COLORADO COURT OF APPEALS101 West Colfax Avenue, Suite 800Denver, CO 80202(303) 837-3785

Plaintiff-Appellant/Cross-Appellee:

JANNY BARIZONTE,

Attorney Appellant/Cross Appellee:

E. RONALD BEEKS

v.

Defendant-Appellee and Cross-Appellant,

BOUBOULINA, INC. dba VINYL,

Defendants-Appellees

DARRYL HONOR dba LDH PROTECTIVE SERVICES, and MALIA CALIP,

COURT USE

ONLY

Attorneys for Appellee/Cross-Appellant

Bouboulina, Inc. d/b/a Vinyl

Miles M. Dewhirst, #16832Lars F. Bergstrom, # 30288Kathleen M. Kulasza, #9808Dewhirst & Dolven, LLC650 S. Cherry Street, Suite 600Denver, CO 80246Phone: 303-757-0003Fax: 303-757-0004Email: LarsBergstrom@dewhirstdolven.com kkulasza@dewhirstdolven.com

Case No. 11CA1162

ANSWER BRIEF OF APPELLEE

BOUBOULINA, INC. d/b/a VINYL

EFILED Document CO Court of Appeals 11CA1162 Filing Date: Jul 26 2012 1:46PM MDT Transaction ID: 45569080

1

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28

and C.A.R. 32, including all formatting requirements set forth in these rules.

Specifically, the undersigned certifies that

The brief complies with C.A.R. 28(g), as modified by the Order of this Court

dated May 15, 2012. It contains 11,891 words.

The brief complies with C.A.R. 28(k). It contains, under a separate heading,

a statement of whether Appellee, Bouboulina, Inc., agrees with the Appellant’s

statements concerning the standard of review and preservation for appeal, and if

not, why not.

I acknowledge that my brief may be stricken if it fails to comply with any of

the requirements of C.A.R. 28 and C.A.R. 32.

/s/ Lars F. Bergstrom_____________________Lars F. Bergstrom

2

TABLE OF CONTENTS

STATEMENT OF THE ISSUES............................................................................8

STATEMENT OF THE CASE...............................................................................8

A. Facts relating to the Incident of October 27, 2007. .................................8

B. Facts relating to the Evidentiary Issues Raised by Plaintiff on Appeal. .....................................................................................................4

ARGUMENT ............................................................................................................8

I. THE COURT PROPERLY GRANTED A DIRECTED VERDICT ON THE PLAINTIFF’S PREMISES LIABILITY CLAIM. ..................8

A. The trial court properly applied the premises liability statute in entering the directed verdict in favor of Vinyl on the premises liability claim.......................................................................................8

B. The trial court properly rejected Plaintiff’s premises liability claim under the inherently dangerous activity theory.......................12

C. Plaintiff’s argument that an employer/landowner is strictly liable for the intentional actions of its security personnel is a new argument not raised before the trial court and is contrary to Colorado law in any event.................................................................16

II. THE TRIAL COURT PROPERLY DIRECTED VERDICTS IN FAVOR OF VINYL ON THE MALICIOUS PROSECUTION, ABUSE OF PROCESS, CIVIL CONSPIRACY CLAIMS AND THE INDEPENDENT CONTRACTOR ISSUE. .................................20

A. Plaintiff presented no evidence to establish a malicious prosecution claim. .............................................................................20

B. Plaintiff presented no evidence to establish an abuse of process claim. .................................................................................................24

C. Plaintiff presented no evidence to support a civil conspiracy claim. .................................................................................................26

3

III. THE COURT’S EVIDENTIARY RULINGS WERE CORRECT.......35

A. The Court properly excluded the character evidence relating to Mr. Honor and Ms. Calip. .................................................................35

IV. THE TRIAL COURT PROPERLY REFUSED TO ALLOW THE AMENDMENT OF THE PLEADINGS TO ADD RMC HOLDINGS AS A PARTY OR TO ADD A CLAIM FOR EXEMPLARY DAMAGES. THE TRIAL COURT PROPERLY AWARDED ATTORNEYS’ FEES FOR PLAINTIFF’S REPETITIVE REQUESTS TO ADD THE EXEMPLARY DAMAGES CLAIM..............................................................................39

A. Plaintiff did not establish that RMC Holdings was a proper party defendant. ..........................................................................................39

B. Plaintiff failed to establish a basis to add an exemplary damages claim with respect to Vinyl. ..............................................................42

C. The trial Court properly awarded attorney’s fees to Vinyl on the exemplary damages claim issue. .......................................................44

V. THE TRIAL COURT PROPERLY PRECLUDED EVIDENCE OF BARIZONTE’S WORKER’S COMPENSATION IMPAIRMENT RATINGS. .............................................................................................45

VI. EVIDENCE OF INSURANCE WAS PROPERLY EXCLUDED. ......46

VII. THE COURT PROPERLY PERMITTED THE INTRODUCTION OF EVIDENCE REGARDING THE MISTREATMENT OF PLAINTIFF BY THE DENVER SHERIFF’S DEPARTMENT AND PROPERLY INSTRUCTED THE JURY ON SUPERSEDING AND INTERVENING CAUSE. ...............................48

VIII. OTHER ISSUES. ................................................................................52

CONCLUSION.......................................................................................................53

4

TABLE OF AUTHORITIES

Cases

Albo v. Shamrock Oil & Gas Corp., 415 P.2d 536 (Colo. 1966) ............................50

Alexander v. White, 488 P.2d 1120, (Colo. App. 1971) ..........................................49

Am. Guar. & Liability Ins. Co. v. King, 97 P.3d 161, 170 (Colo.App.2003) ... 24, 25

Aztec Sound Corp. v. Western States Leasing Co., 510 P.2d 897, 899 (1973)........25

Blueflame Gas v. Van Hoose, 679 P.2d 579 (Colo. 1984)................................ 17, 18

Bolles v. Kinton, 263 P. 26, 28 (Colo. 1938). ..........................................................46

Brien v. 18925 Collins Ave. Corp., 233 So. 2d 847 (Fla. App. 1970).....................19

Carpet Exchange v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo. App. 1993).....................................................................................................................34

Connes v. Molalla Trans. System, Inc., 831 P.2d 1316 (Colo. 1992).............. passim

Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 711-12 (Colo. 1987) ...........43

Cooley v. Eskridge,241 P.2d 851 (Colo. 1952) .......................................................31

Dahl v. Young, 862 P.2d 969 (Colo. App. 1993).....................................................17

Dana’s Housekeeping v. Butterfield,807 P.2d 1218, 1220-21 (Colo. App. 1990)..33

Evans v. Morsell, 395 A.2d 480, 484 (Md. 1978) ...................................................11

Frick v. Abel,602 P.2d 852 (1979)...........................................................................43

Hewitt v. Rice, 119 P.3d 541, 544 (Colo.App.2004), aff'd, 154 P.3d 408 (Colo.2007)...........................................................................................................20

Howard v. Wood Bros. Homes, Inc., 835 P.2d 556, 561 (Colo. App. 1992)...........44

Huddleston v. Union Rural Elec. Ass’n, 841 P.2d 282 (Colo. 1992) .............. passim

In re Estate of Stevenson v. Hollywood Bar & Café, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)..........................................................................................................16

Jacobs v. Commonwealth Highland Theatres, 738 P.2d 6, 12 (Colo. App. 1986) .46

Jet Courier Service v. Mulei, 771 P.2d 486, 502 (Colo. 1989) ...............................26

Jones v. Caterpillar Tractor Co., 701 P.2d 84 (Colo. App. 1984)..........................51

Kendall v. Hargrave, 349 P.2d 993 (Colo. 196);.....................................................18

5

Koch v. Stephens, 552 P.2d 525, 528 (Colo. App. 1976.) .......................................49

Lamborn v. Eshom, 287 P.2d 43, 45 (Colo. 1955) ..................................................18

Leonard v. McMorris, 63 P.3d 323, 330 (Colo. 2003) ..................................... 40, 41

Lombard v. Colorado Outdoor Educ. Center, Inc., 187 P.3d 565, 568 (Colo. 2008)................................................................................................................................9

Lombardy v. Stees, 290 P.2d 1110 (Colo. 1956) .....................................................31

Lounder v. Jacobs, 205 P.2d 236, 238 (Colo.1949) ................................................20

Maloy v. Griffith, 240 P.2d 923 (Colo. 1952)..........................................................18

Masters v. People, 58 P.3d 979, 1005 (Colo. 2002)................................................37

Michelson v. United States, 335 U.S. 469, 475-76 (1948) ......................................37

Montgomery Ward & Co. v. Pherson¸ 272 P.2d 643 (Colo. 1954) .................. 23, 24

Moore v. Western Forge Corp., 192 P.3d 427 (Colo. App. 2007) ..........................50

More v. Johnson, 568 P.2d 437, 440 (Colo. 1977)..................................................28

Nelson v. Elway, 908 P.2d 102, 106 (Colo. 1995)...................................................28

Nelson v. Industrial Claim Appeals Office, 981 P.2d 210, 213 (Colo. App. 1998) 34

Paine, Webber, Jackson & Curtis, Inc. v. Adams 718 P.2d 508, 514 (Colo. 1986)16

People v. Rath, 44 P.3d 1033, 1042 (Colo. 2002) ...................................................38

People v. Segovia, 1196 P.3d 1126 (Colo. 2008) ....................................................36

People v. Spoto, 795 P.2d 1314 (Colo. 1990)..........................................................37

Pollard v. State Farm Mut. Auto. Ins. Co., 200 P.3d 1080, 1082 (Colo. App. 2008)..............................................................................................................................43

Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983).............................11

Powell v. City and County of Denver, 973 F. Supp. 1198 (D. Colo. 1997) .... passim

Prudential Prop. & Cas. Ins. Co. v. District Court, 617 P2d 556, 559 (Colo. 1980);..............................................................................................................................46

Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1057 (Colo. 1995) ...... 28, 29

Robinson v. City and Cty. of Denver, 30 P.3d 677, 685 (Colo. App. 2000)............17

Rojhani v. Meagher, 22 P.3d 554, 557 (Colo. App. 2000)......................................35

6

Ross v. Texas One Partnership, 796 S.W.2d 206 (Tex. App. 1990) .......................19

Rouse v. McCrory, 334 S.E.2d 517 (S.C. App.), rev’d on other grounds 353 S.E.2d 130 (S.C. 1986).....................................................................................................19

Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89, 93 (Colo.App.1997) ....................50

Schneider v. Midtown Motor Co., 854 P.2d 1322, 1326 (Colo. App. 1992)...........28

Smith v. District Court, 907 P.2d 611, 612-13 (Colo. 1995)...................................47

Sofford v. Schindler Elevator Corp. 954 F. Supp. 1459, 1461 (D. Colo. 1997) .......9

Spiker v. Hoogeboom, 628 P.2d 177 (Colo. App. 1981) .........................................41

Springer v. City and Cty. of Denver, 13 P.3d 794, 804 (Colo. 2000)..................9, 22

Sterenbuch v. Goss, 266 P.3d 428, 436 (Colo. App. 2011) .....................................26

Thayer v. Kirchholf, 266 P. 225 (Colo. 1928) .................................................. 22, 25

Thompson v. Maryland Cas. Co., 84 .3d 496 (Colo. 2004).....................................20

Vigil v. Franklin, 103 P. 3d 322, 326 (Colo. 2004) .................................................30

Walcott v. Total Petroleum, Inc., 964 P.2d 609, 612 (Colo. App. 1998) ................50

Walker v. Van Laningham, 148 P.3d 391, 394 (Colo.App.2006)............... 24, 25, 26

Warner v. Barnard, 304 P.2d 898 (Colo. 1956); .....................................................18

Western Stock Center v. Sevit, 578 P.23d 1045 (Colo. 1978) .................................12

White v. Caterpillar, Inc., 867 P.2d 100 (Colo. App. 1993)....................................50

Yoder v. Honeywell, Inc., 104 F.3d 1215, 1221 (10th Cir. 1997).............................40

Zelen v. Saratoga Springs, 589 N.Y.S.2d 709 (App. Div. 1992) ............................19

Statutes

C.R.S. § 13-21-102. .................................................................................................44

C.R.S. § 13-21-111.5 .................................................................................. 26, 29, 51

C.R.S. § 13-21-115 ..............................................................................................8, 30

Revised Municipal Code, City and County of Denver, § 42-161 - § 42-167 (revised 11/27/89)...................................................................................................... 4, 6, 47

Revised Municipal Code, City and County of Denver, § 42-162..............................5

Revised Municipal Code, City and County of Denver, § 42-165........................5, 11

7

Other Authorities

65 C.J.S. Negligence § 111a ....................................................................................49

C.J.I.–Civ. 9:20 ........................................................................................................51

CJI–Civ. 4th 17:1 (1999); ........................................................................................20

Restatement (Second) of Torts § 427 .......................................................... 13, 14, 18

Rules

C.R.C.P. 111 ............................................................................................................18

C.R.C.P. 15 ..............................................................................................................41

Colo. R. Evid. 401....................................................................................................45

Colo. R. Evid. 403............................................................................................. 45, 47

Colo. R. Evid. 404............................................................................................. 36, 37

Colo. R. Evid. 411....................................................................................................46

8

STATEMENT OF THE ISSUES

Defendant-Appellant Bouboulina, Inc., d/b/a Vinyl, accepts Plaintiff’s

Barizonte’s statement of the issues to be addressed on appeal as set forth in her

Statement of Issues, page 1 of the Opening Brief.

STATEMENT OF THE CASE

A. Facts relating to the Incident of October 27, 2007.

Defendant, Bouboulina, Inc., d/b/a Vinyl (“Vinyl”), is a Colorado

corporation wholly owned by Ms. Maria Christou, that operates a nightclub in

Denver. [Vol. I, p. 249, lines 7-11.] In 2005, Vinyl retained LDH Protective

Services to provide security services to the Vinyl nightclub. [Vol. I, p. 1, lines 18-

24.] Ms. Christou testified that she recognized the need for outside security

expertise because her company is in the nightclub business, not the security

business. [Vol. I, p. 292, line 13—p. 293, line 11.] Vinyl retained LDH because

Darryl Honor, the sole proprietor of LDH, was “highly recommended.” [Vol. I, p.

252, lines 2-5; p. 284, lines 14-19.] Ms. Christou was aware that Mr. Honor held a

merchant guard license before Vinyl hired LDH and she was aware that the City

and County of Denver required a criminal background check before issuing a

2

merchant guard license. [Vol. I, p. 252, lines 8-17; p. 294, line 21—295, line 2.]

For that reason, she did not cause a separate background check to be performed.

Defendant Darryl Honor operates a security business under the tradename

LDH Protective Services, and employs approximately twenty individuals to staff

security jobs at nightclubs, raves and special event venues in the Denver area.

[Vol. I, p. 45, line 25—p. 46, line 17; Vol. I, line 293, lines 12-16.] Every security

guard employed by LDH has a merchant guard license, as evidenced by the badges

worn with their uniforms. [Vol. I, p. 315, lines 5-7.]

Vinyl had an oral agreement with LDH to provide security services which

agreement was renewed on a weekly basis. [Vol. I, p. 47, lines 14—22.] As of

October 2007, Vinyl’ s manager would inform LDH as to how many doors the club

would have open on a particular night and LDH would make the decision as to

how many security personnel were needed and how they would be deployed. [Vol.

I, p. 321, line 21—p. 322, line 21 (Dodge); Vol. IV, p. 1009, line 12—p. 1011, line

11 (Honor).] Vinyl did not presume to tell LDH how to perform its work, nor did

it have the knowledge or expertise to do so. [Vol. I, p. 260, line 24-p. 261, line 3;

p. 293, line 23-p. 294, line 4.] Vinyl paid LDH on a 1099 basis and cut a single

check to LDH for all its employees; LDH it in turn paid the individual guards.

[Vol. I, p. 47, line 23—p. 48, line 22; p. 290, line 25—p. 291, line 21.] Vinyl had

3

no authority to hire or fire individual employees of LDH. [Vol. I, p. 292, lines 5-

9.]

On the evening of October 27, 2007, Plaintiff Barizonte and two friends

started a fight with three LDH security guards, Mr. Honor, Defendant Malia Calip

and Defendant Sean Thomas. Ms. Bouboulina testified to an “unprovoked assault”

by Ms. Calip. [Vol. II, p. 549, line 1—p.550, line 3; Vol. III, p. 719, line 3—p.

720, line 22.] Ms. Calip disputed Plaintiff’s statement that she (Calip) attacked

Plaintiff and testified that Ms. Barizonte attacked her. [Vol. II, p. 346, line 22—p.

347, line 13.] She radioed for help and Defendant Honor pulled Ms. Barizonte

away. She was kicking, punching and yelling, so he put her in handcuffs. [Vol. II,

p. 348, lines 11—22.] Ms. Barizonte testified that after she was put in handcuffs

and carried outside, she “totally lost it” and “freaked out.” [Vol. II, p. 569, line

18—p. 570, line 12.] Mr. Honor confirmed that he observed Ms. Barizonte

kicking and punching Malia Calip [Vol. I, p. 44, line 23—p. 45, line 4.] He

restrained Ms. Barizonte because she was kicking, flailing, headbutting, essentially

out of control. [Vol. I, p. 51, lines 1—19; p. 56, lines 11--21.]

Someone called the police. When they arrived, Ms. Barizonte was

handcuffed, screaming and aggressive; the police arrested her and took her to jail.

[Vol. II, p. 351, lines 15—25; p. 569, line 18—p. 570, line 12; p. 572, line 5—p.

4

577, line 8; Plaintiff’s Exhibit 11, admitted Vol. I, p. 15, lines 16-17.] The police

arrested Ms. Barizonte and took her to jail. While in the jail, Plaintiff was

repeatedly thrown up against a Plexiglass wall by a Denver Sheriff’s deputy, an

incident that was videotaped and shown to the jury. [Vol. III, p. 743, line 7—p.

745, line 25 and Defendants’ Exhibit W.] At trial, Ms. Barizonte denied that the

incident at the jail caused her any anxiety and that her injuries were solely the fault

of the Defendants. [Vol. III, p. 750, line 15—p. 752, line 5; p. 753, lines 1-11].

Plaintiff admitted on cross-examination that she had attributed “wrist pains,

headaches and anxiety” to the incident at the jail. [Vol. III, p. 752, lines 6—25.]

Defendants were precluded from introducing evidence regarding Ms. Barizonte’s

lawsuit against and settlement with the City and County of Denver relating to the

incidents at the jail. [Order on Motion in Limine re Settlement with Denver,

ID36515522.]

B. Facts relating to the Evidentiary Issues Raised by Plaintiff

on Appeal.

In order to work as a security guard within the City and County of Denver,

an individual is required to have a Merchant Guard license. (Revised Municipal

Code, City and County of Denver, Sections 42-161-167 (revised 11/27/89),

referred to hereinafter as Merchant Guard Ordinance § 42-161.) The Court took

judicial notice of Merchant Guard Ordinance § 42-161, and the rules of the

5

Department of Excise and Licenses. (Vol. IV, p. 1053, line 23—p. 1054, line 23).

The Merchant Guard Ordinance and the Rules of the Department of Licenses

require that each applicant submit to the Department, inter alia, at least three

letters of reference, a self-completed criminal history form and a background check

from the Colorado Bureau of Investigation (“CBI”) (Revised Municipal Code, City

and County of Denver, § 42-162; Regulations and Forms,

http://www.denvergov.org/businesslicensing/DenverBusinessLicensingCenter/Busi

nessLicenses/MerchantGuardIndividual/tabid/441692/Default.aspx). Each

merchant guard license must be renewed annually; the renewal process requires a

current (within 90 days) CBI background check. Under § 42-165, a merchant

guard license will not be issued or renewed if the background investigation and

other documentation reveal any disqualifying characteristics, including a finding

by the Director of Excise and Licenses that (subsection 2) the person does not have

a satisfactory character, reputation and record of sobriety; (subsection 3) the person

has been convicted of a felony, misdemeanor or violation of a municipal ordinance

pertaining to moral turpitude or of fraud or deceit, within ten years immediately

preceding the date of application; (subsection 5) the person has a record of drug

addiction, (also subsection 5) the applicant has a record of violent acts against

persons or property; or (subsection 7) the applicant’s physical or mental condition

6

are such so as not to warrant confidence that the service to be rendered will not

jeopardize the health, safety or welfare of any person.

Defendants Honor, LDH Protective Services, Calip and Thomas all held

merchant guard licenses issued by the City of Denver. [Plaintiff’s Exhibit 7, 8, 9

and 10, respectively, are the merchant guard files obtained from the Denver

Department of Licenses that were not admitted; Vol. I, p. 16, line 18—p. 17, line

10; p. 20, lines 3—25.] Each of the Defendants had provided the requisite

information to the Denver Department of Excise and Licenses, including the

information necessary for the Department to run CBI criminal background checks,

which background checks were run. Id. It is undisputed that Vinyl did not run

independent criminal background checks and instead relied on the issuance of the

merchant guard licenses as evidence that the City of Denver had obtained CBI

criminal investigation reports of the security guard and concluded the guards met

the criteria set forth in Merchant Guard Ordinance § 42-161, et seq.

Plaintiff Barizonte’s appeal concerns, in part, the trial court’s refusal to

allow her to introduce evidence of Mr. Honor’s and Ms. Calip’s alleged

“extensive” criminal and domestic violence records. The issue was the subject of a

Motion in Limine filed by Vinyl [ID29775930] and an Order of the Court granting

the Motion [ID36530118]. The Court also entertained extensive argument on the

7

issue of the Defendants’ criminal and domestic violence records during the trial.

[Vol. I, p. 60, line 6—p. 78, line 12.]

Mr. Honor’s “record” is contained in Plaintiff’s Exhibits No. 5 and No. 6.

That record contains the following information: a dismissed charge of assault

occurring some months after the incident involving Plaintiff Barizonte; a complaint

for a domestic restraining order filed and withdrawn six years before the incident

involving Plaintiff; a 2001 charge of assault that was dismissed; a 1999 charge of

destruction of property that was dismissed and a plea of guilty to disturbing the

peace arising from the same incident; a charge of theft of a camera that was

dismissed after Mr. Honor successfully completed a deferred judgment; and a plea

of guilty to indecent exposure related to an incident of urinating in public some 22

years before the incident involving Plaintiff. [Exhibit 5 and 6, Plaintiff’s Exhibit

Notebook, not admitted pursuant to Order ID36530118.] The Court did allow

Plaintiff’s attorney to question Mr. Honor about the theft incident. [Vol. I, p. 61,

line 3—p. 62, line 12; Vol. I, p. 89, lines 21-25.]

Ms. Calip’s so-called “extensive” record, reflected in Exhibit 4 consists of a

single domestic incident involving Mr. Honor occurring in 2001. The incident

resulted in a request for a restraining order that was withdrawn before there was

any adjudication on the request, and a charge of destruction of private property that

8

was dismissed after Ms. Calip completed the terms of deferred judgment. [Exhibit

4, Plaintiff’s Exhibit Notebook, not admitted pursuant to Order ID36530118.]

ARGUMENT

I. THE COURT PROPERLY GRANTED A DIRECTED VERDICT ON

THE PLAINTIFF’S PREMISES LIABILITY CLAIM.

Standard of Review: Defendant concurs with Plaintiff’s statement that the

standard of review of the directed verdict is de novo.

A. The trial court properly applied the premises liability

statute in entering the directed verdict in favor of Vinyl on

the premises liability claim.

Plaintiff Barizonte first argues that the Court improperly granted a directed

verdict on her premises liability claim asserted against Vinyl under C.R.S. § 13-21-

115. As relevant here, the premises liability statute provides that an invitee may

recover from a landowner “for damages caused by the landowner’s unreasonable

failure to exercise reasonable care to protect against dangers of which he actually

knew or should have known.” C.R.S. § 13-21-115(3)(b)(I) . In order to establish a

premises liability claim, Ms. Barizonte was required to introduce evidence to

establish that (1) Vinyl breached the duty to use reasonable care to protect her

against a danger on the property and (2) Vinyl had actual or constructive

knowledge of the danger. Lombard v. Colorado Outdoor Educ. Center, Inc., 187

9

P.3d 565, 568 (Colo. 2008); Springer v. City and Cty. of Denver, 13 P.3d 794, 804

(Colo. 2000), citing Sofford v. Schindler Elevator Corp. 954 F. Supp. 1459, 1461

(D. Colo. 1997). Ms. Barizonte failed to introduce evidence to establish either the

first or the second element of the premises liability claim. As a result, the Court

granted the directed verdict and expressly found [Vol. IV, p. 1239, line 4—p. 1243,

line 24] that Plaintiff had introduced no evidence that she was injured as the result

of a danger either known to Vinyl or that Vinyl reasonably should have discovered.

Both the court’s finding and its dismissal of the premises liability claim were

correct.

At trial1

1 Plaintiff asserts a different argument on appeal, discussed in Section I.C., below.

, Plaintiff Barizonte’s claim was that Vinyl knew or should have

known that the security guards, Honor and Calip, were unstable and were

predisposed towards unpredictable violent behavior. Barizonte argued that Vinyl’s

reliance on the City of Denver’s review of CBI background checks in connection

with its issuance of merchant guard licenses was unreasonable and that Vinyl

should have conducted its own independent investigation of Honor’s and Calip’s

criminal and domestic violence histories. If Vinyl had done so, Barizonte argued,

Vinyl would have known that Honor and Calip were prone to commit unprovoked

intentional acts of violence.

10

Plaintiff’s argument fails on two grounds. First, Plaintiff is wrong as a

matter of fact. The “records” of security guards Honor and Calip, as evidenced in

excluded Exhibits 5 and 6, show absolutely no proclivity to commit unprovoked

intentional acts of violence. Ms. Calip’s history shows a single incident involving

a domestic partner, not a stranger that occurred approximately six years before Ms.

Barizonte alleged she was assaulted at the club. Other than unsubstantiated and

withdrawn allegations, Mr. Honor’s record contains a single guilty plea to

disturbing the peace, a plea to theft and a youthful indiscretion. The trial court

properly concluded that, even if Defendant Vinyl had conducted an independent

investigation of the security guards’ criminal histories, there was no evidence from

which Vinyl, or the jury, could conclude that the records showed that either guard

had an unpredictable, violent past.

Second, Plaintiff is wrong as a matter of law. The principal case that

Plaintiff relied at trial to support her premises liability claim, Connes v. Molalla

Trans. System, Inc., 831 P.2d 1316 (Colo. 1992), squarely supports Vinyl’s

position that it acted reasonably in relying on the City’s issuance of the merchant

guard licenses. In Connes, the Colorado Supreme Court expressly declined to

impose upon an employer the duty to obtain official records of a job applicant’s

criminal history absent antecedent circumstances giving the employer reason to

11

believe that the applicant would constitute an undue risk to the public. Id. at 1322,

1323. See Evans v. Morsell, 395 A.2d 480, 484 (Md. 1978); Ponticas v. K.M.S.

Investments, 331 N.W.2d 907 (Minn. 1983). The Supreme Court justified its

holding in Connes not only on the burden that would be imposed if an employer

were obligated to contact numerous jurisdictions to obtain criminal records on

every applicant but also on “the significant problem of interpreting the records and

relating them in a practical way to the job in question.” Connes, 831 P.2d at 1323.

Thus, the Court declined to impose on employers the obligation to act as both

criminal investigator and psychologist in order to meet its duty of reasonable care.

The admitted evidence in this case established that Mr. Honor “came highly

recommended” to Vinyl and that LDH had worked at the nightclub for more than

two years prior to the October 2007 incident. Most important, Vinyl knew that Mr.

Honor and his employees held merchant guard licenses issued by the City of

Denver. Thus, they relied on the fact that as part of the initial process of issuing a

merchant guard license and then renewing it each year, the Department of Licenses

reviews a current CBI criminal report and determines that the applicant does not

have a history of violence and that the issuance of a license will not “jeopardize the

health, safety or welfare of any person.” Merchant Guard Ordinance § 42-165.

The undisputed evidence in the record supports the trial court’s conclusion that

12

Vinyl acted reasonably in relying on the investigation and review conducted by the

City of Denver. Consequently, the trial court also properly concluded that Vinyl

neither knew nor had reason to know that any of the LDH personnel was prone to

unpredictable violence and posed a danger to patrons of the establishment.

Consequently, the directed verdict on the premises liability claim was proper.

B. The trial court properly rejected Plaintiff’s premises

liability claim under the inherently dangerous activity

theory.

At trial, Plaintiff Barizonte argued that the activity of providing security at a

nightclub that serves alcohol is an “inherently dangerous activity.” From that

premise, and relying on Huddleston v. Union Rural Elec. Ass’n, 841 P.2d 282

(Colo. 1992) and Western Stock Center v. Sevit, 578 P.23d 1045 (Colo. 1978),

Barizonte argued that the landowner is responsible for the tortious actions of the

security guards, even if the guards are independent contractors. Plaintiff produced

a single witness, Defendant Darryl Honor, in support of her assertion that

providing security in a nightclub is an inherently dangerous activity. Mr. Honor

did not support Plaintiff’s premise and instead testified that, in his experience,

there is nothing especially or inherently dangerous about a nightclub or the job of

providing security at a nightclub. [Vol. I, p. 49, line 8—p. 50, line 4.] The job of

the security guards is to make the venue a safe, uneventful environment and to

13

intervene if and when patrons become disruptive, so that people stay safe. [Vol. I,

p. 36, line 23—p. 37, line 13.] Prompt and effective action of the security guards

precludes danger to the public.

The trial court entered the directed verdict in favor of Vinyl on the premises

liability claim based upon a finding that the activity of providing security in a

nightclub serving alcohol is not an inherently dangerous activity as defined in

Huddleston. [Vol. IV, p. 1247, line 15—p. 1249, line 12.] Moreover, the trial

Court found that under Powell v. City and County of Denver, 973 F. Supp. 1198

(D. Colo. 1997), even if the activity of providing security were inherently

dangerous, Vinyl would not be liable for the intentional torts of the independent

security contractors provided by LDH. Id. Vinyl contends that the trial court was

correct and properly directed the verdict against Barizonte.

In Huddleston, the Colorado Supreme Court acknowledged the general rule

that a person hiring an independent contractor is not liable for the contractor’s

negligence and also recognized an exception for cases involving an independent

contractor performing an inherently dangerous activity. Huddleston, 841 P.2d at

287, citing Restatement (Second) of Torts § 427. The Supreme Court commented

that the expanded rule of vicarious liability applies only where the harm results

from the negligence of the independent contractor in failing to take precautions

14

against the danger involved in the work itself, which danger the employer or

landowner should contemplate at the time of the contract. The Court held that the

expanded rule of liability does not apply where the actions of the contractor create

a new risk not inherent in the work itself, or in the ordinary or prescribed way of

doing it, and not reasonably to be contemplated by the employer. Huddleston, 841

P.2d at 288, citing comments to Restatement § 427. Thus, the responsibility of the

employer or the landowner does not extend to the “collateral negligence” of the

contractor. Id.

Powell subsequently clarified that the exception created by Restatement

§ 427 also does not extend to the intentional torts of an independent contractor,

even where the activity is alleged to be inherently dangerous. Powell, 973 F. Supp.

at 1203, citing Huddleston,841 P.2d at 288.2

2 The federal court noted some irony in the proposition that providing security is an inherently dangerous activity with respect to third parties.

In this regard, it is important to note

that Plaintiff’s entire case, and her testimony regarding the events of October 27,

2007, claimed that the actions of the security guards, Honor, Calip and Thomas,

were unprovoked and deliberate. That is, Plaintiff claimed that the security guards

committed intentional torts of assault and battery. (At the conclusion of the trial,

the jury did in fact find that Honor and Calip committed assault and battery.)

15

In Huddleston, the Colorado Supreme Court held that a directed verdict

would be appropriate on a claim of vicarious liability for the torts of an

independent contractor if plaintiff failed to prove any of the following elements by

a preponderance of the evidence: (1) the activity presented a special or peculiar

danger to others inherent in the nature of the activity or the particular

circumstances; (2) the danger was different in kind from the ordinary risks that

commonly confront persons in the community; (3) the employer knew or should

have known that the special danger was inherent in the activity or the

circumstances and (4) the injury to the plaintiff was not the result of the collateral

negligence (or intentional tort) of the independent contractor. Id. at 294. Pursuant

to the requirements established in Huddleston, a directed verdict was and is proper

on Plaintiff’s premises liability claim. In particular, there was no evidence to

support a finding as to element (1), that the activity presented a special or peculiar

danger to the public. Moreover, there was ample evidence from which the jury

could (and eventually did) conclude that the injury to the plaintiff was the result of

the intentional torts committed by the independent contractors, Calip and Honor,

thus negating element (4). Consequently, on either or both bases, the trial court

properly entered a directed verdict on the expanded premises liability claim based

16

on the allegation that the property owner is liable for an inherently dangerous

activity.

C. Plaintiff’s argument that an employer/landowner is strictly

liable for the intentional actions of its security personnel is a

new argument not raised before the trial court and is

contrary to Colorado law in any event.

At page 6 of its Opening Brief, Plaintiff raises an entirely new argument

based on foreign authority and contends, for the first time, that this Court should

adopt a new rule that an employer or a landowner is liable for the intentional torts

of its security personnel even if they are independent contractors. Plaintiff’s

contention must be denied for two reasons: (1) Plaintiff waived the claim by not

raising it before the trial court and (2) the argument is contrary to Colorado law.

First, as Plaintiff admits (Opening Brief, p. 6), Plaintiff did not raise this

argument until its post-trial motion for new trial. This argument has been waived

and the Court should not consider it. See In re Estate of Stevenson v. Hollywood

Bar & Café, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992) (issues not presented at trial

and considered or ruled upon by trial court are deemed waived and cannot be

raised for the first time on appeal); Paine, Webber, Jackson & Curtis, Inc. v.

Adams 718 P.2d 508, 514 (Colo. 1986) (issue not raised before the trial court

deemed waived if does not involve challenge to trial court’s subject matter

17

jurisdiction); Dahl v. Young, 862 P.2d 969 (Colo. App. 1993) (issue raised after all

evidence and argument concluded not considered on appeal).

In order to circumvent her clear waiver of the issue, Plaintiff next argues

(Opening Brief, page 7), that the granting of the directed verdict on premises

liability was “plain error.” Plaintiff supports the contention that she is entitled to

raise an entirely new argument as a matter of plain error because the error “almost

surely affected the outcome of the case”, citing Robinson v. City and Cty. of

Denver, 30 P.3d 677, 685 (Colo. App. 2000) and because the incorrect ruling

affected “the substantial rights of the parties”, citing Blueflame Gas v. Van Hoose,

679 P.2d 579 (Colo. 1984). However, under the cited case law, the use of the plain

error exception must be confined to “the most compelling cases,” especially in

civil litigation. Robinson, 30 P.3d at 684.

Plaintiff neglects to address that the “plain error” rule as stated in her cited

cases was expressly limited to circumstances where the jury has been improperly

instructed and counsel failed to raise the objection contemporaneously. Thus, in

Robinson, the Court of Appeals noted that only in instances involving unusual

circumstances will an appellate court exercise its discretion to review, on the basis

of plain error, a claim of erroneous jury instructions where a timely objection has

not been lodged. Robinson, 30 P.3d at 685. Similarly, in Blueflame, the plaintiff

18

the Court of Appeals held that it could and would elect to address the correctness

of an instruction on its own motion in order to prevent a manifest injustice.

Blueflame, 679 P.2d at 586. Plaintiff’s other cited cases are similarly limited to

plain error involving erroneous jury instructions. Kendall v. Hargrave, 349 P.2d

993 (Colo. 1960); Warner v. Barnard, 304 P.2d 898 (Colo. 1956); Maloy v.

Griffith, 240 P.2d 923 (Colo. 1952).

In the single case cited by Plaintiff Barizonte where the appellate court

applied the plain error standard to a non-instructional error, Lamborn v. Eshom,

287 P.2d 43, 45 (Colo. 1955), the Court was faced with an error in amount of the

verdict that was not properly addressed during the trial. In deciding to invoke the

plain error standard, the court referenced and relied on Rule 111(f), R.C.P.Colo.,

giving the court discretion to consider issues of substantial importance on its own

motion. Unfortunately for Plaintiff Barizonte, Rule 111(f) is no longer included

the law.

Substantively, Barizonte is incorrect in her contention that the trial court’s

granting of the directed verdict on the premises liability claim was plain error. As

noted in part B above, the U. S. District Court in Powell v. Denver, 973 F. Supp. at

1198, 1203, referenced and relied on Huddleston and Restatement § 427, to hold

that Colorado law does not impose liability on an employer for the intentional torts

19

of its independent contractors. More specifically, Powell held that a landowner (in

that case, Rocky Mountain Planned Parenthood or “RMPP”) was not liable for the

intentional act of its security personnel in committing the intentional torts of

assault, battery and infliction of mental distress. The Court therefore concluded as

a matter of law that RMPP was not liable for the intentional acts of the security

guard. Powell, 973 Supp. At 1204.

Contrary to Plaintiff’s new argument, many other states follow Colorado’s

position that a premises owner is not liable for the intentional torts of a security

contractor. See, e.g., Zelen v. Saratoga Springs, 589 N.Y.S.2d 709 (App. Div.

1992) (racetrack not liable for assault by security guard on patron where guard

worked for independent security service); Rouse v. McCrory, 334 S.E.2d 517 (S.C.

App.), rev’d on other grounds 353 S.E.2d 130 (S.C. 1986) (motel not liable for

shooting by security guard where guard employed by security service); Ross v.

Texas One Partnership, 796 S.W.2d 206 (Tex. App. 1990) (apartment owner not

liable for shooting by security guard employed by security company); Brien v.

18925 Collins Ave. Corp., 233 So. 2d 847 (Fla. App. 1970) (protection of property

with armed guards not an inherently dangerous activity).

20

To summarize, the trial court’s entry of the directed verdict on Plaintiff

Barizonte’s premises liability claim is supported on the record presented and as a

matter of law.

II. THE TRIAL COURT PROPERLY DIRECTED VERDICTS IN

FAVOR OF VINYL ON THE MALICIOUS PROSECUTION, ABUSE

OF PROCESS, CIVIL CONSPIRACY CLAIMS AND THE

INDEPENDENT CONTRACTOR ISSUE.

Standard of Review. Vinyl concurs that the standard of review of a

directed verdict is de novo.

A. Plaintiff presented no evidence to establish a malicious

prosecution claim.

The tort of malicious prosecution addresses the situation where a person

knowingly initiates baseless litigation. See Hewitt v. Rice, 119 P.3d 541, 544

(Colo.App.2004), aff'd, 154 P.3d 408 (Colo. 2007). The elements of malicious

prosecution are: (1) the defendant contributed to bringing a prior action against the

plaintiff; (2) the prior action ended in favor of the plaintiff; (3) no probable cause;

(4) malice; and (5) damages. Thompson v. Maryland Cas. Co., 84 P.3d 496 (Colo.

2004) referencing CJI–Civ. 4th 17:1 (1999); and Lounder v. Jacobs, 205 P.2d 236,

238 (Colo.1949) (listing the same elements). The trial court granted the directed

21

verdict against all Defendants based on findings that Plaintiff Barizonte failed to

introduce any evidence to support elements (1), (3) and (5).

Element (1) requires evidence that the defendant “contributed to” bringing a

prior action against the plaintiff. There is no evidence in the trial record supporting

a finding that any employee of Vinyl was involved in any fashion in the police

officers’ decision to arrest Barizonte or was involved in the district attorney’s

decision to prosecute her criminally. Exhibit LL, the written police report,

[admitted at Vol. IV, p. 1270, line 15] names LDH employee Sean Thomas as the

complainant and records only LDH contractors Thomas and Calip as reporting

witnesses. police. The trial court correctly found there was no evidence of any oral

or written statement given by Vinyl employees to the police or the prosecutor to

induce them to file criminal charges. [Vol. IV, p. 1220, line 19—p. 1223, line 4.]

The record on appeal demonstrates the court’s finding is correct. Indeed, the

only evidence that Barizonte cites in her Opening Brief as suggesting that Vinyl

staff were involved with the police in any fashion is the testimony of Defendant

Darryl Honor that the police were “briefed by either Vinyl staff, maybe, one of my

staff or a couple of my staff as to what . . . had taken place.” [Vol. IV, p. 1033, ll.

8—11.] Even assuming that an unidentified Vinyl staff member talked with

Denver police on the night of the incident, Plaintiff presented no evidence that the

22

police took any action based any such statement. Thus, there is no factual

evidence from which a jury could reasonably conclude that Vinyl “contributed” to

the filing of criminal charges.

In her Opening Brief (p. 11), Plaintiff’s sole basis for arguing that the record

contained sufficient evidence to send the malicious prosecution claim to the jury is

that “obviously someone was lying as to who attacked whom” [emphasis in

original]. Plaintiff contends that Vinyl should be liable for the alleged intentional

tort committed by LDH’s security guards in lying to the police and cites Springer

v. City & County of Denver, supra at 804, in support of that contention. Plaintiff’s

reliance on Springer misplaced. As discussed in section I.A. above, Springer

relates to a landowner’s liability for a defective condition of the premises; it says

nothing about liability for the statements independent contractors. As to the

malicious prosecution claim, the general rule applies, that is, an employer is not

liable for the intentional torts committed by an independent contractor. See also

Huddleston, supra; Thayer v. Kirchholf, 266 P. 225 (Colo. 1928). Therefore, if the

LDH personnel intentionally lied to the police regarding the conduct of Plaintiff

Barizonte, Vinyl is not vicariously liable for their tortious actions.

As to the third element of the malicious prosecution claim, the absence of

probable cause, Barizonte cites Montgomery Ward & Co. v. Pherson¸ 272 P.2d 643

23

(Colo. 1954) for the proposition that the existence of probable cause requires a

good-faith belief by the defendant in the plaintiff’s guilt and, conversely, for the

proposition that malice may be inferred from the want of probable cause.

(Opening Brief, p. 11.) However, Barizonte neglects to note that “[b]oth malice

and want of probable cause must be proved to justify a recovery.” Montgomery

Ward, 272 P.2d at 646. Here, the trial court found ample probable cause for the

complaints against Ms. Barizonte in the fact that both Ms. Calip and Mr. Thomas

were injured in the melee with her. [Vol. IV, p.1223, line 5--p. 1224, line 5.]

Further, the trial court in this case found that the criminal action against Ms.

Barizonte was supported by probable cause. (Vol. IV, p. 1223, l. 5---p. 1224, line

4.] In this regard, the trial judge found that, even discounting the statements of Mr.

Honor or Ms. Calip to the police, there was sufficient evidence for the police to

make an independent determination to arrest Ms. Barizonte. For example, there

was evidence in terms of injuries on both sides, evidence of disorderly

intoxication, and Ms. Barizonte’s own admission of cursing and noncompliance

that would be sufficient to induce arrest by the police. [Vol. II, p. 351, lines 15—

25; p. 572, line 5—p. p. 577, line 8.] Finally, as the trial court noted, the

complainant (in this case, LDH employee Sean Thomas), does not file criminal

charges; charges are filed by the district attorney. [Vol. IV, p. 1221, lines. 21-25.]

24

Advice of counsel is a defense to a suit for malicious prosecution, particularly

when the proceeding complained of was instituted by the district attorney.

Moreover, as the trial court noted, the complainant (in this case, LDH employee

Sean Thomas), does not file criminal charges; charges are filed by the district

attorney. [Vol. IV, p. 1221, lines. 21-25.] As noted in Montgomery Ward, advice

of counsel is a defense to a suit for malicious prosecution, particularly when the

proceeding complained of was instituted by the district attorney. Montgomery

Ward, supra at 647.

In summary, Plaintiff produced no evidence from which a jury could

determine that Vinyl had contributed to the prosecution of Barizonte and that the

charges lacked probable cause. The directed verdict on the malicious prosecution

claim therefore was, and is, proper.

B. Plaintiff presented no evidence to establish an abuse of

process claim.

The tort of abuse of process provides a remedy in situations where litigation

is properly initiated, but is misused through an irregular, coercive act. See Walker

v. Van Laningham, 148 P.3d 391, 394 (Colo. App. 2006) (seeking to accomplish

coercive goal is misuse of process); Am. Guar. & Liability Ins. Co. v. King, 97

P.3d 161, 170 (Colo.App.2003) (same). Accordingly, to prevail on an abuse of

process claim, a plaintiff must prove the defendant (1) had an ulterior purpose in

25

using a judicial proceeding; (2) used the proceeding in an improper manner by

taking a willful action that was improper in the proceeding's regular course; and (3)

caused damage. See Walker, 148 P.3d at 394; Aztec Sound Corp. v. Western States

Leasing Co., 510 P.2d 897, 899 (1973).

Plaintiff’s sole argument in support of the abuse of process claim (Opening

Brief, p. 12) is that the Defendants lied to the police so as to cause the criminal

prosecution of plaintiff solely for the ulterior motive of covering up their own

brutal actions. Even assuming for purposes of this motion that Honor and Calip

did lie, those lies are not attributable to Vinyl under the general rule that a person is

not liable for the intentional tortious actions of independent contractors.

Huddleston, supra; Thayer, supra. Consequently, Plaintiff did not establish the

first element of the abuse of process action as against Vinyl.

Second, Plaintiff has adduced absolutely no evidence with respect to any

“improper use” of the proceedings. Proof of this element requires evidence that

the legal proceedings were used in an improper manner, that is, the plaintiff must

establish that, “viewed objectively, there was an improper use of the proceedings.”

Amer. Guarantee and Liability Ins. Co. v. King, 97 P.3d 161, 170 (Colo. App.

2003). Barizonte produced no evidence that any employee of Vinyl took part in

the criminal proceedings. LDH personnel Calip and Honor testified at trial but

26

there is no evidence of any improper action by either of them to obtain a collateral

advantage not properly inherent in the process. Walker, supra. Because Plaintiff

adduced no evidence in support of either the first or the second element of the

malicious prosecution claim, the trial court properly entered a directed verdict on

the claim for abuse of process. [Vol. IV, p. 1225, line 13—p. 1226, line 19.]

C. Plaintiff presented no evidence to support a civil conspiracy

claim.

Barizonte next challenges the trial court’s directed verdict on its “civil

conspiracy” claim pursuant to C.R.S. § 13-21-111.5(4). The elements of civil

conspiracy set out in Jet Courier Service v. Mulei, 771 P.2d 486, 502 (Colo. 1989):

(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the

minds on the object or course of action; (4) an unlawful overt act; and (5) damages

to the proximate result of the unlawful act. However, Vinyl notes that a civil

conspiracy does not give rise to an independent claim for damages, Sterenbuch v.

Goss, 266 P.3d 428, 436 (Colo. App. 2011); the effect of a finding of civil

conspiracy under C.R.S. §13-21-111.5(4) is to hold the defendants jointly and

severally liable for the damages caused by any of them.

The trial court granted a directed verdict on the civil conspiracy claim

because Plaintiff failed to establish the third element of the claim, an agreement on

the course of action that caused injury to the Plaintiff. [Vol. IV, p. 1227, line 1—p.

27

1128, line 13.] That decision was correct because Plaintiff Barizonte introduced

no evidence of a meeting of the minds to engage the altercation that resulted in

injury to the Plaintiff. In support of her conspiracy allegations (Opening Brief, p.

14), Plaintiff cites only Plaintiff’s Exhibit 12 [Plaintiff’s Exhibit Notebook,

admitted at Vol. I, p. 15, lines 16-17], Defendant Honor’s written statement.

Exhibit 12, however, describes Mr. Honor’s actions and the actions of other LDH

staff and merely references the presence of Vinyl employees in the nightclub at the

time of the incident. Nothing in that statement would allow a reasonable inference

by the jury that the Vinyl personnel either engaged in the assault on the Plaintiff or

entered into an agreement with LDH to cooperate in the alleged attack.

Citing testimony of witness Paul Dutra [Vol. I, p. 153, line 4—p. 161, line

25], Plaintiff Barizonte [Vol. II, p. 572, line 5—p. 577, line 8], Defendant Calip

[Vol. II, p. 351, lines 15—25] and Defendant Honor [Vol. I, p. 44, line 23—p. 45,

line 4; p. 51, lines 1—19; p. 56, lines 11--21], the trial court found that the

situation erupted very quickly and there “appeared to be no agreement on any

particular course of conduct in any particular circumstances other than to contain

the situation as best as can be done.” [Vol. IV, p. 1228, lines 5-7.]

A court may not infer the agreement necessary to form a conspiracy;

Plaintiff must present evidence of such an agreement. Nelson v. Elway, 908 P.2d

28

102, 106 (Colo. 1995), citing More v. Johnson, 568 P.2d 437, 440 (Colo. 1977).

Silent knowledge of a wrongful act is insufficient to establish the requisite

agreement; proof of the agreement must be presented, it will not be inferred.

More, 568 P.2d at 440.

Bouboulina suggests that Resolution Trust Corp. v. Heiserman, 898 P.2d

1049, 1057 (Colo. 1995) did away with the requirement that plaintiff must prove a

meeting of the minds in order to establish a conspiracy. Plaintiff then argues that

because she had damages, Defendants are jointly liable for those damages.

Plaintiff, however, overlooks the language in C.R.S. § 13-21-111.5(4) and

Heiserman, that the conduct resulting in damages must result from “a conscious

conspiracy and deliberate common plan or design.” Heiserman, 898 P.2d at 1057.

To support the conspiracy claim, there must be evidence of an agreement.

The Colorado courts have found a conspiracy based upon a so-called “tacit”

agreement in limited circumstances. Even in those cases, it was recognized that

“there must be some indicia of an agreement in an unlawful means or end.”

Schneider v. Midtown Motor Co., 854 P.2d 1322, 1326 (Colo. App. 1992);

Heiserman, supra. In Schneider, the evidence included inter alia, an auto dealer’s

repeated selling cars to a driver it knew to be unlicensed and believed to be “crazy”

and the fact that the defendant discounted the price to encourage his repeat

29

business. In Heiserman, evidence of a conspiracy was found in a series of

unanimous votes by the board of directors approving loans that did not meet the

bank’s lending criteria. In both cases, the conspiracy resulted in the commission of

the wrongful act.

Furthermore, not just every agreement leads to an actionable conspiracy. To

give rise to liability, the agreement must be to pursue a common plan or design to

commit a tortious act that results in damages. C.R.S. § 13-21-111.5(4). Other than

Plaintiff’s Exhibit 12, the only evidence Plaintiff Barizonte cites in support of an

alleged conspiracy is that Vinyl permitted its video cameras to record over the

tapes from the evening of the incident, as the tapes were programmed to do after

72 hours. (Opening Brief, p. 13 and record citations therein.] Even assuming

arguendo that Vinyl was negligent or willful in allowing the tapes record over, that

evidence does not lend any support to the essential component of the conspiracy

claim--that there had been an agreement to commit assault and battery on

Barizonte some three days earlier.

Plaintiff now contends that the conspiracy at issue was a conspiracy to

“cover up” the security guards’ alleged “brutality.” (Opening Brief, p. 15.) The

malicious prosecution claim and abuse of process claim were dismissed.

30

Therefore, even if there had been a cover-up conspiracy, there are no resulting

damages to support the fifth element of the claim, the requirement of damages.

In the absence of evidence of an agreement to pursue a course of action that

resulted in the assault and battery of the Plaintiff, an essential element of the

conspiracy claim is missing. Accordingly, the directed verdict was properly

granted.

D. The independent contractor issue is moot. In any event,

Plaintiff presented no evidence to support a conclusion that

the security guards were employees of Vinyl.

Vinyl concurs with Barizonte’s statement (Opening Brief, p. 15) that the

independent contractor issue is moot. Plaintiff’s premises liability claim

(addressed in Section I.A. above) provides the exclusive remedy to Barizonte for

acts occurring on Vinyl’s premises. See Vigil v. Franklin, 103 P. 3d 322, 326

(Colo. 2004), wherein the Colorado Supreme Court held that the express and

unambiguous language of the premises liability statute, C.R.S. § 13-21-115(2),

evidences the General Assembly's intent to establish a comprehensive and

exclusive specification of the duties landowners owe to those injured on their

property. Thus, the General Assembly indicated its intent to completely occupy the

field and supercede the existing law in the area. Id.

31

Moreover, Vinyl contends that the employee/independent contractor

distinction is irrelevant in view of the fact that Barizonte alleged, and has now

established, that the LDH personnel committed the intentional torts of assault and

battery. As previously discussed, an employer is not vicariously liable for the

intentional torts of its employees. Connes, supra, 831 P.2d at 1321 (an employer is

not an insurer for violent acts committed by an employee against a third person);

Lombardy v. Stees, 290 P.2d 1110 (Colo. 1956) (bar owner not liable for assault by

bartender on bar patron while performing his duties as bartender because act was

unauthorized); Cooley v. Eskridge,241 P.2d 851 (Colo. 1952) (difference between

acts performed by the employee “during” his employment but not “within the

scope of” his employment; employer not liable for unauthorized intentional torts).

This argument has been addressed in Section I.A. above.

Similarly, the employee/independent contractor distinction is irrelevant with

respect to the negligent hiring and supervision claim. Vinyl has addressed the

reasonableness of its retention of LDH based on: the outside recommendations

obtained by Vinyl, the City and County of Denver’s Merchant Guard licensing

process, and the two years’ satisfactory performance by LDH and Mr. Honor prior

to the October 27, 2007 incident. Vinyl had no reason to believe from any

32

antecedent circumstance that Honor, Calip or LDH would create an undue risk of

harm to others. See Connes, 831 P.2d 1321.

Moreover, Barizonte presented no evidence from which the jury could

conclude that the security guards provided by LDH were employees of Vinyl. In

its Opening Brief, Plaintiff has referred to the following facts as creating an issue

of fact that the jury should have resolved: there was no written contract between

Vinyl and LDH, Vinyl could fire LDH and LDH could quit and any time without

liability, LDH was paid by the hour, Vinyl told LDH when and where to show up

for work. [Vol. I, p. 2, lines 12—25.] Each of those factors is subject to evidence

supporting independent contractor status: LDH was contracted by Vinyl for its

expertise and experience in the area of security services [Vol. I, p. 157, line 6—p.

158, line 3], Vinyl had an oral agreement with LDH to provide security services

which agreement was renewed on a weekly basis [Vol. I, p. 47, lines 14—22],

LDH employed approximately twenty individuals to staff security jobs at multiple

venues in addition to Vinyl [Vol. I, p. 45, line 25—p. 46, line 17], Vinyl paid LDH

on a 1099 basis and Mr. Honor paid his security guard employees [Vol. I, p. 47,

line 13—48, line 22; p. 290, line 25—p. 291, line 21].

The heart of the Court’s determination that LDH was an independent

contractor and not an employee comes down to the issue of control. Plaintiff cites

33

Dana’s Housekeeping v. Butterfield, 807 P.2d 1218, 1220-21 (Colo. App. 1990)

for the supposed rule that the right to fire at will trumps all other considerations in

determining whether a person is an employee or an independent contractor.

(Opening Brief, p. 16.) Plaintiff’s analysis is incorrect. Plaintiff misleadingly omits

the overriding basis on which the trial court concluded that LDH could only be

classified as an independent contractor and not as an employee. [Vol. IV, p. 1245,

l. 18—p. 1248, l. 17.] The most important and overriding factor is that Honor

determined the number of personnel present each night; he controlled their

placement; he controlled their duties. [Vol. I, p. 321, line 21—p. 322, line 21

(Dodge); Vol. I, p. 260, line 24-p. 261, line 3; p. 293, line 23-p. 294, line 4

(Christou); Vol. IV, p. 1009, line 12—p. 1011, line 11 (Honor).] In short, LDH,

through Defendant Darryl Honor controlled the means and methods of the

performance of LDH’s staff.3

Contrary to Plaintiff’s out-of-context suggestion that the right to terminate is

the decisive factor, the trial court held that under Colorado law it is the right to

control the means and methods, free from direction and control of the employer in

3 In the defense case, far more evidence was presented supporting the fact thatLDH controlled the means and methods and training of the staff, provided their uniforms and equipment, and otherwise exercised exclusive control over them. [Vol. IV, p. 999, line 16—p. 1001, line 25; p. 1005, line 18—p. 1007, line 21; p. 1009, line 17—p. 1012, line 2.]

34

all matters related to the performance of the work, that is the decisive in

determining independent contractor status. [Vol. IV, p. 1248, lines1-25.] Powell,

supra, 973 F. Supp. at 1202, see also Nelson v. Industrial Claim Appeals Office,

981 P.2d 210, 213 (Colo. App. 1998). Carpet Exchange v. Industrial Claim

Appeals Office, 859 P.2d 278 (Colo. App. 1993) addresses the common law

“control test” used to distinguish independent contractors from employees. In that

case, the Commission’s referee and the reviewing Court found the determining

factor in distinguishing an employee from an independent contractor is whether the

“employer” exercises control over the means and methods of the work. The mere

fact that an owner, such as Vinyl, can terminate the services of the contractor, such

as LDH, is relatively unimportant. “Independent contractors, however, are not free

of all control. They may be subject to control sufficient to ensure that the end result

contracted for is reached, even though they are not subject to control over the

means and methods of accomplishing that result.” Id. at 281. LDH controlled its

own staffing and means of methods of operations and, therefore, was an

independent security contractor, within the terms of controlling Colorado case law.

35

III. THE COURT’S EVIDENTIARY RULINGS WERE CORRECT.

Standard of review. Vinyl concurs that the standard of review of

evidentiary rulings is for abuse of discretion.

A. The Court properly excluded the character evidence

relating to Mr. Honor and Ms. Calip.

To put this issue into perspective, Vinyl would remind the Court that the

referenced “records” of Defendants Honor and Calip consist almost entirely of

unproven allegations that were withdrawn and charges that were dismissed. The

guilty pleas on Mr. Honor’s record--one for theft (dismissed after a deferred

judgment), one for disturbing the peace, and an adolescent citation for public

urination—show no tendency toward violence. The single incident marring Ms.

Calip’s otherwise unremarkable record is an allegation of a domestic dispute with

her boyfriend, not an unprovoked attack on a complete stranger. Its probative

value is zero.

As to Plaintiff’s contention that she was prejudiced by the exclusion of the

character evidence relating to Defendants Honor and Calip, Vinyl contends that the

exclusion of the evidence was harmless error, if it was error at all, because no

substantial right of Plaintiff was affected. Rojhani v. Meagher, 22 P.3d 554, 557

(Colo. App. 2000). Plaintiff was successful on her assault and battery claims

36

against Mr. Honor and Ms. Calip; the jury found in her favor even without the

character evidence. Plaintiff’s argument therefore simply demonstrates that hoped

that, by castigating the character of the Defendants, she could pursuance the jury to

increase the damages award as a punishment to them.

Contrary to Plaintiff’s contention that the trial judge simply rubber-stamped

the draft orders prepared by Defendants, the record demonstrates that the trial court

was presented with extensive written briefing on the issue of the character

evidence [Motion in Limine to exclude character evidence, ID29577300; Response,

ID29775930; Reply, ID30196034] and also heard extensive oral argument on the

character evidence issue during the trial. [Vol. I, p. 60, line 8—p. 78, line 12.]

The Court made careful decisions as illustrated, for example, by its decision to

allow Plaintiff to inquire regarding Defendant Honor’s conviction for theft as

reflecting on his character for truthfulness, as required by People v. Segovia, 1196

P.3d 1126 (Colo. 2008). [Vol. I, p. 61, line 3—p. 62, line 12; Vol. I, p. 89, lines

21-25.]

On the substance of the evidentiary issue, Colorado law is clear that

“[e]vidence of a person’s character or a trait of his character is not admissible for

the purpose of proving that he acted in conformity therewith.” Colo. R. Evid.

404(a). More specifically, evidence of other crimes, wrongs, or acts is not

37

admissible to prove the character of a person in order to show that he acted in

conformity therewith.” Colo. R. Evid. 404(b). Barizonte’s ostensible purpose in

seeking to introduce the so-called criminal and domestic violence records of Mr.

Honor and Ms. Calip was to support her claim that the two security guards were

unstable, aggressive and had a propensity for violence. (Opening Brief, p. 20.)

Plaintiff’s gross mischaracterization of the evidence (Opening Brief, pp. 17-18, for

example) demonstrates that that Plaintiff intended to castigate their characters so

that they would be judged as bad, violent people and not on the evidence of what

happened on the night of October 27, 2007. The use of character evidence in such

an improper fashion is precisely the danger that Colo. R. Evid. 404 is designed to

prevent. See Masters v. People, 58 P.3d 979 (Colo. 2002), citing Michelson v.

United States, 335 U.S. 469, 475-76 (1948).

Plaintiff’s reference to People v. Spoto, 795 P.2d 1314 (Colo. 1990) as

justifying the admission of the character evidence regarding Defendants Honor and

Calip is misplaced. In Spoto, the Colorado Supreme Court set forth a four-part

analysis to determine whether evidence of prior acts is admissible. Id. at 1318. The

factors to be considered are: (1) whether the proffered evidence relates to a

material fact, i.e., a fact “that is of consequence to the determination of the action”

(2) whether the evidence is logically relevant, i.e., does it have “any tendency to

38

make the existence of [the material fact] more probable or less probable than it

would be without the evidence; (3) whether the logical relevance is independent of

the inference that the defendant has a bad character, (4) whether the probative

value of the evidence is substantially outweighed by the danger of unfair prejudice.

Plaintiff completely fails to establish the first element of the Spoto analysis.

The evidence proffered by Barizonte regarding Defendants Honor and Calip is

irrelevant to any material fact. Plaintiff’s statement that the Defendants’ records

show “violent propensities” is nothing more than a statement that the Defendants’

records show “violent character traits.” Plaintiff’s suggestion that the evidence of

past acts demonstrates a “violent modus operandi” demonstrates instead that

Plaintiff misunderstands the term “modus operandi.” As defined in People v. Rath,

44 P.3d 1033, 1042 (Colo. 2002), a “modus operandi” is a distinctive design or

method of acting. Again, Plaintiff simply desires to paint the Defendants as bad

actors with violent pasts.

Third, the “records” that Plaintiff sought to introduce consist of almost

entirely of unproven charges and allegations, some of which occurred after the

incident at issue and most of which were dismissed or withdrawn. Again, the

proffered evidence has no logical relevance to any issue other than Plaintiff’s

theory that Honor and Calip were irrational and violent.

39

As to the fourth Spoto factor, the likelihood of prejudice vastly outweighed

any value that the evidence might have had at trial. Frankly, although the

Defendant’s criminal and domestic violence “records” do not reflect significant

histories, but the introduction of the evidence would have allowed opened the door

to gross misuse and mischaracterization of the evidence at trial, as demonstrated by

the rhetoric in Plaintiff’s Opening Brief. Consequently, under Colo. R. Evid. 403

and the fourth factor of Spoto, the trial court was absolutely correct in its

preclusion of the evidence of the criminal records of Mr. Honor and Ms. Calip on

the basis that the prejudice outweighed any probative value.

IV. THE TRIAL COURT PROPERLY REFUSED TO ALLOW THE

AMENDMENT OF THE PLEADINGS TO ADD RMC HOLDINGS

AS A PARTY OR TO ADD A CLAIM FOR EXEMPLARY

DAMAGES. THE TRIAL COURT PROPERLY AWARDED

ATTORNEYS’ FEES FOR PLAINTIFF’S REPETITIVE REQUESTS

TO ADD THE EXEMPLARY DAMAGES CLAIM.

Standard of review. Vinyl concurs that the standard of review regarding a

motion to amend the pleadings is abuse of discretion.

A. Plaintiff did not establish that RMC Holdings was a proper

party defendant.

Plaintiff’s next issue is her complaint that the trial court improperly

precluded the joinder of RMC Holdings as a party-defendant by denying her

40

Motion to File Third Amended Complaint. [ID32897267 (Motion), ID33464216

(Response), ID35297025 (Order)]. As described in Plaintiff’s Opening Brief (p.

28), Plaintiff conducted both formal discovery and informal inquiry regarding the

alleged relationship between Bouboulina, Inc., and RMC Holdings. Despite her

inquiry, the evidence is undisputed that there is no contractual, ownership, or

command and control relationship between RMC Holdings and Bouboulina, Inc.

[ID33464216, Exhibit A, Defendant Bouboulina, Inc.’s Responses to Plaintiffs’

Initial Discovery Requests dated 12/21/09; Exhibit B, Affidavit of Maria Christou

dated 10/4/10.] The evidence cited by Plaintiff in support of suspected

commonality of ownership is the fact that the owners of Bouboulina, Inc., and

R.M.C. Holdings, are brother and sister. [ID32897267, Appendix H.] Plaintiff also

attempts to rely on the fact that the “Policy Manual” of R.M.C. Holdings

[ID32897267, Appendices D and E] refers to Vinyl and includes its owner, Maria

Christou, as a “contact person” for R.M.C.

The criteria that the Plaintiff would have to prove in order to pierce the

corporate veil by establishing an identity of interest are those criteria set forth in

Leonard v. McMorris, 63 P.3d 323, 330 (Colo. 2003) and Yoder v. Honeywell, Inc.,

104 F.3d 1215, 1221 (10th Cir. 1997). Those criteria include: (1) whether the

corporation is operated as a separate entity, (2) commingling of funds and other

41

assets, (3) failure to maintain adequate corporate records, (4) the nature of the

corporation's ownership and control, (5) absence of corporate assets and

undercapitalization, (6) use of the corporation as a mere shell, (7) disregard of legal

formalities, and (8) diversion of the corporation's funds or assets to noncorporate

uses. Leonard, 63 P.3d at 330. Plaintiff has presented no evidence that establishes

a single element of this standard.

Plaintiff’s reliance on Spiker v. Hoogeboom, 628 P.2d 177 (Colo. App.

1981) is misplaced. That case discusses the proper circumstances under which

C.R.C.P. 15(c) applies to allow for relation back of pleadings when the identity of

a proper party was unknown at the commencement of the litigation and the

propriety of the party’s joinder is otherwise established as a matter of fact. In

Spiker, the mistake was that the corporation had not been formed at the time of the

transaction at issue so that the partners who eventually incorporated should have

been sued individually. Plaintiff claims no similar mistake. C.R.C.P. 15 does not

provide an independent basis on which to assert identity of interest. The trial court

properly denied the Motion to File the Third Amended Complaint.

42

B. Plaintiff failed to establish a basis to add an exemplary

damages claim with respect to Vinyl.

In her Motion for Leave to File a Third Amended Complaint [ID32897267,

Motion] and in the proposed Third Amended Complaint [ID32897267, Attachment

A] Plaintiff sought to add a claim for exemplary damages against Bouboulina, Inc.

d/b/a Vinyl on the basis that Vinyl “willfully and wantonly failed adequately to

investigate the defendant bouncers’ backgrounds and propensities for violence, in

violation of their own written policies.” In her Opening Brief to this Court (p. 29),

Plaintiff neglects to limit her argument to this single contention. Instead, she

chooses to argue the evidence of willful and wanton actions by Honor and Calip.

The evidence regarding the actions of Honor and Calip was and is irrelevant to the

exemplary damages claim with respect to Vinyl. For that reason, the Motion for

Leave to Amend was properly denied as to the exemplary damages claim.

As already discussed, in section I.A. above, there is no statutory or common

law obligation for a property owner to conduct a criminal background investigation

of an employee or an independent contractor absent antecedent circumstances

creating a reason to conduct such an investigation. See Connes, supra. Vinyl was

justified in relying on the CBI criminal background check performed by the City of

Denver as a condition to issuing the merchant guard licenses to Honor, Calip and

the other LDH security personnel.

43

Second, Plaintiff’s effort to bootstrap a duty based on the RMC Policy

Manual, is inapposite. First, the undisputed evidence set forth in the Affidavit of

Maria Christou in opposition to the Motion to Amend [ID33464216, Exhibit B]

established that the document referred to as the RMC Policy Manual was not

binding on Vinyl. Second, the internal policy manual of a business does not create

a duty of care as to the general public. See, e.g., Continental Air Lines, Inc. v.

Keenan, 731 P.2d 708, 711-12 (Colo. 1987) (personnel manual may be

incorporated into employment contract in limited circumstances). Cf. Pollard v.

State Farm Mut. Auto. Ins. Co., 200 P.3d 1080, 1082 (Colo. App. 2008) (insured

had no cause of action based on insurance company’s agent field manual because

he made no showing of knowledge of or reliance on the manual). Therefore, Vinyl

had no duty to Barizonte under the RMC Policy Manual that could form the basis

of a negligence claim.

The conduct underlying an exemplary damage claim must rise above

ordinary negligence. Frick v. Abel, 602 P.2d 852 (1979). If Vinyl had no

independent duty to investigate the backgrounds of the LDH employees, then it

could not be negligent by failing to investigate. In the absence of even ordinary

negligence, there could not be willful and wanton negligence. Assuming arguendo

that Plaintiff should have conducted an independent investigation, the records of

44

Honor and Calip do not show an extensive violent criminal background. Even

viewed in the light most favorable to the Plaintiff, Plaintiff did not present prima

facie proof of a triable issue with respect to exemplary damages as required by

C.R.S. § 13-21-102(1.5)(a). The trial court therefore was correct in reaching that

conclusion.

C. The trial Court properly awarded attorney’s fees to Vinyl

on the exemplary damages claim issue.

Plaintiff filed three motions asking to add a claim for exemplary damages.

Motion for Leave to File Second Amended Complaint [ID28094882]; Motion for

Reconsideration [ID28435017]; and Motion for Leave to File Third Amended

Complaint [ID32897267]. After being forced to respond to exactly the same

arguments for the third time, Vinyl filed a Motion for Attorneys’ Fees

[ID33489438], which motion the judge granted [Order, ID35297284], awarding

the minimal sum of $630.00.

Where a court has ruled on an issue, active relitigation of settled issues is

presumed to be frivolous.” Howard v. Wood Bros. Homes, Inc., 835 P.2d 556, 561

(Colo. App. 1992). Barizonte’s repetitive motions practice was frivolous and time-

consuming to the Defendants. The award was minimal and appropriate.

45

V. THE TRIAL COURT PROPERLY PRECLUDED EVIDENCE OF

BARIZONTE’S WORKER’S COMPENSATION IMPAIRMENT

RATINGS.

Standard of review. Vinyl concurs that the standard of review for

evidentiary rulings is abuse of discretion.

Plaintiff Barizonte next appeals the trial court’s preclusion of the workers’

compensation impairment opinions stated by her medical providers. [ID36515854]

The trial court properly precluded these expert opinions under both Colo. R. Evid.

401 and Colo. R. Evid. 403.

First, evidence regarding the impairment rating is not relevant under Colo.

R. Evid. 401 in that it does not make the existence of any fact that is of

consequence more or less probable. The numerical rating does not tend to

establish either the nature of Plaintiff’s injury or whether such injuries were caused

by the accident.

Second, the testimony was far more prejudicial than probative and therefore

was properly precluded under Colo. R. Evid. 403. Such testimony would plant the

erroneous idea that Plaintiff has been limited as determined by a numerically

assigned value. Further, such testimony would confuse the jury by suggesting that

Plaintiff has an impairment with a scientific concreteness not intended, but

suggested, by the numerical rating. Such a numerical assignment is appropriate in

46

the workers’ compensation system in which an impairment rating is tied to a

specific award of damages. Outside that system, the rating has no meaning, is

irrelevant and the prejudicial effect of such evidence outweighs its probative value.

VI. EVIDENCE OF INSURANCE WAS PROPERLY EXCLUDED.

Standard of review. Vinyl concurs that the standard of review of

evidentiary matters is abuse of discretion.

Plaintiff next seeks review and reversal of the trial court’s order precluding

evidence of any party’s liability insurance or lack of insurance. [Order,

ID36517246]. The Court was correct in its ruling on at least three bases.

First, pursuant to Colo. R. Evid. 411, evidence that a person was or was not

insured against liability is not admissible upon the issue whether he acted

negligently or otherwise wrongfully. Thus, any allusion to insurance coverage is

improper. Prudential Prop. & Cas. Ins. Co. v. District Court, 617 P2d 556, 559

(Colo. 1980); see also, Jacobs v. Commonwealth Highland Theatres, 738 P.2d 6,

12 (Colo. App. 1986.).

Second, although Rule 411 allows the admission of evidence for another,

proper purpose, there must be a good reason for the introduction of such evidence.

Bolles v. Kinton, 263 P. 26, 28 (Colo. 1938). The rationale for this limitation is

obvious: there is a risk that jurors may return a larger verdict if they know that an

47

insurance carrier will be responsible for the damages. See Smith v. District Court,

907 P.2d 611, 612-13 (Colo. 1995). Allowing evidence regarding LDH’s

insurance or lack of insurance would improperly open the door to speculation as to

Vinyl’s insurance coverage. Consequently, the evidence regarding the insurance

of any of the parties is highly prejudicial and was properly excluded under Colo. R.

Evid. 403.

Third, the question whether Vinyl required its independent contractor, LDH,

to carry liability insurance is irrelevant to any issue of liability. Although Plaintiff

Barizonte asserts that Vinyl’s failure to require LDH to carry insurance is evidence

of negligence, Plaintiff fails to cite a single statutory or common law requirement

that a security guard company carry insurance. Therefore, the failure to have

insurance is not a cognizable claim. Plaintiff’s citation to the comment in dicta by

the Court in Huddleston, supra at 287 n. 6, to the effect that it is desirable to have a

rule that encourages employers to select an independent contractor is insured, is

mere precatory language. The Court did not impose such a rule as a matter of law,

nor should it. Such a requirement is a matter for the legislature or the Denver City

Council. Thus, the Denver Merchant Guard Code requires the posting of a $5,000

bond as a condition of doing business. (Denver Municipal City Code, Sections 42-

48

161 - 167 (revised 11/27/89)). The Council could add a requirement for liability

insurance as a matter of its regulatory authority; so far, it has chosen not to do so.

Plaintiff also based its motion to add a claim for exemplary damages on the

alleged “willful and wanton” failure of Vinyl to require its independent security

contractor to be insured. To reiterate the point made in section IV.B. above, if

there is no basis for a negligence claim, there can be no willful and wanton

negligence claim. Plaintiff’s argument must fail.

VII. THE COURT PROPERLY PERMITTED THE INTRODUCTION OF

EVIDENCE REGARDING THE MISTREATMENT OF PLAINTIFF

BY THE DENVER SHERIFF’S DEPARTMENT AND PROPERLY

INSTRUCTED THE JURY ON SUPERSEDING AND INTERVENING

CAUSE.

Standard of review. Vinyl concurs that the trial court’s decisions on

evidentiary issues and decisions on particular jury instructions are reviewed for

abuse of discretion.

Plaintiff Barizonte next seeks review of the Court’s Order [ID36515522]

denying in part Plaintiff’s Motion In Limine to preclude evidence regarding

Plaintiff’s settlement with Denver for her mistreatment at the hands of the Denver

Sheriff’s Department on the night of October 27, 2007. Specifically, Barizonte

seeks reversal of the Court’s decision to allow evidence of the sheriff’s deputies’

violence towards Barizonte while in the County jail, including the showing of the

49

videotape (Defendants’ Exhibit W). Barizonte also disputes Jury Instruction No.

28 on intervening and superseding cause.

Vinyl contends that the Order is correct in permitting evidence of the

sheriff’s deputy’s assault on Plaintiff Barizonte. The incident with the sheriff’s

deputies occurred after the incident at Vinyl and was an intentional act separate

and distinct from anything that occurred at Vinyl. Under Colorado case law, a

tortfeasor is not liable for injuries subsequently suffered by the plaintiff resulting

from independent or intervening causes. Koch v. Stephens, 552 P.2d 525, 528

(Colo. App. 1976.) Similarly, a defendant cannot be held liable for damages

caused by the subsequent negligent acts of another, even if the subsequent damages

cannot be segregated from the damages caused by the first defendant. Alexander v.

White, 488 P.2d 1120, (Colo. App. 1971). Therefore, if proven, the incident at the

County jail would operate as a complete bar to Plaintiffs’ claims by demonstrating

that the actions of Denver’s employees, not the actions of Defendants, were the

sole cause of Plaintiffs’ injuries.

An “intervening cause” or a “superseding cause” is a cause of the plaintiff’s

damages that occurs after the defendant's negligence. An intervening cause is one

that breaks the chain of causation from the original act or omission and relieves the

original tortfeasor of liability. Albo v. Shamrock Oil & Gas Corp., 415 P.2d 536

50

(Colo. 1966), citing 65 C.J.S. Negligence § 111a. See also White v. Caterpillar,

Inc., 867 P.2d 100 (Colo. App. 1993). Similarly, a superseding cause exists when

the conduct of the defendant combines with an intervening cause, resulting in

injuries, which intervening cause would not have been reasonably foreseen by a

reasonably careful person under the circumstances. Moore v. Western Forge Corp.,

192 P.3d 427 (Colo. App. 2007).

Barizonte argues that the Court Order permitting the introduction of

evidence of the assault in the jail is wrong because but for the Defendants’ tortious

actions, Plaintiff would not have been in the jail. Plaintiff’s argument is incorrect

because, under Colorado law, a person has no responsibility to foresee intentional

violent acts by others. Walcott v. Total Petroleum, Inc., 964 P.2d 609, 612 (Colo.

App. 1998); see also Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89, 93

(Colo.App.1997). Certainly, Vinyl cannot be held to foresee that an officer of the

law would physically assault Plaintiff in the jail.

In this case, the subsequent actions of the employees of the City and County

of Denver in injuring Plaintiff at the county jail were neither foreseeable nor were

they within the scope of risk that might have been created by the conduct of the

defendants in this case. Vinyl is not liable for the actions of government

employees acting within the scope of their employment. Therefore, the evidence

51

relating to the actions of the employees of the City and County of Denver were

admissible and the Defendants were entitled to argue that those actions were the

actual cause of Barizonte’s claimed damages.

Even though Vinyl was dismissed before the conclusion of the case and did

not participate in jury instruction discussions, the jury was properly instructed as to

subsequent and intervening cause. Jury Instruction 28 is based on C.J.I.–Civ. 9:20.

Plaintiff has misconstrued the Notes on Use as suggesting that the instruction may

only be used when a third party has been designated as a non-party at fault under

C.R.S. § 13-21-111.5. The Notes on Use, No. 1, suggests that 9:20 should be used

when there is sufficient evidence that the defendant's negligence was a proximate

cause even though such negligence may not have been the most immediate cause

and, to bring about the plaintiff’s losses, such negligence had to operate in

conjunction with other causes. Note 2 provides that when another concurrent

actual cause “may not have been sufficiently foreseeable so that it might constitute

an intervening cause, thereby relieving the defendant of liability, the last

parenthesized paragraph … setting forth the doctrine of intervening cause must be

given.” Id., citing Jones v. Caterpillar Tractor Co., 701 P.2d 84 (Colo. App.

1984). The fact that the jury awarded some damages to Plaintiff, albeit less than

the Plaintiff requested, demonstrates that the jury was able to segregate the

52

damages caused by the police and sheriff from the damages caused by the security

guards at Vinyl.

The Order permitting the introduction of evidence regarding the assault on

Barizonte at the County jail and the language of Jury Instruction No. 28 were both

proper and should be affirmed.

VIII. OTHER ISSUES.

Standard of review. Vinyl concurs that the trial court’s decisions on

evidentiary issues are reviewed for abuse of discretion.

Plaintiff’s appeal addresses other issues not directly related to the claims

against Vinyl. Vinyl would briefly respond to Plaintiff’s contention that the jury’s

finding in favor of Defendant Calip on her counterclaim is irreconcilable with jury

finding that Calip is liable for assault against Plaintiff Barizonte. The verdicts are

not inconsistent as it is well established law that each of two parties engaged in a

fight may be equally liable for assault. Certainly, the jury can find that the claimed

assault on Plaintiff Barizonte occurred at a different moment than Barizonte’s

assault on Calip. Further, evidence of physical injury was presented by Ms. Calip.

[Vol. I, p. 385, line 7—p. 388, line 25.]

Plaintiff also objects to the Courts decision to allow Defendant Honor to call

a witness designated on the eve of trial, Ms. Alison Sorkin. The trial court did not

53

abuse its discretion. Plaintiff’s argument is self-defeating. Plaintiff notes that the

late-endorsed witness was discussed at length in an earlier deposition; therefore,

Plaintiff was also aware of this witness. Plaintiff’s argument is without merit.

CONCLUSION

WHEREFORE, Defendant Bouboulina, Inc., d/b/a Vinyl respectfully

requests that this Court affirm the orders of the trial court in favor of Vinyl and

against Plaintiff Janny Barizonte and affirm the directed verdict in favor of Vinyl.

Respectfully submitted this 26th day of July 2012.

DEWHIRST & DOLVEN, LLC

/s/ Lars F. Bergstrom______________________________Miles M. DewhirstKathleen M. KulaszaLars F. Bergstrom

COUNSEL FOR BOUBOULINA, INC.d/b/a VINYL

54

CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of July, 2012, a true and correct copy of the foregoing was sent via Justice Link and/or email and/or United States mail, first-class, postage prepaid, and to all counsel of record and pro-se litigant Malia Calip:

MALIA CALIP9100 Vance St. #324Broomfield, CO 80002

/s/ Patricia J. Marquis_______________________