Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
ERBOCES v. Colorado Springs School District 11
In this case, the Colorado Supreme Court was asked to decide whether a board of cooperative education services, or BOCES — a “regional educational service unit designed to provide supporting, instructional, administrative, facility, community, or any other services contracted by participating members” — may locate a school within the geographic boundaries of a nonmember school district without the consent of that district.
Specifically, the high court granted certiorari to consider whether a division of the Colorado Court of Appeals erred in concluding the plain language of Section 25-5-111(2) of the Colorado Revised Statutes prohibits a BOCES from locating a school within the geographic boundaries of a nonmember school district without its consent and Article IX, Section 15 of the Colorado Constitution prohibits a BOCES from doing so.
The court concluded the division properly determined Section 22-5-111(2) prohibits a BOCES from locating a school in such an area without a nonmember school’s consent. In light of this conclusion, the court noted it need not decide whether Article IX, Section 15 of the Colorado Constitution affects the same prohibition.
It affirmed the judgment of the division.
In this case, the Colorado Supreme Court considered whether a defendant may absolve itself of statutory duties imposed by the Ski Safety Act of 1979, the Passenger Tramway Safety Act and regulations promulgated under those acts by way of private agreements purporting to release negligence claims against it. The court also considered whether the district court properly applied the factors set forth in its 1981 decision in Jones v. Dressel, to uphold the private release agreements signed by the plaintiff in this case and to dismiss two negligence-based claims brought by the plaintiff.
This proceeding arose out of a chair lift accident that left minor Annie Miller a quadriplegic at Crested Butte Mountain Resort. Crested Butte sells ski passes online. When customers access the website to buy a ski pass, they are required to agree to a release of liability. After customers check the box for “Release of Liability,” the website displays the release language in full, and the customers must select the “I Agree” button, affirming they “have read and agree to the terms of the Release of Liability.”
In November 2021, Miller purchased three-day ski passes through the website for himself and Annie Miller. In doing so, he signed a Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement on Annie’s behalf.
The Epic Pass, which all customers were required to have scanned before boarding a chair lift, also contained a Release of Liability and Assumption of Risks Agreement.
After the chair lift accident, Miller sued Crested Butte in the Broomfield County District Court, alleging negligence – highest duty of care of ski lift operator, negligence per se based on violations of the SSA, the PTSA and a number of specifically identified regulations and gross negligence.
Crested Butte moved to dismiss the complaint on a number of grounds, including that the negligence per se claim failed to state a claim on which relief could be granted and that the negligence – highest duty of care and purported negligence per se claims were barred by the releases of liability that Miller had signed. Miller responded he properly pleaded a negligence per se claim and the releases he signed were unenforceable.
The district court ultimately granted Crested Butte’s motion as to Miller’s negligence – highest duty of care and negligence per se claims but denied the motion as to Miller’s gross negligence claim. The court next proceeded to consider Miller’s negligence – highest duty of care claim and, applying the Jones factors, determined the releases Miller signed were enforceable and those releases barred the claim.
The Supreme Court concluded Crested Butte may not absolve itself by way of private release agreements of liability for violations of the statutory and regulatory duties on which Miller’s negligence per se claim is based.
The court concluded the district court erred in dismissing that claim.
It also concluded the district court properly applied the Jones factors to determine the release agreements Miller signed are enforceable and bar Miller’s purported claim for “negligence-highest duty of care.”
The court made its rule to show cause absolute in part and discharged it in part, and remanded the case to the district court with instructions to reinstate Miller’s negligence per se claim.
The Colorado Supreme Court emphasized Colorado Rule of Civil Procedure 54(b) gives trial courts discretion to certify a ruling on any subset of claims as “final” when there is “no just reason for delay[ing]” an appeal of that subset of claims.
In doing so, the Supreme Court overruled the decision of the Colorado Court of Appeals in Allison v. Engel in 2017. That decision, the high court noted, had inappropriately narrowed the applicability of Rule 54(b) and a division of the appeals court in this case followed that narrow approach.
In 2002, Michael Brenneman and Jeffrey Selby hired Daniel Wolf to aid in the development of Denver’s Four Seasons Hotel. Fifteen years later, Brenneman and Selby accused Wolf of stealing millions and passed on information concerning their business dealings to the Denver District Attorney. Shortly after, the DA charged Wolf with theft and conspiracy to commit theft. After a grand jury indicted Wolf on these charges, a newspaper quoted Selby as saying Wolf had committed “fraudulent theft” and “sold his soul.”
A jury found Wolf wasn’t guilty, and Wolf then sued Brenneman and Selby for malicious prosecution, abuse of process, civil conspiracy, false imprisonment and defamation. Brenneman and Selby moved to dismiss the first four claims on the ground that their statements to the DA were protected by the common law doctrine of complaining witnesses and by the Colorado Supreme Court’s precedent concerning immunity from civil liability for individuals who are “an integral part of the judicial process.”
The trial court agreed the first four claims were based on “statements made by [Respondents] as part of the judicial process” and ruled Brenneman and Selby “had absolute immunity” from all the charges except defamation (as the statements undergirding the defamation charge weren’t made as a part of the judicial process).
Wolf then asked the court to certify the dismissal order as a final and appealable judgment under Rule 54(b). The trial court granted the motion, reasoning timely appellate review of the dismissed claims would prevent the parties from being “forced to have the expense of two trials” and aid the trial court in conducting an eventual trial because resolution of the dismissed claims was “likely to control the remaining claim and resolution of this case.” The court noted the facts were largely undisputed so the appellate record would be limited. The court concluded, as required by Rule 54(b), there was “no just reason for delay” and certified the four claims for appeal.
A split division of the Colorado Court of Appeals found the certification invalid. The majority observed that a desire to avoid duplication of trial efforts and obtain guidance from an appellate court were essentially the reasons given for Rule 54(b) certification that Allison had determined were insufficient. The division concluded that, following Allison, the trial judge had abused his discretionary authority under Rule 54(b).
The Supreme Court vacated the division’s judgment and remanded the case to the court of appeals to determine whether the facts of this case indicate the trial court abused its discretion by certifying Wolf’s claims as final under Rule 54(b).