Spring Case Update

Colorado Case Law Update
Ruebel & Quillen, LLC

COURT OF APPEALS

Banning v. Prester – Court of Appeals holds that duty to mitigate does mean a duty to cease ineffective medical treatment (CA 12/27/13). Prester negligently drove his vehicle, causing a low-speed rear-end collision with Banning’s vehicle. Banning sought medical attention for neck and back pain, ultimately resulting in huge medical damages. On appeal, the Court of Appeals reversed the verdict, stating that injured parties do not have an affirmative duty to cease medical treatment when it is “expensive” and “fails to resolve a complaint of pain” and thus so instructing the jury was error.  

Harner v. Chapman, MD. – Court of Appeals reluctantly affirms that res ipsa doctrine shifts the burden of proof (CA 12/27/13). 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. The trial court concluded that the res ipsa loquitur doctrine applied. The Court of Appeals reluctantly held that the trial court erred in refusing to instruct the jury that as a result of the res ipsa loquitur doctrine applying, the burden of proof shifted to the defendant.

BSLNI, Inc. v. Russ T. Diamonds, Inc. – Court of appeals holds expert testimony not needed where issue is within the realm of common knowledge (CA 12/06/12). BSLNI orally contracted with Diamonds to cut concrete from the deck of a bridge into sections so that BSLNI could remove the concrete in blocks. BSLNI sued for breach of contract, and since its claim did not rely on Diamonds violating an industry or professional standard of care but was rather within the realm of common knowledge, BSLNI was not required to prove an industry standard of care by expert testimony.

Collard v. Vista Paving Corp. – Court of Appeals holds contractor has duty to third parties after it leaves the job site (CA 11/21/12). Vista was hired to construct two road medians. It completed the medians, and the City affirmed Vista was no longer responsible for traffic control upon completion of its work. Five days later, Collard collided with the medians, totaling her vehicle and suffering injuries. She was cited for careless driving, but nonetheless sued, asserting Vista breached its duty to her when it created a hazardous condition by leaving the construction site without safety signage. The Court of Appeals held that when a road contractor such as Vista completes its contracted work and then leaves the site in a dangerous condition as a result of its work, it has a tort duty to third parties for a reasonable period of time thereafter to either eliminate the condition or to warn foreseeable users of the dangers, even if its work has been accepted by the owner or other contracting party. The Court did state the duty would be abrogated under some circumstances.

Colorado Pool Systems, Inc. v. Scottsdale Insurance Company – Court of Appeals applies three prong test for CGL coverage of construction claims; finds reliance on representation of coverage can overcome proof element of misrepresentation claim notwithstanding insured’s knowledge of policy’s terms (CA 10/25/12).  The Court of Appeals held that a builder is covered under a commercial general liability (CGL) policy for damages that arose from the builder’s own improper or faulty workmanship if (1) it is not specifically excluded in the policy; (2) the resulting damage was to non-defective property; and (3) the damage was caused without expectation or foresight. The Court also held that although plaintiffs may be charged with full knowledge of the policy’s terms, that knowledge does not mean they were unjustified in relying on the adjuster’s alleged misrepresentations where the terms of the policy were ambiguous.

Legro v. Robinson – Negligence claim pre-empted by Premise Liability Act, but PLA does not preclude statutory dog bite claim (CA 10/25/12). Renee Legro was in a bicycle race when she was attacked by two of the defendants’ predator control dogs and sustained significant injuries. The trial court dismissed her negligence claim, holding that the Premises Liability Act pre-empted the tort claims, but held that the ‘dog bite statute’ was not abrogated by the PLA.

Groh v. Westin Operator, LLC. – Court of Appeals holds hotel owes no duty to inebriated, evicted patron subsequently involved in motor vehicle accident (CA 11/01/12) Groh and eleven of her friends spent an evening visiting bars and consuming alcohol. After the bars closed, the group gathered in a hotel room, but was evicted for disturbances. Driving home, their vehicle crashed into a slow-moving vehicle towing a vehicle with a flat tire. On appeal, the Court held that while a special relationship, such as innkeeper to guest, supports a claim of nonfeasance, once an individual ceases to be a guest of a hotel the special relationship is terminated.

SUPREME COURT

Bedor v. Johnson. – Supreme Court abolishes sudden emergency doctrine (SC 01/22/13). The Supreme Court held the trial court incorrectly instructed the jury on the sudden emergency doctrine because competent evidence did not support the decision. The Court then took the opportunity to abolish the sudden emergency doctrine going forward because of the doctrine’s potential to mislead the jury greatly outweighs its minimal utility.