Colorado Trial Practice Blog

Bicycle Laws: Operation of Bicycles

Mac Hester — Sat, 27 Feb 2010 18:31:01 -0700

42-4-1412. Operation of bicycles and other human-powered vehicles.

(1) Every person riding a bicycle shall have all of the rights and duties applicable to the driver of any other vehicle under this article, except as to special regulations in this article and except as to those provisions which by their nature can have no application. Said riders shall comply with the rules set forth in this section and section 42-4-221, and, when using streets and highways within incorporated cities and towns, shall be subject to local ordinances regulating the operation of bicycles as provided in section 42-4-111.

(2) It is the intent of the general assembly that nothing contained in House Bill No. 1246, enacted at the second regular session of the fifty-sixth general assembly, shall in any way be construed to modify or increase the duty of the department of transportation or any political subdivision to sign or maintain highways or sidewalks or to affect or increase the liability of the state of Colorado or any political subdivision under the "Colorado Governmental Immunity Act", article 10 of title 24, C.R.S.

(3) No bicycle shall be used to carry more persons at one time than the number for which it is designed or equipped.

(4) No person riding upon any bicycle shall attach the same or himself or herself to any motor vehicle upon a roadway.

(5) Any person riding a bicycle shall ride in the right-hand lane. When being overtaken by another vehicle, such person shall ride as close to the right-hand side as practicable. Where a paved shoulder suitable for bicycle riding is present, persons operating bicycles shall ride on the paved shoulder. These provisions shall apply, except under any of the following situations:

(a) When overtaking and passing another bicycle or vehicle proceeding in the same direction;

(b) When preparing for a left turn at an intersection or into a private road or driveway;

(c) When reasonably necessary to avoid hazardous conditions, including, but not limited to, fixed or moving objects, parked or moving vehicles, pedestrians, animals, or surface hazards.

(6) (a) Persons operating bicycles on roadways shall ride single file; except that riding no more than two abreast is permitted in the following circumstances:

(I) When riding two abreast will not impede the normal and reasonable movement of traffic; or

(II) When riding on paths or parts of roadways set aside for the exclusive use of bicycles.

(b) Persons riding two abreast shall ride within a single lane.

(7) A person operating a bicycle shall keep at least one hand on the handlebars at all times.

(8) (a) A person riding a bicycle intending to turn left shall follow a course described in sections 42-4-901 (1), 42-4-903, and 42-4-1007 or may make a left turn in the manner prescribed in paragraph (b) of this subsection (8).

(b) A person riding a bicycle intending to turn left shall approach the turn as closely as practicable to the right-hand curb or edge of the roadway. After proceeding across the intersecting roadway to the far corner of the curb or intersection of the roadway edges, the bicyclist shall stop, as much as practicable, out of the way of traffic. After stopping, the bicyclist shall yield to any traffic proceeding in either direction along the roadway that the bicyclist had been using. After yielding and complying with any official traffic control device or police officer regulating traffic on the highway along which the bicyclist intends to proceed, the bicyclist may proceed in the new direction.

(c) Notwithstanding the provisions of paragraphs (a) and (b) of this subsection (8), the transportation commission and local authorities in their respective jurisdictions may cause official traffic control devices to be placed on roadways and thereby require and direct that a specific course be traveled.

(9) (a) Except as otherwise provided in this subsection (9), every person riding a bicycle shall signal the intention to turn or stop in accordance with the provisions of section 42-4-903; except that a person riding a bicycle may signal a right turn with the right arm extended horizontally.

(b) A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the bicycle before turning and shall be given while the bicycle is stopped waiting to turn. A signal by hand and arm need not be given continuously if the hand is needed in the control or operation of the bicycle.

(10) (a) A person riding a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian. A person riding a bicycle in a crosswalk shall do so in a manner that is safe for pedestrians.

(b) A person shall not ride a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk where such use of bicycles is prohibited by official traffic control devices or local ordinances. A person riding a bicycle shall dismount before entering any crosswalk where required by official traffic control devices or local ordinances.

(c) A person riding or walking a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall have all the rights and duties applicable to a pedestrian under the same circumstances, including, but not limited to, the rights and duties granted and required by section 42-4-802.

(11) (a) A person may park a bicycle on a sidewalk unless prohibited or restricted by an official traffic control device or local ordinance.

(b) A bicycle parked on a sidewalk shall not impede the normal and reasonable movement of pedestrian or other traffic.

(c) A bicycle may be parked on the road at any angle to the curb or edge of the road at any location where parking is allowed.

(d) A bicycle may be parked on the road abreast of another bicycle or bicycles near the side of the road or any location where parking is allowed in such a manner as does not impede the normal and reasonable movement of traffic.

(e) In all other respects, bicycles parked anywhere on a highway shall conform to the provisions of part 12 of this article regulating the parking of vehicles.

(12) (a) Any person who violates any provision of this section commits a class 2 misdemeanor traffic offense; except that section 42-2-127 shall not apply.

(b) Any person riding a bicycle who violates any provision of this article other than this section which is applicable to such a vehicle and for which a penalty is specified shall be subject to the same specified penalty as any other vehicle; except that section 42-2-127 shall not apply.

(13) Upon request, the law enforcement agency having jurisdiction shall complete a report concerning an injury or death incident that involves a bicycle on the roadways of the state, even if such accident does not involve a motor vehicle.

Bicycle Bike Accident Injury

Mac Hester — Sat, 27 Feb 2010 17:28:31 -0700

Automobile drivers don't pay much attention to bicyclists and the result can be devastating to the bicyclist, as bicycles and helmets provide very limited protection against injury in an automobile/bicycle accident.

There are many ways that bicyclists get whacked by inattentive or rude motorists, including:

Cars turning into the path of a bicycle because the driver, not seeing an oncoming car, assumes that there is no oncoming traffic;

Car drivers or passengers open car doors into the path of oncoming bicycles;

Cars sideswiping or veering too close to bicycles causing the cyclist to fall while avoiding the car or causing the cyclist to run into parked cars;

Cyclists getting hit by side mirrors;

Cars following too closely;

Motorists not giving enough leeway to children on bicycles (A child's bike riding may be unpredictable and an adult should be watchful for the child's unpredictable riding).

Injured bicyclists often don't get a fair shake after they have been injured. Many drivers resent bicyclists because they feel that bicyclists flaunt traffic rules that they have to follow. And unfortunately this attitude is sometimes shared by law enforcement personnel. Consequently, auto/bike accidents should be swiftly and thoroughly investigated so that accurate evidence can be obtained. And you should consider retaining an attorney to track down sources of coverage for your medical bills, lost wages, and other damages. Sources of coverage and compensation may include the at fault driver's liability insurance or the bicyclist's own Medical Payments (Med Pay) insurance or uninsured/underinsured motorist (UIM) insurance.

Fort Collins Colorado Bicycle Bike Accident Injury Lawyer Mac Hester

Wrongful Death FAQ

Mac Hester — Fri, 26 Feb 2010 23:39:39 -0700

Q. What is a wrongful death action?

A. A wrongful death action is a lawsuit for damages filed by the spouse (not ex-spouse) and/or heirs of a deceased adult or by the parent(s) of a deceased unmarried adult who had no children or by the parent(s) of a deceased unmarried minor who had no children against the person or entity that wrongfully killed the deceased.

Q. Who is an “heir” under the Wrongful Death Act?

A. Lineal descendants (children, grandchildren): Yes.

Collateral descendants (brother, sisters, aunts, uncles): No.

Parent(s) of a deceased unmarried adult or minor who had no children: Yes

Q. Who can file a wrongful death action and when?

During the first year after death: The spouse has an exclusive right to file. But the spouse may elect in writing to allow the heirs to join in the action. If there is no spouse, then the heirs may file an action immediately.

During the second year after death: The spouse and heirs have equal standing to file.

After the second year: The statute of limitations for wrongful death is two years, so the failure to file the wrongful death action within two years would bar all rights of recovery if the defendant asserted the statute of limitations as an affirmative defense.

Within a year or even less if the killer also died: Claims against the deceased killer’s estate have to be filed with the applicable probate time periods – which may be a year or even less. However, liability insurance coverage will probably still be available to be recovered.

Q. Who gets the money?

A. The plaintiffs in the wrongful death action recover the money damages, but all qualified heirs are entitled to share in the damages even if they are not named in the lawsuit. Parents may recover damages, but the division of the money may be affected by divorce and/or separation agreements, orders, or issues. There are other situations that affect who gets the money and how much. A detailed evaluation of all potential payees must be done.

Q. What damages can be recovered and how much?

Economic damages are recoverable. There is no “cap.” Economic damages include funeral expenses, loss of the deceased’s wages over his/her expected work life expectancy, less the deceased’s personal consumption, calculated to present value, and other pecuniary losses.

Non-economic damages are recoverable. The current inflation adjusted “cap” is $341,250. Non-economic damages are for grief, sorrow, and loss of companionship.

Solatium damages are recoverable. The current inflation adjusted amount is $68,250. If the plaintiff elects to pursue solatium damages, then the plaintiff does not have to provide evidence of grief, sorrow, and loss of companionship. The solatium amount is paid upon proof of liability. Solatium damages are not subject to reduction by the comparative negligence or pro rata liability statutes.

“Felonious Killing” damages are recoverable if the killing would be considered first or second degree murder or manslaughter. An actual criminal conviction is not necessary. The Wrongful Death Act non-economic damages cap is not applicable if the death was the result of a felonious killing.

Punitive damages are recoverable if the plaintiff proves beyond a reasonable doubt that the defendant’s conduct was willful and wanton. The amount of punitive damages cannot exceed the amount of actual damages.

Other damage limitations: Colorado was cursed with tort reform in the 1980’s and afterwards in which severe limitations have been placed on the ability of injured persons to be fairly compensated for the injuries, deaths, and damages inflicted upon them and their families by negligent and reckless persons and corporations. For example, if the deceased was wrongfully killed by the State of Colorado or a subdivision of the state, then damages are limited to $150,000. There are also severe restrictions in medical malpractice and other areas.

Q. Can there be more than one wrongful death action?

A. No. There can only be one wrongful death action filed. This is called the “one action” rule. All claims against all defendants must be brought in one action. If a second action is filed because, for example, an at fault party was not included in the first action then the second action will be dismissed and the defendant in the second action will go free - not to mention that the plaintiff will not have recovered damages attributable to the second action defendant in the first action and that the first action defendants are liable only for their respective shares of fault and not for any fault of the omitted at fault party.

Q. Can medical expenses be recovered?

A. No, not in a Wrongful Death action. Yes, in a “Survival” action.

Q. What is a “Survival” action?

A. A survival action is a lawsuit filed by the personal representative of the deceased’s estate to recover the economic damages that accrued between the date of injury and the date of death. Lost wages and medical expenses are examples. Subrogation and reimbursement claims by hospitals, medical providers, health insurers, Medicaid, Medicare and other must be taken into consideration.

Q. Can there be a wrongful death claim for the death of a fetus?

A. Yes, if the fetus was “viable” at the time the fetus suffered injury that caused its death. This is a medical determination. Colorado law does not specify an arbitrary date of viability. The parents will have to present medical evidence that the fetus was viable.

Fort Collins Colorado Wrongful Death Lawyer Mac Hester

Ski Accident Injury FAQ

Mac Hester — Fri, 26 Feb 2010 16:37:58 -0700

Q. If I am injured while skiing or at a ski resort, can I recover for my injuries and damages?

A. Yes, depending upon the situation. You cannot recover if you are injured as a result of an "inherent risk" of skiing. An example of an inherent risk of skiing is that skis will slide on snow and you could lose your balance and fall down and get hurt. On the other hand, a skiier slamming into your back is not, by the express terms of the Colorado Ski Safety Act, an inherent risk of skiing - otherwise, skier collisions could arguably be considered an inherent risk of skiing.

Q. What are the types of ski injury cases?

A. (1) Skier collision: There is a presumption under Colorado law that the uphill skier is at fault in a collision because an uphill skier should usually be able to avoid colliding with a downhill skier. However, the presumption can be overcome by showing that the downhill skier, rather than the uphill skier, was at fault. (2) Ski lift operation: If a person is injured by a defective ski lift, then the injured person can recover, but that is not very common. The more common situation would involve negligent operation of the lift by, for example, not stopping the lift and a skier is dragged a long way. (3) Equipment: Injury as a result of improper setting of bindings and improper functioning of the bindings. (4) Instruction: Example - It would be improper for a ski instructor to take brand new skiers down a black diamond run. (5) General negligence: Injury from risks that are not inherent or integral to skiing. Example: The wood planks on a deck are rotten and break and a person is injured.

Q. What are a skier's duties?

A. Colorado Revised Statute 33-44-109.

(1) Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope or trail and to ski within the limits of such ability. Each skier expressly accepts and assumes the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing; except that a skier is not precluded under this article from suing another skier for any injury to person or property resulting from such other skier's acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another.

(2) Each skier has the duty to maintain control of his speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, the primary duty shall be on the person skiing downhill to avoid collision with any person or objects below him.

(3) No skier shall ski on a ski slope or trail that has been posted as "Closed" pursuant to section 33-44-107 (2) (e) and (4).

(4) Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.

(5) Each skier has the duty to heed all posted information and other warnings and to refrain from acting in a manner which may cause or contribute to the injury of the skier or others. Each skier shall be presumed to have seen and understood all information posted in accordance with this article near base area lifts, on the passenger tramways, and on such ski slopes or trails as he is skiing. Under conditions of decreased visibility, the duty is on the skier to locate and ascertain the meaning of all signs posted in accordance with sections 33-44-106 and 33-44-107.

(6) Each ski or snowboard used by a skier while skiing shall be equipped with a strap or other device capable of stopping the ski or snowboard should the ski or snowboard become unattached from the skier. This requirement shall not apply to cross country skis.

(7) No skier shall cross the uphill track of a J-bar, T-bar, platter pull, or rope tow except at locations designated by the operator; nor shall a skier place any object in such an uphill track.

(8) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, the skier shall have the duty of avoiding moving skiers already on the ski slope or trail.

(9) No person shall move uphill on any passenger tramway or use any ski slope or trail while such person's ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug or while such person is under the influence of alcohol or any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug.

(10) No skier involved in a collision with another skier or person in which an injury results shall leave the vicinity of the collision before giving his or her name and current address to an employee of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision; in which event the person so leaving the scene of the collision shall give his or her name and current address as required by this subsection (10) after securing such aid.

(11) No person shall knowingly enter upon public or private lands from an adjoining ski area when such land has been closed by its owner and so posted by the owner or by the ski area operator pursuant to section 33-44-107 (6).

(12) Any person who violates any of the provisions of subsection (3), (9), (10), or (11) of this section is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars.

Spine & Spinal Injury

Mac Hester — Mon, 22 Feb 2010 17:50:09 -0700

Automobile collisions, falls, and other traumatic events can cause injury to the spine. Injury can be caused by blunt force trauma (e.g., parts of the body striking the interior of the car) and/or by abnormal movement of the spine caused by collision forces. The spine is referred to in three segments: cervical (neck); lumbar (low back); and thoracic (between the cervical and lumbar).

The spine provides the vertical structure and support for the body and also acts as the conduit for the spinal cord which runs from the brain down through the spine with nerve roots branching off at every level of vertabrae and running to every part of the body. Electro-chemical signals are sent back and from from every part of the body to and from the brain. The proper functioning of the brain and the body are dependent upon these signals being transmitted correctly. Also, these signals provide us with useful information (e.g., The stove is hot. Move your hand!). When a part of the spine is injured, signals - including the feeling of pain - are transmitted to the brain. The body, in conjunction with the brain, then reacts in various ways to protect us (e.g., immobilization: when the neck is injured, the neck muscles may not let us move our neck very much until it is healed sufficiently to resume normal movements).

A very common mechanism for spinal injury is rear end collisions. In a rear end collision, a stopped vehicle (target) is struck by a moving (bullet) vehicle. As you may remember from science class, all energy is conserved; there is no loss of energy in any action. As applied to a car crash, that means that the energy (momentum) of the bullet car is transferred to the target car. The target car is almost instantly propelled forward by the collision, but the driver experiences a slight lag (a micro-second): his or her body is not propelled forward until the seat back pushes him or her forward. The driver's body is pushed forward but the driver's head lags behind as the body is knocked out from under the head. The head extends (and hyperextends if there is no headrest) until its movement is stopped by the maximum range of the neck (unless stopped earlier by the headrest) and then it whips forward (hence the term "whiplash"). The body's forward movement is stopped either by the seat belt or by the steering wheel. When the body stops, extra momentum is transferred to the head as it is moving forward (flexion) increasing its speed until is is stopped by the maximum range of the neck (hyperflexion) or by the head hitting the steering wheel or interior of the car. (Seatbelts prevent or reduce injury from the body and/or head striking the interior of the car but increase the severity of injury to the cervical spine).

Until a few years ago, it was thought that the cervical injuries experienced in rear end collisions were caused by the hyperextension/hyperflexion of the cervical spine. However, recent research has demonstrated that spinal injuries are most likely caused by abnormal movements of the spine and abnormal pressures generated in the spine by compression. The normal movement of the cervical spine is a smooth arc. However, in a rear end collision, the cervical spine moves in an "S" curve. That is, the lower segment is propelled forward with the upper segment lagging behind: an "S" is formed in the spine. The joints of the vertabrae (the facet joints) do not move together in a smooth arc but instead slam together, which can cause injury. As the spine is formed into an abnormal S curve, the discs (shock absorbers between the vertabrae) are compressed. Compression can cause injury in two ways: (1) If the compression is severe and the disc is weak, then the disc material may stretch and/or tear (in extreme cases the disc may rupture); and (2) compression causes electro-chemical changes in the spine, which affect the proper function of the spinal system and its interaction with the body and the brain.The effects of spinal injury range from slight (minor neck stiffness) to catastrophic (paralysis or even death if, for example, the spinal cord is severed).

Because spinal injury is usually caused by abnormal movement and compression of the spine rather than by blunt force trauma to the spine, you should not be fooled by insurance adjusters and defense attorneys who say that you cannot be injured because there is no damage to your car. First of all, there usually is damage; it is just not visible. The frame may be bent or the bumper supports may be bent or broken. Second, the stiffer the bumper the more force transferred to your body. You are more likely to be injured and to be injured to a greater extent if you are in a vehicle with a stiff, rigid bumper and stiff, rigid frame. So in many cases the lack of vehicle damage means a greater likelihood of injury.

Fort Collins Colorado Spine and Spinal Injury Lawyer Mac Hester

Brain Injury FAQ

Mac Hester — Mon, 22 Feb 2010 15:16:09 -0700

Q. I didn't hit my head on anything inside the car. Can I have a brain injury?

A. Yes. A car collision or any other traumatic event that causes rapid movement of the head can cause your brain to slam into the interior wall of your skull causing bruising and/or bleeding and/or swelling. Also, the brain is held in place by bony ridges on the interior of your skull. Sudden movement against these bony ridges can cause micro abrasions and tears. And, because the brain sits atop the brain stem, sudden movement can cause the brain to rotate on the brain stem causing injury.

Q. I didn't lose consciousness in the crash. Can I have a traumatic brain injury?

A. Yes. First, a loss of consciousness is not a requirement for a diagnosis of traumatic brain injury (An alteration of consciousness is). Second, many victims of traumatic brain injury actually did have a brief loss of consciousness but just were not aware of it.

Q. I just had a concussion - not a brain injury, right?

A. "Concussions" are traumatic brain injuries. While many concussions are mild and many people are able to resume activities fairly quickly (like returning to play in a football game), concussions nevertheless are traumatic brain injuries and must be taken seriously. Medical examination is imperative even for mild concussions.

Q. What are the symptoms of traumatic brain injury?

A. Some of the symptoms of traumatic brain injury include: alteration of consciousness, loss of consciousness, blackout, seeing stars, amnesia (not remembering the actual traumatic event), dizzyness, loss of balance, visual problems, memory problems, lack of focus, loss of concentration, problems with multi-tasking, irritability, personality changes. If you have some of these symptoms from a traumatic event, you should get checked out by a doctor with traumatic brain injury experience - preferably a neurologist or neuro-psychologist.

Fort Collins Colorado Traumatic Brain Injury Lawyer Mac Hester

Truck Accident Injury

Mac Hester — Mon, 22 Feb 2010 08:38:23 -0700

An automobile collision with a semi-truck and trailer, even at low speed, generates many times the injury producing forces that are generated in a similar car to car crash - because of the much greater mass (weight) of the semi-truck/trailer (Physics geeks: See Newton's Laws of Motion - especially the 2nd Law). The collision may not have caused signigicant visible damage to the car, but there is often damage under the surface: a bent frame or bent or broken bumper supports. The collision forces that are not absorbed by the vehicle are transferred to the vehicle occupant - who is instantly propelled by the force of the collision until stopped by the seat belt or interior of the car. This instant acceleration/deceleration of the body can, and usually does, cause injury - because the crash forces cause parts of the body, usually the spine, and especially the cervical spine (neck), to move in abnormal ways and beyond the usual ranges of movement.

Trucking companies bring in insurance investigators, adjusters, and even attorneys immediately upon the happening of a car/semi-truck crash in order to more favorably set the stage for their defense of potential claims against them. On the other hand, the person injured in the crash almost never has anyone on their side looking out for them. Oftentimes an attorney will not be brought in for the injured person until after much of the evidence (vehicle damage) has been altered (repaired) or lost (vehicle sold). It is essential that the evidence be preserved either by retention of the car or at least by several photographs of the vehicle damage from various angles. And it is usually beneficial to bring in an attorney earlier rather than later.

Many lawyers handle car crash cases but few have handled car-truck crash cases, and fewer still understand the injury generating forces of low speed collisions. Federal Motor Carrier Safety Regulations (FMCSR) apply in addition to the laws of the state of Colorado in trucking accident cases. I have found that early evidence gathering and retention and investigation based upon FMCSR violations are productive and that knowledge and advocacy of collision injury forces almost always result in bigger recoveries and better outcomes.

Fort Collins Colorado Truck Accident Injury Lawyer Mac Hester

Carbon Monoxide Injury & Death

Mac Hester — Fri, 19 Feb 2010 16:07:55 -0700

Carbon monoxide is a colorless, odorless, tasteless gas usually produced by combustion (the burning of fuel; e.g., gasoline, natural gas, oil, wood).

The most common sources of carbon monoxide are motor vehicles, furnaces, water heaters, fireplaces, woodstoves and various internal combustion engines.

Carbon monoxide is dangerous when inhaled because carbon monoxide molecules bond with hemoglobin in the blood over 200 times more easily than oxygen molecules. Oxygen is vital to proper functioning of the major organs and muscles of the body. When carbon monoxide replaces oxygen in the blood, the body is deprived of oxygen. Oxygen deprivation can cause alteration or loss of consciousness, organ damage, brain damage, coma and death.

The symptoms of mild carbon monoxide poisoning include headaches, stuffiness, fatigue, dizziness, and drowsiness. Because these symptoms are the same as for colds and flu, carbon monoxide poisoning is often not diagnosed, but mistakenly attributed to cold or flu.

The symptoms of moderate carbon monoxide poisoning include those of mild poisoning plus alteration or loss of consciousness.

The symptoms of severe carbon monoxide poisoning include those of mild and moderate poisoning plus cardiovascular problems, seizure, coma and death.

The most common reasons for carbon monoxide exposure are inadequate air supply to combustion appliances,improperly installed combustion appliances, improperly maintained combustion appliances, improperly vented combustion appliances, defective motor vehicle exhaust systems, and idling automobiles in garages.

To help prevent carbon monoxide poisoning: Don't block air supply to combustion appliances. Don't do home remodeling without taking air supply and exhaust venting into consideration. Use professional installers and service technicians. Don't operate attic fans with windows and doors closed (because air can be sucked down the exhaust vents of the combustion appliances, drawing carbon monoxide into the living quarters - "backdrafting"). Make sure that all combustion appliances are vented properly. Install carbon monoxide detectors.

Carbon monoxide detectors should be placed at eye level in all bedrooms, the main living space, and in the room housing the combustion appliances. A detector should be placed in the kitchen if the stove is natural gas fired. The detectors should be placed at eye level because: (1) carbon monoxide is generally dispersed throughout the space rather than concentrating at the ceilings or on the floor; and (2) you are not as likely to forget about replacing the batteries, or the detector when it becomes outdated.

Warning signs of potential carbon monoxide exposure:

Odor: Although carbon monoxide is itself odorless, combustion and incomplete combustion do create odors. Incomplete combustion produces an odor of aldehyde - which is pungent and is sometimes mistaken for the smell of natural gas.

Symptoms: As discussed above.

Frequent pilot light outages. Continuing pilot light outages may signal improper operation of the combustion appliance - which may involve incomplete combustion and thus carbon monoxide.

Abnormal flames. Yellow, rather than blue, flames may be a sign of improper combustion.

White powdery buildup on vents and the heat exchanger inside the combustion appliance. Improper combustion or venting may produce a white powdery substance that looks like laundry detergent.

Soot. Improper combustion may produce black soot.

What to do if you suspect carbon monoxide exposure: Shut down the probable source of the carbon monoxide if it is safe and easy to do. Get out and get fresh air. Get checked immediately at a hospital and have your blood tested for carbon monoxide saturation. Consider calling 911 rather than driving to the hospital, or have someone else drive you to the hospital. Have your home tested by the fire department before the carbon monoxide dissipates. Have your combustion appliances and your HVAC system tested by a professional HVAC company.

Fort Collins Colorado Carbon Monoxide Injury Lawyer Mac Hester

Hoggatt Law Office, P.C. - Colorado Injury Lawyers

Motorcyle Accident Injury

Mac Hester — Thu, 18 Feb 2010 19:45:25 -0700

My Triumph Bonneville T100

Fort Collins Colorado Motorcyle Accident Injury Lawyer Mac Hester

Representation in motorcycle injury claims.

The Defendant Denied Liability Right up to Trial

Mac Hester — Thu, 11 Feb 2010 16:17:22 -0700

In a rear end auto collision case, the Defendant is presumed by law to be at fault. The Defendant can overcome that presumption by proving, for example, that the Plaintiff slammed on the brakes and the Defendant couldn't stop in time.

However, in the case where the Plaintff was at a complete stop and the Defendant rear-ended the Plaintiff, the Defendant will not be able to overcome the presumption of liability. Nevertheless, Defendants rarely admit liability in litigation. They, or rather their attorneys - puppets of the insurance company, file an Answer admitting that the front of the Defendant's car struck the rear of the Plaintiff's car but they deny that the Defendant was at fault. After a year or more of litigation the case goes to trial. The Defendant has denied liability the entire way. Then, on the first day of trial the Defendant admits liability, says he's sorry, and says that he will be happy to pay what's reasonable.

The judge will not allow the Plaintiff to tell the jury that the Defendant has been denying liability from the start all the way to trial.

Q. Why would the Defendant deny liability all the way to trial and then admit liability?

A. (1) To punish the Plaintiff for filing a lawsuit by causing the Plaintiff to incur litigation expenses, delay, and frustration (Remember, the insurance company is paying for the attorney and litigation expenses, not the Defendant); (2) To teach the Plaintiff's attorney a lesson (If you file lawsuits you will be punished); (3) To advance the insurance industry agenda of punishing and preventing people from trying to recover for their injuries and damages; and (4) so that when the case goes to trial they can portrary the Plaintiff as greedy and the Defendant as magnanimous - admitting fault and being willing to pay a fair amount of damages (hoping of course that the jury is going to punish the Plaintiff by awarding little or no money damages - or at least not enought to have made the litigation economically productive).

Fort Collins Colorado Auto Accident Attorney Mac Hester

The Defendant Has Insurance

Mac Hester — Thu, 11 Feb 2010 15:21:15 -0700

The Defendant has insurance and his or her insurance company is paying for the defense attorney and all litigation expenses.

The Defendant is not going to have to pay the verdict out of his or her own pocket.

The Defendant's insurance company will pay the verdict up to the amount of the Defendant's insurance coverage.

If the verdict exceeds the insurance coverage, then it is possible - but still unlikely - that the Defendant will have to pay some of the verdict out of his or her own pocket. It is unlikely because the insurance company will often pay the entire verdict to avoid being sued by its own insured (Defendant) for failing to settle the case for an amount equal to or less than the insurance coverage. That lawsuit by the insured against his own insurance company is called "Bad Faith Failure to Settle."

If the Plaintiff loses (verdict for the Defendant) then the Plaintiff gets nothing and is responsible for paying his or her own litigation expenses - which, in an average auto collision injury case, will be in the range of $20,000 to $40,000. AND, the Plaintiff will have to pay the litigation expenses of the Defendant - which may also be in the range of $20,000 to $40,000.

Fort Collins Auto Accident Lawyer Mac Hester

Colorado Statutes of Limitations

Mac Hester — Fri, 05 Feb 2010 16:42:04 -0700

It sure would be neat if the State had a web page that listed all the statutes of limitations and notice provisions in one convenient list, but since it doesn't - at least to my knowledge - (and if I'm wrong about this then I'd love for somebody to direct me to it), I have decided to list some selected statutes of limitations and notice provisions subject, of course, to

CAVEATS AND WARNINGS: Do not rely upon this list. Consult a Colorado attorney. There are way too many variables to determine the correct statute or statutes of limitations and/or notice or notices that may apply to your claim or claims from this or any other list (I have seen far too many websites incorrectly list Colorado statutes of limitations because they didn't consider special circumstances). And, you definitely should not rely upon my paraphrasing of the title of the statutes; you must read the actual language of the statutes - and oftentimes the interpretive cases (for example: There is almost no way possible to figure out the statute of limitations for underinsured motorist claims from my paraphrasing below; you must read the interpretative cases. Even then, it's still confusing.).

Some Colorado Statutes of Limitations

1 year: Actions against sheriffs, firefighters, police

1 year: Most intentional torts

1 year: Dram Shop (from date alcohol served)

1 year: Survival actions

2 years: General negligence

2 years: Negligent entrustment

2 years: Wrongful death

2 years: Slip and fall; premises

2 years: Dog bite

2 years: Medical malpractice (3 year cutoff)

2 years: Insurance bad faith

2 years: Government (but 1 year re law enforcement; 3 years re mva; 180 day notice requirement)

2 years: Product liability

2 years: Actions against architects, builders (6 year statute of repose)

2 years: Miscellaneous – all actions for which no other listed limitation.

2 years: Federal civil rights

2 years: Minors – 2 years after minor attains majority (but parents may have earlier SOLs)

3 years: Auto accident

3 years: Uninsured Motorist : From accrual – except that if the underlying claim against the uninsured motorist is preserved by filing an action within the time limits of CRS 13-8—101(n) and 13-80-102(1)(d),

then 2 years after payment of the settlement or judgment on the underlying injury claim

[CRS 13-80-107.5(1)(a)].

3 years: Underinsured Motorist: From accrual – except that if the underlying claim against the underinsured motorist is preserved by filing an action within the time limits of CRS 13-8—101(n) and 13-80-102(1)(d), then 2 years after payment of the settlement or judgment on the underlying injury

claim [CRS 13-80-107.5(1)(a)].

3 years: Contract

Some Colorado Notice Provisions

10 days after settlement demand to defendant: Notice of 3^rd party claim to Division of Workers Compensation and all Workers Compensation benefit payors. [CRS 8-41-203] (Many attorneys send this notice within 10 days after being retained and many attorneys send this notice within 10 days after their initial letter of representation.)

15 days: Medicaid: After assertion of claim or filing of suit.

20 days Notice to Division of Workers Compensation prior to filing suit (unless SOL is < 20 days) [CRS 8-41-203(4)]

180 days from date of injury: Colorado Governmental Immunity Act claims

Fort Collins Automobile Accident Attorney Mac Hester

Automobile, Trucking, Motorcycle, Bicycle, and other motor vehicle accidents.

What a Lawsuit Looks Like

Mac Hester — Fri, 05 Feb 2010 14:41:38 -0700

Most people don't know what a lawsuit looks like, and that may be a good thing. But for those curious to see what a lawsuit (the complaint) actually looks like, I decided to post an example here. It's a simple auto accident injury form complaint for Colorado District Court (The caption in this example form is different from an actual complaint caption; it has been simplified). Of course, this is just an illustrative form and should not be used "as is" in any particular case. This complaint involves one Plaintiff and only two Defendants and only three claims for relief, so it's pretty simple. But don't let the simplicity fool you, seemingly simple cases can involve complex legal considerations that are not necessarily visible in the complaint. An attorney should still be retained to draft a complaint specifically tailored to the individual case.

DISTRICT COURT, 8th JUDICIAL DISTRICT

LARIMER COUNTY, STATE OF COLORADO

Plaintiff John Doe

Defendants WXYZ, LLC and Richard Roe

COMPLAINT

The Plaintiff, through undersigned counsel, states the following complaint against the Defendants:

JURISDICTION AND VENUE

1. Plaintiff resided in Larimer County, Colorado at all relevant times.

2. Defendant WXYZ, LLC was doing business as “WXYZ” in Larimer County, Colorado at all relevant times.

3. Defendant Richard Roe was a resident of Larimer County, Colorado at all relevant times.

4. The automobile collision that is the subject of this action happened in Larimer County, Colorado.

5. Jurisdiction and venue are proper in the District Court for Larimer County, Colorado.

FACTUAL ALLEGATIONS

6. On July 1, 2008 at approximately 3:30 p.m., Plaintiff John Doe was the driver of a 2005 Honda Accord traveling northbound on College Avenue in Fort Collins, Colorado.

7. On the same date and time, Defendant Richard Roe was the driver of a 2002 Ford van traveling northbound on College Avenue in Fort Collins, Colorado.

8. Plaintiffs’ vehicle was at a stop on College Avenue at its intersection with Drake Road. While Plaintiffs’ vehicle was at a stop, the vehicle being driven by Defendant Roe struck the rear of the Plaintiffs’ vehicle.

9. The impact of the collision pushed Plaintiffs’ vehicle forward causing it to strike the vehicle in front of it.

FIRST CLAIM FOR RELIEF

(Negligence of Defendant Richard Roe)

10. The preceding paragraphs are incorporated herein.

11. Defendant Roe was negligent.

12. As a result of Defendant’s negligence, Plaintiff suffered the following past and future damages: vehicle damage, loss of use of the vehicle, loss of value of the vehicle, physical injuries, pain, mental and emotional distress arising as a natural consequence of being injured, permanent injuries, permanent impairment, permanent disability, loss of earnings, loss of earning capacity, loss of future wages and benefits, medical expenses, incidental expenses, inconvenience, and loss of enjoyment of life.

SECOND CLAIM FOR RELIEF

(Vicarious Liability of WXYZ, LLC)

13. The preceding paragraphs are incorporated herein.

14. At the time of the incident, Defendant Roe was in the course and scope of his employment with WXYZ, LLC

15. Defendant WXYZ, LLC is vicariously liable for the negligence of Defendant Roe.

16. As a result of the negligence of Defendant Roe and the vicarious liability of Defendant WXYZ, LLC, Plaintiff suffered the following past and future damages: vehicle damage, loss of use of the vehicle, loss of value of the vehicle, physical injuries, pain, mental and emotional distress arising as a natural consequence of being injured, permanent injuries, permanent impairment, permanent disability, loss of earnings, loss of earning capacity, loss of future wages and benefits, medical expenses, incidental expenses, inconvenience, and loss of enjoyment of life.

THIRD CLAIM FOR RELIEF

(Negligent hiring, supervision or retention of Defendant Richard Roe by Defendant WXYZ,LLC)

17. The preceding paragraphs are incorporated herein.

18. Defendant WXYZ, LLC was negligent in the hiring, supervision, or retention of Defendant Roe.

19. As a result of Defendant’s negligence, Plaintiff suffered the following past and future damages: vehicle damage, loss of use of the vehicle, loss of value of the vehicle, physical injuries, pain, mental and emotional distress arising as a natural consequence of being injured, permanent injuries, permanent impairment, permanent disability, loss of earnings, loss of earning capacity, loss of future wages and benefits, medical expenses, incidental expenses, inconvenience, and loss of enjoyment of life.

WHEREFORE, Plaintiff demands judgment against Defendants for actual damages in an amount to be determined at trial, pre-judgment interest, post-judgment interest, costs, expert witness fees, and for such other relief as the Court deems proper.

Fort Collins Colorado Automobile Accident Lawyer Mac Hester

Colorado Medical Payments Insurance - Med Pay

Mac Hester — Fri, 05 Feb 2010 10:46:03 -0700

Med-Pay insurance pays for medical expenses incurred as a result of auto accidents. Your Med-Pay insurance covers the driver and passengers in your covered vehicle but does not cover the occupants of the at fault driver’s vehicle. Med-Pay coverage is essential if you do not have health insurance. Med-Pay is highly beneficial even if you do have health insurance, as Med pay covers medical expenses that are often not covered by health insurance and also may be used to pay health insurance co-pays and deductibles.

Beginning January 1, 2009, Colorado auto insurers must offer at least $5000 in Med-Pay coverage. If the insurer does not make that offer, then you will automatically have $5000 in Med-Pay coverage. You may purchase higher amounts of Med-Pay coverage or you may “opt out” of Med-Pay coverage by executing a waiver of such coverage. To be adequately protected, you should not opt out of Med-Pay coverage but should purchase the most Med-Pay coverage that you can afford.

If you make a claim against the at fault driver’s liability insurance and recover damages, then your Med-Pay insurer may seek reimbursement for the medical expenses that it paid on your behalf. This is called “subrogation.” Med-Pay insurers may seek subrogation on policies issued prior to January 1, 2009 but are prohibited by law from seeking subrogation on policies issued on or after January 1, 2009 for accidents that happened on or after January 1, 2009.

Also beginning January 1, 2009, Med-Pay insurers must reserve $5000 for the payment of the medical expenses of ambulance services, trauma physicians, and trauma centers incurred within thirty days after initial notice to the insurer of the auto accident. After the thirty day period, all the Med-Pay coverage is available to pay any auto accident related medical bill.

The recipients of medical care are always personally responsible for the payment of medical care that they have received despite the fact that someone else negligently caused the injuries and the need for the medical care. The at fault driver’s liability insurer will not pay your medical expenses as they are incurred. If your medical expenses are not timely paid, then your medical providers may take collection actions against you. Therefore, it is imperative to have Med-Pay if you do not have health insurance.

Fort Collins Colorado Auto Insurance Attorney Mac Hester

Relevance in Discovery and at Trial

Mac Hester — Thu, 04 Feb 2010 16:30:33 -0700

An oft stated maxim in litigation is, “Relevance for purposes of discovery (e.g., interrogatories, requests for production) is different from relevance regarding admissibility of evidence at trial.” And sometimes the proponent of that maxim also adds that the admissibility of the requested evidence is not a consideration in discovery. That is where the proponent would be wrong.

The admissibility of evidence is definitely a consideration in discovery. Colorado Rule of Civil Procedure 26 states in pertinent part that, “Parties may obtain discovery regarding any matter, not privileged, that is relevantto the claim or defense of any party….Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

The second part of the quote means, in part, that the requested evidence need not be admissible at trial in order to be discoverable. From this, many attorneys assert that their discovery request is proper because it is “reasonably calculated to lead to the discovery of admissible evidence” and that it doesn’t matter that a lot of the requested information – and maybe even all of the requested information – is not admissible at trial because, again, the request itself is “reasonably calculated to lead to the discovery of admissible evidence” even if no admissible evidence actually later turns up; the probability that some admissible evidence will turn up makes the request proper and renders the responding party’s relevance objection nugatory. However, that position is only half right.

That position is only half right because: (1) the validity of the discovery request can indeed turn on whether the evidence requested is admissible at trial; and (2) the responding party does not have to produce irrelevant evidence even if the discovery request is proper.

Let’s examine the framing of the discovery request. The discovery request is, “Produce the plaintiff’s health insurance ledger.”

The plaintiff was injured in a car crash and his health insurer paid some of his incident related medical bills, so the health insurance payments are relevant to the plaintiff’s medical expense damages. However, judges in Colorado courts often exclude evidence of the health insurance ledger and payments due to the Colorado collateral source statute. Let’s say that the judge in this particular case always excludes the health insurance ledger and payments from evidence at trial. So we know that the health insurance ledger and payments are not admissible at trial. What is the significance of that?

The significance of that is that the discovery request for the production of the health insurance ledger is not reasonably calculated to lead to the discovery of admissible evidence. The discovery request is seeking only evidence that is already known to be inadmissible, so the request is improper. The responding party does not have to produce the health insurance ledger because there is no valid request to respond to.

Now, consider a much broader request: “Produce all materials regarding subrogation and/or reimbursement claims against the plaintiff’s recovery.” This request is proper because it is reasonably calculated to lead to the discovery of admissible evidence: subrogation or reimbursement claims that are not excluded from evidence under the collateral source rule; e.g., a doctor’s lien. Thus, the plaintiff would have to provide the health insurance ledger pursuant to this discovery request regardless of its admissibility at trial – because the request was reasonably calculated to lead to the discovery of admissible evidence – the doctor’s lien (to impeach the doctor’s credibility or objectivity).

With a discovery request, you have to determine what admissible evidence may be discovered through the request. So you have 2 situations: (1) where the requester is trying to get specific, identified materials; e.g., the health insurance ledger; and (2) where the requester is trying to get materials not specifically identified.

In the case of identified materials (Please produce the health insurance ledger), the question is easy: Is the health insurance ledger admissible at trial? If yes, then the discovery request is proper. If no, then the discovery request is improper.

In the case of not specifically identified materials, the question is not focused on the admissibility of a specific item of evidence; the question is focused on whether the bundle of materials obtained through the discovery request will probably contain at least one item that is admissible in evidence.

If the discovery requests, for example, all materials regarding an interest in the Plaintiff’s recovery including but not limited to liens, subro claims, etc, and there probably is at least one admissible item of evidence (e.g., a doctor’s lien), then the discovery request is proper. So then the responding party has to provide all relevantmaterials – including the inadmissible health insurance ledger (assuming that the judge always excludes the health insurance ledger).

However, the responding party does not have to provide irrelevant materials. The responding party NEVER has to provide irrelevant materials. Rule 26(b)(1) states that “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party…”

Relevance means that the evidence will either increase or decrease the probability of a claim or defense. Materiality, cumulative evidence, waste of time, and undue prejudice are not considered in discovery - as they are at trial. This is the difference between relevance for purposes of discovery as opposed to relevance at trial.

The key is that the discovery request itself may often be proper (because there probably is at least one item of evidence that is relevant and admissible) but the responding party still does not have to provide everything that is being asked for – because some of what is being asked for is irrelevant.

The fact that some of what is being asked for is irrelevant does not make the discovery request improper. The request is proper but the responding party does not have to provide irrelevant materials.

For example: “Please produce all medical records regarding the Plaintiff’s neck and back in the year prior to the incident.” The Plaintiff has neck and back injuries from the incident.

The request is proper.

So does that mean that the Plaintiff has to produce the medical records regarding the removal of a tattoo from the lower back? No. Why not? Because the tattoo removal records are not relevant. It does not increase or decrease the probability of the Plaintiff’s claims or the Defendant’s defenses.

However, the fact that the request has asked for irrelevant records does not mean that the request is improper. The request is proper but the responding party does not have to provide the tattoo records because they are not relevant.

Irrelevant information NEVER has to be produced.

On the other hand, it is not true that relevant information always has to be produced in discovery: When the discovery request is framed to seek only inadmissible evidence then that inadmissible evidence does not have to be produced in discovery even if it is relevant. Admittedly, that would be an infrequent occurrence. However, it does prove that admissibility of evidence at trial must be considered in discovery.

Fort Collins Colorado Auto Accident Injury Attorney Mac Hester

My new firm's website

Mac Hester — Wed, 03 Feb 2010 18:34:28 -0700

www.hoggattlaw.com

Fort Collins Colorado Personal Injury Lawyer and Attorney Mac Hester offering representation in auto accident injury, automobile accident injury, car accident injury, truck accident injury, semi-truck accident injury, trailer accident injury, motorcycle accident injury, bicycle accident injury, bike accident injury, motor vehicle accident injury, uninsured motorist (UM) claims, underinsured motorist (UIM) claims, traumatic brain injury, closed head injury, spine and spinal injury, whiplash injury, carbon monoxide injury and death, burn injury, ski injury, skier injury, recreational injury, dog bite injury, animal inflicted injury, and personal injury and wrongful death claims serving Fort Collins, Loveland, Windsor, Wellington, Estes Park, Greeley, Boulder, Louisville, Longmont, Brighton, Thornton, Northglenn, Westminster, Aurora, Arvada, and Denver.

Hoggatt Law Office, P.C. - Colorado Injury Lawyers

ERISA, Health Insurance and the "Make Whole" Doctrine in Colorado

Mac Hester — Wed, 24 Jan 2007 09:43:36 -0700

Your client's auto crash injury medical bills were paid by the client's employer's health insurance. Your client aks: "My health insurer says that it is entitled to 100% reimbursement from my settlement. Can they do that?"

Indeed, can they do that?

If you're giving one word answers to that question then contact your malpractice carrier. Whenever I get that question I have to psych myself up to deliver the ERISA lecture as well as to prepare the client to receive it. I won't deliver the ERISA lecture here, but I will give a synopsis.

States historically have regulated insurance. But in 1944 the U.S. Supreme Court held that Congress could regulate insurance. In 1945, Congress passed the McCarran-Ferguson Act - which allowed states to continue to regulate insurance.

In 1974, Congress passed the Employment Retirement Income Security Act (ERISA). The intention of ERISA was to regulate employee benefit plans, but health insurance got pulled into the mix. In 1975, Congress added the Preemption Clause, the Savings Clause, and the Deemer clause. ERISA preempts state law except those laws that have been saved from preemption (e.g., laws that regulate insurance) and employee benefit plans are not deemed to be in the insurance business.

In 1987, the U.S. Supreme Court held in Pilot Life Insurance Co. v. Dedaux, 481 U.S. at 41that state law will be found to "relate to" an ERISA plan if the state law has a connection with or reference to such a plan. This made ERISA preemption very broad.

In 1990, the U.S. Supreme Court held in FMC Corp. v. Holliday, 498 U.S. 52 (1990) that a Pennsylvania anti-subrogation statute regulated insurance so it was not preempted by ERISA. The case distinguished self funded plans and insured plans. In a self funded plan, the employer pays the benefits directly or through a trust. In an insured plan, the employer does not pay the benefits, but rather the employer purchases an insurance policy and the insurance company pay the losses.

The effect of FMC Corp. is that: (1) self funded plans are not subject to state law; and (2) insured plans are subject to state laws such as the "make whole" doctrine and the "common fund" doctrine.

Colorado follows the "make whole" and "common fund" doctrines in some contexts, but the question has not been specifically answered as to health insurance. That's why ERISA plans in Colorado try to intimidate plaintiffs and plaintiff attorneys into fully reimbursing the plan.

But only true self funded plans are exempt from the "make whole" and "common fund" doctrines. If the plan is insured, then you should tell them to pound sand. You will begin reimbursing them only after the plaintiff has been made whole by recovering 100% of his or her damages.

And, contrary to ERISA plan assertions, Sereboff v. Mid Atlantic Medical Services, Inc., 126 S.Ct. 1869 (2006) did not change anything with respect to insured plans.

The Colorado appellate courts will probably apply the "make whole" and "common fund" doctrines to ERISA plans when the question is presented for determination but until that day, it will probably be adviseable in most cases, as a practical matter, to negotiate some small level of reimbursement so as to avoid ERISA litigation.

Mertens v. Hewitt Assocs., 508 U.S. 248 (1993), Knudson v. Great-West Life, 534 U.S. 204 (2002), and Sereboff will be discussed in a subsequent article.

Fort Collins Auto Insurance Lawyer Mac Hester

Serving Fort Collins, Loveland, Greeley, Windsor, Wellington, Thornton, Brighton, Louisville, Longmont, Boulder, Aurora, and Denver.

Negligence Per Se

Mac Hester — Tue, 23 Jan 2007 14:45:09 -0700

Most attorneys and judges don't understand negligence per se. They treat it the same as negligence; i.e., at trial, they talk about the "reasonable person" and the "reasonable care" standard of liability with no differentiation between negligence and negligence per se. But the reasonable person/reasonable care standard does not apply to many negligence per se claims. Why?

Because the standard of care in a negligence per se claim based on a statute is the standard of care contained in the statute. And, the standard of care is often not the reasonable person standard.

Take, for example, C.R.S. 42-4-702 (left turn statute): "The driver of a vehicle intending to turn left within an intersection...shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection...."

The left turn statute does not contain a standard of reasonable care.

Consider, on the other hand, C.R.S. 42-4-1402 (careless driving statute): "Any person who drives any motor vehicle, bicycle, or motorized bicycle in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving."

The careless driving statute does contain a standard of reasonable care.

So how should you present (or exclude) evidence and law on a negligence per se claim that doesn't have a reasonable care standard?

Let's use the left turn statute.

The jury must determine the answers to the following questions: (1) Did the defendant intend to turn left within an intersection? (2) Was the plaintiff approaching from the opposite direction? (3) Was the plaintiff within the intersection?

If the answers to these questions are "yes," then the plaintiff had the right of way.

Accordingly, the left turn statutory standard of care is: "Did the defendant yield the right of way to the plaintiff?"

If the answer is "yes," then the defendant is not liable. If the answer is "no," then the defendant is liable.

It's that simple. There is no discussion of reasonable care. There is no discussion of the plaintiff's driving.

It would be legal error for the judge to instruct the jury that they should apply the reasonable care standard to the plaintiff's left turn negligence per se claim.

It would be legal error for the jury to apply the reasonable care standard to the plaintiff's left turn negligence per se claim.

Thus, it necessarily follows that the defendant should not be allowed to introduce any evidence that he or she was acting reasonably under the circumstances (The only exception to this is the "justifiable violation" of statute defense - which is like a "choice of evils"; e.g., "I sped through the left turn because I was trying to escape the road raged lunatic following me who was shooting at me.").

However, there is a huge practical problem. The problem is that the plaintiff also presents a negligence claim so the defendant gets to argue - regarding the same set of facts - that that he acted reasonably under the circumstances.

So how does the judge solve this problem?

He doesn't. He, and the attorneys, don't even recognize that this is a problem. The negligence and negligence per se claims just get crammed together and treated as one big glob. True, there is usually a negligence per se jury instruction, but it is certainly not sufficient to cause the jury to apply two different standards of care to the defendant's conduct when both sides argue about reasonable care and nobody tells them to apply the reasonable care standard only to the negligence claim and the statutory standard only to the negligence per se claim and that they should NOT apply the reasonable care standard to both claims.

The problem could be solved by differentiating negligence and negligence per se claims from the start and maintaining that differentiation all the way through trial so that the jury has no doubt about applying two different standards of care.

What, that's too complicated you say? Then personal injury juries must be dumber than commercial claim juries that have to consider actions with 3 or 4 or 5 or more claims with that many different standards of care. Anyway, personal injury juries already apply 2 different standards of care in cases that involve claims for actual and punitive damages, so they obviously can and do apply multiple standards of care.

Another consideration is that the jury might not have to apply the statutory standard. For example, if the answers to the 3 questions are "yes" and the defendant did not yield the right of way, then the judge should direct a verdict for the plaintiff on the negligence per se claim. In that event, the plaintiff should consider dropping the negligence claim so there's no more discussion of the reasonableness of the defendant's conduct. The only thing left to do would be to determine causation and damages.* [I have been threatening for quite some time now to file an auto case with only a negligence per se claim and exclude the reasonable care standard entirely from the case and trial, but I have not yet had the guts to do it.]

*Not quite. There is still the potential question of the comparative negligence of the plaintiff. I have argued that comparative negligence of the plaintiff cannot be considered under some statutory violation claims (specifically the left turn statute) but no trial judges have accepted my argument because there's a case that says comparative negligence is a defense to a negligence per se claim. I think the reading of the case is overbroad and I'm still looking for that right case to take up to the appellate court.

I will outline the negligence per se cases in a subsequent article.

Fort Collins Auto Accident Injury Lawyer Mac Hester

A Brief Introduction to Clausewitz' On War

Mac Hester — Tue, 23 Jan 2007 00:01:26 -0700

Carl von Clausewitz' On War, published posthumously in 1832, is THE seminal Western exegesis of war and military strategy and was the basis for Western military teaching and the conduct of war from its publication up until at least 1989, when the U.S. Marines adopted an official doctrine of warfighting largely based upon the priniciples of Sun Tzu's Art of War and U.S. Air Force Colonel Boyd's "OODA Loop." The crux of On War is attrition warfare as compared to the maneuver warfare of Art of War (but this is, of course, grossly oversimplified).

The U.S. invasion of Iraq is an interesting application (misapplicaiton) of the principles of the Art of War and an ignorant rejection of core principles of both On War and the Art of War. Defense secretary Rumsfeld planned for, and achieved, a quick military victory, but did not plan for, and did not achieve, stability and political victory. General Shinsheki's call for hundreds of thousands of troops, classic attrition warfare of Clausewitz' time, also was not the correct strategy. Had Clausewitz and Sun Tzu been consulted, both would have counseled President Bush to not invade Iraq. But the Iraq war is an article for another day.

The 10 principles that I have gleaned from On War are presented below.

1. A narrow perspective on war (war and peace are separate).

2. Trinitarian analysis (the People, the Government, the Military).

3. The Center of Gravity (schwerpunkt).

4. Numerical superiority and concentration of force.

5. The search for the decisive battle.

6. Boldness.

7. Friction and the Fog of War.

8. Continuity and the Culminating Point of Victory.

9. War Termination/Exit Strategy.

10. Military Genius.

Fort Collins Personal Injury Attorney Mac Hester

My Favorite Translation of the Art of War

Mac Hester — Mon, 22 Jan 2007 22:38:18 -0700

John Minford's translation of the Art of War, Penguin Books 2002 (ISBN 0-670-03156-9(hc.); ISBN 0 14 04.3919 6 (pbk.)) is my favorite translation. Minford says that the Art of War is "beautiful and chilling." The same can be said of his translation, a portion of which (Chapter 5) is presented below. However, in order to save space, the excerpt is regrettably not presented in Minford's poetic structure. It is still beautiful and chilling nonetheless.

Potential Energy

Master Sun said:

Managing many is the same as managing few; it is a question of division.

Fighting with many is the same as fighting with few; it is a matter of marshaling men with gongs, identiying them with flags.

With a combination of indirect and direct, an army can hold off the enemy undefeated.

With an understanding of weakness and strength, an army can strike like a millstone cast at an egg.

In warfare, engage directly; secure victory indirectly.

The warrior skilled in indirect warfare in infinite as Heaven and Earth, inexhaustible as river and sea. He ends and begins again like sun and moon, dies and is born again like the Four Seasons.

There are but five notes, and yet their permutations are more than can ever be heard.

Therre are but five colors, and yet their permutations are more than can ever be seen.

There are but five flavors, and yet their permutations are more than can ever be tasted.

In the dynamics of war, there are but two - indirect and direct - and yet their permutations are inexhaustible. They give rise to each other in a never-ending inexhaustible circle.

A rushing torrent carries boulders on its flood; such is the energy of its momentum.

A swooping falcon breaks the back of its prey; such is the precision of its timing.

The Skillful Warrior's energy is devastating; his timing, taut.

His energy is like a drawn crossbow, his timing like the release of a trigger.

In the tumult of battle, the struggle may seem pell-mell, but there is no disorder; in the confusion of the mellee, the battle array may seem topsy-turvy, but defeat is out of the question.

Disorder is founded on order; fear, on courage; weakness, on strength.

Orderly disorder is based on careful division; courageous fear, on potential energy; strong weakness, on troop dispositions.

The warrior skilled at stirring the enemy provides a visible form, and the enemy is sure to come. He proffers the bait, and the enemy is sure to take it. He causes the enemy to make a move and awaits him with full force.

The Skillufl Warrior exploits the potential energy; he does not hold his men responsible. He deploys his men to their best but relies on the potential energy.

Relying on the energy, he sends his men into battle like a man rolling logs or boulders. By their nature, on level ground logs and boulders stay still; on steep ground they move; square, they halt; round, they roll. Skillfully deployed soldiers are like round boulders rolling down a mighty mountainside.

These are all matters of potential energy.