopting law firms, with a lot of names you’ll recognize.)

And speaking of things that were never supposed to happen, the NY Times article cites a McKinsey report that, using technology then available, 23 percent of a lawyer’s work could be fully automated. Given the explosion of AI in the past year, we are already way beyond that percentage.

How are you going to compete with that? You’re not. Consider this story from a source we’ve visited several times already (the book Plutocrats by Chrystia Freeland):

In 2010, DLA Piper faced a court-imposed deadline of searching through 570,000 documents in one week. The firm . . . hired Clearwell, a Silicon Valley e-discovery company. Clearwell software did the job in two days. DLA Piper lawyers spent one day going through the results. After three days of work, the firm responded to the judge’s order with 3,070 documents. A decade ago, DLA Piper would have employed thirty associates full-time for six months to do that work.

Note the date: that happened eight years ago. Today, the whole thing would happen a lot faster, with much less human involvement.

I tried to get a robot to write this blog post, but didn’t succeed. Articoolo.com looked promising: “Stop wasting your time,” its website trumpets, “let us do the writing for you!” The company is obviously fully in tune with the freelance job market we’ve been talking about: “You no longer have to wait for someone on the other side of the world to write, proofread and send the content to you.” I tried a few topic entries, but the best it could do was to admit it had written an article but it wasn’t up to standards, so sorry… But then, it’s only available in beta. Give it time to learn.

I also sent an inquiry to the people at Ross Intelligence, asking if Ross could write an article about itself. I never heard back — he’s probably too busy signing up more firms to hire him.

More on robots and artificial intelligence next time.

 

Kevin Rhodes writes about individual growth and cultural change, drawing on insights from science, technology, disruptive innovation, entrepreneurship, neuroscience, psychology, and personal experience, including his own unique journey to wellness — dealing with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Check out Kevin’s latest LinkedIn Pulse article: Leadership and Life Lessons From an Elite Athlete and a Dying Man.

Colorado Court of Appeals: Announcement Sheet, 2/8/2018

On Thursday, February 8, 2018, the Colorado Court of Appeals issued eight published opinions and 19 unpublished opinions.

People v. Trujillo

People v. Van Meter

Danko v. Conyers, M.D.

Marso v. Homeowners Realty, Inc.

Campaign Integrity Watchdog, LLC v. Colorado Citizens Protecting Our Constitution

Brunson v. Colorado Cab Co., LLC

Save Cheyenne v. City of Colorado Springs

Montoya v. Industrial Claim Appeals Office

Summaries of these cases are forthcoming.

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, 2/7/2018

On Wednesday, February 7, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Goertz v. Chrisman

Amerson v. United States Bankruptcy Court

Perez v. Denver Fire Department

Gardenhire v. Johns Manville

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