Category Archives: Evidence

Westin Operator, LLC v. Jillian Groh, through her guardians and conservators William and Janelle Groh, 2015CO25 (April 13, 2015)

“A reasonable person could foresee that a group of intoxicated individuals evicted from a hotel might be involved in a drunk driving accident that causes injuries.” Opinion. The Court affirmed the court of appeals’ ruling that hotels owe guests a duty of care not to evict them into a foreseeably dangerous environment, taking into account the guest’s physical state and the conditions into which she is evicted, including the time, surroundings and weather. Liability is limited by challenging the causal connection to the injury or by blaming other contributing factors. Whether an act caused an injury is fact-specific making summary judgment for the hotel improper. The dissent agreed the duty existed. But here, the plaintiff walked past two taxis. If the availability of alternative transportation is not sufficient to grant summary judgment for the hotel, then all cases go to a jury.

https://www.courts.state.co.us/Courts/Supreme_Court/Case_Announcements/Files/2015/063589APR.13.15.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9733&courtid=2

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Jason Kelly MD and Mauricio Waintrub MD v. Vasilios Haralampopoulos, 2014CO46 (June 16, 2014)

While the term “treatment” has a prospective focus, the term “diagnosis” does not. – Opinion. After an ER visit, Patient was left brain dead. Afterwards, his roommate asked a doctor if past cocaine use could have been a cause. At trial, roommate’s statement to the doctor was the focus of the defense case. The trial court admitted the evidence and doctors won. The court of appeals held the admission of drug-use evidence was error. The Court disagreed, holding that CRE 803(4), the medical diagnosis or treatment hearsay exception, applied. Statements offered to determine the nature, source or cause of a condition, which also describe medical history and are pertinent to the diagnosis, are excepted, as in this case. No further inquiry into roommate’s motives was required, nor was subjective reliance by the doctor. And, though prejudicial, the statements were not unfair. Doctors win.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC889.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9398&courtid=2

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Filed under Evidence, Personal Injury

New C.R.E. 803(10), effective February 18, 2014.

Here is the revised Colorado Rule of Evidence 803(10). No other changes were made to the rule. This conforms Colorado’s Rule to the Federal Rule

RULE CHANGE 2014(3)

Colorado Rules of Evidence

Rule 803.  Hearsay Exceptions: Availability of Declarant Immaterial

 The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

 (1) through (9) [NO CHANGE]

(10)   Absence of public Record. Testimony – or a certification under  Rule 902 – that a diligent  search   failed to disclose   a public  record  or  statement  if:

(A) the testimony   or certification  is admitted   to prove  that

        (i) the record or statement does not exist; or

        (ii) a matter  did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

 (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice – unless the court sets a different time for the notice or objection.

 The Committee recommended adoption of this amended version of C.R. E. 803( 10) to follow the identical amendment to F.R.E. 803(10) which took effect on December l, 2013.

( 11) through (18) [NO CHANGE]

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Annette Berenson v. USA Hockey and Colorado Ice Hockey Referees Association, 2013COA138 (Oct. 10, 2013)

“They’re saying it’s because I agreed to the latest terms and conditions on iTunes!” Kyle Broflovski – South Park. If you click “I Agree” to an online waiver, can they prove it? The Best Evidence Rule codified in CRE 1002 states that to prove the contents of a writing, the original writing is required, unless an exception applies. An amateur female hockey player registered online to play in a league online, was injured, and sued the league. The league claimed she released her claims, but did not provide the release and did not claim an exception. Instead, it submitted an affidavit stating a waiver had to be initialed to complete online registration; she had registered; so she must have released her claims. The court, over a dissent, held that because the terms of the contract were not in dispute, the original contract was not required, and thus the league’s affidavit was admissible.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1013-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9104&courtid=1

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Filed under Contracts, Evidence, Personal Injury

Mauro v. State Farm Mutual Auto Insurance, 2013COA117 (Aug. 1, 2013)

“If the interest of the absentee is not represented at all, or if all existing parties are adverse to him, then he is not adequately represented.” Opinion. In a personal injury case, the parties moved for a protective order to keep certain records confidential. State Farm, defendant’s insurer, moved to intervene and oppose the order. The trial court denied the motion, but the court of appeals reversed. The court agreed with State Farm that: 1) its record-keeping obligations under state law gave it an interest in the outcome of the protective order; 2) there was no other venue in which State Farm could challenge the order; and 3) its interests were not protected by counsel for the insured, even if that counsel was hired by State Farm. The court did not, however, rule on the merits of the protective order. Instead, State Farm was permitted to intervene on remand.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1509-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9047&courtid=1

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Just In Case Business Lighthouse, LLC, v. Patrick Murray, 2013COA112 (July 18, 2013)

“Integrity has no need of rules.” Albert Camus. There is no question that paying a testifying witness a contingent fee based on the outcome of the case is prohibited. But such evidence is not excluded per se. The court of appeals came to that conclusion because trial courts have discretion to admit testimony generally. Next, the court of appeals determined that the paid witness was properly permitted to summarize evidence already admitted into the record without violating CRE 602. Similarly, the witness’s summary exhibits were properly admitted, again because they were based on admitted evidence. Moving on, it held that a nonparty at fault could not be designated based on vicarious liability alone. The court then upheld the trial court’s decisions 1) to deny a directed verdict on a fraud claim and the economic loss rule and, 2) found a CRE 701 objection was not preserved for appeal.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1261-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9033&courtid=1

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Filed under Appellate Review Challenged, Attorney Regulation, Contracts, Evidence, Torts

William G. Strudley and Beth E. Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, 2013 COA 106 (July 3, 2013)

“Coal seam gas stinks.” – Anti-fracking poster. In this case, home-owner Plaintiffs sued four oil and gas companies claiming pollutants from drilling activities at three well sites contaminated their air, water, and land around their home. The trial court issued a modified case management order that required Plaintiffs to make a prima facie case in support of their toxic tort claims before discovery began — commonly called “Lone Pine” orders. Plaintiffs produced evidence of well water contamination and expert reports, but not evidence that the drilling caused their injuries. The trial court dismissed with prejudice. The court of appeals reversed because: 1) trial courts lack discretion under CRCP 16(c) to issue such orders; 2) the case was not complex or extraordinary enough to depart from normal procedure; and 3) existing procedures protect against meritless claims.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1251-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9023&courtid=1

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James C. Smith and Dona Laurita, v. Alan W. Kinningham and Accelerated Network Solutions, Inc., 2013COA,103 (July 3, 2013)

After all these years, rear-end car accidents still produce new law. Here, the court of appeals held that evidence of Medicaid benefits were properly excluded by the collateral source rule. Under CRS 10-1-135, any collateral source payment is excluded from evidence. Medicaid payments are a collateral source, and the statute abrogated the common law “gratuitous government benefits exception.”  Plaintiffs’ claims against ANS, the company insuring the car, were dismissed; thus, ANS as the prevailing party was entitled to costs but not fees because the claims were not frivolous. The remaining issues got short shrift: 1) the sudden emergency doctrine has been abolished; 2) a party who requests a hearing on costs is entitled to one; 3) Plaintiffs were awarded appellate fees because Defendants frivolously argued for a new trial under CRCP 59 based on a requirement that did not exist.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0156%20&%2012CA0157-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9020&courtid=1

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Rodney Asmussen and Linda Asmussen, For Themselves and As Representatives of a Class of Similarly Situated Persons v. United States, 2013CO54 (July 1, 2013)

“Utilizing the abandoned rail bed of the Great Western Railroad [GWR], the trail will preserve this historic right-of-way through the “rail banking” provisions of the federal Rails to Trails legislation.” – Great Western Trail Authority. This case questions whether a landowner whose property abuts the GWR is presumed to own property to the centerline of the rail bed. If so, creating the right-of-way could be a 5th Amendment taking. The Court held that the centerline presumption applies to railroad rights-of-way in Colorado and that it is a common law rule of conveyance, not a rule of evidence. But, the presumption applies only if a property owner can trace title to a grantor who owned the land underlying the right-of-way. The burden of proving title to land is on the person alleging ownership. Thus, owning adjacent land is not sufficient alone to apply to the centerline presumption.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA96.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9013&courtid=2

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Filed under Constitutional, Evidence, Government, Property

Lynda S. Gibbons, Brent Wilson, and Gibbons-White, Inc., v. Gregory T. Ludlow, S. Reid Ludlow, and Jean E. Cowles, 2013CO49 (July 1, 2013)

“He who lives by the crystal ball soon learns to eat ground glass.” – Edgar R. Fiedler. In this case, the Court held that recovering damages for the bad advice of a transactional real estate broker requires proof of what would have happened but-for the bad advice. Analogizing to legal malpractice claims, the Court noted that a plaintiff must show either that he: 1) would have been able to obtain a “better deal” or 2) would have been better off with “no deal.” Both require proof that the professional’s negligent acts or omissions caused the client damages. Here, Plaintiff claimed lost profits as damages, requiring proof of either the amount of the profits that would have been earned or the fact that profits would have been earned. Plaintiff had an appraisal. The appraisal wasn’t proof a future sale of the property would have been better or different than the actual sale. Dismissal affirmed.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC899.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9011&courtid=2

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Filed under Evidence, Property, Torts