Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
People v. Ramon Rodriguez-Ortiz
Ramon Rodriguez-Ortiz appealed his convictions of three counts of attempted first-degree murder, three counts of first-degree assault, two counts of attempted murder using explosive or incendiary devices, two counts of attempted assault using explosive or incendiary devices, first-degree arson, illegal discharge of a weapon, second-degree criminal tampering, two counts of second-degree trespass and criminal mischief.
He also challenged the crime of violence sentence enhancement of his first-degree arson sentence, which raised an issue of first impression. Specifically, he asked the Colorado Court of Appeals to interpret the language “[e]xplosive or incendiary device” in Section 18-12-109(1)(a)(I) of the Colorado Revised Statutes to describe two separate devices based on the disjunctive “or” and argued that a Molotov cocktail is an incendiary device, not an explosive device as required by the crime of violence statute, and that insufficient evidence supports his enhanced sentence.
Applying rules of statutory construction, the appeals court disagreed and concluded that the word “or” should be interpreted in an inclusive fashion to mean “and/or” and held that sufficient evidence supports the crime of violence sentence enhancer. The appeals court also addressed and rejected each of Rodriguez-Ortiz’s remaining arguments.
The appeals court affirmed.
Judge Karl Schock specially concurred.
Schock wrote that the cell phone records warrant in this case authorized the search and seizure of all call records, text messages, internet usage, data activity, voicemail messages and location data for Rodriguez-Ortiz over a six-month period based on a series of suspected crimes that occurred on 11 specific days during that timeframe.
In his view, such a warrant is too broad to satisfy the constitutional particularity requirement. And because the warrant does not incorporate the supporting affidavit, that affidavit cannot provide the particularity that the warrant lacks on its face.
He therefore respectfully disagreed with the majority’s conclusion that the warrant was sufficiently particular.
But because he concluded—albeit hesitantly—that a reasonable law enforcement officer could reach the same conclusion the majority did under the facts of this case, he would apply the good faith exception to uphold the denial of the motion to suppress. He concurred in the judgment.
Estate of Carol Ross v. Public Service Company of Colorado
The estate of Carol Ross appealed the district court’s judgment against Public Service Company of Colorado, doing business as Xcel Energy.
In 2017, Heather Gardens Association contracted with Comcast to install underground fiber-optic cables for internet and television services. PSCo operated natural gas pipelines underneath Heather Gardens and documented that the excavators damaged the gas lines six times as the project progressed. During the sixth incident, a drill ruptured one of the gas lines. The pipeline rupture allowed large quantities of natural gas to fill Carol Ross’ home. The drill operator called 911, but the gas ignited approximately an hour and a half later, causing a large explosion that killed Ross and destroyed her home.
Ross’ estate and heirs sued the excavators, Comcast, Heather Gardens and PSCo. The excavators, Comcast and Heather Gardens settled the claims against them, leaving only Ross’ claims against PSCo for trial. Ross argued claims for wrongful death, negligence, negligence per se, strict liability and extreme and outrageous conduct against PSCo.
The district court made four rulings—before and during trial—that are at issue in this appeal and cross-appeal. All challenges to these rulings were preserved for appeal.
After briefing and oral arguments, the district court concluded that the plain language of the Colorado Revised Statutes does not provide that an entity may be liable for a felonious killing.
On appeal, Ross argued that the district court erred by concluding that the felonious killing exception to the Wrongful Death Act does not apply to corporations.
The Colorado Court of Appeals found that the district court’s interpretation of the word “individual” in Section 15-11-803(1) was erroneous. The appeals court found that in the context of the WDA, the legislature’s intent was to allow the damages cap to be lifted when both individuals and corporations commit felonious killings.
It therefore remanded the case for the district court to “determine whether, by a preponderance of evidence,” Ross established each element of a felonious killing. If the district court determines the requisite elements have been established, it must remove the cap and increase Ross’ damages accordingly.
On cross-appeal, PSCo argued that the district court improperly applied the WDA’s damages cap when it first apportioned liability. Ross argued that some of the theories PSCo references were not preserved, but the appeals court concluded that PSCo sufficiently preserved those arguments for appeal.
The appeals court concluded that the district court erred by first apportioning PSCo’s damages to its 12% of fault before applying the cap. On remand, if the district court finds that the felonious killing exception applies, it must award Ross 12% of the $15 million noneconomic damages award. But if it finds that the felonious killing exception does not apply, it must award Ross 12% of the total capped recovery award of $52,328.40.
The appeals court affirmed the district court’s judgment in part, reversed it in part and remanded the case for the court to determine if the felonious killing exception applies and to recalculate Ross’ noneconomic damages with any appropriate interest.
The Colorado Premises Liability Act provides the sole remedy against landowners for injuries on their property, according to the opinion. The CPLA divides those persons to whom a landowner owes a duty of care into three categories: trespassers, invitees and licensees.
Landowners owe different duties to each category. A person “who enters or remains on the land of another” for their“own convenience or to advance the [person’s] own interests, pursuant to the landowner’s permission or consent,” is a “licensee” under the act. “[S]ocial guest[s]” are licensees.
As relevant to this case, “[a] licensee may only recover damages caused…[b]y the landowner’s unreasonable failure to exercise reasonable care with respect to dangers created by the landowner that the landowner actually knew about.”
A landowner may be held liable to a licensee who was injured on the landowner’s property as a consequence of the landowner’s failure to comply with a local ordinance. In such cases, determining whether the landowner breached a duty of reasonable care to the injured licensee may hinge on which version of the ordinance applies.
The Colorado Court of Appeals first considered which version of the local fire safety ordinance applied in this premises liability case arising from a fire at a leased dwelling. The ordinance had been amended at least twice since the dwelling’s construction, so the applicable ordinance could have been the one in effect at the time of construction, the one in effect at the time the landowner leased the subject premises to the tenant or the one in effect at the time the subject children were injured. The appeals court concluded that, under the facts of this case, the applicable ordinance is the one in effect at the time the children were injured.
Second, the appeals court interpreted the edition of the International Fire Code embodied in the applicable ordinance. According to the opinion, no reported decision in Colorado has interpreted a provision of the IFC, and its interpretation applies to the edition of the IFC in effect in Durango today.
The appeals court held that, under Section 1103.8.1 of the 2012 edition of the IFC—the applicable edition—landowners are not required to comply with the smoke alarm requirements specified in the 2012 IFC as long as a building code was in effect at the time of construction, that code required smoke alarms and smoke alarms complying with those requirements were already provided in the dwelling.
The appeals court concluded that the trial court erred by instructing the jury on an earlier version of the ordinance than the one in effect at the time the plaintiff children were injured.
The appeals court reversed the judgment entered in favor of the children and remanded the case to the trial court for further proceedings consistent with this opinion.
It also addressed whether, under the facts of this case, the property manager’s authorized agent was a “landowner” for purposes of CPLA and reviewed the children’s request for attorney fees. It declined to consider the other issues presented in this appeal, finding they were unlikely to arise in the same manner on remand.