Court Opinions- Jul 13, 2020

Warembourg v. Excel Electric, Inc.


Brian Warembourg, an employee of Schmidt Custom Floors, Inc., provided flooring for a new home being constructed by Feller Homes, Inc. Excel Electric, Inc., performed the electrical work at the construction site. It installed a temporary electrical box to supply power to the subcontractors.

While working at the site on Sept. 9, 2015, Warembourg was unable to power his equipment using the home’s interior outlets. He plugged a tool into the box, which was located outside the home, but discovered that the exterior outlets on the box also were not working. To troubleshoot the problem, he removed the box’s front cover and began toggling the circuit breakers inside the box. While toggling one of the breakers, the box “exploded,” shooting an “intense release” of electricity into Warembourg’s hand. Warembourg suffered permanent and disabling injuries as a result of the electrocution. Warembourg’s coworker photographed the damaged box shortly after the accident. The pictures depict a weathered electrical box lacking legible warning stickers. Although the box’s cover had been removed, the photographs show that none of the box’s internal wiring had been disconnected. 

Following this incident, Excel owners examined and later discarded the box without photographing or taking any notes about the box for later reference. Warembourg’s counsel contacted Excel about the pending injury claim and gave formal notice of Excel’s duty to preserve evidence of the incident. Since the box was not saved for the purposes of completing a thorough and impartial investigation, both parties claimed the other was at fault for the electrocution.

A division of the Colorado Court of Appeals analyzed whether the trial court abused its discretion in giving an adverse inference jury instruction containing an irrebuttable presumption of causation and liability as a sanction after finding that Excel engaged in spoliation by destroying a critical piece of evidence, in breach of its duty to preserve that evidence.

The division held that Colorado law authorizes the imposition of such an instruction for the pre-litigation destruction of evidence and that the trial court did not abuse its discretion in imposing the instruction as a sanction for the destruction.The division additionally held the trial court did not err in classifying Warembourg as an invitee under the Premises Liability Act, in its evidentiary rulings, in declining to instruct the jury on Warembourg’s alleged assumption of risk, and in ruling that the cap on noneconomic damages in the Construction Defect Action Reform Act does not limit Warembourg’s damages.

Gonzales v. Arapahoe County Court

The People alleged that in April 2013, C.V., a female student at Prairie Middle School, disclosed to another student that she had a sexual relationship at age 14 with a teacher, Brian Vasquez. According to the People, the student’s allegation was disclosed to the school’s dean, but rather than report the abuse, the dean met with C.V. and asked her to reconsider her allegation given the consequences that it could have for Vasquez. 

The dean then took C.V. to meet with Gonzales, the principal of Prairie Middle School. As a public school official, it is undisputed that Gonzales is a mandatory reporter under section 19-3-304(2)(l). The People allege Gonzales questioned C.V., again stressing the consequences that her accusations would have for Vasquez. Ultimately, C.V. retracted her claim. She was subject to disciplinary proceedings, after which she was suspended from school for purportedly falsifying an allegation against Vasquez. Gonzales never reported C.V.’s sexual assault allegation, as required by the failure to report statute.

In August 2017, police interviewed Vasquez regarding allegations of sexual abuse pertaining to a different student. Vasquez confessed to sexually abusing numerous students  — including C.V. — starting in 2013. In January 2018, after a grand jury hearing, Gonzales was indicted on one count of failure to report child abuse in violation of section 19-3-304(1)(a). At the time Gonzales was charged, the statutory limitations period for his alleged offense was eighteen months. Accordingly, Gonzales moved to dismiss the indictment, asserting that his prosecution was initiated after the limitations period had expired in October 2014. The People countered that the duty to report is a continuing obligation, failure to meet that obligation is a continuing offense, and the statute of limitations was not triggered until law enforcement discovered the alleged nondisclosure in August 2017. The county court denied Gonzales’s motion, concluding the failure to report child abuse is a continuing offense. Gonzales challenged the county court’s order through a C.R.C.P. 106(a)(4) action in the district court. In a detailed order, the district court concluded that failure to report is not a continuing offense and ordered the county court to dismiss the criminal case. 

The county court appealed, contending that the district court erred by finding that Gonzales’s prosecution was barred by the applicable statute of limitations because failure to report constitutes a continuing offense.

As a matter of first impression, a division of the Colorado Court of Appeals considered whether a mandatory reporter’s willful failure to report child abuse or neglect under section 19-3-304, C.R.S. 2019, constitutes a continuing offense for the purposes of determining when the statute of limitations period begins to run. In the absence of clear legislative intent, the division concluded that failure to report is not a continuing offense, and that the statute of limitations begins to run when a mandatory reporter has reason to know or suspect child abuse or neglect but willfully fails to make an immediate report. After applying the appropriate rules of statutory construction and consulting legislative history, the division could not conclude that the General Assembly assuredly intended failure to report to be a continuing offense. 

Macintosh v. Arapahoe County Court

Stemming from the same events in Gonzales v. Arapahoe County Court, Adrienne Macintosh, the dean of Prairie Middle School and whom C.V.’ssexual relationship with Vasquez was disclosed to, was indicted on a charge of failure to report child abuse.

A division of the Colorado Court of Appeals considered whether Colorado’s failure-to-report provision — which subjects mandatory reporters to prosecution for a class 3 misdemeanor if they fail to “immediately report” known or suspected child abuse or neglect — creates a  “continuing offense” for purposes of the statute of limitations. 

Applying Colorado Supreme Court precedent, the division concluded that failure to report is not a continuing offense, and that the statute of limitations for violation of the provision starts to run when a mandatory reporter has reason to know or suspect child abuse or neglect but fails to make an immediate report. 

Section 19-3-304(4)defines a discrete act with a measurable unit; the word “immediately” indicates the starting point as the moment when the reporter learns information that triggers the reporting obligation, and the statute of limitations expiration date defines the endpoint of the measurable unit. 

Given that the failure to report offense can be measured in definite and discrete units, it is not one that continues. Because failure to report is not a continuing offense, the county court erred in permitting MacIntosh to be indicted on a charge of failure to report after the limitations period had expired.

Bernache v. Brown

In this car accident litigation, Celena Bernache appealed a jury verdict in favor of Gary Brown, arguing that the district court erroneously admitted a hearsay statement within a traffic accident report. 

The report, which was taken at the scene of the accident by a Fountain Police Department corporal, included a non-medical professional statement from an unidentified witness that alleged Brown appeared to have suffered a heart attack which led to the crash. The report statement in combination with others from Brown during trial led jurors to believe that Brown was not culpable for the accident because he had suffered an alleged medical emergency. Bernache also argued on appeal that a juror’s failure to disclose her relationship with a fact witness was misconduct. 

A division of the Colorado Court of Appeals considered whether section 42-2-121(2)(c)(II), C.R.S. 2019, allows automatic admission of a hearsay statement within a traffic accident report. The division concluded that the district court misinterpreted the statute when it admitted a witness’s hearsay statement contained in the report where the statement did not independently satisfy a hearsay exception. Because the division reversed the judgment and remanded the case for a new trial, it didn’t consider the claim that a juror committed misconduct. 

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