COLORADO SELECT CASE LAW UPDATE

Colorado Court of Appeals

Giron v. Hice. Lights, camera, then chase the bad guy or else you are liable—2022COA85 (7/28/22). Under Tidwell v. City & County of Denver, 83 P.3d 75 (Colo. 2003), the Supreme Court held that Colorado governmental immunity could be waived when an operator of an emergency vehicle is in pursuit of an actual violator of the law. One issue that remained was Defendant’s emergency lights were only being activated for five or 10 seconds prior to the collision. That court concluded if an officer and public entity want governmental immunity, the officer must activate lights or a siren when exceeding the speed limit. It’s not enough to activate lights or sirens sometime after the speed limit is exceeded. The vehicle’s emergency lights or sirens need to be activated at all during that pursuit.

Scholle v. Ehrichs, et al. An extensive and comprehensive opinion on medical cap limits of interest that should be read—2022COA87 (7/28/22). A 2-1 decision, so we have not heard the last of this case. Among other things, the Court of Appeals considered whether the trial court abused its discretion in entering a judgment in excess of the Health-Care Availability Act’s $1 million damages cap. The COA held that in entering judgment in excess of the damages cap, the trial court did not consider that the injured party would not have to repay any third-party providers or payers for approximately $6 million in past medical expenses and reversed the trial court.

Nation SLP, LLC v. Bruner. Forum non conveniens is not a final judgment—2022COA76 (07/14/22). Does another jurisdiction’s dismissal of an action on forum non conveniens grounds have a preclusive effect on a similar action brought in Colorado courts? The Court of Appeals concludes that, because a forum non conveniens dismissal is not a “final judgment on the merits,” the doctrine of issue preclusion does not bar litigating the case in Colorado.

Leonard v. Interquest. Expansion of CORA approved by Court—2022COA78 (07/14/22). The operative holding in this case is that when a public entity has a contractual right to access documents from a third party, that entity has “direct[ed] [the third party] to have care, custody, or control of the document[s].” The Court of Appeals concluded that if the documents are used for a public purpose, as they were here, the documents are public records within the meaning of the Colorado Open Records Act (CORA), and the public entity must produce those documents upon a proper CORA request.

Galef v. University of Colorado. A wet mopped floor may be a dangerous condition—2022COA91 (08/04/22). For a slip-and-fall tort claim under the Premises Liability Act against the University of Colorado, the Court of Appeals considers whether the University has waived its sovereign immunity for a “dangerous condition of any public building.” Specifically, the division considers whether a “dangerous condition” exists when the University failed to post a “wet floor” sign or otherwise warn that a recently mopped dormitory staircase because it was imperceptibly wet and slippery. The Court first concluded that the University’s failure to warn the plaintiff of a hazard it created by mopping can constitute a “dangerous condition,” as it is a “negligent … omission … [in] maintaining” the dormitory that is not attributable solely to the inadequate design of the staircase. The Court then concluded that the imperceptibly wet, slippery stairs—together with the University’s failure to warn of them—“constitute[d] an unreasonable risk to the health or safety of the public” under the definition of “dangerous condition” as it’s been interpreted by the supreme court.