Recent Books and Seminars — Colorado Wrongful Death Law

Posted on Jul 27th, 2015 in Blog, Books, Seminars

In May of 2015, C.L.E. in Colorado, Inc. (“CLE”), the nonprofit educational arm of the Colorado Bar Association, published the Third Edition of Mr. Giometti’s Handbook of Colorado Wrongful Death Law. On June 3, 2015, in connection with the publication of the book, Mr. Giometti and Denver attorney Jon Sands presented a seminar on handling wrongful death claims at CLE’s office in Denver. The seminar covered a wide range of topics, including fundamentals of wrongful death law in Colorado. The following 35 paragraphs are a summary of Mr. Giometti’s June 3, 2015 presentation on the fundamentals of wrongful death law:

Fundamentals of Wrongful Death Actions in Colorado:

(1) At common law there was no claim for wrongful death. The tort “died with the victim.”

In Colorado, as in other states, wrongful death claims are purely statutory. Colorado courts have repeatedly stated that because wrongful death claims are in derogation of common law, the wrongful death statutes are strictly construed.

(2) Section 13-21-202, C.R.S., creates general right of action for death caused by wrongful act, neglect or default of another.

Recovery is allowed if the injured party, if death had not ensued, would have been able to maintain an action and recover damages.

Thus, the defense of comparative negligence, and other defenses to liability, are incorporated into wrongful death actions.

(3) In wrongful death actions, as in negligence-based bodily injury cases, the plaintiff may recover as long as the combined fault of all tortfeasors, whether named as defendants or designated as non-parties, exceeds that attributable to the injured party, that is, the decedent.

(4) Pursuant to C.R.S. § 13-21-203(1) all damages accruing under C.R.S. § 13-21-202 shall be sued for and recovered by the same parties set forth in C.R.S. § 13-21-201.

Section 13-21-201, C.R.S., establishes a hierarchy or priority list for persons who have standing to maintain a wrongful death action.

(5) C.R.S. § 13-21-201(1)(a)(I): This section gives the spouse, in the first year after death, the exclusive right to assert a wrongful death action.

Upon written election by the spouse, the heirs may join in an action brought by the spouse, or the spouse may permit the heirs to commence an action without the spouse’s participation.

(6) If there is no spouse, the heirs or designated beneficiary of the deceased may initiate an action within the first year after death.

If the spouse does not bring an action within the first year after death, then the spouse and heirs have an equal right to bring an action for wrongful death.

C.R.S. § 13-21-201(1)(b)(I): If, during the second year after death, the heir or heirs bring an action, the spouse or designated beneficiary is permitted to join in the suit by filing a motion within 90 days after she is served with written notice of commencement.

(7) For purposes of the wrongful death statute, the term “heir” does not have the same meaning as under the Uniform Probate Code. Heir means a child or lineal descendant.

Siblings of the deceased are not considered heirs and have no standing to maintain a wrongful death action. Ablin v. Richard O’Brien Plastering Co, 885 P.2d 289 (Colo. App. 1994).

(8) C.R.S. § 13-21-201(1)(c)(I): Parents have a right to bring a wrongful death action only in limited circumstances – if the decedent is an unmarried minor without descendants or an unmarried adult without descendants or a designated beneficiary.

In such a case, a wrongful death action may be brought by the father or the mother, and, generally, each has an equal interest in the judgment. If either parent is dead, suit may be brought by the surviving parent.

(9) Parents have no right to bring a wrongful death action for the death of a child if the child was married or if the child had any descendants. Whitenhill v. Kaiser Permanente, 940 P.2d 1129, 1131-32 (Colo.App. 1997).

If the decedent is survived by a spouse, parents are precluded from bringing a wrongful death action, even if the spouse elects not to bring an action.

(10) Wrongful death actions are not assignable. Thus, where a wrongful death action was filed by the decedent’s mother, but the decedent was survived by a biological son, the son’s assignment of one-half of his potential wrongful death action to the mother was insufficient to sustain the mother’s wrongful death action. A claim arising under the Wrongful Death Act cannot be assigned. Espinoza v. Perez, 165 P.3d 770 (Colo.App. 2006).

(11) C.R.S. § 13-21-201(2): The ownership of the proceeds of a wrongful death claim, or a judgment in a wrongful death action, may be shared by persons who are not named plaintiffs.

The judgment in a wrongful death action “shall be owned by such persons as are heirs at law of the deceased under the statutes of descent and distribution and shall be divided among such heirs at law in the same manner as real estate is divided . . . .”

(12) Under current Colorado law, there is no statute that pertains solely to the distribution of real estate of a decedent.

The distribution of property after death is governed by the laws of intestate succession contained in the Uniform Probate Code, C.R.S. §§ 15-11-101 et seq.

(13) Application of C.R.S. §§ 15-11-102 & -103 (Effective July 1, 2010):

Case 1: The decedent and surviving spouse had two children together, and neither the decedent nor the surviving spouse had any other children. Pursuant to C.R.S. § 15-11-102(1)(b), the surviving spouse would be entitled to 100% of the proceeds of the wrongful death action.

(14) Case 2: The decedent is survived by a spouse and the decedent had no descendants but is survived by a parent. Pursuant to C.R.S. § 15-11-102(2), the surviving spouse would be entitled to the first $300,000 of the proceeds plus ¾ of the balance. Pursuant to C.R.S. § 15-11-103(3), the surviving parents would share equally in their share of the proceeds. (Thus, even though a parent has no standing to initiate a wrongful death action under C.R.S. § 13-21-201 if there is a surviving spouse, a parent might still be entitled to a share of the proceeds of a wrongful death action.)

(15) Case 3: The decedent and spouse had two children together, the decedent had no other descendants, and the surviving spouse has one or more children from a separate relationship. Pursuant to C.R.S. § 15-11-102(3) and § 15-11-103(2), the surviving spouse would receive the first $250,000 of the proceeds plus ½ the balance, and the two children of the decedent would share equally in the remaining proceeds.

(16) Case 4: The decedent and spouse had one child together and the decedent also had one child from another relationship. Pursuant to C.R.S. § 15-11-102(4) and § 15-11-103(2), the surviving spouse would receive the first $150,000 plus ½ of the balance, and the surviving children of the decedent would receive the remaining share.

(17) Case 5: There is no surviving spouse, surviving descendant or surviving parent of the decedent but the decedent is survived by two siblings. Pursuant to Albin v. Richard O’Brien Plastering Co., the surviving siblings would not be considered heirs and would have no standing to maintain a wrongful death act.

(18) However, C.R.S. § 15-11-103(4) provides that if a decedent dies intestate and is not survived by a spouse, parents or descendants, but is survived by descendants of the decedent’s parents (i.e., siblings), the siblings are entitled to inherit on a per capita basis. Thus, pursuant to the Uniform Probate Code, under § 13-21-201(2), to determine ownership of the proceeds of a wrongful death action, siblings of a decedent may be “heirs”. This seems to be inconsistent with Colorado courts’ interpretation of § 13-21-201(1), which is that only lineal descendants are “heirs” and siblings are not “heirs”.

(19) Pursuant to C.R.S. § 15-11-102(6), the monetary amounts specified as the share of the surviving spouse shall be increased by a cost of living adjustment as calculated and specified in C.R.S. § 15-10-112.

(20) C.R.S. § 13-21-201(1)(c)(II): This section governs distribution of proceeds if the parents of the decedent are divorced, separate or living apart. In such case, either parent may file a motion requesting the court to fairly apportion the proceeds of the wrongful death action, and the court must conduct a post-judgment hearing, at which both parents may present evidence about their relationship with the deceased child.

(21) C.R.S. § 13-21-201(1)(c)(III): In making this determination, the court shall consider factors such as “custody, control, support, parental responsibility, and any other factor the court deems pertinent.” The terms “father” and “mother” include both natural and adoptive parents, but not persons whose parental rights have been terminated.

(22) Limitations on Damages under C.R.S. § 13-21-203:

C.R.S. § 13-21-203(1) provides that in a wrongful death action commenced under § 13-21-202, “the jury may give such damages as they may deem fair and just, with reference to the necessary injury resulting from such death . . . .”

(23) Until 1989, Colorado courts had narrowly construed the WDA to preclude recovery of non-economic damages in wrongful death actions. However, in 1989, § 13-21-203(1) was amended to permit recovery of “damages for noneconomic loss or injury as defined in section 13-21-102.5 and subject to the limitations of this section and including within noneconomic loss or injury damages for grief, loss of companionship, pain and suffering, and emotional distress . . . .”

(24) The monetary limitation for non-economic damages recoverable under § 13-21-203(1) was initially $250,000 but, as adjusted for inflation, from 1998 until 2008, the amount was $341,250, and for actions accruing on or after January 1, 2008, the amount is currently $436,070.

(25) Although in many cases recovery of economic damages in wrongful death actions is not limited (“the jury may give such damages as they may deem fair and just”), under § 13-21-203(1), there are some circumstances in which both economic and non-economic damages combined may not exceed the statutory cap of $436,070. Specifically, “if the decedent left neither a widow, a widower, minor children, nor a dependent father or mother,” the recoverable damages may not exceed the statutory cap. This limitation applies if the decedent was an unmarried child without descendants. It also applies if the decedent is an adult, who dies without a spouse, minor children or dependent parents.

(26) Thus, under § 13-21-203(1) the statutory cap of $436,070 is the maximum amount recoverable for non-economic losses in all cases. However, the statutory cap of $436,070 applies to all recoverable damages, both economic and non-economic, if the decedent left neither a spouse, minor children, nor a dependent mother or father.

(27) Exception to statutory cap – felonious killing:

C.R.S. § 13-21-203 provides that in the case of a felonious killing “there shall be no limitation on the damages recoverable.”

A felonious killing, as defined in C.R.S. § 15-11-803(1)(b), includes first-degree murder, second-degree murder, or manslaughter. An actual criminal conviction is not required for the court in a wrongful death action to determine there has been a felonious killing.

(28) Pursuant to C.R.S. § 15-11-803(7), notwithstanding the disposition of a criminal proceeding, an interested person may petition the court to determine whether the elements of a felonious killing have been established. Applying a preponderance of the evidence standard, the court in a wrongful death action may independently determine whether the conduct of the at-fault party constituted a felonious killing. Estate of Wright ex rel. Wright v. United Services Automobile Association,, 53 P.3d 683 (Colo.App. 2001).

(29) One unanswered question is whether the statutory cap of $436,070 applies to a person who is only vicariously liable for the conduct of an at-fault party. For instance, if a parent is held vicariously liable under the family car doctrine for the reckless driving of a child, would the parent be protected by the statutory cap, even if the child is determined to have committed a felonious killing? The same question would exist in the case of an employer who is liable for the reckless conduct of an employee under respondeat superior.

(30) The One Action Rule — C.R.S. § 13-21-203(1) provides: “There shall be only one civil action under this part 2 for recovery of damages for the wrongful death of any one decedent.”

This means that “[p]ursuing in a sequential manner several wrongful death actions, against different defendants, and asserting different causes of death, is prohibited.” Estate of Kronemeyer v. Meinig, 948 P.2d 1119, 121 (Colo.App. 1997).

(31) In Lanahan v. Chi Psi Fraternity, 175 P.3d 97 (Colo. 2008), the court held that the statutory cap on non-economic damages contained in C.R.S. § 13-21-203(1) applies on a per claim, not a per defendant, basis.

Similarly, in Mitson v. A.G. Engineering & Development Co., 835 F.Supp. 572 (D. Colo. 1993), the court held that statutory cap on non-economic damages applied on per decedent, not a per plaintiff basis.

Hence, having either multiple plaintiffs or multiple defendants in a wrongful death action does not increase the statutory cap.

(32) Damages in a wrongful death action may also be limited by other statutory provisions governing certain types of cases. For example, for a wrongful death action brought for violation of the Ski Safety Act, the damages cap contained in C.R.S. § 33-44-113, not the cap contained in § 13-21-203(1), applies.

Likewise, the damages caps contained in the Health Care Availability Act, C.R.S. §§ 13-64-302(1)(b) & (c), limit the damages for wrongful death caused by a health care professional or health care institution.

The same rule would apply to cases arising under the Dram Shop Act, C.R.S. § 12-47-801.

(33) C.R.S. § 13-21-203.5: The Solatium Alternative. The parties entitled to sue for wrongful death may elect in writing to recover a solatium amount. Originally, the amount was $50,000, but in cases arising on or after January 1, 2008, the amount is $87,210.

The solatium amount is not subject to reduction pursuant to either the comparative negligence statute, C.R.S. § 13-21-111, or the pro rata liability statute, C.R.S. § 13-21-111.5.

(34) Statute of Limitations for Wrongful Death Claims: Pursuant to C.R.S. § 13-21-204, all actions for wrongful death must be “brought within the time period prescribed in section 13-80-102.” C.R.S. § 13-80-102(1)(d) states that all actions for wrongful death, regardless of the theory under which the action is brought, must be commenced within two years of the time the cause of action accrues. A wrongful death action accrues on the date of death.

However, a shorter limitations period could apply if the substantive statute giving rise to the claim provides for a shorter limitations period, such as the Dram Shop Act, with states that actions under C.R.S. § 12-47-801 must be brought within a year of the date of death.

(35) Actions under the Survival Statute – C.R.S. § 13-20-101: If a victim dies as a result of a tort, damages for pain and suffering or for prospective earnings after death are not recoverable, but damages may be incurred for loss of earnings or expenses incurred by the victim before death. A survival action is a separate and distinct action from a wrongful death action.

Because any recovery under a survival action inures to the estate of the decedent, only the personal representative of the decedent may bring such an action.

In addition to reviewing the fundamentals of wrongful death cases, the June 3, 2015 seminar also covered recent changes in Colorado wrongful death law. The following case summaries were presented at the seminar on June 3, 2015. The section numbers refer to the sections of the Third Edition of Mr. Giometti’s book where the following cases are discussed:

Recent Developments in Wrongful Death Law

(1) Barnhart v. American Furniture Warehouse, — P.3d — (Colo.App. 2013). See § 5.1. Application of the One Action Rule.

In Barnhart v. American Furniture Warehouse, — P.3d — (Colo.App. 2013), the court affirmed the trial court’s order granting summary judgment in favor of the defendant and against the son of the decedent. The court held that, under the “one action” rule contained in C.R.S. § 13-21-203(1), even though no suit had been filed, the prior settlement of a wrongful death claim by the decedent’s surviving spouse precluded a subsequent wrongful death action by the son.

Shortly after sustaining injuries at the defendant’s store on January 19, 2011, Mildred Mae Fernandez died. Her husband, Ezekiel Fernandez, retained counsel and asserted a wrongful death claim against the defendant, which was settled for an agreed payment of $400,000 in December 2011. Mr. Fernandez executed a release of all claims in February 2012. The son of Ms. Fernandez then brought a wrongful death action against the defendant, which sought summary judgment on the ground that the “one action” rule barred the suit.

The court of appeals noted that under C.R.S. § 13-21-201(1)(a), the husband had the exclusive right to bring a wrongful death action within the first year after the decedent’s death. Under § 13-21-201(1)(b), during the second year, the spouse and heirs have an equal right to bring an action. Here, the husband asserted a wrongful death claim within the first year of the decedent’s death and settled the claim without filing suit. However, the son argued that under the “one action” rule, only a surviving spouse’s lawsuit, or settlement of a lawsuit, can bar a subsequent wrongful death action.

Looking only at the plain language of the Wrongful Death Act, the court agreed “with the son that ‘action’ is commonly regarded as referring to a judicial proceeding.” — P.3d at —. However, the court found that the son’s proposed statutory interpretation “would lead to an absurd result.” Id. The court pointed out that under the son’s interpretation “even where a beneficiary with a primary right of action had settled a wrongful death claim against a tortfeasor, other beneficiaries could still assert a second wrongful death claim, and obtain a recovery, so long as the first beneficiary had never filed suit.” Id. The court of appeals found “no rational reason why the General Assembly would have intended to treat pre-litigation and litigation settlements differently . . . .” Id.

The court pointed out that Colorado courts have recognized that the legislative purpose of the “one action” rule “is to prevent multiple actions for the death of a single decedent, with the underlying goal of precluding multiple recoveries.” Id., citing Steedle v. Sereff, 167 P.3d 135, 138 (Colo. 2007). In light of the title of § 13-21-203, “Limitation on damages”, the court found it “clear that the ‘only one civil action’ provision was intended to limit the number of recoveries under the Act.” Id.

In sum, “in light of the General Assembly’s intent to preclude multiple wrongful death recoveries,” the court concluded “that the ‘only one civil action’ provision is merely a limit on the number of recoveries that may be sought—not a requirement that an action must be filed in court for the bar to apply.” — P.3d at —.

(2) Fleury v. Intrawest Winter Park Operations Corporation, — P.3d — (Colo.App. 2014). See § 10.10. Wrongful Death Claims under the Ski Safety Act. Note: Certiorari granted December 14, 2014.

In Fleury v. Intrawest Winter Park Operations Corporation, — P.3d — (Colo.App. 2014), the court affirmed the trial court’s determination of law and judgment on the pleadings that the defendant, which operates the Winter Park Resort, was not liable for the avalanche death of Christopher Norris (“the decedent”), because an avalanche is an inherent danger or risk of skiing under the Ski Safety Act, C.R.S. §§ 33-44-101 to 114.

The avalanche occurred on January 22, 2012, when the decedent was skiing inbounds at Winter Park on the Trestle Trees/Topher’s Trees run. The defendant argued that an avalanche is an inherent danger of risk of skiing under C.R.S. § 33-44-103(3.5) and that C.R.S. § 33-44-112 grants ski area operators immunity from liability for injuries resulting from the inherent dangers or risks of skiing. The court of appeals rejected the plaintiff’s assertion that the trial court erred in finding that an avalanche is an inherent risk of skiing.

First, the court concluded that an avalanche fits within the definition of the inherent dangers and risks of skiing. The statutory definition states that such dangers and risks include “‘changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; variations in steepness or terrain,’” etc. — P.3d at —. The court found that because the word “include” is used as a word of “extension or enlargement, listing examples in a statutory definition does not restrict the term’s meaning.” Id.

Second, the court pointed out that since enacting the Ski Safety Act in 1979, “the General Assembly has amended the Act to increasingly limit a ski area operator’s liability for skiing-related injuries.” — P.3d at —. The court noted that in 2004 the General Assembly changed the definition of the inherent dangers and risks of skiing to broaden the types of inherent risks covered by the Act. Thus, the court found that including an avalanche within the inherent dangers and risks of skiing was consistent with the General Assembly’s intent. — P.3d at —.

The court also rejected the plaintiff’s argument that the defendant was liable for the decedent’s death because it failed to close the Trestle Trees run and post closure signs and failed to warn skiers about avalanche dangers on the date of the accident. Two sections of the Ski Safety Act deal with signage. Under § 33-44-106, certain signs are required at loading and unloading positions, and under § 33-44-107 signs are required regarding the difficulty of slopes, “the entry point of extreme and freestyle terrain, closed trails or slopes, ski area boundaries, and man-made structures along the slopes.” — P.3d at —.

Signs regarding avalanches are not among the Ski Safety Act’s signage requirements. Among the 2004 amendments to the Ski Safety Act, the General Assembly “removed a part of § 33-44-107(2)(d) that previously required ski area operators to post a sign notifying skiers of ‘danger areas’ . . . .” Id. The court found that this change evidenced the General Assembly’s intent “to broaden the immunity of ski areas by decreasing their obligations and responsibilities.” Id. The court recognized that the Ski Safety Act “enumerates specific sign requirements and does not require ski area operators to warn skiers of possible avalanches or to close slopes with avalanche danger.” Id. Therefore, the court found that the defendant had no duty to post warning signs or to close the Trestle Trees run.

(3) Reigel v. SAVASENIORCARE L.L.C., 292 P.3d 997 (Colo.App. 2012). See § 10.7.3. Colorado follows the “but for” test for causation-in-fact.

Reigel v. SAVASENIORCARE L.L.C., 292 P.3d 977 (Colo.App. 2012), was a wrongful death case arising from the death of Dennis Reigel (“the decedent”) due to a heart attack. Before his death the decedent had been a patient at a nursing home owned by SSC Thornton Operating Company, L.L.C., d/b/a Alpine Living Center (“Alpine”). Reigel had been admitted to Alpine for a one-week rehabilitation period following surgery.

On the day before he was supposed to be discharged, Reigel began to experience health problems, including a drop in his heart rate and blood pressure, and nausea. In addition, Reigel was not consuming fluids and was disoriented. Reigel’s wife expressed her concern about the decedent’s condition, but her pleas were ignored. Ultimately, the decedent was taken to the emergency room (ER), where the treating physician concluded he had been having a heart attack since the previous day. Several hours after his admission to the ER, the decedent passed away.

The decedent’s wife and two surviving sons (“the sons”) brought a wrongful death action against Alpine, its parent company (“SSC”), and a related administrative services company (“SSCAS”). The plaintiffs’ claims were based upon negligence and outrageous conduct. The jury found in favor of the wife and against all defendants on both claims and awarded damages of $450,000. The trial court directed a verdict for the defendants on the sons’ claims.

The court of appeals reversed the judgment against SSC and SSCAS on both claims, reversed the judgment against Alpine on the outrageous conduct claim, vacated the judgment against Alpine on the negligence claim, reversed the judgment against the sons, and remanded the case for a new trial on the wife’s and the sons’ negligence claims against Alpine.

The principal issue on appeal was whether the trial court gave a jury instruction containing an incorrect test of causation on the plaintiffs’ negligence claim against Alpine. In addition to giving the jury the standard causation instruction based upon the “but for” test for causation-in-fact, the trial court instructed the jury as follows:

If you find that Alpine’s negligence increased the risk of Dennis Reigel’s death or deprived Dennis Reigel of some significant chance to avoid death, you may also find that Alpine’s negligence was a cause of Dennis Reigel’s death.

292 P.3d at 986. [Emphasis in original]

In giving this instruction, the trial court relied upon Sharp v. Kaiser Foundation Health Plan of Colorado, 710 P.2d 1153 (Colo.App. 1985)(“Sharp I”), aff’d 741 P.2d 714 (Colo. 1987). In Sharp I the court held that the jury should be allowed to decide the issue of causation based upon expert testimony that the defendant’s conduct substantially increased the plaintiff’s risk of resulting harm.

In Reigel, the court of appeals declined to follow Sharp I, concluding that the Tenth Circuit’s reasoning in June v. Union Carbide Corp., 577 F.3d 1234 (10th Cir. 2009), was persuasive. In June the Tenth Circuit found that the Colorado Supreme Court has consistently applied the “but for” test for causation and would not adopt the increased risk standard applied in Sharp I. 292 P.3d at 987. Therefore, the court of appeals held that the trial court “erred in ruling that Ms. Reigel was only required to present evidence that Alpine’s negligence increased Mr. Reigel’s risk of death or deprived him of a significant chance to avoid death.” Id.

The court found the instruction was not harmless because it “allowed a verdict in Ms. Reigel’s favor even if the jury concluded that Alpine’s alleged negligence was not a but-for cause of Mr. Reigel’s death in the sense contemplated by Colorado Supreme Court precedent.” 292 P.3d at 988. Thus, the court held that the judgment in favor of Ms. Reigel on the negligence claim must be vacated. However, the court also rejected Alpine’s contention that it was entitled to a directed verdict, noting that “Ms. Reigel presented evidence from which reasonable jurors could conclude that had Mr. Reigel been taken to the hospital immediately after he allegedly began having the heart attack, he would not have died.” Id.

(4) Reigel v. SAVASENIORCARE L.L.C., 292 P.3d 997 (Colo.App. 2012). See § 11.9. Where multiple parties bring a wrongful death action as plaintiffs, no requirement exists for each plaintiff to prove personal damages.

In Reigel, the trial court directed a verdict against the sons on the ground that they were required to prove they had individually sustained non-economic damages but had failed to do so. The court of appeals reversed, holding that the trial court erred by ruling that the sons had to prove personal damages as an element of their wrongful death claim.

The court of appeals addressed the question “whether, when multiple plaintiffs bring a wrongful death action based on a decedent’s death and the plaintiffs only seek damages for noneconomic losses, each plaintiff must establish that he personally suffered damages or non-economic losses to remain a party to the action.” 292 P.3d at 995. The court found that under the plain language of the Wrongful Death Act, such a burden does not exist.

The court noted that under C.R.S. §§ 13-21-201 and -202, the decedent’s spouse and heirs are authorized to bring an action to seek damages caused by the defendant’s negligence. Under the “one action rule” contained in C.R.S. § 13-21-203(1)(a), they can only bring one action, and pursuant to C.R.S. § 13-21-201(2), they jointly own any judgment obtained in that action. 292 P.3d at 995. Recovery for non-economic damages for “‘grief, loss of companionship, pain and suffering, and emotional distress’” is authorized under C.R.S. § 13-21-203(1)(a). Id. at 996.

The court of appeals relied upon Steedle v. Serreff, 167 P.3d 135 (Colo. 2007), in which the supreme court held that the $150,000 statutory cap in the Colorado Governmental Immunity Act did not apply separately to each family member in a wrongful death claim. In Steedle, the court reasoned that “‘unlike a loss of consortium claim that requires proof of personal damages, a wrongful death action involves a shared injury among survivors such that there is no individualized recovery of damages.’” 292 P.3d at 996, citing Steedle, 167 P.3d at 140.

The court of appeals recognized that “different heirs may suffer different economic losses as a result of a decedent’s death . . . .” Id. However, this does not require “each heir-plaintiff to prove noneconomic losses.” Id. Because “all damages awarded are owned jointly and distributed through the statutes of descent and distribution . . . whatever noneconomic damages Ms. Reigel established were owned by the sons as well.” Id. Thus, the trial court erred by directing a verdict against the sons and dismissing them from the case. Id.

(5) Wake v. SSC Greeley Centennial Operating Company, LLC, 991 F.Supp.2d 1143 (D. Colo. 2013). See § 9.3. Liability of a corporate defendant for exemplary damages.

Wake v. SSC Greeley Centennial Operating Company, LLC, 991 F.Supp.2d 1143 (D. Colo. 2013), was a wrongful death action arising out of the death of the plaintiff’s mother in a nursing home facility. The defendants were the operator of the facility and related entities. They moved for summary judgment on the plaintiff’s claim that their conduct in causing his mother’s death was willful and wanton, making them liable for exemplary damages. The court found that issues of fact precluded entry of summary judgment.

On October 11, 2009, a Certified Nurse Assistant employed by Centennial tried to use a mechanical lift to move the decedent from her bed into her wheel chair. The lift was equipped with a sling, and the sling straps slid off a support bar, causing the decedent’s fall. The decedent died of her injuries the following day.

Centennial immediately investigated the accident and generated an Incident Report. The report identified several causes of the accident, including the CNA’s failure to have a second person help with use of the lift and the Maintenance Director’s “‘failure to install the correct safety clip on the sling bar.’” 991 F.Supp.2d at 1146. The report also noted that the sling was fully functional, except for the missing safety clip. The Maintenance Director, Robert Castillo (“Castillo”), received disciplinary action due to the incident.

The plaintiff filed his action on October 7, 2011, and subsequently moved to amend his complaint to include a claim for exemplary damages pursuant to C.R.S. § 13-21-203(3)(c)(I). The defendants moved for summary judgment on this claim, asserting that there was no evidence that Castillo engaged in willful and wanton conduct and, even if he was willful and wanton, he was not a managerial employee.

The court found there was an issue of fact about whether Mr. Castillo’s conduct was willful and wanton. “A reasonable jury could disbelieve [the Administrator’s] post hoc explanations, and instead rely upon the documents drafted within a few days of the incident to conclude, beyond a reasonable doubt, that Mr. Castillo was asked to replace the clip and, though he understood the safety risk, used a different clip that did not function properly.” 991 F.Supp.2d at 1148. The court also found that there was sufficient evident for a jury to conclude, beyond a reasonable doubt, that Castillo’s actions were a cause of the incident. Id. at 1149.

In addressing the defendants’ contention that they could not be held liable for exemplary damages because Castillo was not a managerial employee, the court recognized that “[a] corporate defendant is liable for exemplary damages only where an agent of the corporation employed in a managerial capacity engaged in willful and wanton conduct in the scope of employment.” Id. Further, “[w]here an employee was acting in a managerial capacity, the corporation need not actually authorize or ratify the willful and wanton act to be liable for exemplary damages.” Id. Whether an employee was acting in a managerial capacity depends upon “‘the stature and authority of the agent to exercise control, discretion and independent judgment over a certain area of a business with some power to set policy for the company.’” Id.

The plaintiff relied upon Castillo’s job description, which indicated that Castillo’s duties included managing maintenance personnel, hiring and training staff, overseeing safety programs and supervising the maintenance staff.

After reviewing the evidence, the court found that the nature of Castillo’s managerial status was in genuine dispute. Id. at 1150. The court concluded that a reasonable jury could rely upon Castillo’s job description to determine that he was a managerial employee. Id. at 1151.

(6) Axelrod et al. v. Century Theaters, Inc. et al., — F.Supp.2d —, 2014 WL 4470728 (D.Colo.). See § 10.9.2. Mass Shooting in Theatre Was Not Unforeseeable As a Matter of Law.

Axelrod et al. v. Century Theaters, Inc. et al., — F.Supp.2d —, 2014 WL 4470728 (D.Colo.), was a premises liability action arising out of the mass shootings that occurred at the Century Aurora 16 theater complex on July 20, 2012. The facts of the case are well known.

James Holmes bought a ticket for the midnight showing of the Dark Knight Rises in Auditorium 9. During the previews, he left through a back exit door and left it propped open. He retrieved various firearms and twenty minutes after the movie started, he re-entered the auditorium, and began shooting. Holmes killed 12 people and then went outside where he was arrested. The plaintiffs in the action were people who were injured and survivors of the deceased. The defendants argued that the shootings “were so unprecedented as to be legally unforeseeable.” 2014 WL 4470728 at *1. Based upon this reasoning, the defendants moved for summary judgment, which the court denied.

The court noted that it had previously denied a motion to dismiss filed by the defendants. In addressing the motion for summary judgment, the court recognized that the movie patrons were invitees, and that under the Premises Liability Act, C.R.S. § 13-21-115(3)(c)(I), invitees “‘may recover for damages caused by a landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.’” Id. at *2 [Emphasis by court]. The court recognized that the only question posed by the motion for summary judgment was if a genuine dispute of fact existed “as to whether Cinemark knew or should have known of the danger faced by the patrons in Auditorium 9 on July 20, 2012.” Id.

The court pointed out that “whether a landowner should have known of a particular danger generally is a question of fact, not law.” Id., citing Vigil v. Franklin, 103 P.3d 322, 326 (Colo. 2004). However, “a court could find a danger to be so unprecedented and remote that, as a matter of law, no rational juror could find that a landowner should have known about it.” Id. at *3. As an example of such a scenario, the court cited Lopez v. McDonald’s Corp., 193 Cal.App.3d 495, 238 Cal.Rptr. 436 (Cal.App. 1987). That case involved a mass shooting at a McDonald’s restaurant in 1984. There the court found that McDonald’s did not have a duty to protect its patrons against a “‘once-in-a-lifetime’” massacre. Id., citing 238 Cal.Rptr. at 441.

While the court indicated that it did not disagree with the holding in Lopez, it found that “what was ‘so unlikely to occur within the setting of modern life’ as to be unforeseeable in 1984 was not necessarily so unlikely by 2012.” Id. The court noted that there had been multiple mass shooting events since 1984. The court did not reach the conclusion that the defendant necessarily should have known of the danger to its patrons on July 20, 2012. Id. On the other hand, it was not necessary for there to have been a previous similar act at another theatre to demonstrate the existence of a genuine dispute of fact. Id. at *4. Therefore, the court denied the motion for summary judgment.

Recent Books and Seminars – Colorado Law of Insurance Bad Faith

Mr. Giometti is currently working with CLE on the publication of a new edition of Colorado Law of Insurance Bad Faith, which was most recently updated at the end of 2009. It is anticipated that the new edition of Colorado Law of Insurance Bad Faith will be published before the end of 2015. The new addition will have a large section on so-called “statutory bad faith” claims under C.R.S. §§ 10-3-1115 & -1116. Mr. Giometti will also be presenting a seminar for CLE in connection with this revised publication.

Recent Trials and Court Decisions

Gregory R. Giometti & Associates has conducted multiple trials in 2015 in both the U.S. District Court for the District of Colorado and in Colorado’s state district courts. The following is a summary of Marshall v. Montgomery et al., which Mr. Giometti tried in Denver District Court from June 22-26, 2015. Mr. Giometti defended three landowners and the apartment management company against a premises liability claim brought by a tenant who suffered smoke inhalation injuries as a result of a fire:

The case, Case No. 2014CV030618, was tried in Courtroom 215 of Denver District Court before the Hon. Andrew P. McCallin. The plaintiff, Mary Marshall, was represented by James H. Chalat, Russell R. Hatten & Daniel Snare, of CHALAT HATTEN KOUPAL & BANKER, P.C. The defendant, Parker Montgomery, was represented by Daniel S. Foster, of FOSTER GRAHAM MILSTEIN & CALISHER, LLP. The defendants Cornerstone Apartment Services, Inc., Max Rosenstock & Company, MSG Investments, Inc., and James A. Lorenzen were represented by Gregory R. Giometti, of GREGORY R. GIOMETTI & ASSOCIATES, P.C. and the defendant Cornerstone Apartment Services, Inc. was also represented by Michael Decker, of MURPHY & DECKER, P.C.

The plaintiff’s claims arose out of a fire that occurred at about 2:30 a.m. on May 5, 2013 at the Jack Kerouac Apartments at 1260 Sherman Street in Denver. These apartments were constructed in 1948. At the time of the fire, plaintiff, who was 78 years old, resided in Unit 306 and Parker Montgomery resided in Unit 106. Max Rosenstock & Company, MSG Investments, Inc, and James A. Lorenzen were the owners of the Jack Kerouac Apartments, which they had purchased in 2004. Cornerstone Apartment Services, Inc., a company owned by James A. Lorenzen, had managed the Jack Kerouac Apartments since 2004. The owners and property manager are collectively referred to as “the Cornerstone Defendants.”

After hearing sirens, plaintiff awoke and saw flames outside her window. The flames were coming from Unit 106, which was two floors directly below Plaintiff’s apartment. As plaintiff tried to leave her apartment, she was overcome by smoke and lost consciousness in the corridor, but was soon rescued by Lt. Joshua Little of the Denver Fire Department. Plaintiff suffered smoke inhalation injuries and was hospitalized for five days. Before the fire, plaintiff worked 77.5 hours per week at two different jobs and walked 7 miles a day. Within 12 weeks after the fire the plaintiff had resumed these activities. Plaintiff claimed that as a result of her injuries, she incurred medical expenses and lost wages. She also claimed that she suffered property damage because of the smoke that reached her apartment. Plaintiff claimed total economic damages in excess of $97,000.

The plaintiff claimed that Parker Montgomery was negligent and started the fire in Unit 106 by falling asleep on his couch while he was smoking either cigarettes or marijuana. However, plaintiff asserted that the majority of fault for her smoke inhalation injuries rested with the Cornerstone Defendants, against whom she asserted claims under the Premises Liability Act (“the PLA”). Plaintiff claimed that the Cornerstone Defendants unreasonably failed to protect her against dangers of which they knew or should have known. Specifically, plaintiff claimed that the Cornerstone Defendants knew that Parker Montgomery was a smoker and had given him a demand for compliance or possession in January 2012 for violating the rules against smoking. Plaintiff claimed that the Cornerstone Defendants knew that Parker Montgomery was a “bad tenant” and a “drunk,” and that the Cornerstone Defendants breached their duties to the plaintiff by failing to evict Parker Montgomery before the fire. Plaintiff also claimed that the Cornerstone Defendants were liable under the PLA because they failed to complete a scheduled inspection of Parker Montgomery’s apartment in October 2012 and thus failed to discover that the battery-operated smoke detector in his apartment was not working. Finally, plaintiff claimed that there were several violations of the 1935 building code, which had applied to the construction of the building in 1948. Plaintiff alleged that these code violations caused her injuries because they allowed smoke to spread to the third floor faster than it otherwise would have. Plaintiff also asserted that the smoke alarms in the third floor corridor did not comply with code and failed to alert her to the fire soon enough for her to avoid injury.

The defendant Parker Montgomery denied that he was negligent and denied that he caused the fire. When he testified at trial, Parker Montgomery refused to answer many questions, asserting his Fifth Amendment privilege against self-incrimination. However, his deposition, which was read into evidence at trial, confirmed that he had come back to his apartment and fallen asleep on his couch at 11:00 p.m. the night of May 4. He testified that when he awoke flames were engulfing his apartment. He stated that before the fire the smoke alarm in his unit, which was located above the entry door, was inoperable, and he was awaked by the fire itself, not the smoke detector. In his deposition Parker Montgomery also testified that after waking up, he had left the apartment building to go to a friend’s house, failed to call 911, and failed to alert other residents of the fire. The fire was reported by a passerby.

The Cornerstone Defendants denied liability under the PLA and asserted that 100% of the legal responsibility for the fire and the plaintiff’s injuries and damages rested with Parker Montgomery. The fire investigator retained by the Defendants to investigate the origin and cause of the fire testified that the fire originated on the south end of the couch in Unit 106 and that the cause of the fire was careless smoking. All other possible causes, including electrical causes, were ruled out. The Cornerstone Defendants asserted that they were not responsible for the fact that the smoke detector in Parker Montgomery’s apartment was inoperable because the lease required him to maintain the smoke detector and report any problems with its operation, which he did not do before the fire. They also asserted there were insufficient grounds to evict him. With regard to the code violations, the position of the Cornerstone Defendants was that the apartments had been inspected by the building inspector when they were constructed and, presumably, had been deemed to comply with the building code at that time. In addition, the annual inspections by the Denver Fire Department did not identify any of the code violations found by plaintiff’s expert. Further, even if there were any code violations, the position of the Cornerstone Defendants was that there was no evidence that such alleged violations caused or contributed to the plaintiff’s injuries.

Three expert witness testified at the request of the plaintiff: Kathryn McCaffrey, M.D., regarding plaintiff’s injuries; Sean Donohue, P.E., regarding building code violations; and Investigator Jonathan Riggenbach of the Denver Fire Department (by deposition) regarding origin and cause of the fire.

Two experts testified on behalf of the Cornerstone Defendants: Joseph Filas, CFI, regarding origin & cause of the fire; and Mike Higgins, P.E., regarding code violations.

The jury’s verdict was for the plaintiff and against Parker Montgomery. The jury awarded economic damages of $100,000 and non-economic damages of $50,000; for a total of $150,000. The jury’s verdict was for the Cornerstone Defendants and against the plaintiff. The jury found no liability under the PLA and apportioned 100% of the responsibility for the plaintiff’s injuries and damages to Parker Montgomery.

Firm Overview

Gregory R. Giometti & Associates, P.C., is recognized as one of the top civil litigation firms in Colorado. Mr. Giometti and his associates are highly experienced trial attorneys who have conducted dozens of jury trials in both state and federal courts, mainly in Colorado, but also in Idaho, where Mr. Giometti is licensed as well. The focus of the firm’s practice is representation of insurance companies and their insureds in first and third-party claims.

Practice Areas

  • General Insurance Defense
  • Insurance Coverage Disputes – Declaratory Judgment Actions
  • Coverage Investigations – EUOs
  • Insurance Bad Faith Litigation – Statutory Bad Faith Cases
  • Disputed Property Insurance Claims – Hail Damage Claims – Appraisals
  • Motor Vehicle Accident Litigation – UM/UIM Claims
  • Premises Liability Claims
  • Construction Defect Litigation
  • Fire & Explosion Cases
  • Ski Accident Litigation
  • Wrongful Death Actions
  • Expert Witness Services

Contact Us

  • Gregory R. Giometti & Associates P.C.
    50 South Steele Street
    Suite 480
    Denver, CO 80209
  • Telephone: 303-333-1957
    Fax: 303-377-3460