Gushee v. Kalen

• Decision Date: 20 October 1971
• Docket Number: No. 678-70.,678-70.
• Citation: 449 F.2d 1276
• Parties: Cynthia Gay GUSHEE, a Minor, by Mother and next friend, Victoria M. Gushee, and Victoria M. Gushee, Plaintiffs, v. Gary George KALEN, Defendant and Third Party Plaintiff-Appellant, v. CITY OF COLORADO SPRINGS, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

449 F.2d 1276 (1971)

Cynthia Gay GUSHEE, a Minor, by Mother and next friend, Victoria M. Gushee, and Victoria M. Gushee, Plaintiffs, v. Gary George KALEN, Defendant and Third Party Plaintiff-Appellant, v. CITY OF COLORADO SPRINGS, Third Party Defendant-Appellee.

No. 678-70.

United States Court of Appeals, Tenth Circuit.

October 20, 1971.

John F. Bennett, Colorado Springs, Colo., for defendant and third-party plaintiff.

Leo W. Rector, Colorado Springs, Colo., for third-party defendant.

Before SETH and HOLLOWAY, Circuit Judges, and KERR, District Judge.

KERR, District Judge.

This action grows out of the Colorado guest statute. (Colo.Rev.Stat. (1963) § 13-9-1.) The jurisdictional requirements are satisfied.

Cynthia Gay Gushee brought suit in the United States District Court for the District of Colorado against Gary George Kalen to recover damages incurred as the result of a one car accident in Colorado Springs, Colorado. The defendant was given leave to file a third-party complaint against the City of Colorado Springs¹, alleging the City was negligent in maintaining the road where the accident occurred and that it should indemnify the defendant for any liability imposed upon him in the personal injury action. The trial court granted the City's motion to dismiss the third-party complaint and the defendant appeals from that decision.

The facts in this case establish that plaintiff Cynthia Gay Gushee was a passenger in an automobile driven by defendant, Kalen, and owned by Kenneth A. Hassen, who had given defendant consent and permission to use the vehicle. The accident occurred on a road in a public area known as Palmer Park, located in Colorado Springs. The automobile failed to negotiate a curve, causing it to leave the road and collide with a large rock or boulder.

Cynthia Gushee alleged in her complaint that defendant was under the influence of alcohol and was reckless and negligent in the operation of the automobile, with a willful and wanton disregard for the lives and property of others. It was necessary that said plaintiff make such allegations in order to avoid the force of Colorado's guest statute. Under this statute a guest has no cause of action against a driver unless the accident occurred as the result of the driver's "* * * willful and wanton disregard of the rights of others". Id.

The trial court granted defendant's motion for leave to file a third-party complaint against the City of Colorado Springs under Rule 14(a) of the Federal Rules of Civil Procedure. The complaint, which sought indemnification from the City, was based on the alleged simple negligence of the City for failure to provide warning signs or light at the scene of the accident.

The City filed a motion to dismiss the third-party complaint on the grounds that it failed to state a cause of action against the City and that neither the plaintiffs nor the third-party plaintiff had given the City notice within ninety days as prescribed by the City ordinances. The trial court, in a memorandum decision, held that the complaint did not state a claim upon which relief could be granted and dismissed the third-party action. The Court did not deem it necessary to pass upon the notice requirement of the ordinances of the City of Colorado Springs.

In this appeal the defendant contends that even if he is found guilty of willful and wanton negligence, the City's negligence is the sole and proximate cause of plaintiff's injuries and the City is therefore obligated to indemnify said defendant for any judgment against him.

Liability for indemnity is to be determined by the laws where the acts or omissions take place. Security Insurance Co. of New Haven v. Johnson, 276 F.2d 182, 185 (10th Cir. 1960). Under Colorado's substantive law the general rule has been adopted that one wrongdoer may not recover indemnity or contribution from another wrongdoer. Colorado & S. Ry. Co. v. Western Light & Power Co., 73 Colo. 107, 214 P. 30 (1923).

The Colorado courts recognize an exception to this rule, which "* * * permits a party who is in fault as to the person injured but * * * is without fault as to the party whose actual negligence is the cause of the injury to recover indemnity." Parrish v. De Remer, 117 Colo. 256, 187 P.2d 597, 604 (1947). See also, Bergeson v. Shinnen, 282 F. Supp. 582 (D.C.Colo.1968); Atchison, T. & S. F. Ry. Co. v. Hadley Auto Transport, 192 F.Supp. 849 (D.C.Colo. 1961); Colorado & S. Ry. Co. v. Western Light & Power Co., supra. A...