April 25, 2019

Colorado Court of Appeals: Under Rescue Doctrine, Plaintiff Must Have Physically Intervened to Stop Altercation

The Colorado Court of Appeals issued its opinion in Garcia v. Colorado Cab Co., LLC on Thursday, January 10, 2019.

Negligence—Personal Injury—Common Carrier/Passenger Relationship—Duty of Care—Rescue Doctrine.

A passenger in one of Colorado Cab Company’s taxis got into an altercation with the cab driver, Yusuf. Garcia, who thought the cab was the one for which he had called, approached the cab, told the passenger to leave Yusuf alone, and told them to stop fighting. Ultimately, the passenger assaulted Yusuf and Garcia and stole the taxi. The passenger then hit Garcia with the taxi, ran him over, and dragged him down the street.

Garcia suffered extensive injuries and sued Colorado Cab for negligence. Colorado Cab moved for summary judgment, arguing that it didn’t owe Garcia a duty of care and that any breach of such duty did not proximately cause Garcia’s injuries as a matter of law. The district court denied the motion. At trial, Colorado Cab moved twice for a directed verdict, based on the same reasoning in the summary judgment motion, and the district court denied those motions. A jury found for Garcia, and the district court entered judgment against Colorado Cab. The district court denied Colorado Cab’s subsequent motion for judgment notwithstanding the verdict.

On appeal, Colorado Cab argued that the district court erred in determining that it owed Garcia a duty of care. In this case, Garcia alleged that Colorado Cab’s failure to take safety measures caused his injuries, which is nonfeasance (the defendant’s failure to prevent harm). In such cases, a duty exists only if there is a special relationship between the plaintiff and the defendant, which, as relevant here, is a common carrier/passenger relationship. No evidence showed that Garcia was a passenger or prospective passenger of the cab, so as a matter of law, there was no common carrier/passenger relationship between Garcia and Colorado Cab. Further, Garcia does not fall under the “rescue doctrine,” which extends a defendant’s liability to a plaintiff who attempts to rescue someone (1) to whom the defendant owed a duty, and (2) who was in danger because of the defendant’s negligence. Here, although Yusuf was in imminent peril, there was no evidence in the record that Garcia attempted to physically intervene. Therefore, there was no basis for extending any duty to Garcia, and the district court erred in denying Colorado Cab’s directed verdict and post-trial motions.
The judgment was reversed and the case was remanded for the district court to enter judgment in Colorado Cab’s favor.
 

Summary provided courtesy ofColorado Lawyer.

Colorado Court of Appeals: Walkway Qualifies as “Public Roadway,” Not Sidewalk, Even if Private Vehicles Not Permitted to Drive On

The Colorado Court of Appeals issued its opinion in Trujillo v. Regional Transportation Dist. on Thursday, December 28, 2018.

Government — Colorado Governmental Immunity Act — Immunity and Partial Waiver

In this governmental immunity case, the key issue is whether a certain walkway is a “sidewalk” as described in section 24-10- 103(6), C.R.S. 2018, which would exempt the Regional Transportation District from the Colorado Governmental Immunity Act’s immunity provisions. Under that statute, sidewalk is defined as “that portion of a public roadway between the curb lines or the lateral lines of the traveled portion and the adjacent property lines which is constructed, designed, maintained, and intended for the use of pedestrians.” § 24-10-103(6). Thus, the court must determine whether the road adjacent to the walkway is a “public roadway.” A division of the court of appeals concludes that a road qualifies as a “public roadway” as that term is used in section 24-10-103(6) where, even though private vehicles are not permitted to drive thereon, its purpose is for transporting the general public via public buses.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Sovereign Immunity Under CGIA Waived for Injuries Suffered During Operation of Jail

The Colorado Court of Appeals issued its opinion in Hernandez v. City & County of Denver on Thursday, October 18, 2018.

Negligence—Willful and Wanton Conduct—Colorado Governmental Immunity Act—Public Employee—Waiver of Sovereign Immunity—Jail Operation.

Hernandez sustained injuries while a pretrial detainee at the Denver Detention Center. She sued six of the jail’s employees, including Deputy Sheriff Dodson, alleging, as relevant to this appeal, willful and wanton conduct. Following an evidentiary hearing pursuant to Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), and pursuant to C.R.C.P. 12(b)(1), the district court found that Dodson and another defendant had not engaged in willful and wanton conduct and therefore enjoyed immunity from suit on those allegations.

On appeal, Hernandez alleged that the district court erred in finding Dodson was entitled to immunity. The Colorado Governmental Immunity Act provides that a public employee may not assert immunity in an action for injuries resulting from the negligent operation of a jail, regardless of whether the employee engaged in willful and wanton conduct. Because the allegations of willful and wanton conduct here do not raise an issue of sovereign immunity, the district court erred in dismissing them before trial via Rule 12(b)(1) and a Trinity hearing.

The order was vacated and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Age of Rental Car Driver Inconclusive to Support Tort Claims Against Rental Company

The Tenth Circuit Court of Appeals issued its opinion in Amparan v. Lake Powell Car Rental Companies on February 13, 2018.

Edmundo and Kimberly L. Amparan appeal from the district court’s grant of summary judgment in favor of Lake Powell Car Rental Companies on the Amparans’ claims for negligent entrustment and loss of consortium. The claims arose from a vehicle accident involving a motorcycle operated by Mr. Amparan and a Ford Mustang rented by Lake Powell to Denizcan Karadeniz and operated by Mevlut Berkay Demir. Because the Amparans failed to come forward with evidence from which the jury could find an essential element of their claim for negligent entrustment, the appeals court affirmed.

On July 14, 2014, a group of Turkish nationals, including Mr. Karadeniz, visited Lake Powell to rent two vehicles. Mr. Karadeniz produced a valid Turkish driver’s license and a valid credit card. Mert Tacir, another member of the group, produced a valid Turkish driver’s license. The owner and operator of Lake Powell, Paul Williams, asked the remaining individuals in the group if they possessed valid driver’s licenses. Mr. Demir responded that he possessed a valid driver’s license. At the time of the rental, all three individuals were 21 years old. Although Mr. Williams recognized that Mr. Karadeniz and Mr. Tacir were under the age of 25, he nonetheless agreed to rent to rent a Dodge Caravan and a Ford Mustang to Mr. Karadeniz and to permit Mr. Tacir as an additional authorized driver for the Ford Mustang. None of the other members of the group, including Mr. Demir, completed an “Additional Driver Application/Agreement.” However, Mr. Demir testified that he understood Mr. Williams’ inquiry into whether he possessed a driver’s license as a signaling that he had Lake Powell’s implicit permission to operate the vehicles. Because a reasonable jury could adopt Mr. Demir’s understanding, the Tenth Circuit proceeded under the assumption that Lake Powell implicitly entrusted the rental vehicles to Mr. Demir. Evidence in the record supports the conclusion that Mr. Williams’ decision to rent two vehicles to an individual under the age of 25 and to permit an additional driver under the age of 25 violates internal policies propagated by Lake Powell’s licensor, Avis Rent A Car Systems, LLC.

During the course of the rental, Mr. Demir operated the Ford Mustang. Mr. Demir, unfamiliar with the traffic rules governing left turns at intersections, turned left on a solid green light without yielding to oncoming traffic. Mr. Amparan, traveling in the oncoming direction, unsuccessfully attempted to swerve to avoid hitting the turning vehicle operated by Mr. Demir and the two vehicles collided. As a result of the collision, Mr. Amparan alleges he suffered multiple broken bones, a punctured lung, and various other injuries.

The Amparans filed complaint in New Mexico state court, naming Mr. Demir, Mr. Karadeniz, and Avis as defendants. Avis removed the action to federal court, where, after an initial round of discovery, the district court granted the Amparans leave to amend their complaint to add Lake Powell as a defendant. The amended complaint raised claims against Lake Powell for negligent entrustment, loss of consortium, and negligent supervision and training. Lake Powell moved for summary judgment, arguing, in part, that even if it implicitly entrusted the Mustang to Mr. Demir, it neither knew nor should have known that Mr. Demir was likely to operate the vehicle in such a manner as to create an unreasonable risk of harm to others. In response to Lake Powell’s motion for summary judgment, the Amparans filed a notice of testifying expert on both the risk posed by young drivers and standards of care in the car rental industry. The Amparans also contested Lake Powell’s motion for summary judgment, arguing in part that Lake Powell’s violation of internal policies regarding renting to, or approving as additional drivers, individuals under age 25 constituted sufficient evidence to permit the finding that Lake Powell knew or should have known that Mr. Demir was likely to operate the Ford Mustang in such a manner as to create an unreasonable risk of harm to others.

The district court indicated it would not consider factual assertions in the Amparans’ response to summary judgment that did not comply with District of New Mexico Local Rule of Civil Procedure 56.1(b) and Federal Rule of Civil Procedure 56(c)(1)(A). The district court denied Lake Powell’s motion to strike as moot. The district court deemed the motions to strike moot based on its conclusion that the Amparans’ evidence regarding Lake Powell’s alleged violation of internal policies was insufficient, on its own, to permit a reasonable jury to conclude that Lake Powell knew or should have known that Mr. Demir was likely to operate the Mustang in such a manner as to create an unreasonable risk of harm to others. The district court concluded that the disputes of fact with respect to whether Lake Powell entrusted the Mustang to Mr. Demir and whether Lake Powell violated any internal policies were not material because resolution of the disputes in favor of the Amparans did not alter the summary judgment decision.

On appeal, the Amparans argued that the district court failed to perform a proper analysis, in that a New Mexico court would view evidence of a violation of internal policies, which are also allegedly industry standards, sufficient to advance a claim for negligent entrustment. Alternatively, the Amparans urged the Tenth Circuit to address the merits of Lake Powell’s motions to strike. The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of Lake Powell on the Amparans’ claims for negligent entrustment and loss of consortium.

In an effort to overcome the extensive body of case law supporting the conclusion that the New Mexico Supreme Court would reject the proposition that evidence of a car rental company’s violation of internal policies is sufficient to establish the third element of a claim for negligent entrustment even where the entrustee possesses a valid driver’s license, the Amparans argued that their expert witness would testify on car rental industry standards regarding rentals to individuals under age 25. But the fact that evidence of a violation of an internal policy is probative on the question of negligence does not establish that the evidence is sufficient to make out a prima facie case of negligence. It cannot be said that the driver’s young age, on its own, makes it likely that the driver will cause an accident, will operate the vehicle in an incompetent manner, or will operate the vehicle in such a manner as to create an unreasonable risk of harm to others. For, if such were true, no individual in New Mexico could grant a person under the age of 25 permission to drive a vehicle without facing liability for negligent entrustment based solely on the entrustee’s youthful age.

Accordingly, the Tenth Circuit held that the New Mexico Supreme Court would conclude that evidence of a car rental company’s violation of internal policies on the minimum age of renters and drivers is, on its own, insufficient to establish the third element of a claim for negligent entrustment of a motor vehicle. Thus, the Amparans failed to advance sufficient evidence to make out a prima facie case of negligent entrustment.

The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of Lake Powell on the Amparans’ claims for negligent entrustment and loss of consortium.

Colorado Court of Appeals: Whole Person Impairment Rating Relevant in Non-Workers’ Comp Personal Injury Case

The Colorado Court of Appeals issued its opinion in Herrera v. Lerma on Thursday, September 20, 2018.

Subsequent Accident Jury InstructionPersonal InjuryNegligenceEvidence RelevancyVoir Dire.

Defendant’s truck hit plaintiff’s car from behind as she slowed for traffic. A week later plaintiff was diagnosed with neck strain. The following year, plaintiff was involved in a second car accident in which she hit a car from behind. She testified that the second accident did not injure her.

A year later, plaintiff sought additional medical treatment for her neck and lower back. She sued defendant for negligence, claiming damages of $38,356.46. She was awarded $1,980.81 by a jury in economic damages and zero on her claims of physical impairment and noneconomic damages.

On appeal, plaintiff argued it was error to instruct the jury to consider whether the second accident worsened any injuries, damages, or losses caused by the first accident because defendant hadn’t presented any evidence supporting such an instruction. Here, neither party presented evidence that plaintiff suffered any injury or aggravation of an existing injury because of the second accident, so the evidence was insufficient to justify instructing the jury about the second accident and the trial court abused its discretion. Further, but for the trial court’s improper instruction, the jury might have reached a different verdict.

Plaintiff also argued that the trial court erred by excluding her expert’s testimony about her 15% permanent whole body impairment rating. Before trial, defendant requested that the court exclude testimony about plaintiff’s impairment rating. While it allowed testimony that plaintiff suffered an impairment, the court excluded testimony about the impairment rating as irrelevant under CRE 401 and prejudicial under CRE 403. The court of appeals could not discern any reason that the percentage rating of the impairment would not be relevant, and found reasons why it would be relevant. The court similarly found no support for the trial court’s belief that such testimony would be unfairly prejudicial, confusing, or misleading. The trial court abused its discretion by excluding the testimony.

Plaintiff finally contended that it was error for the trial court to prevent her counsel from asking prospective jurors during voir dire whether they had an interest in defendant’s insurance carrier. Counsel was entitled to ask the insurance question during voir dire to determine the biases and prejudices of the prospective jurors, so the trial court abused its discretion.

The judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Plaintiff Not Entitled to Prejudgment Interest Where Claim Does Not Meet Statutory Factors

The Colorado Supreme Court issued its opinion in Munoz v. American Family Mutual Insurance Co. on Monday, September 10, 2018.

Prejudgment Interest—Statutory Interpretation.

In this case, the Colorado Supreme Court considered whether an insured is entitled to collect prejudgment interest when he settles an uninsured motorist claim with his insurer. The court held that, under the plain language of the prejudgment interest statute, C.R.S. § 13-21-101, an insured is entitled to prejudgment interest only after (1) an action is brought, (2) the plaintiff claims damages and interest in the complaint, (3) there is a finding of damages by a jury or court, and (4) judgment is entered. Because Munoz did not meet all of these conditions, the court concluded he is not entitled to prejudgment interest.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: UIM Policy Not Triggered if Insurer Agrees to Pay Entire Amount of Jury Award

The Colorado Court of Appeals issued its opinion in Bailey v. State Farm Automobile Insurance Co. on Thursday, September 6, 2018.

Underinsured Motorist Insurance Benefits—Coverage Limitations.

Plaintiff was in a car accident and sued the other driver for negligence and State Farm Mutual Automobile Insurance Co. for underinsured motorist (UIM) benefits. Plaintiff’s policy covered him up to $100,000 for damages caused by underinsured motorists. The other driver’s insurance company covered him for $100,000 in damages and also agreed to pay the full extent of a jury’s verdict. At trial, State Farm presented evidence that plaintiff had not cooperated with claims adjusters and had committed fraud, and therefore plaintiff voided the insurance contract and he was not entitled to UIM benefits.

The jury rejected State Farm’s affirmative defenses of fraud and failure to cooperate and awarded plaintiff $300,000 in damages. State Farm moved for entry of judgment based on a letter from the other driver’s insurance company that effectively provided unlimited liability insurance coverage for him. State Farm argued that because there was no difference between the coverage limit and the amount of damages, plaintiff was not entitled to UIM benefits. The other driver did not object. The trial court granted the motion and the other driver’s insurance company paid the entire judgment.

On appeal, plaintiff argued that it was error to grant State Farm’s motion for entry of judgment. Plaintiff contended that the trial court should not have considered the merits of State Farm’s motion because the motion raised an affirmative defense that State Farm waived by not presenting before trial. An affirmative defense must be in the nature of a confession and avoidance. Here, State Farm did not contend that it owed UIM benefits but could avoid its obligation to pay them for some other reason; rather, the motion asserted that it did not owe benefits at all. State Farm’s motion did not raise an affirmative defense. The motion was properly made and the trial court did not err by entertaining it.

Plaintiff also contended that under the plain language of C.R.S. § 10-4-609, State Farm is required to provide him with the full amount of UIM benefits. Plaintiff argued that even though he recovered the full amount of the jury’s verdict from the other driver’s insurer, he should still be allowed to recover an additional $100,000 in UIM benefits. UIM benefits are intended to cover the difference between the negligent driver’s liability limits and the damages. The plain language of the statute does not allow a plaintiff to recover UIM benefits in excess of the total amount of actual damages. Further, the statute does not prevent an insurer from effectively increasing a driver’s liability coverage by offering to pay any damages awarded at trial. Here, there is no difference between the amount of damages and the amount of coverage, so UIM benefits are not triggered.

The court of appeals also found no statutory support for plaintiff’s arguments that (1) the letter from the other driver’s insurance company does not meet the requirements of a complying policy, and so it is not legal liability coverage; and (2) the determination of whether a driver is underinsured is made at the time of the accident.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Father Lacked Standing to Bring Wrongful Death Action Because Daughter Married at Time of Death

The Colorado Court of Appeals issued its opinion in Hansen v. Barron’s Oilfield Service, Inc. on Thursday, September 6, 2018.

Torts—Wrongful Death—Standing to Sue—Adult Child.

Wife died in an automobile collision with Hierro, an employee of Barron’s Oilfield Services, Inc. (Barron’s). At the time of her death, Wife was married to Husband and had no children. A law firm filed a wrongful death action on Husband’s behalf, naming Barron’s and Hierro as defendants. However, apparently unbeknownst to the attorneys, Husband had died of natural causes before the complaint was filed. Upon learning of Husband’s death, the law firm filed an amended complaint substituting Hansen, Wife’s father (Parent), as the plaintiff. Barron’s moved to dismiss under C.R.C.P. 12(b)(5) arguing that Parent lacked standing under the Colorado Wrongful Death Act (WDA). The trial court granted the motion.

On appeal, Parent argued that the district court erred in dismissing his wrongful death action because it interpreted the WDA too strictly. He further argued that fairness and public policy dictate that he should be allowed to file a wrongful death action for the death of Wife under the circumstances here. Parents of an adult deceased have the right to bring a wrongful death action only if the decedent is unmarried and without descendants. Under C.R.S. § 13-21-201(1)(c)(I), the relevant time for determining if an adult deceased is “unmarried” is the decedent’s date of death. Here, it was undisputed that when Wife died, she was married to Husband, and Husband survived her.

The court of appeals also granted Barron’s request for attorney fees.

The judgment was affirmed and the case was remanded with directions for a determination of the appropriate amount of attorney fees incurred on appeal.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Hospital Lien Statute Only Applies to Lien Violations Existing at the Time a Complaint is Filed

The Colorado Court of Appeals issued its opinion in Marchant v. Boulder Community Health, Inc. on Thursday, August 23, 2018.

Hospital Lien Statute—Statutory Penalties—Summary Judgment.

Marchant’s daughter was struck by an automobile and received medical treatment from Boulder Community Health, Inc. (BCH) for which she was billed $27,681.10. Cardon Outreach, LLC (Cardon), as agent for BCH, filed a statutory lien in that amount “upon the net amount payable . . . as damages on account of such injuries,” without first billing the daughter’s insurance company. BCH subsequently made an insurance adjustment to reduce the bill and billed the insurer, which paid $6,999.36, leaving a balance of $777.74. Cardon amended the lien to that amount. Marchant paid the balance, and the lien was released. Later, Marchant, as guardian of her daughter, filed an amended complaint alleging violation of the hospital lien statute, C.R.S. § 38-27-101, regarding her right to seek damages of twice the amount of the hospital lien filed.

The parties filed cross-motions for determination of a question of law, and the trial court ruled that C.R.S. § 38-27-101(7) only provides standing for a lawsuit if the plaintiff is subject to an improper lien at the time the legal action is filed. The trial court granted defendants’ motion for summary judgment.

On appeal, plaintiff contended that the trial court misinterpreted the hospital lien statute. The parties agreed that when the lien was filed it violated the hospital lien statute. However, the lien did not violate the statute at the time the lawsuit was commenced. The statute clearly applies only to liens that violate the statute at the time a complaint is filed. Thus, the statute does not allow plaintiff to seek damages.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Medicare Benefits Fall Within Contract Exception to Collateral Source Rule

The Colorado Court of Appeals issued its opinion in Forfar v. Wal-Mart Stores, Inc. on Thursday, August 23, 2018.

Insurance—Collateral Source Rule—Medicare Benefits—Premises Liability.

Forfar, a Medicare beneficiary, slipped and fell at a Wal-Mart store. He filed a premises liability case. Before trial, Wal-Mart moved to exclude evidence of Forfar’s medical expenses owed under agreements he had with his medical providers. Forfar moved in limine to exclude evidence that he had received Medicare benefits. The trial court ruled that Wal-Mart could not present evidence to the jury as to the amount of the Medicare limits and that Forfar could not present evidence of private contracts between himself and any third-party medical providers. Forfar was allowed to present evidence of the reasonable value of medical services, for which he sought $72,636. After trial, Wal-Mart moved to reduce the damages under C.R.S. § 13-21-111.6, arguing that the economic damages awarded for medical expenses should be reduced to Medicare accepted rates. The trial court denied the motion, holding that Medicare benefits fall within the contract exception to the collateral source rule in C.R.S. § 13-21-111.6. The judgment entered on a jury verdict included $44,000 in economic damages for the reasonable value of medical services that Forfar had received.

On appeal, Wal-Mart contended that the trial court should have reduced the damages, arguing that the amounts paid by Medicare are dispositive of the necessary and reasonable value of medical services provided to Forfar. Pre-verdict, the collateral source rule, C.R.S. § 10-1-135(10)(a), bars evidence of collateral source benefits, and the correct measure of damages is the reasonable value of medical services. A benefit is not excluded from the definition of a collateral source simply because it comes from a government program. The trial court properly held Medicare benefits to be a collateral source inadmissible as evidence based on C.R.S. § 10-1-135(10)(a).

Wal-Mart also challenged the trial court’s holding that Medicare benefits fall within the contract exception to the collateral source rule. Post-verdict, the trial court is required to reduce a plaintiff’s verdict by the amount the plaintiff “has been or will be wholly or partially indemnified or compensated for his loss by any other person, corporation, insurance company or fund.” The exception to this prohibits trial courts from reducing a plaintiff’s verdict by the amount of indemnification or compensation that the plaintiff has received from “a benefit paid as a result of a contract entered into and paid for by or on behalf of the plaintiff.” Medicare benefits fall within the contract exception to the collateral source rule of C.R.S. § 13-21-111.6. The trial court properly applied the contract exception to Medicare benefits.

Wal-Mart further contended that the trial court violated the Supremacy Clause by failing to apply the Medicaid statutes and regulations over the collateral source rule, asserting that no person may be liable for payment of amounts billed in excess of Medicare approved charges. The Medicare statutes Wal-Mart relies on do not preempt Colorado law holding it liable for the reasonable value of Forfar’s medical services.

The court of appeals declined to award Forfar attorney fees because the issues presented by Wal-Mart were novel and supported by some out-of-state authority.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Governmental Immunity May Be Waived for Operation or Maintenance of Public Facility Performed by Independent Contractor

The Colorado Court of Appeals issued its opinion in Lopez v. City of Grand Junction on Thursday, July 12, 2018.

Negligence—Colorado Governmental Immunity Act—Waiver—Independent Contractor—Maintenance Work.

The underground maintenance of a public traffic light in Grand Junction breached a natural gas line. Gas from the ruptured line leaked into the surrounding ground and a sewer main and migrated to a house, resulting in an explosion. Lopez, Pierson, and Gimmeson (plaintiffs) brought negligence claims against the City of Grand Junction (City) for their resultant personal injuries and property damage. Plaintiffs’ complaint alleges, among other things, that the City breached its duty of care to safely maintain its utility, electric, and sewer lines. As pertinent here, the complaint alleged that the City contracted with Apeiron Utility Construction (Apeiron) to upgrade utility lines that powered a traffic light; during this maintenance project Apeiron ruptured a gas line; and the leaking gas resulted in the house explosion. The complaint further alleged that Apeiron’s conduct should be imputed to the City. The City moved to dismiss these negligence claims for lack of jurisdiction under C.R.C.P. 12(b)(1), asserting governmental immunity under the Colorado Governmental Immunity Act (CGIA). The court granted the motion.

On appeal, plaintiffs contended that the district court erroneously concluded that Apeiron’s conduct in maintaining the traffic light was not attributable to the City for purposes of waiving the City’s immunity under C.R.S. § 24-10-106(1)(f). For purposes of the immunity waiver in C.R.S. § 24-10-106(1)(f), a public entity maintains a public facility even if it hires an independent contractor to perform the maintenance. Here, plaintiffs met their burden to establish a waiver of immunity as to their negligence claims against the City.

Plaintiffs next asserted that the district court erred when it dismissed their negligence claim against the City as to its operation and maintenance of its sewer main. Plaintiffs asserted that the City’s failure to keep the main free of invasive roots was a failure to maintain that waived liability under the CGIA. Based on the record, plaintiffs failed to meet their burden to prove a waiver.

The dismissal of plaintiffs’ negligence claim against the City as to its operation and maintenance of its sewer main was affirmed. The dismissal of the negligence claims against the City for Apeiron’s maintenance work on the traffic light was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Erred in Granting New Trial for Reasons Not Enumerated in C.R.C.P. 59(d)

The Colorado Supreme Court issued its opinion in In re Rains on Monday, June 25, 2018.

C.R.C.P. 59(d)—Proper Grounds for New Trial.

In this case, the supreme court considered whether the trial court abused its discretion when it granted plaintiffs’ motion for a new trial after a jury found that defendants, two pilots, were not negligent during a near collision that resulted in one plane crashing and killing all five passengers on board. The court concluded that the trial court’s stated reasons did not meet the grounds enumerated in C.R.C.P. 59(d) and that a trial court may not grant a new trial for reasons other than those enumerated in C.R.C.P. 59(d). Thus, the trial court abused its discretion in granting a new trial. The court made its rule to show cause absolute and remanded the case for further proceedings.

Summary provided courtesy of Colorado Lawyer.