Foster v. Bd. of Governors of the Colo. State Univ. Sys., Court of Appeals No. 13CA0280

• Docket Nº: Court of Appeals No. 13CA0280
• Citation: 342 P.3d 497, 2014 COA 18
• Case Date: February 27, 2014
• Court: Court of Appeals of Colorado

342 P.3d 497
2014 COA 18

Heather FOSTER, Plaintiff–Appellee
v.
The BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY SYSTEM, BY AND ON BEHALF OF COLORADO STATE UNIVERSITY, Defendant–Appellant.

Court of Appeals No. 13CA0280

Colorado Court of Appeals, Div. VII.

Announced February 27, 2014

Erik G. Fischer, P.C., Erik G. Fischer, Gordon M. Hadfield, Fort Collins, Colorado, for Plaintiff–Appellee

John W. Suthers, Attorney General, Russell E. Yates, Special Assistant Attorney General, Dart M. Winkler, Special Assistant Attorney General, Matthew S. Mersfelder, Special Assistant Attorney General, Denver, Colorado, for Defendant–Appellant

Opinion

Opinion by JUDGE J. JONES

¶ 1 This case arises from a fire at Colorado State University's Equine Reproduction Laboratory (the Lab) that destroyed plaintiff Heather Foster's property. Defendant, the Board of Governors of the Colorado State University System (CSU),¹ appeals the district court's order denying its motion to dismiss Ms. Foster's claim for breach of an oral bailment contract based on immunity under the Colorado Governmental Immunity Act (CGIA). CSU's entitlement to immunity under the CGIA turns on whether Ms. Foster's claim lies in tort or could lie in tort. Because we conclude that a claim for destruction of property subject to a bailment lies in tort or could lie in tort, we reverse the district court's order and remand the case with directions for the district court to consider and rule on Ms. Foster's contention that an exception to CGIA immunity applies.

I. Background

¶ 2 Ms. Foster and the Lab agreed orally that the Lab would provide reproductive treatment to Ms. Foster's prize-winning stallion. Pursuant to that agreement, the Lab collected ten “straws” of semen from the stallion to be used for in vitro fertilization, and Ms. Foster and the Lab entered into a bailment relationship, pursuant to which the Lab (the bailee) stored the straws in its specialized storage facility, and Ms. Foster (the bailor) paid the Lab a monthly fee.

¶ 3 Less than two years later, a fire destroyed the Lab and most of its contents, including the semen straws from Ms. Foster's stallion. The fire department investigated the fire but was not able to determine its cause.

¶ 4 Ms. Foster sued the Lab, asserting a claim for breach of an oral contract for bailment. CSU moved to dismiss the complaint pursuant to C.R.C.P. 12(b)(1) based on lack of subject matter jurisdiction under the

342 P.3d 500

CGIA, §§ 24–10–101 to –120, C.R.S.2013. Specifically, CSU argued that it is immune from Ms. Foster's suit because her claim lies in tort or could lie in tort. See § 24–10–106(1).

¶ 5 After hearing arguments on the motion, the district court determined that the facts material to whether Ms. Foster's claim lies in tort or could lie in tort for purposes of the CGIA are not in dispute. The court therefore concluded that an evidentiary hearing was unnecessary.

¶ 6 The court subsequently issued a written order denying CSU's motion to dismiss. The court disagreed with CSU's assertion that Colorado courts have determined bailment claims to be tort claims, saying that “[t]he fact that courts use language of negligence when addressing bailments is not dispositive of whether a breach of duty under a bailment sounds in tort.” Rather, the court found “as a matter of law that the relationship between these parties is based solely on an oral contract for storage in exchange for payment by [Ms. Foster].” The nature of CSU's liability (if any), the court reasoned, must therefore arise from that contract.

¶ 7 The court was also not persuaded that Ms. Foster's claim could lie in tort because it found “no indication that [she] could prevail on any tort claim given the allegations in her complaint.” The court reasoned that because Ms. Foster sought only economic damages and the Lab had not allegedly breached an independent duty of care, any potential tort claim Ms. Foster might bring would be precluded by the economic loss rule. Having concluded that Ms. Foster's claim does not and could not lie in tort, it ruled that Ms. Foster had established that CSU does not enjoy immunity under the CGIA.

¶ 8 CSU appeals pursuant to section 24–10–108.

II. Discussion

¶ 9 The sole issue on appeal is whether Ms. Foster's claim for damages for the destruction of her bailed property lies in tort or could lie in tort for purposes of the CGIA. We conclude that it does lie in tort, or that it could lie in tort.

A. Standard of Review

¶ 10 The applicability of immunity under the CGIA is an issue of subject matter jurisdiction to be determined by the district court in accordance with C.R.C.P. 12(b)(1). Fogg v. Macaluso, 892 P.2d 271, 276 (Colo.1995) ; Young v. Jefferson Cnty. Sheriff, 2012 COA 185, ¶ 7, 292 P.3d 1189. “When the alleged jurisdictional facts are in dispute, the trial court should conduct an evidentiary hearing before ruling on the jurisdictional issue.” Padilla v. Sch. Dist. No. 1, 25 P.3d 1176, 1180 (Colo.2001) ; accord Colucci v. Town of Vail, 232 P.3d 218, 222 (Colo.App.2009) ; see Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924–47 (Colo.1993). But where, as here, the relevant facts are undisputed, the issue of governmental immunity is one of law, and the district court may rule on the jurisdictional issue without a hearing. Padilla, 25 P.3d at 1180. In such a case, we review the district court's jurisdictional ruling de novo. Tidwell v. City & Cnty. of Denver, 83 P.3d 75, 81 (Colo.2003) ; Colo. Special Dists. Prop. & Liab. Pool v. Lyons, 2012 COA 18, ¶ 14, 277 P.3d 874 ; Colucci, 232 P.3d at 219.

B. Applicable Law

1. CGIA Immunity

¶ 11 Subsection 24–10–106(1) of the CGIA provides: “[a] public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section.”

¶ 12 The CGIA immunity provision does not apply to claims for breach of contract. Berg v. State Bd. of Agric., 919 P.2d 254, 258 (Colo.1996) ; Bd. of Cnty. Comm 'rs v. DeLozier, 917 P.2d 714, 715 (Colo.1996) ; Patzer v. City of Loveland, 80 P.3d 908, 910 (Colo.App.2003). But, as subsection 24–10–106(1) says, neither the form of the claim itself nor the relief requested determines whether the claim is one which lies in tort or could lie in tort. Colo. Dep't of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 690 (Colo.2008) ; Berg, 919 P.2d at 258 ;

342 P.3d 501

DeLozi er, 917 P.2d at 715–16 ; Lehman v. City of Louisville, 857 P.2d 455, 457 (Colo.App.1992) ; see Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1005 (Colo.2008) (“[T]he CGIA is less concerned with what the plaintiff is arguing and more concerned with what the plaintiff could argue.”).

¶ 13 Because the meanings of “tort” and “could lie in tort” are vague, the inquiry into whether a public entity is immune under the CGIA is often difficult. City of Colo. Springs v. Conners, 993 P.2d 1167, 1172 (Colo.2000). In general, we consider the nature of the injury and the relief sought, though neither is determinative. Robinson, 179 P.3d at 1003. “[U]ltimately, [the inquiry] turns on the source and nature of the government's liability, or the nature of the duty from the breach of which liability arises.” Brown Grp. Retail, 182 P.3d at 690.

¶ 14 “The essential difference between a tort obligation and a contract obligation is the source of the parties' duties.” Carothers v. Archuleta Cnty. Sheriff, 159 P.3d 647, 655 (Colo.App.2006) ; accord Casey v. Colo. Higher Educ. Ins. Benefits Alliance Trust , 2012 COA 134, ¶ 16, 310 P.3d 196. Tort duties are those protecting against the risk of physical harm to persons or property; such duties are implied by law without regard to any contract. Town of Alma v. AZCO Constr., Inc. , 10 P.3d 1256, 1262 (Colo.2000) ; Adams v. City of Westminster , 140 P.3d 8, 11 (Colo.App.2005) ; see Casey , ¶ 16 ; see also Conners , 993 P.2d at 1173 (governmental immunity is immunity from actions seeking compensatory damages for personal harms or injuries). Contract duties, in contrast, arise from promises made between parties. Town of Alma , 10 P.3d at 1262 ; Carothers , 159 P.3d at 655–56.

¶ 15 Colorado cases construing the CGIA immunity provision have established the following principles with regard to when it applies:

• There is immunity if the claim arises from a breach of a general duty of care, as distinguished from a breach of a contract or other agreement. Brown Grp. Retail, 182 P.3d at 690 ; see Robinson, 179 P.3d at 1005.

• There is immunity if a claim could succeed only upon establishment of liability for tortious conduct. Brown Grp. Retail , 182 P.3d at 691 ; Adams , 140 P.3d at 10 ; see Robinson , 179 P.3d at 1005.

• It is only where the claim cannot lie in tort that there is no immunity. See Berg, 919 P.2d at 258.

• Thus, even if a claim exists for breach of contract, it is barred if the allegations in the complaint would also support a tort claim; the claim is not barred only if it arises “solely in contract.” Robinson, 179 P.3d at

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