Monthly Archives: December 2013

S.W., a minor by and through, David Wacker; and Rhonda Wacker v. Towers Boat Club, Inc., 2013CO72 (Dec 23, 2013)

“It’s innocence when it charms us, ignorance when it doesn’t.” Mignon McLaughlin. A child “licensee” (invited guest) was severely injured while playing on a bungee run. The opinion addresses the interplay between Colorado’s premises liability statute CRS 13-21-115, the common law doctrine of attractive nuisance, and whether the common law applies to all types of child entrants on land or, as the court of appeals held, only to trespassers. The Court concluded the doctrine applied to all children because the common law (incorporated into the statute) did not make a distinction. If the object attracted the child and caused injury, the doctrine applies. The dissents’ perspective differed. Justice Eid argued the child should be treated as a licensee. In Justice Marquez’s view, the object’s attraction causes a child to trespass, and thus the doctrine only applies to trespassers.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC391.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9200&courtid=2

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Filed under Personal Injury, Torts

Court of Appeals reversed in S.W. ex rel. Wacker v. Towers Boat Club, Inc.

Below is a reproduction of the Court’s Advance Sheet Headnote.  A full CLR summary and post will follow.

No. 12SC391, S.W. ex rel. Wacker v. Towers Boat Club, Inc. – Attractive Nuisance – Section 13-21-115, C.R.S. (2013).

 In this attractive nuisance case, the Colorado Supreme Court considers whether, under Colorado’s premises liability statute, section 13-21-115, C.R.S. (2013), the attractive nuisance doctrine applies only to trespassing children but not to licensees or invitees. The Supreme Court holds that the doctrine permits all children, regardless of their classification, to bring a claim for attractive nuisance. The Supreme Court therefore reverses the judgment of the court of appeals because it erroneously held that the attractive nuisance doctrine only protects trespassing children.

A link to the Supreme Court’s decision is HERE. 

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Filed under Commentary, Personal Injury, Torts

Jennifer Hansen v. American Family Mutual Ins. Co. 2013COA173 (Dec. 19, 2013)

Twice the covered benefits plus attorneys’ fees and costs is what an insurance company must pay if it acts in bad faith when deciding an uninsured or underinsured insurance claim under CRS 10-3-1116. In this case, the claimant/plaintiff was awarded $0 damages on a statutory bad faith claim, but ultimately recovered three times the amount of UIM coverage available under the policy: double for statutory bad faith and a third under the settlement of a bad faith breach of contract claim. The court of appeals affirmed. First, it held that the policies were ambiguous on the identity of the insured, allowing the jury to conclude claimant was an insured. Then it held that even if the question of coverage was fairly debatable, delay or denying coverage was not necessarily reasonable. And finally, a successful statutory claim independently entitles a claimant to double the covered benefits.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/11CA1430-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9194&courtid=1

 

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Filed under Contracts, Insurance, Personal Injury

People v. Robert Clyde Crouse, 2013COA174 (Dec. 19, 2013)

“The [Medical Marijuana] Amendment does not require patients to do anything.” – Opinion. This is a forfeiture case arising from a criminal prosecution. Defendant was arrested for possessing marijuana; the police seized his pot and plants. Defendant was acquitted and requested the return of his pot.  The trial court ordered the police to return the pot, which they did, over the objection of the prosecution. The DA appealed. Colorado’s Constitution Art. XVIII sec 14(2)(e) requires the return of pot seized from a patient if a jury acquits the patient of charges arising from the seized marijuana. The DA argued that returning pot under CO law was preempted as an obstacle to the federal Controlled Substances Act. The court of appeals affirmed the to order to return the pot.  Federalism does not allow the federal government to require states to seize and hold marijuana, thus, no preemption.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA2298-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9195&courtid=1

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Filed under Constitutional, Government