January Case Law Update

Johnson v. VCG Restaurants Denver, Inc. – Allowing alternate juror to deliberate held to be reversible error (CA 12/31/15). Plaintiff Johnson was a patron at VCG’s adult nightclub. While waiting outside after the nightclub had closed, he was confronted by a VCG employee. An altercation ensued between the two men, and plaintiff sustained physical injuries. Plaintiff brought claims against several defendants, including the employee and VCG. The jury deliberated and returned a verdict in plaintiff’s favor and against the employee and VCG. On appeal, defendants contended that the trial court erred in allowing an alternate juror to deliberate with the jury over their objection. The Court of Appeals agreed, holding that CRCP 47(b) does not grant a trial court the discretion to permit an alternate juror to deliberate and participate fully with the principal jurors in considering and returning a verdict when one party objects. Further, erroneously permitting an alternate juror to do so is presumptively prejudicial. Therefore, the judgment was reversed and the case was remanded for a new trial.

Savant Homes v. Collins – Summary judgment on architect copyright affirmed – No. 15-1115 (10th Cir. 2016) Plaintiff Savant Home, Inc., a custom home designer and builder, held a registered copyright to a floor plan of a three-bedroom ranch house (“Anders Plan”). Savant built a model house embodying that plan in Windsor, Colorado. In June 2009, Ron and Tammie Wagner toured the Savant house and hired builder Douglas Collins and his firm, Douglas Consulting, LLC to build a house. After Collins and Mr. King completed the Wagners’ house, Ms. Wagner hired them to build a second house. Savant sued Collins for copyright infringement, contributory copyright infringement, civil conspiracy, trade dress infringement, and other claims, alleging defendants copied the Anders Plan by building the two houses. The district court granted Defendants summary judgment on two grounds: (1) Savant failed to offer evidence of inherent distinctiveness or secondary meaning and (2) no reasonable jury could find a likelihood of confusion. The Tenth Circuit affirmed.

Espinoza v. Arkansas Valley Adventures – Tenth Circuit declines to void exculpatory release in river rafting case – No. 14-1444 (10th Cir. 2016). Sue Ann Apolinar hired a guide for a family adventure in the Colorado Rockies, which included an overnight rafting and camping excursion on a popular stretch of the Arkansas River running through Brown’s Canyon. While maneuvering around a rapid known locally as “Seidel’s S-ck Hole,” the raft capsized. Apolinar was swept into a logjam and drowned. Her son, plaintiff-appellant Jesus Espinoza, Jr., brought a lawsuit against the rafting company alleging negligence per se and fraud. The company moved for summary judgment, arguing that the exculpatory release Apolinar signed shielded it from liability. The Tenth Circuit grudgingly found that the factors in existing case law [Jones v Dressel] supported summary judgment and affirmed.

Nesbitt v. FCNH – Tenth Circuit affirms that AAA rules effectively deprive a party of rights under FLSA and thus arbitration provision requiring arbitration under Commercial Rules of AAA was unenforceable – Docket: 14-1502 (10th Cir. 12/05/16). Plaintiff filed this action claiming that defendants violated the Fair Labor Standards Act and various Colorado wage and hour laws by requiring her and other students at the massage therapy school in which she was enrolled to provide massage therapy services to clients without pay. Defendants moved to stay the proceedings and compel arbitration, citing a paragraph in Nesbitt’s written enrollment agreement entitled “Arbitration Agreement.” The district court denied Defendants’ motion, finding that while the Arbitration Agreement was not procedurally unconscionable, the provision requiring arbitration to be conducted in accordance with the Commercial Rules of the American Arbitration Association and the provision requiring each party to bear its own expenses, effectively deprived her of her rights under the FLSA. The Tenth Circuit affirmed.


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