Johnson v. Dodrill
Decision Date | 16 March 1967 |
Docket Number | Civ. A. No. 66-C-442. |
Citation | 265 F. Supp. 243 |
Parties | Beverly K. JOHNSON, Plaintiff, v. Norene DODRILL and Richard A. Facinelli, Defendants. |
Court | U.S. District Court — District of Colorado |
Kripke, Hoffman & Friedman, Kenneth N. Kripke, Denver, Colo., for plaintiff.
Robert E. Holland, Denver, Colo., for defendant Norene Dodrill.
Fleming & Pattridge, Conrad E. Gardner, Golden, Colo., for defendant Richard A. Facinelli.
The complaint seeks to recover damages resulting from a motorbike-pedestrian collision which occurred on August 28, 1959. The action was instituted on August 24, 1966.
The defendant Facinelli has filed a motion to dismiss on the ground the complaint does not state a claim upon which relief can be granted. The Court has read the memoranda filed in support of and in opposition thereto and determines that the motion is without merit and should be denied, and it is so ordered.
Both defendants have filed a motion to dismiss on the grounds that the Colorado statutes of limitation bar the maintenance of the action.
From the memoranda filed in support of and in opposition to the motion, it appears that on August 28, 1959, the defendant was 17 years of age, having been born on February 19, 1942. Chapter 87, Article 1, Section 17 of the 1963 Colorado Revised Statutes provides:
"If any person entitled to bring any action mentioned in this article, is under the age of twenty-one years, insane, imprisoned, or absent from the United States, at the time when the cause of action accrues, such person may bring said action, within the time in this article respectively limited, after the disability is removed."
Chapter 87, Article 1, Section 11 fixes the period of limitation in cases of this character at six years after the cause of action accrues.
Under these two sections of the statute, the plaintiff had six years after she became 21 years of age within which to bring this action and since the institution of the action was well within that period, her action is not barred by these statutes.
However, Chapter 87, Article 2, Section 3 provides:
Under this statute the plaintiff, who had no legal representative appointed for her during her period of disability, had only two years after she became 21 years of age within which to institute this action. The action was not instituted within this two year period.
It is obvious that Chapter 87, Article 1, Section 17 and Chapter 87, Article 2, Section 3 are in conflict with each other. This conflict has not been resolved by any Colorado case law insofar as this Court has been able to ascertain. The resolution of this conflict, therefore,...
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Kuckler v. Whisler
...mentioned in the 1953 Colorado Revised Statutes, both statutes have remained in full force and effect, and they cite Johnson v. Dodrill, 265 F.Supp. 243 (D.Colo.1967). There is a far stronger reason for the conclusion that both statutes remain enacted. The effect of C.R.S. '53, 135--4--2 wa......
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Whisler v. Kuckler, 75--027
...the disability provision found at § 13--80--116, C.R.S. 1973, is controlling. For this interpretation they cite Johnson v. Dodrill, 265 F.Supp. 243 (D.Colo.). Plaintiff, on the other hand, urges us to give effect to both provisions or to declare § 13--81--103, C.R.S. 1973, controlling since......
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McKinney v. Armco Recreational Products, Inc.
...the federal and state courts of Colorado in which the appropriate "tolling" provision had to be determined. Johnson v. Dodrill, 265 F.Supp. 243 (D.Colo.1967) (Chilson, J.); Kuckler v. Whisler, ___ Colo. ___, 552 P.2d 18 (1976). As will be seen, the difference is critical in this case as Pla......