Hernandez v. City & County of Denver, 2018 WL 5074557
Stella Hernandez sued Deputy Sheriff Tracey Dodson and other Denver Detention Center employees for personal injuries she sustained while incarcerated. In her Complaint, Ms. Hernandez advances allegations of negligence, as well as willful and wanton conduct.
Public employees are generally immune from tort liability for personal injuries under the Colorado Governmental Immunity Act (the “Act”), sections 24-10 101 to -120, C.R.S. (2018), so long as certain criteria are met. First, the act or omission causing the injury must occur within the scope of the employee’s employment. Second, the act or omission must not be willful or wanton in nature. The court found Deputy Sheriff Dodson’s conduct satisfied both criterium and dismissed the claims against her. Ms. Hernandez appealed.
Order vacated and case remanded with directions. The Act does not apply to injuries arising from a public employee’s negligent operation of a jail. As such, Deputy Sheriff Dodson was not immune from Ms. Hernandez’s lawsuit.
Estate of Daniel Brookoff, M.D. v. Clark, 2018 WL 4656443
Alexander Clark filed a medical malpractice lawsuit against the estate of his deceased pain management doctor, Daniel Brookoff, M.D. (the “Estate”). Mr. Clark claims Dr. Brookoff’s negligence in prescribing ketamine caused him to sustain neurological and urological injuries.
Prior to trial, the Estate filed a motion to preclude Mr. Clark and his mother from testifying about conversations they had with Dr. Brookoff. The court granted this motion, finding Colorado’s Dead Man’s Statute, section 13-90-102, C.R.S. (2018), made the testimony inadmissible as a matter of law. The statute prohibits both a party and a person in interest with a party from testifying about statements made by someone who is (a) now deceased, or (b) otherwise incapable of testifying. The statute currently applies to all types of civil litigation, and it is subject to limited exceptions no applicable to this case.
The Estate won at trial and judgment was entered in its favor. Mr. Clark appealed, alleging the court erred in prohibiting him and his mother from testifying about their conversations with Dr. Brookoff. The appellate court agreed, holding the Dead Man’s Statute did not apply to an action against an estate, such as the one here, where insurance is available to prevent the estate from being diminished. Thereafter, the Estate filed a petition for a writ of certiorari with the Colorado Supreme Court.
Reversed. The appellate court erroneously applied an obsolete exception to the Dead Man’s Statute. The statute applies regardless of whether insurance is available to offset a judgment against an estate. Neither the availability nor absence of insurance has any bearing on whether the statute applies to a civil lawsuit.
Bewley v. Semler, 2018 WL 4656589
R. Parker Semler, a member of the 1940 Blake Street Condominium Association (the “Association”) sued the Association’s attorney, as well as the law firm employing that attorney, for a variety of claims including breach of contract. Mr. Semler alleged the attorney breached his contract with the Association by representing the private interests of another Association member to Mr. Semler’s detriment. Mr. Semler further alleged he had standing to prosecute his claim because he was a third-party beneficiary of the contract between the Association and the attorney.
The trial court granted the defendants’ motion to dismiss, finding Mr. Semler lacked standing to prosecute his claims. Ms. Semler appealed. The appellate court affirmed the dismissal of all of Mr. Semler’s causes of action except the breach of contract claim. In turn, the defendants filed a petition for a writ of certiorari with the Colorado Supreme Court.
Reversed and remanded to the trial court for further proceedings. The breach of contract claim is barred under Colorado’s strict privity rule. This rule precludes claims against attorneys by non-clients absent a showing of fraud, negligent misrepresentation, or malicious conduct. Mr. Semler was not a client of the defendant attorney or defendant law firm. As such, there was no privity of contract between Mr. Semler and the defendants. Mr. Semler did not otherwise allege the defendants were guilty of fraud, negligent misrepresentation, or malicious conduct. Accordingly, Mr. Semler lacked standing to pursue the breach of contract claim.