Zimmerman v. Baca, Civ. A. No. C-3136.
Citation | 346 F. Supp. 172 |
Decision Date | 06 July 1972 |
Docket Number | Civ. A. No. C-3136. |
Parties | Cheryl ZIMMERMAN et al., Plaintiffs, v. Christobal BACA et al., Defendants. |
Court | United States District Courts. 10th Circuit. United States District Court of Colorado |
Daniel S. Hoffman and Gene M. Hoffman, Denver, Colo., for plaintiffs.
Wolvington, Dosh, DeMoulin, Anderson & Campbell by Laird Campbell, Denver, Colo., for defendant Baca.
Bradley, Campbell & Carney by Vincent K. Turner, Golden, Colo., for defendant Cole.
Zarlengo, Mott & Carlin by John C. Mott, Denver, Colo., for defendant Cohen.
Burnett, Watson, Horan & Hilgers by Mike Hilgers, Denver, Colo., for defendant Lazy "L" Campgrounds.
Max P. Zall, City Atty., Warren B. Hale and Lee G. Rallis, Asst. City Attys., Denver, Colo., for defendants Harris and City and County of Denver.
In a trial to a jury, plaintiffs recovered a $125,000.00 judgment against defendants Baca, Cole, Lazy "L" Campgrounds, Inc. and the City and County of Denver, for the death of Leonard Zimmerman, husband of Jean Zimmerman, and father of the other plaintiffs. The Court directed a verdict in favor of defendants Cohen and Harris.
Each of the defendants cross claimed against the other defendants on the theory that the negligence of the cross claiming defendant was passive, and that the negligence of the defendants against whom the cross claim is made was active negligence which was the primary or the sole and proximate cause of the injury. Before commencement of the jury trial, it was stipulated that the jury would resolve the issues between plaintiffs and defendants, and that based on the record made in that trial and, after the filing of post trial briefs, the cross claims would be decided by the Court. The post trial briefs have been filed, and the cross claims are now ripe for determination.
Defendant City owns the Hosa Lodge campground as a part of its mountain park system. Defendant Lazy "L" was the concessionaire operating that campground. Defendant Cohen was the owner of a horse which was being exercised by defendant Cole. Cole rode the horse to the Hosa Lodge Campground under explicit instructions from Cohen not to permit anyone else to ride the horse. Defendant Baca was the rider of the horse which ran down Leonard Zimmerman, causing injuries resulting in his death. Defendant Harris was a Denver mountain parks policeman.
On June 14, 1970, Leonard Zimmerman and his family, all citizens of Minnesota, paid a fee to camp at the Hosa Lodge campgrounds. Their camper was parked in the assigned rented space, and Mr. Zimmerman was seated in a folding chair at the rear of their camper. Shortly after their arrival he was run down by a horse, Cinnamon, and he died on July 17, 1970, as a result of the injuries he received.
Cohen was the owner of Cinnamon, and he kept the horse on a ranch he owned not far from the Hosa Lodge campground. Cole was an experienced rider, and Cohen permitted Cole to exercise the horse, but he emphatically instructed Cole not to permit anyone else to ride Cinnamon. Baca and Cole agreed that Cole took two of the children in the Baca party for a ride and was paid $2.00 by the children's parents. They disagreed violently as to what happened thereafter. Cole claimed that Baca jumped on the horse without Cole's permission, and that the horse ran away. Baca, on the other hand, said that Cole gave him permission to ride Cinnamon and the horse ran down Zimmerman. Beyond doubt it was established that Cinnamon was a spirited horse which should not be ridden by anyone other than an experienced rider, and with equal clarity it was shown that Baca was far from an experienced rider. By holding both Cole and Baca liable, the jury must have concluded that Cole negligently gave Baca permission to ride the horse, and that with knowledge of his inexperience, Baca was negligent in riding the horse in the crowded campground area. In any event, the Court so finds in its resolution of the cross claim problems with which we are here confronted.
In holding the city and Lazy "L" liable, the jury must have found that both of them had knowledge of the danger which would exist if horses were permitted in the campground area; that they knew horses were in the area frequently, and that neither the city nor Lazy "L" took reasonable steps to avoid the danger. Once more, the Court agrees and so finds. A city regulation in effect prohibited horses in the area, and Lazy "L" clearly recognized the danger and had discussed it with city officials. Horses were a problem at the campground, and, although Lazy "L" made some effort to keep them out, its efforts to avoid the danger were not adequate from the standpoint of the test of a "reasonable man." The city, on the other hand, although the danger was known to it, did absolutely nothing to lessen or eliminate the danger. The city just ignored the problem and trusted to luck. Under its concession agreement, the city was sharing in a business run at the Hosa Lodge campground, and it is chargeable with the same duties of reasonable care as is Lazy "L." Both the city and Lazy "L" were on notice of the sanitation and safety dangers resulting in the crowded camp area from the frequent riding of horses through the campgrounds. They accepted fees from the unsuspecting public for the privilege of camping, and they owed a duty to the fee paying public to use reasonable means to protect the safety of those paying to camp. This was more than a passive duty; it was an affirmative duty which was breached by both the city and Lazy "L," and, had either performed that duty, Leonard Zimmerman probably would be alive today.
Defendants are in agreement that Colorado does not recognize contribution among joint tort feasors. However, the city and Lazy "L" say that although contribution is not recognized, indemnification of a passive tort feasor by an active, primary tort feasor is permitted under Colorado law. This is true under limited circumstances. The leading Colorado case on the subject is Parrish v. De Remer, (1947) 117 Colo. 256, 187 P. 2d 597. The case arose following a torturous history of litigation. Smith and Fey recovered judgments against Parrish as a result of an automobile accident between Parrish's truck and Fey's automobile. De Remer was a contractor who was building the highway where the accident happened, and Parrish was not seeking contribution, but, rather, he was asking to recover on an indemnity theory. The Court held:
To continue reading
Request your trial-
Williams v. White Mountain Const. Co., Inc.
...holding indemnitees harmless for their own negligent acts must contain clear and unequivocal language to that effect. Zimmerman v. Baca, 346 F.Supp. 172, 178 (D.Colo.1972). Ambiguities will be resolved against the party seeking indemnity. Lackie v. Niagara Mach. & Tool Works, 559 F.Supp. 37......
-
Borroel v. Lakeshore, Inc.
...a person against his own negligence because the contract does not refer expressly to negligence. See, e.g., Zimmerman v. Baca, 346 F.Supp. 172, 178 (D.Colo.1972); Doyle v. Missouri Valley Constructors, Inc., 288 F.Supp. 125, 128 (D.Colo. 1968); see generally 175 ALR 30 & n. 11 (1948). Some ......
-
Constable v. Northglenn Llc
...Constr. Co., 749 P.2d 423, 426 (Colo.1988); accord Lahey v. Covington, 964 F.Supp. 1440, 1445–46 (D.Colo.1996); Zimmerman v. Baca, 346 F.Supp. 172, 178 (D.Colo.1972). Although an intent to indemnify another for its own negligence may not be a reasonable inference from less than clear contra......
-
Constable v. Northglenn LLC.
...Constr. Co., 749 P.2d 423, 426 (Colo. 1988); accord Lahey v. Covington, 964 F. Supp. 1440, 1445-46 (D. Colo. 1996); Zimmerman v. Baca, 346 F. Supp. 172, 178 (D. Colo. 1972). Although an intent to indemnify another for its own negligence may not be a reasonable inference from less than clear......
-
The Harm in Hold Harmless Clauses
...77 P. 5 (Colo.App. 1904). 16. Williams v. White Mountain Construction Co., 749 P.2d 423 (Colo. 1988). See also, Zimmerman v. Baca, 346 F.Supp. 172 (D. Colo. 1972). 17. Jennings v. Brotherhood Accident Co., 44 Colo. 68, 96 P. 982 (1908). 18. See, 17 Am.Jur.2d, Contracts§ 216 et seq. (1964). ......