July 18, 2019

Archives for March 4, 2019

Colorado Court of Appeals: Summary Judgment Inappropriate Where Reasonable Security Measures May Have Prevented Harm from Gunman

The Colorado Court of Appeals issued its opinion in Wagner v. Planned Parenthood Federation of America, Inc. on Thursday, February 21, 2019.

Premises Liability—Summary Judgment.

Dear drove into the parking lot of the Colorado Springs clinic operated by Planned Parenthood of the Rocky Mountains (PPRM), a member of Planned Parenthood Federation of America, Inc. (PPFA) and shot several people in the parking lot, two of whom died. He then entered the clinic and wounded several more people. When police arrived he engaged in a lengthy gun battle, killing one officer and wounding five others.

Plaintiffs were the victims or survivors of other victims killed by Dear. Plaintiffs alleged they were invitees of PPRM under Colorado’s Premises Liability Act (CPLA). They also filed a common law negligence claim against PPFA, asserting PPFA controlled PPRM. The trial court granted summary judgment in favor of PPRM and PPFA on both claims.

On appeal, plaintiffs argued it was error to grant summary judgment in favor of PPFA because there was a genuine issue of material fact whether PPFA’s control over PPRM created a duty of care owed by PPFA to plaintiffs. This was a nonfeasance case, where the existence of a duty is recognized only in situations involving a limited group of special relationships between the parties. Here, the trial court correctly found that no such special relationship existed, that PPFA merely exercised discretion and not control over PPRM, and that it was not the owner or possessor of the land associated with the clinic. The court did not err in concluding that PPFA owed no duty to plaintiffs and in granting PPFA’s summary judgment motion.

Plaintiffs next argued that the trial court erred in concluding as a matter of law that Dear’s actions were the predominant cause of the injuries and deaths and in granting summary judgment to PPRM on that basis. Plaintiffs claimed they tendered sufficient evidence to raise genuine issues of material fact whether PPRM knew of reasonable security measures that would have prevented harm to the victims, and PPRM was sufficiently aware of the potential for criminal conduct against its clinics to prepare for the types of offenses Dear committed. Here, it was undisputed that the injured parties were invitees and PPRM was a landowner under the CPLA. The issue before the Court of Appeals was whether there was a genuine dispute of fact whether PPRM knew or should have known of the danger faced by the invitees. Plaintiffs presented evidence suggesting the risk of an active shooter incident in a Planned Parenthood facility like PPRM, especially one providing abortions, was not unknown. The Court found that there was enough of a dispute on this issue of material fact that it should go to a jury.

The summary judgment in favor of PPFA was affirmed. The summary judgment in favor of PPRM was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Erred in Giving More Weight to Tax Returns Than Other Indicia of Common Law Marriage

The Colorado Court of Appeals issued its opinion in In re Estate of Yudkin on Thursday, February 21, 2019.

Probate—Family Law—Common Law Marriage.

Yudkin, the decedent, died intestate. Yudkin’s ex-wife Shtutman sought informal appointment as the personal representative of his estate. Appellant Dareuskaya objected to Shtutman’s appointment, claiming that she was Yudkin’s common law wife and thus had priority as the personal representative. After an evidentiary hearing, the magistrate, sitting in probate, found that even though Yudkin and Dareuskaya agreed to be married, cohabitated for eight years, and had a reputation in their community as a married couple, no common law marriage existed because they did not file joint tax returns and other indicia of a common law marriage were absent.

On appeal, Dareuskaya argued that the magistrate erred in concluding a common law marriage did not exist despite finding that the couple cohabitated and had a reputation in the community as married. Under People v. Lucero, 747 P.2d 660 (Colo. 1987), if there is an agreement to be married and the parties cohabitate and have a reputation in the community as husband and wife, a common law marriage has been established. Further, any actions taken (or not taken) by the parties after those essential factors are established are legally irrelevant. Here, the magistrate specifically found that Yudkin and Dareuskaya agreed to be husband and wife and that cohabitation and reputation in the community were established. The magistrate’s determination that no common law marriage was proven was an abuse of discretion.

The magistrate’s order rejecting Dareuskaya’s claim of a common law marriage was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/1/2019

On Friday, March 1, 2019, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Soto-Cruz

Johnson v. Commissioner, SSA

Routt v. Howard

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