A massive fire started by a burglar burns down a warehouse. The burglar alarm system failed. The owner and its insurers sue the security company. The trial court dismissed all claims and plaintiff appealed to the court of appeals; the contract claims survive but the court finds that a limitation of liability provision did not limit a willful and wanton breach of contract. The security company loses at trial and brought this second appeal, challenging the prior appellate decision, the exclusion of its experts, and the refusal to designate the burglar as a nonparty at fault. Here, the court addressed and confirmed its prior decision notwithstanding the “law of the case,” but reversed for a new damages trial. The exclusion of the experts was not harmless because their testimony was central to damages. But, the nonparty at fault statute only applies to torts, not contract claims.
Monthly Archives: July 2012
Colorado Medical Society and Colorado Society of Anesthesiologists v. John Hickenlooper, Governor of Colorado, and Colorado Association of Nurse Anesthetists; Colorado Nurses Association; and Colorado Hospital Association, 2012COA121 (July 19, 2012)
“The best doctor is the one you run to and can’t find.” Denis Diderot. In this case, anesthesiologists challenged a decision by the Governor to opt out of a federal regulation that requires certified registered nurse anesthetists (CRNAs) administering anesthesia to be supervised by a physician. The court of appeals first held the doctors had standing to bring their claims based on harm to their reputations and value of their licenses, as well as third-party standing to protect their patients. The political question doctrine didn’t bar review either. The court then held that Colorado law permits CRNAs to administer anesthesia without supervision by a physician. It reasoned that under CRS 38-12-103 and 12-38-111.5, CRNAs who administer anesthesia are conducting independent nursing functions and not a “delegated medical function.” The Governor’s opt-out decision was upheld.
UPDATE: The Colorado Supreme Court granted certiorari in this case on October 7, 2013.
A public hospital can wantonly kill but can’t be sued. In this case, a patient goes to CU’s hospital for monitoring of his epileptic seizures. Concerned, his family asks if they should stay with him. A staff member told them the patient would be monitored full time. He wasn’t, suffered a seizure, and died. The family sued and claimed the hospital and its employees consciously disregarded the danger. The court of appeals held that the hospital itself was immune from suit under the CGIA, even if it acted in a willful and wanton manner; its employees, though, were not immune. But wanton conduct must be alleged with specific facts (“upon information and belief” is fine) showing the defendant was consciously aware of a danger and acted or failed to act without regard for that danger. Here, only allegations against a doctor were sufficient and could go forward. All other claims were dismissed.
To encourage services to assist developmentally disabled persons, the Colorado Legislature enacted a law that provides immunity in any civil action for failure to predict, prevent, warn or protect against the violent, assaultive, disorderly, or harassing behavior of a developmentally disabled person. In this case, a service provider left his charge unsupervised with his own son. The disabled person then allegedly assaulted the son, was arrested, but found incompetent to stand trial. The parents of the disabled person sued the service provider individually for his failure to supervise their son, to provide one-on-one services, and to provide a reasonably safe environment. They sued the employer for failure to train their employee. Because plaintiff’s claims were based on the failure to predict or prevent the assaultive behavior, the provider was immune from liability.
A nine year old elementary school student suffered a compound fracture of her arm when she fell off a “zip-line” that was part of the public school’s playground equipment. The child and her parents sued. The school claimed, and the trial court agreed, that it was immune from the claim as a governmental entity. However, public entities can be sued if injuries result from a dangerous condition of a “public facility” maintained by a public entity. The court of appeals concluded, apparently for the first time, that public school playground equipment was a “public facility.” It was “public” because it was visible to all and not secluded. It was a “facility” because it was man-made, a mechanical device, and installed for children to play upon. The school, therefore, was not immune to a “public facility” claim. The school was, however, immune from the negligent supervision claim.
“Nonmutual offensive issue preclusion” (NOIP) sounds like the kind of issue that would come out of a fight at a college party. It did. This case clarifies the requirements for asserting a NOIP: the usual elements plus 4 more: 1) did the claimant “wait and see?” 2) was there a prior incentive to litigate the issue? 3) would it be inconsistent with another decision? and 4) are there procedural protections in place? This case also warns litigators about timeliness and foresight – it’s important to bring a NOIP claim to court ASAP. In the trial court, Plaintiff lost his negligence and battery claims although defendant pled guilty in a criminal case. But he lost his appeal by waiving claims, not preserving issues for appeal, and inviting error.