Reigel v. Savaseniorcare L.L.C., 10CA1665.

Citation292 P.3d 977
Case DateJanuary 26, 2012
CourtCourt of Appeals of Colorado

292 P.3d 977

Janis M. REIGEL, Plaintiff–Appellee,
Brent Reigel and Bradley Reigel, Plaintiffs–Appellees and Cross–Appellants,
SAVASENIORCARE L.L.C., a Delaware limited liability company; SavaSeniorCare Administrative Services, L.L.C., a Delaware limited liability company; and SSC Thornton Operating Company, L.L.C., a Delaware limited liability company, d/b/a Alpine Living Center, Defendants–Appellants and Cross–Appellees.

No. 10CA1665.

Colorado Court of Appeals,

Dec. 8, 2011.
Rehearing Denied Jan. 26, 2012.

[292 P.3d 980]

Law Offices of J.M. Reinan, P.C., Jerome M. Reinan, Jordana Griff Gingrass, Denver, Colorado, for Plaintiff–Appellee and Plaintiffs–Appellees and Cross–Appellants.

Gordon & Rees LLP, Thomas B. Quinn, Mary Byrne Fletcher, Denver, Colorado; Proskauer Rose LLP, Malcolm J. Harkins, III, James F. Segroves, Washington, D.C., for Defendants–Appellants and Cross–Appellees.

Opinion by Judge J. JONES.

Dennis Reigel died shortly after being taken to a hospital emergency room from a nursing facility owned by defendant SSC Thornton Operating Company, L.L.C., doing business as Alpine Living Center (Alpine). Mr. Reigel's surviving spouse, Janis M. Reigel, and surviving sons, Brent Reigel and Bradley Reigel, sued Alpine; Alpine's parent company, SavaSeniorCare L.L.C. (SSC); SavaSeniorCare Administrative Services, L.L.C. (Administrative Services), which provided payroll and personnel services to Alpine; and others.

As of the date of trial, only the claims against Alpine, SSC, and Administrative Services for negligence and outrageous conduct remained. The court directed a verdict in defendants' favor on the sons' claims. The jury found in Ms. Reigel's favor on her negligence and outrageous conduct claims, awarding her a total of $450,000 in damages.1

[292 P.3d 981]

Defendants appeal those verdicts. The sons cross-appeal the district court's directed verdict in defendants' favor on their claims, and its award of costs to defendants for those claims.

We reverse the judgments against SSC and Administrative Services on both claims, reverse the judgment against Alpine on Ms. Reigel's outrageous conduct claim, vacate the judgment against Alpine on Ms. Reigel's negligence claim, reverse the judgment and costs award against the sons, and remand the case for a new trial on plaintiffs' negligence claim against Alpine.

I. Factual Background

The following facts are taken from the record of the trial, which we view in the light most favorable to the jury's verdicts. See Fair v. Red Lion Inn, 943 P.2d 431, 436 (Colo.1997) (in ruling on a motion for directed verdict, court must view the evidence in the light most favorable to the nonmoving party); Hildebrand v. New Vista Homes II, LLC, 252 P.3d 1159, 1172 (Colo.App.2010) (same standard applies in reviewing a challenge to the sufficiency of the evidence).

After undergoing surgery for an injury unrelated to this appeal, Mr. Reigel was admitted to Alpine for a one-week rehabilitation period.

One day before his scheduled discharge, Mr. Reigel began experiencing health problems. By 2:30 p.m. that day, his heart rate had dropped to fifty-four beats per minute from its normal range of around eighty beats per minute, his blood pressure had dropped, and he had developed nausea. According to Dr. Ethan Cary, Mr. Reigel's attending doctor at Alpine, the nurse assigned to Mr. Reigel, Sarah Pemkiewicz, told Dr. Cary only about Mr. Reigel's nausea. Ms. Pemkiewicz also failed to adequately chart Mr. Reigel's condition or to monitor his vital signs.2

By 10:00 p.m., Mr. Reigel's heart rate had risen to 134 beats per minute. Dr. Cary was not notified. Mr. Reigel's fluid intake for the day had been less than one-fifth of the recommended amount.

Mr. Reigel did not take in any fluids the following day. According to Ms. Reigel, he was disoriented, could not focus, could not urinate, and was sweating though his skin was cold and clammy. He also experienced increasing shortness of breath. After taking Mr. Reigel's vital signs and listening to his lungs, Ms. Pemkiewicz called Dr. Cary to report the shortness of breath. At about 1:10 p.m., Dr. Cary ordered a chest x-ray, a urinalysis, and several other lab tests to be done as soon as possible. Ms. Pemkiewicz did not take the urinalysis because Mr. Reigel was unable to urinate, but she ordered the x-ray and the other lab tests.

In the meantime, Ms. Reigel grew increasingly concerned about her husband's condition. Between 1:00 p.m. and 4:00 p.m., she asked Ms. Pemkiewicz, another nurse, and Jackie Cho (Mr. Reigel's case manager and Alpine's director of social services) about either having a doctor or a registered nurse evaluate Mr. Reigel or transferring him to a hospital. According to Ms. Reigel, the nurses refused her requests because they were either involved in completing the ordered tests or waiting for the lab results. Ms. Cho also refused the requests, telling Ms. Reigel in a “caustic” tone of voice that if an emergency existed “we would call an ambulance.”

At some point after 2:00 p.m., Ms. Pemkiewicz received the chest x-ray results and reported those results to Dr. Cary, who told her to transfer Mr. Reigel to a hospital. She called an ambulance at about 4:30 p.m.

According to one of the paramedics on duty, there was no nurse in Mr. Reigel's room when he arrived at Alpine. Due to a delay caused by one of Alpine's nurses in obtaining the transfer paperwork, it took about thirty minutes to transfer Mr. Reigel to a hospital that was “almost across the street” from Alpine.

[292 P.3d 982]

The emergency room doctor who treated Mr. Reigel, Dr. Michelle Reeves, concluded that he had been having a heart attack since the previous day. Mr. Reigel died a few hours later.

II. Defendants' Appeal

On appeal, defendants contend that the district court erred in (1) denying their motion for directed verdicts on Ms. Reigel's negligence claim; (2) denying their motion for directed verdicts on Ms. Reigel's outrageous conduct claim; (3) allowing Ms. Reigel to recover punitive damages; and (4) admitting evidence from a website concerning Alpine's history of treatment deficiencies and comparing its care to that of other nursing facilities. We agree in part with defendants' first contention and remand the case for a new trial on the negligence claim against Alpine only. We also agree with defendants' second contention. Consequently, we address their third and fourth contentions only to the extent relevant to the case on remand.

A. The Defendants Other Than Alpine Were Entitled to a Directed Verdict on the Negligence Claim

SSC and Administrative Services (collectively, the Sava Defendants) contend that the district court erred in denying their motion for directed verdicts on the negligence claim. Specifically, they argue that Ms. Reigel did not establish that they owed a duty of care to Mr. Reigel because she did not present evidence showing that she could impute Alpine's employees' alleged negligence to the Sava Defendants by piercing the corporate veil. Ms. Reigel does not dispute that she failed to prove a basis for piercing the corporate veil, but argues that the Sava Defendants owed a duty of care to Mr. Reigel because the evidence showed that Alpine's employees were their agents. We conclude that Ms. Reigel did not present evidence to establish that Alpine's employees were the Sava Defendants' agents. It follows that the district court erred in denying the Sava Defendants' motion for directed verdicts on the negligence claim.

1. The Issue Was Preserved for Review

Initially, we reject Ms. Reigel's contention that the Sava Defendants failed to preserve this issue for appellate review because they did not object specifically to the jury instruction stating, “Jackie Cho, Sarah Pemkiewicz, and [another nurse who treated Mr. Reigel] were the agents of the defendants, at the time of this occurrence. Therefore, any act or omission of the agent was in law the act or omission of the defendants.”

The Sava Defendants moved for directed verdicts based on Ms. Reigel's alleged failure to present evidence that they owed Mr. Reigel a duty of care. By doing so, they properly preserved the issue for our review. See In re Rosen, 198 P.3d 116, 119 (Colo.2008) (the issue whether a party is entitled to judgment as a matter of law is preserved by moving for a directed verdict); Omedelena v. Denver Options, Inc., 60 P.3d 717, 727 (Colo.App.2002) (where one defendant joined in another defendant's motion for a directed verdict, it preserved the issue therein for appellate review even though it did not submit an alternative jury instruction regarding the issue); see also Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1517–18 (10th Cir.1984), aff'd,472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985).

2. Standard of Review

We review a district court's ruling on a motion for directed verdict de novo. Churchill v. Univ. of Colo. at Boulder, 293 P.3d 16, 34 (Colo.App.2010) ( cert. granted2011 WL 2176390 (May 31, 2011)). Where the motion concerns a question of fact, we consider whether the evidence, viewed in the light most favorable to the nonmoving party, “ ‘compels the conclusion that reasonable jurors could not disagree and that no evidence or inference [therefrom] has been received at trial upon which a verdict against the moving party could be sustained.’ ” Hildebrand, 252 P.3d at 1163 (quoting Brossia v. Rick Constr., L.T.D. Liab. Co., 81 P.3d 1126, 1131 (Colo.App.2003)). However, where the motion concerns a question of law, we “may make an independent determination of [the] legal question.” Omedelena, 60 P.3d at 722;

[292 P.3d 983]

ccord Tricon Kent Co. v. Lafarge N. Am., Inc., 186 P.3d 155, 159 (Colo.App.2008).

Whether a particular defendant owes a legal duty to a particular plaintiff is ordinarily a question of law. See Univ. of Denver v. Whitlock, 744 P.2d 54, 57 (Colo.1987). But here the existence of a duty ultimately turns on whether Alpine's employees...

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