Friday, October 28, 2022

7 steps to minimize the risks of an injury lawsuit

    Your friend talked you into letting her ride one of your horses.  An accident occurred.  There may be injuries.  Now what?

    Regardless of any waiver or release, you are at risk of being sued.  These steps can help head off a lawsuit and increase your chances of coming out of one ok:

1.    Quickly obtain medical assistance if needed/requested.

2.    Do not admit fault, wrongdoing or liability.  Note if your friend does.

3.    Write up an accident report.  Better yet, have your friend do it with you (and at least sign it).  Briefly describe the incident, date, persons and animals involved.  Note witnesses and their contact information.  Note any obvious or claimed injuries and whether medical service - an ambulance, first aid, a lift to the emergency room - was offered, refused, etc.  Stick to the facts.  Be concise.  

4.    Take pictures.  They're worth a thousand words.  Everyone has a cellphone camera.  Photograph the scene, the animal, tack or equipment involved, and obvious injuries or lack thereof.  If your friend (who probably hasn't been to a personal injury lawyer yet) says she's ok, take a cheesy pic of her smiling and giving you a thumbs up.

5.    Notify your insurer(s).  For example, if the incident occurred at your home and wasn't for business, your homeowner's policy probably applies.   Look at your insurance policy and follow its notice and reporting requirements.  Let your insurance agent know soon and in writing (email is fine). 

6.    Let your lawyer know too.  Keep him in the loop (among other things, it can help when dealing with obstinate insurance companies).  Lawyers are paid to worry about other people's problems, so let him do the worrying.  Have peace of mind.

7.    The deadline to start a lawsuit for personal injuries varies from state to state.  In Colorado, generally speaking it is within two years of the incident.  Save your report (plus photos, any signed waivers or releases, etc.) above for at least that time.  Share it with your lawyer for extra safe keeping.

    Check our website links to a sample form waiver and form incident report, and how civil lawsuits work.  Call us if you want experienced help.  Sanderson Law, P.C.  303-444-8846.


Thursday, October 20, 2022

Paying less to settle a dispute.

Assume you and a neighbor dispute how much money should cover accidental damage to his property (for example, you want to be neighborly and settle the matter of your goat getting loose and eating up his garden, or your kid broke a neighbor's window playing ball, or your husband ran over his mailbox, etc.).   

Options may include doing nothing, involving authorities if available, and if also needed, suing in court.  A better option may be to get a damage estimate or two (invite your neighbor to do the same) and offer to pay something in exchange for resolving the matter.

In the law sometimes this is referred to as an accord and satisfaction, a "method of discharging a claim whereby the parties agree to give and accept something in settlement of the claim and perform the agreement...."  Black's Law Dictionary, 5th Ed.

It often involves tendering (delivering or mailing to the neighbor) a check for the amount you're willing to pay anyway, with a note in the "memo" section like "In full satisfaction of any claims regarding" the incident.  The goal is to make clear (and in writing) the payment is being offered (and its acceptance/cashing constitutes agreement) to resolve the matter.

Your neighbor's cashing the check after writing on it "reserving rights" or some such generally will not avoid accord and satisfaction.  As the Colorado supreme court has stated, "[i]n the case of a check offered as 'payment in full' for a disputed amount, generally a creditor [your neighbor] cannot avoid the consequences of accepting the accord, i.e., cashing the check, by declaring that he does not assent to the condition attached by the debtor [you]."  Anderson v. Rosebrook, 737 P.2d 417, 419 (Colo. 1987).  As renowned New York state Chief Judge Cardozo put it way back in 1932, "What is said is overridden by what is done...."

Practically, especially since checks generally are good for 6 months, it gives your neighbor something to think about for a while (a bird in hand is worth two in the bush), puts your money where your mouth is so to speak, may be the "neighborly" thing to do, and overall may be a good way to resolve things cheaply and quickly.

There are risks.  Though rules of evidence may prevent it in court, "offering" to pay anything could be taken as a sign of culpability.  Any amount offered may lead to more demanded.  The law is uncertain as to whether this would be an enforceable accord and satisfaction in any one particular case (which tend to be fact specific).  But, since the amounts involved usually are relatively minimal (these cases otherwise might end up in a small claims court), it may be an option worth pursuing.

As always, it is best to consult an experienced lawyer when considering options. 

Monday, September 19, 2022

What is the Economic Loss Rule?

Here in Colorado - home base for Sanderson Law, P.C. - litigants in civil cases are apt to invoke something called The Economic Loss Rule.  

Adopted (and better explained) in Town of Alma v. AZCO Const., Inc., 10 P.3d 1256, 1264 (Colo. 2000), it precludes “a party suffering only economic loss from the breach" of a contract from pursuing "a tort claim [like negligence, interference with contract, most breaches of fiduciary duty, and the like] for such a breach absent an independent duty of care under tort law."  

The ELR is supposed to limit litigation (e.g., head off claims for the higher money damages possibly available for torts when the case more obviously arises from breach of contract between the same parties), and to encourage the parties to contract better (including risk allocation).  

In reality, like so many arguably well-intentioned rules and laws, the ELR's unintended consequences undercut its practicability.  It is confusing to parties, lawyers (especially those not based in Colorado) and even judges.  It leads to resources being spent litigating the rule, exceptions and application rather than the merits of the case.  It impedes settlement discussions with its uncertainty and unpredictability.  Appellate courts struggle with its scope.  The ELR's boundary remains unclear and risks contract law swallowing up tort law.

Tough to say how many other states have an economic loss rule or something like it, but it's not universal and maybe not even the majority.  If you have or are thinking about a case in Colorado, best to brush up on the rule, as you might be spending a lot of time and money arguing about it.


Monday, September 12, 2022

Responding to a Subpoena

    A subpoena is a court pleading amounting to an order to show up and/or produce documents (called a subpoena duces tecum, or SDT) or other materials.  It can be issued (by a judge, lawyer or court clerk) in a civil, criminal or administrative case or proceeding.  In Colorado (and federal court) civil procedure rule 45 governs subpoenas.  In criminal cases it is rule 17. 

    Failure to comply can result in contempt of court (some jail in really bad situations).  But "compliance" can cause problems too, like waiving confidences and privileges (HIPAA is one example) or unnecessarily and unwisely giving over information.  It is best to check with a lawyer before proceeding, as he or she will (should) among other things -

  1.  Make sure the subpoena properly was served.  Improperly served subpoenas generally are not enforceable.

  2.  Make sure the subpoena is not unreasonable, too broad, harassing, unduly burdensome or otherwise oppressive.

  3.  Coordinate compliance as necessary, i.e., where and when to turn over any documents ahead of time so as to avoid having to show up in court, protecting confidences, asserting privileges etc.

  4.  Negotiate with the other side and other interested persons or agencies to clarify or limit the subpoena if advisable.

  5.  Move to quash (you squash a bug, but quash a subpoena), that is, file a written motion in the relevant court asking to cancel or limit the subpoena ahead of its return date/time.

    Subpoenas can be little problems that turn into big ones.  Minimize problems by dealing with the subpoena including notifying your attorney as soon as possible.

Friday, August 26, 2022

Probation violation - Now what?

Most criminal cases resolve short of trial, many with a plea agreement including probation.  Even trial convictions can include a probation sentence.  Probation means - if you stay out of trouble and timely comply with its terms and conditions - avoiding worse consequences like jail or prison.  So, what happens if you mess up and are accused (and possibly arrested and jailed) of violating probation?

First, you'll get written notice of the alleged violation(s).  This is usually in the form of a complaint to revoke probation filed with the court overseeing the case, and a summons requiring you to appear in court to answer the allegations made by the probation department and prosecutor's office.

Second, you're entitled to a hearing - evidence and all - but typically not a jury, and under a lessor preponderance of evidence versus reasonable doubt standard.  An exception is if the alleged violation is a new offense, which triggers additional due process.  In Colorado - a more or less typical state when it comes to probation - details of the process can be found at CRS 16-11-206 and Criminal Procedure Rule 32.  Federal probation is an entirely different, and rare, creature.

Third, if revoked, you can be re-sentenced per the charge or charges you pled to, including jail or prison, fines etc. 

Meantime the prosecution likely will try to negotiate with you (your lawyer if you have one) a resolution short of proceeding with a hearing.  This mainly is because, if they or the judge wanted you in jail or prison in the first place, you'd probably already be there.  Instead, per a new agreement the terms and conditions and length of probation may be "continued" or extended, additional classes or treatment required, jail alternatives like day reporting, work release or in-home detention imposed, etc.  In other words, you usually get at least a second chance on probation, subject as always to judge approval.

One of the worst things about being a judge must be listening to people explain or excuse or try to justify why they violated probation (which sentence often really is a gift in the first place).  Judges do this a lot (get to court an hour or so early and see for yourself).  

Especially in cases where the alleged violation is missing appointments, failing to complete classes or treatment in time, not paying what is required, and the like, it may be better to admit, apologize and get on with it.  Cases involving "hot UAs," protection order violations, or new offenses, may justify increased push back, depending on your options.

It goes without saying that probation should not be taken lightly, and neither should revocation proceedings.  Consult an experienced lawyer first.

Tuesday, August 9, 2022

Agistor Liens - securing the cost of caring for livestock

  Colorado enables a person boarding horses or other livestock belonging to another person to file a lien for the cost of that care.  It is known as an “agistor lien,” detailed at CRS 38-20-201-120 (“Agistor’s Lien Act”).  An “agistor” is "any rancher, farmer, feeder, herder of cattle, livery stable keeper, veterinarian, or other person to whom livestock are entrusted by the owner for feeding, herding, pasturing, keeping, ranching, or boarding, or providing medical care."  CRS 38-30-202(3).

  According to the statute (at subsection -203):

(1) An agistor shall have a lien upon the livestock entrusted to its care for any amount that may be due for feeding, herding, pasturing, keeping, ranching, or boarding such livestock, for medical care provided to such livestock, and for all costs incurred in enforcing such lien, including attorney fees. The provisions of this section shall not apply to stolen livestock.

(2) An agistor's lien shall be effective for the entire period during which the livestock are held by the agistor, and if the livestock referenced in subsection (1) of this section are sold, exchanged, or otherwise disposed of from the premises of the lienor by anyone other than the lienor acting on his or her own behalf or the lienor's agent, the lien created by this section shall continue and shall attach to the proceeds received or receivable from such disposition. To the extent an agistor's lien remains effective, such lien shall be superior to all other liens.

  As with most liens, agistor liens are more complicated than they sound, limited in their applicability and effect, and frustrating to enforce.  For example, for the lien to apply, the animal must belong to a person other than the agistor, there must be an underlying agreement to pay for the care, the person asserting the lien must have possession of the animal, and other factors.  If filing the lien does not result in payment within a certain time, a court may order the sale of the animal to satisfy the lien amount.  Other timing issues and limitations apply.

  If there is a dispute over who actually owns the animal, a more general lawsuit likely will be required to determine ownership and enforce available remedies.  Contact Sanderson Law, P.C., for help.

Wednesday, August 3, 2022

Accused college sex offenders deserve due process.

In a recent Colorado appellate decision, the court recognized that colleges ("private educational institutions") owe to their students "a duty of care in the course of [their] investigations and adjudications of allegations of non-consensual sexual contact...."  

This is significant because it means colleges that expel students accused of sex offenses on the weakest of allegations and evidence can be sued for damages.  As the court put it, "[a] mere allegation of sexual misconduct can be devastating to the accused. A determination that a person engaged in non-consensual sexual contact can potentially destroy the accused’s educational, employment, and other future prospects."

The court explained that "[a] student who is dismissed after the culmination of a partial or unfair investigation will likely suffer a diminished earning capacity and stigma from the expulsion, and may be prevented from engaging in their chosen profession."

The case - Doe v. University of Denver, 2022COA57, announced 5/26/22 - is a welcome affirmation of due process of law.