Bryant v. Reams

          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 ...