Court Opinions: Colorado Court of Appeals Opinions for May 23

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Bullington v. Barela 

Ashley Bullington appealed the judgment in her suit against Courtney Barela. 

Bullington was seven months pregnant in December 2016 when Barela’s car struck hers in a low-speed, rear-end collision. Paramedics transported Bullington to the hospital, where she told doctors she felt tenderness in her neck and pain in her head and abdomen. Tests showed her spine was uninjured and the fetus was healthy. 

In February 2016, Bullington’s son was born healthy. Pain management options were limited by her pregnancy and breastfeeding. In October 2018, she was cleared by her doctor for steroid injections. But before the injections could be performed, she became pregnant again. 

Bullington returned in November 2020 for medical care, and her doctor again recommended steroid injections. But before she could receive the injections, she again became pregnant. 

Bullington sued Barela in November 2019, asserting claims for negligence and negligence per se. 

At the close of the evidence, the district court instructed the jury on the affirmative defense of failure to mitigate damages. As the basis for this instruction, the court found that Bullington’s “voluntary decision” to get pregnant twice after the accident could be considered by the jury as evidence of her failure to mitigate because “the fact that she was both pregnant and nursing delayed her treatment.” 

The Colorado Court of Appeals concluded the record doesn’t support the district court’s finding Bullington chose to get pregnant or that she didn’t take reasonable measures to avoid getting pregnant. 

The appeals court also concluded that, under the circumstances of this case, a personal injury plaintiff for whom an otherwise recommended medical treatment is contraindicated while pregnant or nursing has no duty to terminate the pregnancy or forgo nursing to receive the treatment. 

The appeals court reversed and remanded for a new trial on damages. 

Riggs Oil & Gas Corp v. Jonah Energy LLC 

In this case, the Colorado Court of Appeals considered whether the excusable neglect language in Colorado Appellate Rule 4(a)(4) allows it to accept an untimely appeal resulting from a lawyer’s failure to read the submission receipt showing that, on the filing deadline, his nonlawyer assistant filed the notice of appeal in the district court, rather than in the appeals court. 

In analyzing excusable neglect in this context, the appeals court decided the novel issue of whether, and, if so, under what circumstances, the appellate courts consider prejudice to the parties in deciding whether to accept an untimely appeal on grounds of excusable neglect under Rule 4(a)(4).

The appeals court concluded the lawyer’s failure in this case constitutes mere “garden-variety attorney inattention,” which doesn’t rise to the level of excusable neglect. Because the appeals court concluded the untimely filing of the notice of appeal wasn’t the result of excusable neglect, it didn’t consider whether any party was actually prejudiced. 

The appeals court held it lacked jurisdiction over this appeal and dismissed it with prejudice. 

Potts v. Gaia Children LLC

Debbi Potts appealed the district court’s order dismissing her claim for wrongful discharge in violation of public policy. 

Adopting a definition of “actual discharge” widely applied by federal courts, the Colorado Court of Appeals concluded the allegations in Potts’s complaint, if proved, could support a factual finding she was actually discharged from her place of employment. The appeals court held that, to the extent Potts’s complaint relied on a theory of actual discharge, she seated a claim upon which relief could be granted. 

But, like the district court, the appeals court concluded the allegations in Potts’s complaint, even if proved, wouldn’t establish she was constructively discharged.

The appeals court affirmed in part, reversed in part and remanded for further proceedings. 

Roane v. Elizabeth School District 

In this interlocutory appeal, the Colorado Court of Appeals considered whether a plaintiff has standing to sue a local public body for a violation of the Colorado Open Meetings Law when the plaintiff hasn’t pleaded meaningful connections to the local public body whose actions are being challenged. 

The appeals court first held that Section 24-6-402(9)(a) of the Colorado Revised Statutes creates a legally protected interest in favor of at least every natural person in Colorado, including Matt Roane, in having public bodies conduct public business in compliance with the COML. 

The appeals court then determined Roane had articulated a sufficient injury in fact by alleging the local public body violated that interest, and it concluded Roane has standing. 

The appeals court affirmed the district court’s decision denying the local public body’s motion to dismiss. 

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