August 24, 2019

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: Identity of Interest Does Not Apply to Parents of Adult Child

The Colorado Court of Appeals issued its opinion in Maldonado v. Pratt on Thursday, November 17, 2016.

The Pratts and Dennis Pratt II (Pratt Jr.) own adjacent properties near Pueblo, Colorado. Pratt Jr. stored used car parts on his property. He began to suspect that someone was stealing the parts, and on October 16, 2012, he drove to his storage area, and, when he saw three flashlight beams approaching, shot and killed Jacob Maldonado. Pratt Jr. was convicted of negligent homicide and sentenced to six years’ imprisonment.

Maldonado’s estate filed a wrongful death action against Pratt Jr. on September 16, 2014, alleging a single act of negligence in his killing of Maldonado. On April 1, 2015, the Estate moved to amend its complaint to add Premises Liability Act claims against the Pratts, since it had discovered that Maldonado was actually on the Pratts’ property when he was shot. The Pratts filed a motion for judgment on the pleadings and/or summary judgment, arguing the two-year statute of limitations barred the complaint. The Estate countered that the amended complaint related back to the original complaint. The district court disagreed and found that the Pratts did not have actual notice of the lawsuit and would not have expected to be named as defendants in the wrongful death action. The district court granted judgment in the Pratts’ favor.

On appeal, the Estate conceded that the statute of limitations for a PLA claim had run when it filed its amended complaint. However, the Estate contended the new claims related back to the original complaint. The court of appeals disagreed. The court of appeals analyzed the relation-back doctrine, noting that a new claim relates back to the date of the original pleading so long as the new claim or defense arises out of the same conduct, transaction, or occurrence. However, when adding a new party, two additional duties arise: the new party must have received actual notice of the complaint within the time period provided by C.R.C.P. 4(m), and the new party must have known or reasonably should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her.

The court found that the Estate could not prove the Pratts had actual notice of the complaint against Pratt Jr. The Estate argued that notice could be imputed to the Pratts through the “identity of interest” doctrine. The court found the doctrine inapplicable. The court noted that, generally, the identity of interest doctrine is used for corporate entities. The Estate argued that the Pratts had an identity of interest to Pratt Jr., but the court of appeals disagreed. The identity of interest doctrine generally only applies to families if the children are minor and they share an attorney or insurance policy. Here, Pratt Jr. was an adult who lived separately from his parents. Although they spoke daily before the shooting, Pratt Jr. was taken into custody the day of the shooting and was in the DOC when served with the original complaint. The court of appeals declined to extend actual notice from an assumption that Pratt Jr. would have told his parents about the lawsuit.

The court of appeals affirmed the district court.

Colorado Court of Appeals: Evidence of Decedent’s Driving History Properly Excluded

The Colorado Court of Appeals issued its opinion in Alhilo v. Kliem on Thursday, October 6, 2016.

Wrongful Death—Exemplary Damages—Habitual Traffic Offender—Evidence—Flight from Scene—Circumstantial Evidence—Noneconomic Damages Cap—Comparative Negligence.

Alhilo died in a collision between his motorcycle and a car driven by defendant Kliem. Alhilo’s mother, the plaintiff, brought this wrongful death action against Kliem. The jury allocated the fault and awarded noneconomic and exemplary damages. Kliem appealed the judgment entered on the verdict.

On appeal, Kliem contended that the trial court erred by excluding evidence of the deceased’s driving record and his status as a habitual traffic offender (HTO). Kliem argued that this evidence was admissible under the exception in C.R.S. § 42-4-1713; however, this case does not support admitting either type of evidence under this statute. Admissibility of HTO status evidence is subject to the rules of evidence, primarily CRE 401 and 403. Here, both rules weigh against admission. Therefore, the trial court did not abuse its discretion by precluding evidence of the deceased’s status as an HTO and his driving record.

Kliem also contended that the trial court erred by admitting evidence of Kliem’s two prior convictions for driving while impaired. The trial court found this evidence relevant, and acknowledging the potential for prejudice, gave an appropriate limiting instruction. Therefore, the trial court did not abuse its discretion in allowing evidence of Kliem’s prior alcohol offenses for purposes of exemplary damages.

Kliem further contended that the trial court erred by admitting evidence that he fled the accident scene. Evidence of Kliem’s flight was relevant to explain why plaintiff was unable to present direct proof of Kliem having been impaired by alcohol, such as a breath test or blood draw shortly after the accident occurred. Further, evidence of Kliem’s flight showed his consciousness of liability. For these reasons, the trial court did not abuse its considerable discretion in allowing evidence of Kliem’s post-accident flight.

Kliem next contended that there was insufficient evidence to prove plaintiff was entitled to exemplary damages. However, the alcohol containers found in Kliem’s vehicle, and the facts that he failed to immediately seek medical attention for his severe injuries, fled the accident scene, and failed to immediately turn himself in to police constitute sufficient circumstantial evidence to support the exemplary damages award.

Kliem also argued that exemplary damages were improper because his left-hand turn was legal. There is no authority requiring that a traffic law violation be shown before exemplary damages can be awarded.

Finally, Kliem contended that the noneconomic damages cap in C.R.S. § 13-21-203 must be applied to an award of noneconomic damages before comparative negligence is apportioned. Once the amount of a plaintiff’s recovery is determined, the noneconomic damages cap in C.R.S. § 13-21-203 comes into play, which merely limits a plaintiff’s recovery to a specified maximum amount. Therefore, the trial court properly determined the amount of plaintiff’s recovery by first apportioning the percentage of comparative negligence attributable to Kliem and then applying the noneconomic damages cap in C.R.S. § 13-21-203 to that amount.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Admiralty Law Allows Limitation of Liability in Personal Injury Cases

The Tenth Circuit Court of Appeals issued its opinion in In re Aramark Sports & Entertainment Services, LLC on Monday, August 1, 2016.

Three couples vacationing at Lake Powell rented a boat from an Aramark facility. High winds caused the boat to capsize, and two of the couples died. Anticipating a lawsuit, Aramark filed a petition in admiralty in Utah district court under the Limitation of Liability Act, 46 U.S.C. §§ 30501–12, which permits a boat owner to obtain a ruling exonerating it or limiting its liability based on the capacity or value of the boat and freight. The district court denied the petition and Aramark appealed.

After a brief discussion of admiralty law, the Tenth Circuit evaluated the relevant provisions of the Limitation of Liability Act. The Circuit remarked that there are three possible outcomes from a limitation petition: exoneration, limitation, or no limitation of liability. Exoneration applies where no negligence is shown. Where the claimant demonstrates negligence, the burden shifts to the owner to show lack of privity or knowledge, capping the damages at the value of the vessel or freight if the owner meets this burden. If the owner fails to show privity or knowledge, there is no limitation of liability.

In this case, Aramark filed its admiralty proceeding before any negligence claim had been brought. The estates and heirs of the two deceased couples filed answers and counterclaims for wrongful death. The third couple filed an answer and counterclaim seeking indemnification from Aramark in case it was held liable for the deaths of the other couples. At the bench trial, the district court found that Aramark’s negligence had “at least in part” caused the accident and that the negligence was within Aramark’s privity or knowledge. The court therefore denied Aramark’s petition for limitation.

The Tenth Circuit disagreed with the district court’s methodology. First, the Tenth Circuit determined that Aramark had no duty to determine the weather conditions prior to renting the boat, finding that the boat’s weather radio was sufficient to apprise the boaters of any changes in weather conditions. The Tenth Circuit therefore found that Aramark had no duty to stop renting out boats when the weather would potentially change throughout the day, because claimants had an independent duty of care. However, the Tenth Circuit found a duty of Aramark to warn potential renters of the boat’s limitations. Because the district court did not decide whether Aramark exercised care in warning renters of the boat’s limitations, the Tenth Circuit remanded.

The Tenth Circuit vacated the judgment of the district court and remanded for further proceedings.

Tenth Circuit: Release of Liability for Recreational Activity Precludes Claims for Negligence Per Se

The Tenth Circuit Court of Appeals issued its opinion in Espinoza v. Arkansas Valley Adventures, LLC on Tuesday, January 5, 2016.

Sue Ann Apolinar hired a guide through Arkansas Valley Adventures, LLC, for a family rafting trip and camping excursion in the Colorado Rocky Mountains. Ms. Apolinar and the family received guidance and signed a release before navigating the rapids. However, while maneuvering around a rapid known locally as Seidel’s Suck Hole, the raft capsized. The current swept Ms. Apolinar into a logjam, and despite efforts to save her, she drowned. Ms. Apolinar’s son, Jesus Espinoza, Jr., brought suit against the rafting company, alleging negligence per se and fraud. The company moved for summary judgment, averring that the release signed by Ms. Apolinar shielded them from liability, and the district court granted their motion. Mr. Espinoza appealed.

On appeal, the Tenth Circuit addressed whether Colorado law allows parties to contract away claims of negligence. The Tenth Circuit evaluated the four Jones factors in determining whether to respect agreements of the sort Ms. Apolinar entered into: (1) the existence or lack thereof of a duty to the public, (2) the nature of the service performed, (3) whether the contract was fairly entered into, and (4) whether the parties’ intention is expressed in clear and unambiguous language. The Tenth Circuit noted that the first two factors tend to focus on public policy while the second two focus on party- and contract-specific questions. The Tenth Circuit noted that the Colorado Supreme Court has generally held that businesses engaged in recreational activities generally owe no special duties to the public.

Mr. Espinoza attempted to distinguish his claim from those disallowed by the Colorado courts, noting that his claim was for negligence per se, noting that rafting companies may face criminal liability for careless or imprudent operation of a raft and therefore rafting has become a matter of public concern. The Tenth Circuit disagreed, finding that Mr. Espinoza’s argument conflated state regulation with matters of public importance—whether an activity is of practical necessity or recreational in nature. The Tenth Circuit found that Colorado courts have upheld releases of liability for other recreational activities, and noted that the General Assembly was free to amend the statutes in the future to address contractual releases of liability for negligence. The Tenth Circuit also noted that the Colorado Consumer Protection Act may preclude enforcement of releases where plaintiffs plead viable claims under that statute.

Turning to the third and fourth Jones factors, the Tenth Circuit again found that they favored the rafting company. Mr. Espinoza argued that his mother was not fairly apprised of the dangers of the rafting trip, but the release she signed clearly indicated that rafting can cause “physical injury and/or death.” The Tenth Circuit found the disclosures in the release sufficient to satisfy the third and fourth Jones factors. The Tenth Circuit further agreed with the district court that the release resolved Mr. Espinoza’s fraud claim, concluding that even if the company misrepresented the danger of the rafting excursion in Ms. Apolinar’s initial phone call, the release she signed clearly enumerated the risks.

The Tenth Circuit affirmed the district court. Judge Hartz concurred in part and dissented in part; he would have allowed a jury to determine whether the third Jones factor was satisfied.

Tenth Circuit: Without Seizure of Defendant, Excessive Force Claims Cannot Stand

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Norton on Tuesday, December 29, 2015.

Utah Highway Patrol Officer Swenson was involved in a high-speed chase with a vehicle, which eventually ran off the road in a remote desert area of the Ute Tribe’s Uncompahgre Reservation. Two tribal males exited the vehicle, the driver and passenger Todd R. Murray, and ran in opposite directions. Swenson pursued the driver and eventually arrested him. Three nearby officers, off-duty City of Vernal Police Detective Vance Norton, Utah Highway Patrol Trooper Craig Young, and Uintah County Sheriff’s Deputy Anthoney Byron, responded to the chase and began searching the desert for Murray. The search ended when Murray sustained a gunshot wound to the head.

Plaintiffs, Murray’s parents, contended that Detective Norton shot Murray, but Detective Norton countered that Murray shot himself. Norton testified that as he crested a hill, he saw Murray and ordered him to the ground. Murray started running toward Norton and fired a shot that landed near his feet, so Norton fired two shots at Murray from about 140 yards away. Norton retreated back up the hill and tried to call dispatch. He testified that as he was calling, Murray put the gun to his head and fired, crumpling to the ground immediately. Deputy Byron and Trooper Young testified that they heard noise and saw Norton standing on the top of a hill. They also said they saw Murray walking and swinging his arms, but were not sure if he was carrying a gun. Byron and Young testified that they were about 200 yards from Murray and 400-500 yards from Norton. They reached Norton and descended the hill together to where Murray lay, bleeding from a gunshot wound to the head. They pushed Murray on his side and handcuffed him but made no effort to perform first aid.

Murray was transported to a hospital, where he was pronounced dead. Deputy Byron accompanied the ambulance to the hospital and was joined there by two other officers. The three proceeded to engage in what they called “evidence collection”: taking photographs of Murray’s body, gathering his clothing in bags, and putting bags over his hands. They also ordered blood drawn, which was done by the hospital staff. Deputy Byron placed his index finger in both the entrance and exit wounds on Murray’s head. Experts later testified that this was highly unusual and potentially harmful to the investigation. Even defense experts opined there was no reason for the removal of clothing, turning of the body, and contaminating the wounds.

Murray’s body was taken to a mortuary, where the police ordered the collection of more blood. The apprentice who performed the blood draw did so via a jagged cut on Murray’s neck. Plaintiffs contend this was done as a threatening message. Murray’s body was next taken to the Utah State Office of the Medical Examiner where Dr. Leis performed an examination. Dr. Leis did not perform a full autopsy, despite a request to do so by FBI Agent Ashdown. Dr. Leis concluded that Murray died of a self-inflicted gunshot wound to the head, and further concluded that the gun was close to the skin when it discharged.

Plaintiffs strongly disagreed with Norton’s testimony. They believe that Norton shot Murray at close range, “execution style,” and then planted a gun near him. Plaintiffs pointed out that although Murray was right handed, the entrance wound was on the left side of his head. Plaintiffs also pointed to many instances of destruction of evidence, including that no forensic tests were conducted on the weapon attributed to Murray, nor that of Norton; no tests were conducted to examine whether gunshot residue was present on Murray’s hands or clothing; no evidence was collected regarding whether there was any splash back from the shot onto Murray’s hands or clothing; and the gun, clothing, and other evidence were destroyed before being examined.

Plaintiffs filed a civil suit in Utah state court, which included numerous claims. The State of Utah, no longer a party, removed the case to federal court. The district court entered several rulings, including granting summary judgment to the mortuary on Plaintiffs’ claims of intentional infliction of emotional distress; ruling that the United States’ treaty with the Ute Tribe did not recognize a private right of action against municipalities or individuals enforceable through § 1983; granting summary judgment to all individual and municipal defendants; dismissing the state tort claims; dismissing plaintiffs’ motion for partial summary judgment as moot; and denying all of plaintiffs’ requests for sanctions. Plaintiffs appealed.

The Tenth Circuit divided the plaintiffs’ claims into six groups: (1) § 1983 claims for unlawful seizure, excessive force, and failure to intervene in the violation of constitutional rights; (2) § 1983 claim for violation of rights under the Ute Treaty; (3) § 1985 claim for conspiracy to violate civil rights; (4) state law tort claims for intentional infliction of emotional distress, wrongful death, and assault and battery; (5) spoliation sanctions; and (6) taxation of costs. The Tenth Circuit addressed the first group of claims first.

The district court granted summary judgment to defendants on the § 1983 claims for unlawful seizure, excessive force, and failure to intervene. On de novo review, the Tenth Circuit affirmed. The Tenth Circuit first found that the officers had reasonable suspicion to pursue Murray, but that no seizure had occurred because Murray had run from the officers. Although plaintiffs alleged he paused momentarily when exiting the car, the Tenth Circuit reviewed the videotape and perceived no pause. Without a pause, there was not a seizure as a matter of law. Plaintiffs also argued there was a seizure in the moments before Murray was shot, when Norton ordered him to stop, but again the Tenth Circuit disagreed, finding instead that the evidence illustrated that Murray was charging toward Norton and never submitted to authority. Finally, plaintiffs contended that Norton seized Murray when he shot him at point-blank range. However, the Tenth Circuit found that the evidence tended to show that Norton was at least 100 yards away from Murray when the gun discharged, so the only person who could have shot him at point-blank range was himself. Without a seizure, there could be no Fourth Amendment violation and therefore no individual liability for defendants. The Tenth Circuit similarly disposed of the plaintiffs’ claim of excessive force in violation of the Fourteenth Amendment’s Due Process Clause. The Tenth Circuit found that it was reasonable for Norton to return fire after Murray shot at him, and as for the officers brandishing their weapons after Murray sustained his head wound, he was unconscious and would not have been aware of the weapons. The Tenth Circuit found nothing about the way the officers handled Murray shocked the conscience or was arbitrary.

The Tenth Circuit next addressed plaintiffs’ Ute Treaty claims. The district court dismissed plaintiffs’ Ute Treaty claims because the treaty does not confer the right for plaintiffs to assert § 1983 claims against individuals, but rather provides a mechanism within the treaty itself for claims against the United States. The Tenth Circuit evaluated the treaty’s “bad men” clause and affirmed the district court’s ruling.

Turning to the plaintiffs’ § 1985 conspiracy claims, the Tenth Circuit again affirmed. The district court granted summary judgment to defendants on both of plaintiffs’ claims, finding no showing of specific invidious discriminatory animus. Although the officers were likely aware of Murray’s race, they did not pursue him because of his race but rather because of the car chase.

The Tenth Circuit turned next to plaintiffs’ state law claims. Plaintiffs asserted intentional infliction of emotional distress claims against the funeral home employee and asserted claims of wrongful death against Norton. The Tenth Circuit noted that plaintiffs who are absent during the commission of the act underlying the emotional distress claims must prove that the person performing the act did so with the intent to injure plaintiffs. Because plaintiffs were not present when the funeral home employee made the incision on Murray’s neck, plaintiffs’ claims failed because they could not show the employee intended to harm plaintiffs. After the district court dismissed plaintiffs’ emotional distress claims, it declined to retain jurisdiction over plaintiffs’ wrongful death claims and dismissed them without prejudice. The Tenth Circuit found no evidence that the district court abused its discretion in declining to retain jurisdiction.

Plaintiffs sought sanctions in the form of default judgment and adverse inferences against all defendants for spoliation of evidence, including (1) Murray’s testimony, because the officers failed to administer first aid; (2) the .380 caliber firearm attributed to Murray; (3) Norton’s .40 caliber weapon; and (4) any trace evidence that could have been recovered from the scene, Murray’s body and clothes, or Norton’s body, clothes, or vehicle on the day of the shooting. Plaintiffs believe this evidence would have tended to show that Norton shot Murray, and asked the court to find that defendants acted in bad faith by destroying or allowing the destruction of the evidence. With respect to Murray’s life, the district court found the medical testimony that Murray’s wound was not survivable to be persuasive, and the Tenth Circuit found no reason to disturb the district court’s ruling. As to the .380 caliber weapon, the destruction of the weapon was outside defendants’ control since it was destroyed by the FBI. Although the Tenth Circuit agreed that Norton’s weapon was not examined for evidence, it found no prejudice to defendants from this failure because Norton admitted firing his weapon. The plaintiffs also requested spoliation sanctions regarding the evidence on Murray’s body and clothes, the scene of the shooting, and Norton. The Tenth Circuit found that the plaintiffs’ strongest case was against Deputy Byron, who stuck his fingers in the holes in plaintiffs’ head, removed Murray’s clothes which were later lost, and tampered with Murray’s body, all before the medical examiner was present. The Tenth Circuit found Byron’s conduct disturbing, sloppy, and unorthodox, but did not find that the district court abused its discretion by denying sanctions.

Finally, the plaintiffs sought review of the district court’s taxation of costs against them. The Tenth Circuit noted that the district court never ruled on the costs issue; a clerk entered costs based on a magistrate judge’s memorandum. Plaintiffs had 14 days in which to object to the magistrate’s decision and failed to do so. The Tenth Circuit found it lacked jurisdiction over the issue.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Utah Products Liability Law Requires Defect to be Present at Time of Sale

The Tenth Circuit Court of Appeals issued its opinion in Birch v. Polaris Industries, Inc. on Wednesday, December 23, 2015.

Virl Birch purchased a 2011 Polaris RZR 800 off-road vehicle at the Victory Polaris dealership in St. George, Utah. In May 2011, he and his son took the vehicle for a ride and crashed, damaging the vehicle’s rollover protection system (ROPS). Moto Zoo Powersports in St. George estimated that repairing the ROPS and other damage would cost around $6,000. Unhappy with the figure, Mr. Birch contacted Skyler Damron, the Moto Zoo technician who had provided the estimate, about repairing the vehicle “off books” in Mr. Damron’s own garage. Mr. Damron agreed. Mr. Damron purchased a new roll cage for a 2008 Polaris RZR off Craigslist. Between 2008 and 2011, Polaris had made several changes to the design of the ROPS, and the ROPS for a 2008 RZR would not fit a 2011 RZR. Mr. Damron modified the ROPS so that it would fit Mr. Birch’s vehicle. In June 2012, Mr. Birch again crashed his vehicle. The ROPS buckled on impact, pinning him under it, and he died shortly thereafter.

Mr. Birch’s son and personal representative, Justin Birch, together with Mr. Birch’s wife and other two sons, brought suit against Polaris in the District of Utah, seeking damages for strict products liability, negligence, and breach of express and implied warranties. Under Utah state law, all three claims required proof that a product’s injury-causing defect existed at the time the product was sold. The district court set a December 16, 2013 deadline for amending pleadings and a fact discovery deadline of June 6, 2014. The parties engaged in substantial discovery, and on June 26, 2014, they jointly disassembled Mr. Birch’s vehicle, definitively discovering the modified roll cage.

On October 3, 2014, Polaris filed a motion for summary judgment on all plaintiffs’ claims. Polaris argued that Mr. Damron’s modifications had introduced into Mr. Birch’s vehicle a defect that had not previously existed, therefore plaintiffs’ claims were deficient as a matter of law. On October 31, 2014, plaintiffs filed both a response to the summary judgment motion and a request to amend the complaint. Plaintiffs sought to redefine the products at issue as both the 2011 Polaris RZR and the 2008 ROPS, and sought to add a claim that inadequate training was provided to Polaris service technicians. The magistrate judge denied plaintiffs’ motion in March 2015. On November 18, 2014, plaintiffs filed a Motion for Rule 56(d) Extension, requesting that the court delay ruling on the summary judgment motion so they could conduct more discovery regarding the replacement ROPS. The magistrate judge also denied this motion in March 2015. Plaintiffs promptly filed objections to the magistrate’s rulings.

The district court announced at the March 31, 2015 hearing that plaintiffs could not survive summary judgment because they could not prove “there was a defect in the product at the time and point of sale.” The district court pointed out that the case turned on the outcome of plaintiffs’ motion to amend. Evaluating the magistrate’s ruling under the “clearly erroneous or contrary to law” standard, the district court overruled plaintiffs’ objections. The district court found the magistrate judge had not clearly erred in finding plaintiffs failed to establish excusable neglect or good cause for their untimely motion to amend and had failed to file a proper motion for extended discovery. The court granted Polaris’ motion for summary judgment. Plaintiffs appealed, contending the district court applied the wrong standard and should instead have conducted de novo review. Plaintiffs also contended the court erroneously concluded they lacked sufficient justification for their delay in filing the discovery and amendment motions.

The Tenth Circuit first evaluated the legal standard, and found that the district court correctly applied the “clearly erroneous or contrary to law” standard to its review of the magistrate’s order. Because the ruling was non-dispositive and did not have an identical effect to a dispositive ruling, the district court correctly applied the “clearly erroneous” standard of review. Further, plaintiffs waived their right to argue for de novo review by affirming in district court that the “clearly erroneous” standard was applicable. The Tenth Circuit found no error in the district court’s application of the “clearly erroneous” standard.

Next, the Tenth Circuit considered whether the district court erred in denying the motion to amend. The Tenth Circuit noted that untimely filed motions to amend require a showing of good cause and the judge’s consent. In this case, the magistrate found that plaintiffs failed to establish excusable neglect or good cause for filing the motion to amend 11 months after the deadline to do so expired. The magistrate noted that even if the plaintiffs did not discover that the ROPS was intended for a 2008 model until the June 26, 2014 disassembly, there was no justification for the four-month filing delay after that time. The district court agreed with the magistrate that the plaintiffs failed to show adequate justification for the lateness of their motion to amend. The Tenth Circuit similarly found that plaintiffs asserted no justification in their appeal briefs for the months-long delay. The Tenth Circuit ruled that the district court’s Rule 16 analysis was not an abuse of discretion.

Turning next to the motion for additional discovery, the Tenth Circuit again found no error in the district court’s denial. Again, the magistrate found that plaintiffs failed to establish good cause and excusable neglect due to its months’ long delay in filing its request for further discovery. The Tenth Circuit found no error, agreeing with the district court that the plaintiffs were not entitled to F.R.C.P. 56(d) relief because they failed to submit a sufficiently detailed affidavit.

Finally, the Tenth Circuit affirmed the district court’s grant of summary judgment to Polaris. The Tenth Circuit found that the district court correctly concluded there was no genuine dispute that the product as sold did not contain an injury-causing defect. Plaintiffs could not prevail under Utah products liability law because the defect was not present in the vehicle at the time of sale.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: No Error in Delay Between Request and Delivery of Records

The Colorado Court of Appeals issued its opinion in Madrigal v. City of Aurora on Thursday, May 22, 2014.

Colorado Criminal Justice Records Act.

In July 2011, an Aurora Police Department (APD) officer shot and killed plaintiffs’ husband and father, Juan Contreras, in a parking lot. Pursuant to the Colorado Criminal Justice Records Act (CCJRA), plaintiffs requested from the City of Aurora (City) various records pertaining to this incident. The City initially denied inspection of the records and failed to respond to plaintiffs’ subsequent request for a written statement of the grounds for the denial. On plaintiffs’ application, the district court issued an order directing the City to show cause why it should not permit inspection. The City ultimately disclosed almost all of the records requested. The court determined that the City did not abuse its discretion either in delaying release of the records disclosed or in denying release of the records not disclosed until after the conclusion of the criminal investigation.

On appeal, plaintiffs contended that the district court erred in determining that the City did not abuse its discretion in handling their records request. The City (or, more precisely, the official custodian of the records) did not abuse its discretion in delaying the release of the records for ten months, pending the completion of the criminal investigation into Contreras’s death. Furthermore, the plain language of the statute did not authorize the district court to order the custodian to pay court costs, attorney fees, or penalties. Therefore, the court did not err in denying plaintiffs request for sanctions.

Summary and full case available here.

SB 14-213: Increasing Statutes of Limitations for Civil and Criminal Proceedings Against a Person Who Leaves Scene of Vehicular Homicide Accident

On April 24, 2014, Sen. Michael Johnston introduced SB 14-213 – Concerning Increasing the Statutes of Limitations for Commencing Proceedings Against a Person Who, After Committing a Vehicular Homicide, Leaves the Scene of the Accident, and, in Connection Therewith, Requiring a Post-enactment Review of the Implementation of this Act. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In current law, the statute of limitations for bringing a criminal proceeding against a person who commits vehicular homicide is five years. For offenders who also leave the scene of the accident, the bill changes this limit to 10 years.

In current law, the statute of limitations for bringing a civil suit for wrongful death is two years. The bill changes this limit to four years for a wrongful-death suit against a defendant who committed vehicular homicide and, as part of the same criminal episode, committed the offense of leaving the scene of an accident that resulted in the death of a person.

Five years after the bill becomes law, the legislative service agencies shall conduct a post-enactment review of the implementation of the bill and report their conclusions to the judiciary committees of the house of representatives and senate, or any successor committees.

On April 30 the Judiciary Committee approved the bill and sent it to the Appropriations Committee. The Appropriations Committee approved the bill on May 11. The bill cleared 2nd Reading in the Senate on Friday, May 2.

Since this summary, the bill passed the Senate on Third Reading with no amendments. It was introduced in the House, where it was assigned to the Judiciary Committee. The Judiciary Committee referred the bill, unamended, to the Appropriations Committee, which referred it, unamended to the House Committee of the Whole. The bill passed the House on Second and Third Readings with no amendments.

Colorado Court of Appeals: Avalanche is Inherent Risk of Skiing Under Ski Safety Act

The Colorado Court of Appeals issued its opinion in Fleury v. IntraWest Winter Park Operations Corp. on Thursday, February 13, 2014.

Ski Resort—Avalanche—Wrongful Death—Negligence—Inherent Risk—Ski Safety Act.

This case arose from the death of Christopher Norris, who was killed by an avalanche while skiing on a run known as Trestle Trees/Topher’s Trees (Trestle Trees) at Winter Park Resort, which is operated by IntraWest Winter Park Operations Corporation(IntraWest). Norris’s wife, Salynda E. Fleury, individually and on behalf of her minor children, asserted claims for negligence and wrongful death. The district court granted IntraWest’s motion for determination of law and judgment on the pleadings, ruling that an avalanche is an inherent danger or risk of skiing under the Ski Safety Act (Act) and therefore IntraWest was not liable for Christopher Norris’s death.

On appeal, Fleury contended that the district court erred in determining that the avalanche was an inherent risk of skiing under the Act. The Act provides examples in defining the inherent dangers and risks of skiing; however, this list in not exclusive. Giving effect to the plain meanings of the words in the Act, an avalanche fits the definition of inherent dangers and risks of skiing.

Fleury also argued that IntraWest was liable for her husband’s death because it failed to close Trestle Trees and failed to warn skiers about the avalanche danger on the day he was killed. The Act enumerates specific sign requirements and does not require ski area operators to warn skiers of possible avalanches or to close slopes with avalanche danger. Therefore, IntraWest was under no duty to post a warning sign at Trestle Trees or to close it on the day in question. Therefore, the district court properly dismissed Fleury’s claims against IntraWest, and the judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Surviving Spouse’s Settlement of Wrongful Death Claim Precludes Son’s Filing of Identical Claim

The Colorado Court of Appeals issued its opinion in Barnhart v. American Furniture Warehouse Co. on Thursday, November 21, 2013.

Wrongful Death Act—Summary Judgment—Claim of Heir if Spouse has Settled.

On January 19, 2011, Mildred Fernandez sustained injuries in an American Furniture Warehouse (AFW) store. She died shortly thereafter. She was survived by her husband and son.

Husband’s counsel informed AFW’s insurer that he had been retained and would be asserting a wrongful death claim under Colorado’s Wrongful Death Act (Act). In December 2011, husband agreed to settle his claim in return for $400,000, and executed a release of all claims against AFW.

Son then brought an action, also asserting a wrongful death claim under the Act. AFW moved for summary judgment on the ground that son’s claim was barred by the Act’s limitation that “only one civil action” may be brought for recovery of damages for the wrongful death of one decedent. The district court granted the motion.

On appeal, son argued that his claim was not barred because husband’s settlement was not an “action” within the meaning of CRS § 13-21-203(1)(a). The Court disagreed.

The Act provides that a decedent’s surviving spouse has the exclusive right to bring an action under the Act within the first year after the date of death. During the second year, a decedent’s spouse and heirs have equal rights to bring an action. However, only one civil action may be brought to recover damages for the wrongful death of any one decedent.

Husband settled his claim without filing suit. Son argued that only a spouse’s lawsuit or settlement of a lawsuit can bar a subsequent claim under the Act. Based on the plain language of the statute, the Court agreed with son that an “action” is commonly regarded as referring to a judicial proceeding. However, this limiting interpretation would lead to an absurd result. Son offered no rational reason why the General Assembly would have intended to treat pre-litigation and litigation settlements differently, and none was apparent to the Court.

The Court concluded that a beneficiary with the primary right of action has the power to settle his claim with or without filing suit and that such settlement is binding on all other beneficiaries. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Doctrine of Res Ipsa Loquitur Shifted Burden of Proof to Defendant in Negligence Case

The Colorado Court of Appeals issued its opinion in Harner v. Chapman, MD on Thursday, December 27, 2012.

Medical Malpractice—Res Ipsa Loquitur Doctrine—CRE 301.

Plaintiff Carolyn Harner appealed the judgment entered in favor of defendant Dr. James Chapman, as well as the denial of her motion for post-trial relief. The judgment was reversed and the case was remanded for a new trial.

This medical malpractice case arose out of the death of Harner’s husband, who died several hours after undergoing an angiogram performed by Chapman, a cardiologist. Harner’s principal argument was that the trial court erred in failing to instruct the jury that the res ipsa loquitur doctrine shifted to Dr. Chapman the burden of proving by a preponderance of the evidence that he was not negligent. The trial court concluded that the res ipsa loquiturdoctrine applied, but that the ultimate burden of proof remained with Harner pursuant to CRE 301. However, CRE 301 does not supersede the doctrine of res ipsa loquitur. Accordingly, the trial court erred in refusing to instruct the jury that the res ipsa loquitur doctrine shifted the burden of proof to defendant. Because the question of who had the ultimate burden of proof may well have been dispositive in this case, the error was not harmless. Therefore, the judgment was reversed and the case was remanded for a new trial.

Summary and full case available here.