“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.
Tag Archives: Negligent Supervision
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.
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.