Zimmerman v. Baca, Civ. A. No. C-3136.

Citation346 F. Supp. 172
Decision Date06 July 1972
Docket NumberCiv. A. No. C-3136.
PartiesCheryl ZIMMERMAN et al., Plaintiffs, v. Christobal BACA et al., Defendants.
CourtUnited 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.

MEMORANDUM OPINION

WINNER, District Judge.

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:

"Our decision in Colorado & Southern Railway Co. v. Western Light & Power Co., supra, followed in Otis Elevator Co. v. Maryland Casualty Co., supra, is exhaustive in the citation of decisions in other jurisdictions which support the rule announced therein. In this decision the general principles announced are: 1. That while there is a general rule which precludes one wrongdoer from recovering indemnity from another wrongdoer, there is an exception thereto which permits a party who is in fault as to the person injured, but who is without fault as to the party whose actual negligence is the cause of the injury to recover indemnity. 2. Where an action is brought against two defendants for damage for personal injuries and both defendants are found guilty, one who pays the judgment may have a cause of action against the other for indemnity because the question as to the negligence of which defendant was the primary, sole and proximate cause of the injury was not adjudicated and will not be deemed to have been adjudicated until it appears that such issue was actually submitted and determined in said action for damages. 3. Even though one was guilty of some negligence resulting in damages to another in an action for which, judgment was entered, this does not preclude, bar or estop the judgment debtor from establishing that the negligence of another was the sole, proximate and primary cause of the injury, and if this fact is established by a preponderance of the evidence, the one paying the judgment is entitled to indemnification. 4. One who has been charged with negligence as to another, and for which judgment has been entered and paid, may maintain an action against a joint tort-feasor for indemnification if he can establish by a preponderance of the evidence that the sole, proximate and primary cause of the injury and resultant judgment was the negligence of his joint tort-feasor. The judgment against two tort-feasors is not evidence in such an action, neither is it res judicata, a bar or estoppel between these joint tort-feasors.
"Counsel for defendant attempt to distinguish the instant case from the decision in Colorado & Southern Railway Co. v. Western Light & Power Co., supra, by directing attention to a paragraph therein which reads: `To sum up, there was sufficient legal evidence to sustain the jury's findings, under the court's instructions, that the plaintiff's negligence was antecedent, negative and passive, merely producing the occasion or condition, and did not contribute to the accident, and that the defendant's negligence, of a different character, if not willful, was subsequent, active and positive, and the sole cause of the collision.' This paragraph of the opinion and some of the pages of the opinion preceding it, as we construe them, are devoted to a discussion of the last clear chance doctrine which was one of the defenses pled in that case, but which is not an issue here; consequently, there is no
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6 cases
  • Williams v. White Mountain Const. Co., Inc.
    • United States
    • Colorado Supreme Court
    • February 1, 1988
    ...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.
    • United States
    • U.S. District Court — District of Colorado
    • September 24, 1985
    ...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
    • United States
    • Colorado Supreme Court
    • March 21, 2011
    ...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.
    • United States
    • U.S. District Court — District of Colorado
    • March 28, 2011
    ...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......
  • Request a trial to view additional results
1 books & journal articles
  • The Harm in Hold Harmless Clauses
    • United States
    • Colorado Bar Association Colorado Lawyer No. 19-6, June 1990
    • Invalid date
    ...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). ......

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