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Colorado Court of Appeals Opinions
November 1, 2012

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2012 COA 187. No. 10CA1494. City of Littleton, Littleton Fire Rescue v. Industrial Claim Appeals Office.
Workers’ Compensation—Firefighter—Brain Cancer—CRS § 8-41-209.

This workers’ compensation appeal arose from an order issued by the Industrial Claim Appeals Office (Panel). The City of Littleton Fire Rescue and its insurer (collectively, Littleton) sought review of the Panel’s order in favor of Littleton’s employee, firefighter Jeffrey Christ (claimant). The order was affirmed.

Claimant was diagnosed with glioblastoma multiforme (GBM), a type of brain cancer, and sought workers’ compensation benefits to cover his treatment. Littleton objected, and the case was brought before an administrative law judge (ALJ). The ALJ recognized that claimant’s cancer was statutorily presumed to have resulted from his employment; however, she ruled that Littleton had proved that claimant’s cancer was not caused by his occupational exposures. Claimant then appealed to the Panel, which ruled that Littleton had failed to sustain its burden of proof. The Panel reversed the ALJ’s order and remanded for a determination of benefits. Littleton appealed.

The firefighter’s statute creates a substantive presumption (in the nature of affirmative evidence) that claimant’s GBM resulted from his employment as a firefighter. To overcome that presumption, Littleton was required to affirmatively prove, by a preponderance of the evidence, that claimant’s cancer did not result from, arise out of, or arise in the course of his employment. Littleton did not disprove specific causation, however, and Littleton’s evidence was insufficient to rebut the presumption of the firefighter’s statute because it “merely denied the underlying legislative premise of a causal relationship between the firefighter’s occupational exposure and the development of cancer.” The Panel’s order was affirmed.

2012 COA 188. No. 10CA2265. Graham v. Zurich American Insurance Co.
Employment—Colorado Wage Claim Act—Penalties—Jury—Attorney Fees.

Zurich American Insurance Company appealed from the trial court’s final judgment in favor of Michael Graham. The judgment was affirmed and the case was remanded.

After being terminated from his job at Zurich, Graham brought an action to recover certain bonuses that, in his view, constituted unpaid wages under the Colorado Wage Claim Act. The jury found in Graham’s favor and awarded $28,326.98 in damages, but it failed to add certain penalties that are mandatory under the Wage Claim Act. After the court gave the jury additional instructions, the jury entered a verdict in favor of Graham that included penalties. The court entered judgment on the first verdict in the amount of $28,326.98, plus penalties and interest.

Zurich contended that the court erred in granting judgment for Graham. It is the jury’s responsibility to make the necessary factual findings as to whether the employee made a written demand for payment, whether the employer paid the employee within fourteen days, and whether the employer’s failure to pay was willful. After receiving the jury’s factual findings, the court is then responsible for determining the penalties as a matter of law. Here, the court erred in requiring further deliberations after it received the first verdict. The court should have recognized that the first verdict contained all the necessary factual findings, and it should have corrected the jury’s determination of penalties as a matter of law. Therefore, although the court erred in further instructing the jury to determine penalties, it corrected its error by entering judgment on the first verdict and determining penalties based on the jury’s factual findings. The judgment was affirmed and the case was remanded to the court to determine, in its discretion, whether Graham should be awarded the reasonable attorney fees he incurred in defending this appeal.

2012 COA 189. No. 11CA0363. Groh v. Westin Operator, LLC.
Duty of Care—Innkeeper–Guest Relationship—Summary Judgment—Nonfeasance.

Plaintiff Jillian Groh appealed the trial court’s summary judgment in favor of defendant Westin Operator, LLC (Westin). The judgment was affirmed.

Groh and eleven of her friends spent an evening visiting bars in Denver and consuming alcohol. After the bars closed, the group gathered in a room of the Westin Hotel in downtown Denver, owned and operated by Westin. Groh had reserved the room in advance and was the only registered guest.

Around 2:45 a.m., a Westin security guard heard noises and investigated. He told Groh that she and the others needed to quiet down. Groh acquiesced, but the guard entered the room and told the others to be quiet, as well. Groh argued with him, claiming he wasn’t allowed to enter the room without her permission. The guard then re-entered the room and said everyone had to leave. Members of the group protested that the room had been rented so they could avoid having to drive after drinking.

Eventually, the manager was called. He determined that Groh could stay but that the others had to leave. Groh said that if her friends had to leave, she would leave, too. For purposes of a summary judgment motion only, Westin conceded that Groh was evicted.

Several friends left and were not involved in the subsequent events. A little after 3:00 a.m., Groh and the remaining friends left the hotel. Groh called her brother and he advised her to take a taxi home. It was cold out, but the guard refused to let the party re-enter the Westin. Groh and the group then walked into a parking garage and, notwithstanding passing a taxi, one friend, Angela Reed, offered to drive. Groh gave her the keys to her PT Cruiser, which had five seatbelts. Seven people got in. Reed was the only one who used her seatbelt.

Around 4:00 a.m., on northbound I-225, Reed crashed into a slow-moving vehicle towing a vehicle with a flat tire. One passenger died; the others sustained injuries. Groh sustained severe injuries that left her in a persistent vegetative state. Reed’s blood alcohol content was estimated at between 0.170 and 0.222 at the time of the accident. She was charged with several felonies.

Groh, individually and by and through her guardians and conservators,brought negligence and breach of contract claims against the Westin. The district court granted summary judgment for the Westin. Groh appealed.

Groh argued that the Westin had a common law duty to protect her and prevent her from driving while intoxicated. Thus, the question was whether the Westin owed Groh a duty of care to take reasonable measures to protect her against the injury she sustained. Groh was injured as the result of riding as a passenger, without a seatbelt, in a vehicle driven by an intoxicated driver. In her fourth amended complaint, Groh contended the Westin had a duty to determine whether it was safe for her to drive home. The Court of Appeals characterized this as a claim of nonfeasance on the part of the Westin.

The Colorado Supreme Court, in University of Denver v. Whitlock, 744 P.2d 54, 56 (Colo. 1987), analyzed the requirements of making out a claim of nonfeasance. Nonfeasance requires a special relationship, such as innkeeper to guest. However, once an individual ceases to be a guest of a hotel, the special relationship is terminated. Here, Groh was lawfully evicted because she breached her contract by having too many people stay in her room. Once evicted, the innkeeper–guest relationship terminated. Because there was no special relationship, there was no duty of care to take affirmative action to prevent the injury Groh sustained.

Groh also argued that the Westin was responsible under the assumed duty of care doctrine. Under this doctrine, “a party may assume duties of care by voluntarily undertaking to render service.” Here, the record did not contain evidence demonstrating that the scope of any such assumed duty would be so broad as to include preventing a former guest from being injured while riding as a passenger in a car driven by an intoxicated driver.

Finally, Groh argued it was error to rule that she breached her contract with the Westin, because the Westin waived any such claim when she was given three keys when she checked in. She cited no authority, and the Court found none, that would support such an argument. The summary judgment in favor of the Westin was affirmed.

2012 COA 190. No. 11CA1919. Giuliani v. Jefferson County Board of County Commissioners.
Medical Marijuana—Local Zoning—Summary Judgment—Colorado Constitution, Amendment 20—Mootness—Medical Marijuana Code.

In this action concerning whether a county may prohibit the operation of a medical marijuana dispensary as a non-permitted use under a local zoning plan, plaintiffs Marc Giuliani and Footprints Health and Wellness, Inc. (collectively, providers) and Christopher Peck and Frank Campbell (collectively, patients) appealed the trial court’s orders partially dismissing their claims and affirming the resolution of the Jefferson County Board of Adjustment (Board). They also appealed the trial court’s summary judgment in favor of defendants, the Jefferson County Board of County Commissioners (BOCC), the Board, and the Jefferson County Division of Planning and Zoning (collectively, County). The appeal was dismissed in part, the judgment was affirmed in part, and the order was affirmed.

The providers leased a commercial unit in a shopping center in unincorporated Jefferson County in September 2009 for the purpose of operating a medical marijuana dispensary. Believing this use would be compatible with the official development plan (ODP) of the shopping center, as zoned, the providers hired a contractor to perform tenant improvements and obtained various permits from Jefferson County.

The business opened in late October 2009. Two months later, the zoning administrator issued a zoning violation notice to the providers, stating the operation of a medical marijuana dispensary was not a permitted use in the zone district. The providers appealed to the Board, which affirmed the administrator’s conclusion.

In May 2010, the providers filed this action, seeking declaratory and injunctive relief and money damages. In March 2011, the patients were permitted to intervene and joined the providers’ claim that the County was preempted by Amendment 20 to the Colorado Constitution from interpreting its zoning regulations so as to impose a de facto ban on medical marijuana dispensaries.

The trial court granted in part the County’s motion to partially dismiss the complaint and denied the request for a preliminary injunction. It also affirmed the Board’s resolution that the dispensary was not a permitted use. It then granted the County’s motion for summary judgment on all remaining claims.

Amendment 20, passed in November 2000, permits patients to possess and use medical marijuana without criminal prosecution in certain circumstances. In the 2010 legislative session, the Colorado Medical Marijuana Code (Code) was enacted. Pursuant to authority granted in the Code, the BOCC approved a resolution in July 2010 prohibiting businesses that cultivate, manufacture, or sell marijuana or marijuana products within unincorporated Jefferson County. None of the parties addressed how the Code affected the issues they raised on appeal. The Court of Appeals therefore requested supplemental briefing to determine whether the claims were moot in light of the Code’s enactment.

The County asserted that any claims for prospective relief were moot because the Code would prevent the providers from operating the dispensary in unincorporated Jefferson County. The Court agreed.

The Court held that even if it assumed that Amendment 20 created a constitutional right to distribute marijuana for medical use and to receive it from a provider of one’s choice, such rights are not unfettered. Here, the request for declaratory and injunctive relief would have no practical legal effect because of the County’s July 2010 ban on dispensaries and the Code’s requirement that all existing and new dispensaries operate their businesses in accordance with applicable state or local laws. Thus, even without the ban, the providers would have needed to apply and be approved by a local licensing authority. Such approval cannot be obtained under the ban; therefore, the claims for injunctive and declaratory relief are moot.

Alternatively, the patients and providers claimed they were “grandfathered” under CRS § 38-1-101. The Court disagreed. The statute limits the broad land-use-planning authority of counties by prohibiting a local government from enacting or enforcing an ordinance, resolution, or regulation in such a way that terminates or eliminates by amortization a nonconforming property use that was lawful at its inception. Here, assuming the statute applies, the dispensary was not lawful in 2009; therefore, there was no basis for it to be lawfully grandfathered.

The providers argued it was error to dismiss their equitable estoppel claim because the Colorado Governmental Immunity Act (CGIA) does not apply to claims seeking injunctive and declaratory relief. The Court disagreed. Equitable estoppel applies where a plaintiff detrimentally relies on a defendant’s misstatement of fact. It lies in tort. Here, the providers claimed the County led them to reasonably believe a dispensary was a permitted use on their property. Thus, the claim was a tort claim and it was not error to dismiss it under the CGIA (the nature of the damages sought is immaterial).

The providers also contended it was error to dismiss their money damages claims for the County’s violations of their due process, equal protection, and article XVIII, § 14, rights under the Colorado Constitution. The Court disagreed. The due process clause of the Colorado Constitution does not create an implied cause of action in damages. Equal treatment under the laws in Colorado is a right under the due process clause. The providers thus have no entitlement to money damages for state due process and equal protection claims.

The providers further argued that the Board impermissibly based its decision on a de facto ban on dispensaries. Because the Board reasonably concluded the dispensary was not a use expressly contemplated by the zoning resolution, the Court found no abuse of discretion. The appeal was dismissed with respect to the patients’ and providers’ claims for declaratory and injunctive relief. In all other respects, the judgment was affirmed.

Colorado Court of Appeals Opinions

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