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Foster v. Board of Governors of Colorado State Univ. Sys.

Court of Appeals of Colorado, Seventh Division

February 27, 2014

Heather Foster, Plaintiff-Appellee,
v.
The Board of Governors of the Colorado State University System, by and on behalf of Colorado State University, Defendant-Appellant

Page 498

Larimer County District Court No. 12CV1374. Honorable Daniel J. Kaup, Judge.

Erik G. Fischer, P.C., Erik G. Fischer, Gordon M. Hadfield, Fort Collins, Colorado, for Plaintiff-Appellee.

John W. Suthers, Attorney General, Russell E. Yates, Special Assistant Attorney General, Dart M. Winkler, Special Assistant Attorney General, Matthew S. Mersfelder, Special Assistant Attorney General, Denver, Colorado, for Defendant-Appellant.

Opinion by JUDGE J. JONES. Fox and Navarro, JJ., concur.

OPINION

J. JONES, JUDGE

Page 499

[¶1] This case arises from a fire at Colorado State University's Equine Reproduction Laboratory (the Lab) that destroyed plaintiff Heather Foster's property. Defendant, the Board of Governors of the Colorado State University System (CSU),[1] appeals the district court's order denying its motion to dismiss Ms. Foster's claim for breach of an oral bailment contract based on immunity under the Colorado Governmental Immunity Act (CGIA). CSU's entitlement to immunity under the CGIA turns on whether Ms. Foster's claim lies in tort or could lie in tort. Because we conclude that a claim for destruction of property subject to a bailment lies in tort or could lie in tort, we reverse the district court's order and remand the case with directions for the district court to consider and rule on Ms. Foster's contention that an exception to CGIA immunity applies.

I. Background

[¶2] Ms. Foster and the Lab agreed orally that the Lab would provide reproductive treatment to Ms. Foster's prize-winning stallion. Pursuant to that agreement, the Lab collected ten " straws" of semen from the stallion to be used for in vitro fertilization, and Ms. Foster and the Lab entered into a bailment relationship, pursuant to which the Lab (the bailee) stored the straws in its specialized storage facility, and Ms. Foster (the bailor) paid the Lab a monthly fee.

[¶3] Less than two years later, a fire destroyed the Lab and most of its contents, including the semen straws from Ms. Foster's stallion. The fire department investigated the fire but was not able to determine its cause.

[¶4] Ms. Foster sued the Lab, asserting a claim for breach of an oral contract for bailment. CSU moved to dismiss the complaint pursuant to C.R.C.P. 12(b)(1) based on lack of subject matter jurisdiction under the

Page 500

CGIA, § § 24-10-101 to -120, C.R.S. 2013. Specifically, CSU argued that it is immune from Ms. Foster's suit because her claim lies in tort or could lie in tort. See § 24-10-106(1).

[¶5] After hearing arguments on the motion, the district court determined that the facts material to whether Ms. Foster's claim lies in tort or could lie in tort for purposes of the CGIA are not in dispute. The court therefore concluded that an evidentiary hearing was unnecessary.

[¶6] The court subsequently issued a written order denying CSU's motion to dismiss. The court disagreed with CSU's assertion that Colorado courts have determined bailment claims to be tort claims, saying that " [t]he fact that courts use language of negligence when addressing bailments is not dispositive of whether a breach of duty under a bailment sounds in tort." Rather, the court found " as a matter of law that the relationship between these parties is based solely on an oral contract for storage in exchange for payment by [Ms. Foster]." The nature of CSU's liability (if any), the court reasoned, must therefore arise from that contract.

[¶7] The court was also not persuaded that Ms. Foster's claim could lie in tort because it found " no indication that [she] could prevail on any tort claim given the allegations in her complaint." The court reasoned that because Ms. Foster sought only economic damages and the Lab had not allegedly breached an independent duty of care, any potential tort claim Ms. Foster might bring would be precluded by the economic loss rule. Having concluded that Ms. Foster's claim does not and could not lie in tort, it ruled that Ms. Foster had established that CSU does not enjoy immunity under the CGIA.

[¶8] CSU appeals pursuant to section ...


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