“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.
Tag Archives: Negligence
Lynda S. Gibbons, Brent Wilson, and Gibbons-White, Inc., v. Gregory T. Ludlow, S. Reid Ludlow, and Jean E. Cowles, 2013CO49 (July 1, 2013)
“Listen, this old system of yours could be on fire and I couldn’t even turn on the kitchen tap without filling out a 27b/6.” Harry Tuttle – Brazil. In this case, Defendant’s employee, while repairing a cooling system, caused a tank of ammonia to explode, causing property damage. Plaintiff sued in tort, not breach of contract. The court of appeals affirmed dismissal under the economic loss rule (ELR). No tort duties existed outside of the repair contract because Plaintiff could have sought consequential damages, equal to tort damages, even with a limitation-of-liability clause. Though ammonia is toxic, the standard of “reasonable care” in tort law is the same as “prudent and workmanlike” because Colorado does not recognize a distinct “highest” degree of care. The court also held that ELR applies to property damage and negligent supervision is not a distinct tort claim.
William P. Settle and Corinna Settle v. Janet M. Basinger, M.D. and Rio Grande Hospital, 2013COA18 (February 28, 2013)
“O Captain! my Captain! our fearful [intubation] is done” – Walt Whitman. Two nurses and a doctor made a number of failed attempts to intubate a Patient prior to an Air Life transport. The attempts injured Patient’s throat who sued, among others, the ER doctor and hospital who handed him off to Air Life staff. Plaintiff appealed partial summary judgment in favor of hospital and ER doctor on issues of vicarious liability and certain evidentiary rulings at trial. The court of appeals held: 1) the “captain of the ship” doctrine does not apply to ER doctors and 2) negligent supervision cannot be brought under vicarious liability doctrines. The court also upheld the exclusion of facts plaintiff sought to use for impeachment, including the medical history of the ER doctor and that both the defendant and an expert witness were insured by the same carrier. Trial court’s rulings were affirmed.
Owning a nightclub is so full of drama there is a reality TV show about it. This case starts with a bar fight, but ends with a lawsuit against an insurance broker. A Bar’s Patron is injured during a fight and sues. Bar’s insurance policy had an assault and battery exclusion and denied coverage. Bar didn’t think its policy had the exclusion, so Bar sued Broker. Bar settles with Patron and executes a “Bashor” agreement, assigning any proceeds from Bar’s claims. But the claims against Broker are dismissed because of the assignment. The court of appeals held: 1) Broker must show the settlement was unreasonable, 2) Bar could still claim assigned damages, 3) Broker’s failure to obtain the insurance requested gave rise to a negligence claim, and 4) that claim was assignable because it was a commercial, not personal transaction. Summary Judgment for Broker reversed and the case was reinstated.
The Sudden Emergency Doctrine is now abolished in Colorado. So held the Supreme Court in this case. This decades-old doctrine instructed that people confronted with a sudden unexpected circumstance are not required to use the same judgment as under normal circumstances. In 2011, the Court seemed to re-affirm the doctrine. But, as pointed out in one dissent, nothing has changed since 2011. The doctrine of stare decisis would normally maintain the established rule; but not here. The facts were this: car slid on a patch of ice and hit another car. The jury was given the sudden emergency instruction and found for Defendant; the court of appeals affirmed. After finding it was an error to give the instruction, the Court abolished the rule. Noting that juries already assess the reasonableness of actions under the circumstances, the Court held it is no longer useful and may be misleading.