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Colorado Court of Appeals Opinions
July 18, 2013

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.

2013 COA 110. No. 12CA0769. Reid v. Berkowitz.
Premises Liability—Injuries—Licensee—Duty of Care—Apportionment—Non-Delegable Duty—Comparative Negligence.

In this premises liability action under CRS § 13-21-115, defendant Daniel Berkowitz, doing business as Shimon Builders, appealed the judgment entered against him following a jury verdict in favor of plaintiff Rodney Reid. The judgment was affirmed in part and reversed in part, and the case was remanded.

Plaintiff, a construction worker, had accompanied his friend, a painter, to a house that was being constructed by defendant in Denver. Plaintiff sustained significant injuries when he tripped at the top of the stairs, grabbed a handrail that gave way, and fell three stories to the floor below.

Defendant contended that the trial court erred in determining that plaintiff was a licensee at the time of the incident. The trial court found that plaintiff was a licensee because (1) he had an ongoing business relationship with defendant; (2) he had worked on the construction site in question; (3) it was customary for workers on the project to help each other and defendant was aware of this custom; (4) workers had flexibility as to how and when they could perform their work; and (5) at the time of the accident, plaintiff was on the property helping the painter while waiting for a ride. Furthermore, defendant maintained an “open worksite,” meaning that it was acceptable for workers to bring additional help to the site to complete a task without defendant’s knowledge. These facts and circumstances are sufficient to support the trial court’s findings and conclusion that plaintiff had permission or consent to be on the premises.Therefore, the trial court did not err in concluding that plaintiff was a licensee.

Defendant also contended that the trial court erred in refusing to instruct the jury that it could apportion liability and fault to the two coworkers who had installed the handrail. Because the two coworkers owed plaintiff a duty of care, defendant was entitled to a jury instruction directing the jury to measure the fault of the two coworkers in addition to the fault of defendant. Thus, the trial court erred in rejecting defendant’s tendered instruction. However, any error was harmless because defendant had a non-delegable duty as a landowner to maintain the premises in a safe condition, and under the non-delegability doctrine, any fault of the two coworkers would be imputed to defendant in any event.

Defendant further asserted that the trial court erred in refusing to instruct the jury on plaintiff’s comparative negligence. There was evidence that plaintiff did not see the cords over which he claimed to have tripped; the cords might have been disclosed by the use of adequate light; and had he seen the cords, he might not have tripped. Therefore, there was sufficient evidence that justified giving an instruction on comparative negligence, and the trial court erred in rejecting it. The part of the judgment rejecting a comparative negligence instruction was reversed, and the case was remanded for a new trial on liability only.

2013 COA 111. Nos. 12CA1116 & 12CA1117. Chostner, District Attorney for the Tenth Judicial District v. Colorado Water Quality Control Commission.
Municipal Water—Federal Clean Water Act—Public Notice—Antidegradation Reviews.

The regulation of water quality in Colorado is the domain of the Colorado Water Quality Control Commission (Commission) and the Water Quality Control Division (Division). These consolidated appeals arose from a decision of the Division to grant conditional certification to the Southern Delivery System (SDS)—a municipal water delivery project involving the construction of a fifty-three-mile pipeline—under § 401 of the federal Clean Water Act. Given its scope and magnitude, the SDS was the most expansive project reviewed by the Division in several decades.

The District Attorney for the Tenth Judicial District, the Office of the District Attorney for the Tenth Judicial District, and the Rocky Mountain Environment and Labor Coalition (collectively, Coalition) appealed the Division’s 401 certification to the Commission. The Commission affirmed the Division’s conditional certification. The Coalition then appealed the Commission’s decision to the district court. The district court reversed the Commission’s final agency action. The Commission, Commission Director Steven H. Gunderson, and Colorado Springs Utilities (collectively, Colorado Springs) appealed the district court’s judgment, and the Colorado Court of Appeals reversed.

On appeal, Colorado Springs and the Commission contended that the district court misapplied the relevant standard of review. The district court erred to the extent that it reweighed the evidence and made credibility determinations based on information outside the administrative record, including previous condemnation cases before it involving the SDS.

Colorado Springs and the Commission also contended that the district court erred in rejecting the Commission’s finding that the Division complied with the public notice requirements set forth in the Commission’s regulations. Wildhorse Creek and Lower Arkansas segment 1b did not need to be included in the public notice of the Division’s antidegradation review determination because they were classified as “use-protected.” Further, the Division’s draft 401 certification determination sufficiently identified the impacted water basin. The Division’s error in failing to include in its final public notice specific antidegradation language or information about changes it made to its § 401 certification based on public comment was harmless. Therefore, the public notices were sufficient.

Colorado Springs and the Commission further contended that the Commission’s findings were neither arbitrary and capricious nor contrary to rule or law. The Division properly conducted antidegradation reviews of the relevant stream segments, there was substantial evidence in the administrative record that the Division conducted these reviews, and there was a reasonable basis for the Division’s methodology in conducting its antidegradation reviews. Therefore, the administrative record supports the Commission’s findings, the Commission did not act in an arbitrary or capricious manner or contrary to law, and the district court erred in finding otherwise.

Colorado Springs and the Commission also contended that the district court erred as a matter of law in finding that federal law required the Division, as a prerequisite to issuing its 401 certification, to establish Total Maximum Daily Loads (TMDLs) for certain impaired stream segments. Because the Division’s 401 certification of the SDS does not involve issuance of a point source pollutant discharge permit, the Division was not required to develop a TMDL as a prerequisite to certification. Accordingly, the district court erred in concluding that a TMDL was required.

The district court further erred in concluding that the Division was required to assess the potential impacts of future population growth as part of its § 401 review process for the SDS. There is no regulation or statute requiring the Division to consider future population growth and development in conducting its § 401 review.Moreover, the Coalition did not present any evidence that the SDS will cause population growth.

2013 COA 112. No. 12CA1261. Just In Case Business Lighthouse, LLC v. Murray.
Fraudulent Misrepresentation—Business Sale—Nonparty at Fault—CRE 1006—Summary Witness—Economic Loss Rule.

This case involved alleged fraud in the negotiated termination of agreements concerning a commission payable for facilitating the sale of a business. Defendant Patrick Murray appealed the judgment entered on a jury verdict against him on the fraudulent misrepresentation and concealment claim of plaintiff, Just In Case Business Lighthouse, LLC, which is solely owned and operated by Joseph Mahoney. The judgment was vacated and the case was remanded.

On appeal, defendant argued that the trial court erred in allowing Preston Sumner, whom plaintiff hired and agreed to compensate on a contingent basis, to testify as a fact witness. Plaintiff hired Sumner, a longtime acquaintance of Mahoney, as an advisor to develop its case. Over the course of four years, Sumner spent between 500 and 1,000 hours examining business records and preparing summaries. Sumner’s agreement with plaintiff provided that he would receive 10% of any judgment or settlement obtained herein. Contingent compensation of a fact witness requires the trial court to determine whether the witness should be stricken as a sanction. Here, because the trial court misstated the law on contingent compensation of witnesses and did not rule on the propriety of a sanction, the case was remanded to address this issue.

Defendant also argued that the trial court erred in allowing Sumner to testify as a summary witness because he had no personal knowledge of the facts. However, Sumner only testified as to evidence that had already been admitted by the court, and his testimony assisted the jury in understanding the facts. Therefore, the court’s ruling to allow such testimony was not manifestly arbitrary, unreasonable, or unfair.

Defendant argued that the trial court erred in admitting exhibits prepared by Sumner, contending they were inadmissible under CRE 1006 because they were based on evidence already admitted during the trial and were unduly prejudicial. CRE 1006 allows for the admission of such summaries when the documents underlying the summary are voluminous. Here, more than 200 exhibits were admitted during the eight-day trial. Moreover, the underlying documents were admitted as evidenceand CRE 1006 does

not “require the fact finder to accept the information present on the summary charts as true.”Accordingly, the trial court did not abuse its discretion in admitting Sumner’s summary exhibits.

Defendant further contended that the trial court erred when it denied its motion for directed verdict because the evidence was insufficient to establish fraud. A letter of intent for the sale of a business was signed before defendant had a conversation with plaintiff about buying him out of the deal, and defendant failed to disclose this fact to plaintiff. Thus, the jury could have concluded that defendant fraudulently concealed facts material to the sale.

Defendant also contended that a directed verdict should have been entered because the economic loss rule bars plaintiff’s fraud claim. Defendant raised the economic loss rule in his motion for summary judgment, which was denied. Because defendant did not raise it when moving for a directed verdict, at any other time during the trial, or in a post-trial motion, he did not preserve this issue and the trial court did not err in denying the directed verdict motion.

Defendant contended that the trial court erred in declining to instruct the jury that Pearl Development Companywas a nonparty at fault. A defendant is not entitled to a nonparty-at-fault designation where the party’s fault is only vicarious. Accordingly, the trial court properly declined to instruct the jury on Pearl as a nonparty at fault.

Colorado Court of Appeals Opinions