Henderson v. Romer, 94CA0454

• Citation: 910 P.2d 48
• Decision Date: 01 June 1995
• Docket Number: No. 94CA0454,94CA0454
• Parties: Randy J. HENDERSON; Mary L. Henderson; Amanda Henderson, by her mother and next friend Mary L. Henderson; Sherrie Henderson, by her mother and next friend Mary L. Henderson; and Melissa Henderson-Baumgartner, Plaintiffs-Appellants, v. Roy ROMER, Governor of the State of Colorado, individually and in his official capacity; Aristedes Zavaras, Director of the Colorado State Department of Corrections in his official capacity; Frank Gunther, in his individual capacity; William Price, Superintendent of the Arkansas Valley Correctional Facility, State Department of Corrections, in his official capacity and individually; Ron Wager, in his official capacity and individually; the State of Colorado; and the Colorado State Department of Corrections, Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 48

910 P.2d 48

Randy J. HENDERSON; Mary L. Henderson; Amanda Henderson,

by her mother and next friend Mary L. Henderson; Sherrie

Henderson, by her mother and next friend Mary L. Henderson; and Melissa Henderson-Baumgartner, Plaintiffs-Appellants, v. Roy ROMER, Governor of the State of Colorado, individually and in his official capacity; Aristedes Zavaras, Director

of the Colorado State Department of Corrections in his

official capacity; Frank Gunther, in his individual

capacity; William Price, Superintendent of the Arkansas

Valley Correctional Facility, State Department of

Corrections, in his official capacity and individually; Ron

Wager, in his official capacity and individually; the State

of Colorado; and the Colorado State Department of

Corrections, Defendants-Appellees.

No. 94CA0454.

Colorado Court of Appeals,

Div. III.

June 1, 1995.

Rehearing Denied July 20, 1995.

Certiorari Granted Feb. 20, 1996.

McDivitt Law Firm, P.C., Michael W. McDivitt, Colorado Springs, for plaintiffs-appellants.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., George S. Meyer, Asst. Atty. Gen., Denver, for defendants-appellees.

Opinion by Judge HUME.

Plaintiffs, Randy J. Henderson, Mary L. Henderson, Amanda Henderson, Sherrie Henderson, and Melissa Henderson-Baumgartner, appeal the trial court's dismissal of their state and federal claims against defendants, Roy Romer, Governor of the State of Colorado, individually and in his official capacity; Aristedes Zavaras, Director of the Colorado Department of Corrections, in his official capacity; Frank Gunther, individually; William Price, Superintendent of the Arkansas Valley Correctional Facility, individually and in his official capacity; Ron Wager, individually and in his official capacity; the State of Colorado; and the Colorado Department of Corrections (DOC). We affirm.

Mary Henderson, a DOC housing technician employed at the Arkansas Valley facility, was taken hostage and assaulted by an inmate. Randy Henderson, Mary's husband, and the other plaintiffs, their children, learned about the attack from the news media.

Plaintiffs' initial complaint purported to assert three tort claims under state law against all defendants except Gunther. First, Randy and the children sought damages for their own "mental, emotional, and physical injuries, stress, distress, and trauma" allegedly caused by defendants' willful, wanton, reckless, and grossly negligent disregard of their rights and safety by intentionally and recklessly placing Mary in a dangerous position at the facility.

In the second claim, Randy and the children asserted that defendants had acted heedlessly and recklessly in failing to notify them privately that Mary had been assaulted and taken as a hostage before disseminating such information to the news media, and they sought damages for their resulting trauma and emotional suffering.

The third claim sought similar damages from all defendants except Gunther for conduct asserted in the first two claims, based upon a theory of respondeat superior.

The fourth and fifth claims in the initial complaint also sought damages pursuant to 42 U.S.C. § 1983 (1988) for defendants' willful, wanton, and reckless deprivation, under color of state law, of rights plaintiffs asserted to be guaranteed to them by the constitution and laws of the United States.

Defendants filed a motion to dismiss the complaint for failure to state claims upon which relief could be granted. The motion to dismiss the § 1983 claims asserted that the state, its agencies, and its officers sued in their official capacities are not "persons" subject to suit under § 1983, and that the complaint was so broadly framed as to preclude a cogent answer to any claim that might be asserted therein.

The trial court dismissed the tort claims asserted under state law, but granted plaintiffs time to amend the § 1983 claims.

Thereafter, plaintiffs amended the complaint to assert the § 1983 claims only against Romer, Gunther, Price, and Wager individually, and to eliminate any such claims against the state, DOC, or Zavaras. The amended complaint asserted that all of the defendants had acted with reckless disregard or deliberate indifference to a risk of danger to plaintiffs that had been created by the acts and omissions of defendants, thus depriving plaintiffs of their right to be free of injury as guaranteed by unspecified constitutional provisions and laws of the United States. The only law expressly claimed in the amended complaint to have been violated is 42 U.S.C. § 1983.

Defendants' renewed motion to dismiss the amended complaint for failure to state a claim was thereafter granted by the trial court. Plaintiffs appeal both orders of dismissal.

I.

Plaintiffs first contend that the trial court erred in determining that the original complaint does not assert claims upon which relief can be granted under state law. We perceive no error.

In evaluating a motion to dismiss for failure to state a claim, the material allegations in the complaint are deemed admitted. A trial court should grant the motion only if it appears that the plaintiff would not be entitled to any relief under the facts pleaded. Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972). Upon review, the appellate court is in the same position as the trial court. McDonald v. Lakewood Country Club, 170 Colo. 355, 461 P.2d 437 (1969).

Randy and the children assert that defendants acted in reckless disregard of their safety, a tort first recognized in Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001 (1950). They argue that the complaint states facts that, if assumed to be true, demonstrate that defendants acted recklessly and, thus, the trial court should not have dismissed their tort claims.

A person acts in reckless disregard of the safety of another if he or she acts or fails to act contrary to a duty recognized under the law, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that the conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make the conduct negligent. Restatement (Second) of Torts § 500 (1965); Fanstiel v. Wright, supra.

Conduct is reckless for purposes of such a claim only if it involves a readily perceptible danger of death or substantial physical harm. Restatement (Second) of Torts § 500 comment a (1965).

Once an actor's conduct is determined to be reckless, his or her liability for the harm resulting from such behavior is determined by the same rules that determine the liability of a negligent actor. Restatement (Second) of Torts § 501 comment a (1965).

Thus, a plaintiff must still plead and prove facts demonstrating the existence of the basic elements of duty, breach, proximate cause, and damages in order to state a claim upon which relief can be granted.

Duty is an obligation to conform to a legal standard of conduct that is reasonable in light of an apparent risk. Black's Law Dictionary 505 (rev. 6th ed. 1990).

Here, even if we assume the truth of plaintiffs' allegations concerning defendants' reckless behavior, the complaint contains no facts to establish that defendants owed a duty to Mary Henderson's family to protect them from harm or that defendants' conduct created any risk of physical harm to Randy or the children. At best, the original complaint alleges only a risk of emotional and mental injury, rather than physical injury to Randy and the children. In addition, plaintiffs have not cited authority, and we are aware of none, that imposes a legal duty upon an employer to notify a victim's family of an injury before releasing such information to the news media.

Thus, since the original complaint failed adequately to plead facts demonstrating the existence of elements necessary to establish any breach of duty recognized under state tort law, the trial court did not err in dismissing those claims.

II.

Plaintiffs next contend that the trial court erred in failing to afford them an opportunity to amend their complaint to assert a claim cognizable under state law. We disagree.

A decision to allow the pleadings to be amended is within the sound discretion of the trial court, and its decision will not be disturbed on appeal unless an abuse of discretion is demonstrated. K-R Funds, Inc. v. Fox, 640 P.2d 257 (Colo.App.1981).

Although leave to amend should generally be freely granted pursuant to C.R.C.P. 15(a), the trial court does not abuse its discretion in refusing to permit a futile amendment. Conrad v. Imatani, 724 P.2d 89 (Colo.App.1986).

Here, plaintiffs did not request that the trial court grant leave to amend their state law claims either before or after those claims were dismissed. In addition, defendants' duty to plaintiffs and the nature of plaintiffs' injuries were essential elements of their tort claims. Since plaintiffs' factual averments fail to demonstrate that Mary's family members suffered any physical trauma as a direct result of defendants' conduct, or that they were within a zone of risk created by defendants for such bodily injury, the trial court could properly have determined that any attempt to amend the state law claims would be futile. See Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978); Bradshaw v. Nicolay, 765 P.2d 630 (Colo.App.1988).

Thus, the trial court neither erred nor abused its discretion in not extending an opportunity to plaintiffs to amend their state tort claims.

III.

Plaintiffs next contend that the trial court erred in dismissing the amended complaint because it failed to state any claims for which relief could be granted pursuant to 42 U.S.C. § 1983. We perceive no error.

A.

The first claim for relief, brought by Mary Henderson, asserts that Romer, Gunther, and Price acted with reckless disregard and/or deliberate indifference to the effects that their budgetary...