United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER REGARDING JURY
INSTRUCTIONS ADDRESSING POTENTIAL APPORTIONMENT OF LIABILITY
AS TO COLORADO DEPARTMENT OF TRANSPORTATION
Nina
Y. Wang United States Magistrate Judge
This
matter is before the court on the issue regarding jury
instructions addressing potential apportionment of liability
and damages as to the Colorado Department of Transportation
(“CDOT”). The Parties dispute the duty applicable
to CDOT in its capacity as a nonparty at fault; specifically,
whether the court should instruct the jury that actual notice
is a prerequisite to apportioning liability to CDOT for any
negligence. The court took oral argument on the issue on June
11, 2018, and issued an oral ruling on June 12, 2018. This
Memorandum Opinion and Order further explains and
memorializes the court's oral ruling.
BACKGROUND
Plaintiff
Tamara Bryant (“Plaintiff' or “Ms.
Bryant”) originally sued CDOT along with Defendants
Earl Byron Reams, II and the H. Neil Reams Family LLLP
(collectively, “Reams Defendants”), John William
Reams, and Trace Campbell. [#1]. Ms. Bryant asserted two
claims against CDOT: (1) premises liability pursuant to Colo.
Rev. Stat. § 13-21-115; and (2) common law negligence.
[Id.]. Ms. Bryant asserted a single claim for
negligence against the Reams Defendants and John Reams, and a
claim for civil conspiracy between the Reams Defendants and
Defendant Trace Campbell. [Id.]. A First Amended
Complaint added Wendy Campbell as a defendant (collectively
with Defendant Trace Campbell, “the Campbell
Defendants”), [#28], but Plaintiff subsequently
dismissed the Campbell Defendants and the civil conspiracy
claim, [#34, #35]. The Reams Defendants thereafter designated
Kirk Powell as a nonparty at fault. [#44]. The court then
permitted a Second Amended Complaint to allow Plaintiff to
pursue exemplary damages. [#56].
After
the close of discovery, CDOT moved for summary judgment as to
the premises liability claim but not as to the common law
negligence claim. The court sua sponte raised the
issue pursuant to Rule 56(f) and ordered the Parties to
address whether the common law negligence claim could lie
against CDOT. [#85].[1] At oral argument, Plaintiff conceded that
no claim for common law negligence could lie against CDOT,
[#89 at 7:2-15], and the court dismissed the claim with
prejudice. [#88]. The court subsequently granted summary
judgment in favor of Defendant John Reams and dismissed the
exemplary damages demand, [#90], leaving one claim against
CDOT for a violation of Colo. Rev. Stat. § 13-21-115 and
one claim against the Reams Defendants for common law
negligence.
On May
25, 2018, Plaintiff and CDOT notified the court that they had
reached a settlement. [#135]. The Reams Defendants then moved
to designate CDOT as a nonparty at fault, [#136, #137], and
the court granted the Reams Defendants' motion upon
Plaintiff's filing of a Notice of Voluntary Dismissal as
to CDOT. [#150, #151]. Because the Parties submitted proposed
jury instructions and verdict forms when CDOT was still a
party to the suit, the court also directed Plaintiff and the
Reams Defendants to address how the dismissal of CDOT
affected the proposed instructions. [#152]. Trial commenced
on June 4, 2018. On June 9, 2018, Ms. Bryant and the Reams
Defendants submitted their respective trial briefs as to how
to instruct the jury with regard to any apportionment of
liability and damages as to nonparty CDOT. [#163, #164]. The
central issues present as follows: how to define CDOT's
duty for the purpose of apportionment of negligence; whether
actual notice is required to find CDOT negligent for the
purposes of apportionment; and whether a lack of actual
notice precludes Plaintiff from recovering damages from the
Reams in this action.
ANALYSIS
Ms.
Bryant contends that the jury must be instructed on a certain
provision of the Colorado's fencing statute, Colo. Rev.
Stat. § 35-46-111(a)(1), and that under the statute, no
liability for negligence can be apportioned to CDOT unless
the jury finds that CDOT was provided actual notice of a
defect in its fencing. [#164]. In their trial brief, the
Reams contend that the jury need not be instructed on
Colorado's fencing statute or provision regarding actual
notice, and rather that it need consider only whether CDOT
was generally negligent. [#163; #166]. During oral argument
held June 11, 2018, the Reams Defendants argued additionally
that even were consideration of the fencing statute
appropriate, section 35-46-111(1)(a) defines CDOT's duty
without a requirement of actual notice.
I.
Source of CDOT's Duty
It is
axiomatic that a party's negligence flows from the
particular duty it owes. “A cause of action in tort
arises out of a violation of a legal duty imposed upon an
actor to avoid causing harm to others.” United
Blood Servs. v. Quintana, 827 P.2d 509, 519 (Colo.
1992). In addition, a nonparty must owe a legal duty to the
plaintiff in order to be designated as a nonparty at fault.
See Miller v. Byrne, 916 P.2d 566, 578 (1995)
(“Consequently, we hold that, generally, the person or
entity designated under § 13-21-111.5 must, in order for
his or her fault to be measured under the statute, owe or
have owed a duty recognized by law to the injured
plaintiff.”). The existence of a duty is a separate
consideration from whether a particular party may be held
liable for breach of any duty. Under the Colorado
Governmental Immunities Act (“CGIA”), sovereign
immunity generally bars any action against a public entity
for injuries that lie in tort or could lie in tort.
Smokebrush Found. v. City of Colorado Springs, 410
P.3d 1236, 1240, reh'g denied (Feb. 26, 2018)
(citing § 24-10-108, C.R.S. (2017)). But entities that
are immune because of sovereign immunity may still be
designated as nonparties at fault. Miller, 916 P.2d
at 577; In re Air Crash Disaster at Stapleton Int'l
Airport, 720 F.Supp. 1465, 1466 (D. Colo. 1989). This
concept derives from the principle that a tortfeasor,
judicially determined to be liable, should pay “no more
than the relative share of the damage he caused.”
In re Crash Disaster, 720 F.Supp. at 1466.
Because
jurisdiction in this matter is based on diversity, [#58 at 1,
¶ 2], the court applies Colorado state law and,
accordingly, follows the most recent decisions of the
state's highest court, if any such decisions exist.
See Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665-66
(10th Cir. 2007). Where there is no controlling state
decision, the federal court must attempt to predict what the
state's highest court would do, id., which may
include consideration of decisions by the state's lower
courts. The Parties did not identify, and this court could
not independently find, any decision from the Colorado
Supreme Court that squarely addressed what standard of care
applies to CDOT as a designated nonparty at fault in an
action regarding livestock that wandered onto a public
highway. Accordingly, the court will consider the manner in
which Colorado courts have interpreted CDOT's duties in
other contexts.
In
State v. Moldovan, 842 P.2d 220, 222 (Colo. 1992),
the Colorado Supreme Court discussed the history of the
Colorado Fence Law in considering the applicable duties of
the defendants the State of Colorado and the Colorado
Department of Highways, the predecessor to CDOT. Under common
law, prior to enactment of the Colorado Fence Law, an owner
of a trespassing animal was strictly liable for any harm
caused by the animal during a trespass. Id.
(citations omitted). The Colorado Fence Law “modified
the common law doctrine which held the owner of trespassing
livestock strictly liable for their trespasses on the lands
of others.” SaBell's, Inc. v. Flens, 627
P.2d 750, 751 (Colo. 1981). In considering whether there was
a private right of action, the Moldovan court looked
to “the nature and extent of the state's duty
under the Fence Law” to ask
“whether the state's failure to maintain a
right-of-way fence adjacent to a state highway, as
alleged…, renders the state liable in a private tort
action for injuries sustained by a highway user.”
Id. at 225 (emphasis added). The court's review
of the statutory text of the Colorado Fence Law, considered
within the context of the history and structure of the Fence
Law, indicated that:
the primary purpose of imposing an affirmative
duty on the Division of Highways to maintain a
right-of-way fence along and adjacent to a highway is to
protect highway motorists from the danger of injuries
resulting from a collision with trespassing livestock.
Id. at 226 (emphasis added). The Moldovan
court went on to characterize the duty of the Department of
Highways as a “statutory duty, ” rather than one
arising under common law. Id. Consistent with the
Colorado Supreme Court's holding, this court concludes
that CDOT's comparative negligence does not derive from a
general duty of care to Ms. Bryant under the Premises
Liability Act, as suggested by the Reams Defendants, but from
a statutory duty created by the legislature.[2]Cf. Burnett
v. State Dep't of Nat. Res., Div. of Parks & Outdoor
Recreation, 350 P.3d 853, 857 (2013) (observing that the
duty to maintain the highway and thus the fence, in turn,
derives from another statute), aff'd in part sub nom.
Burnett v. State Dep't of Nat. Res., 346 P.3d 1005
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