Janis M. Reigel and Brent Reigel and Bradley Reigel v. SavaSeniorCare L.L.C., a Delaware limited liability company; SavaSeniorCare Administrative Services, L.L.C., a Delaware limited liability company; and SSC Thornton Operating Company, L.L.C., a Delaware limited liability company, d/b/a Alpine Living Center
COLORADO COURT OF APPEALS
Court of Appeals No. 10CA1665
Adams County District Court No. 07CV126
Honorable Katherine R. Delgado, Judge
Janis M. Reigel,
Brent Reigel and Bradley Reigel,
Plaintiffs-Appellees and Cross-Appellants,
SavaSeniorCare L.L.C., a Delaware limited liability company; SavaSeniorCare
Administrative Services, L.L.C., a Delaware limited liability company; and SSC
Thornton Operating Company, L.L.C., a Delaware limited liability company,
d/b/a Alpine Living Center,
Defendants-Appellants and Cross-Appellees.
JUDGMENTS AFFIRMED IN PART, REVERSED IN PART, AND VACATED
IN PART, ORDER REVERSED, AND CASE REMANDED WITH DIRECTIONS
Opinion by JUDGE J. JONES
Carparelli and Furman, JJ., concur
Announced December 8, 2011
Law Offices of J.M. Reinan, P.C., Jerome M. Reinan, Jordana Griff Gingrass,
Denver, Colorado, for Plaintiff-Appellee and Plaintiffs-Appellees and CrossAppellants
Gordon & Rees LLP, Thomas B. Quinn, Mary Byrne Fletcher, Denver, Colorado;
Proskauer Rose LLP, Malcolm J. Harkins, III, James F. Segroves, Washington,
D.C., for Defendants-Appellants and Cross-Appellees
Dennis Reigel died shortly after being taken to a hospital
emergency room from a nursing facility owned by defendant SSC
Thornton Operating Company, L.L.C., doing business as Alpine
Living Center (Alpine). Mr. Reigel’s surviving spouse, Janis M.
Reigel, and surviving sons, Brent Reigel and Bradley Reigel, sued
Alpine; Alpine’s parent company, SavaSeniorCare L.L.C. (SSC);
SavaSeniorCare Administrative Services, L.L.C. (Administrative
Services), which provided payroll and personnel services to Alpine;
As of the date of trial, only the claims against Alpine, SSC, and
Administrative Services for negligence and outrageous conduct
remained. The court directed a verdict in defendants’ favor on the
sons’ claims. The jury found in Ms. Reigel’s favor on her negligence
and outrageous conduct claims, awarding her a total of $450,000 in
The jury apportioned fault amongst Alpine, SSC, and
Administrative Services in varying percentages. The court also
reduced the damages award to the extent the punitive damages
awarded exceeded the actual damages awarded.
Defendants appeal those verdicts. The sons cross-appeal the
district court’s directed verdict in defendants’ favor on their claims,
and its award of costs to defendants for those claims.
We reverse the judgments against SSC and Administrative
Services on both claims, reverse the judgment against Alpine on Ms.
Reigel’s outrageous conduct claim, vacate the judgment against
Alpine on Ms. Reigel’s negligence claim, reverse the judgment and
costs award against the sons, and remand the case for a new trial
on plaintiffs’ negligence claim against Alpine.
I. Factual Background
The following facts are taken from the record of the trial, which
we view in the light most favorable to the jury’s verdicts. See Fair v.
Red Lion Inn, 943 P.2d 431, 436 (Colo. 1997) (in ruling on a motion
for directed verdict, court must view the evidence in the light most
favorable to the nonmoving party); Hildebrand v. New Vista Homes
II, LLC, 252 P.3d 1159, 1172 (Colo. App. 2010) (same standard
applies in reviewing a challenge to the sufficiency of the evidence).
After undergoing surgery for an injury unrelated to this
appeal, Mr. Reigel was admitted to Alpine for a one-week
One day before his scheduled discharge, Mr. Reigel began
experiencing health problems. By 2:30 p.m. that day, his heart rate
had dropped to fifty-four beats per minute from its normal range of
around eighty beats per minute, his blood pressure had dropped,
and he had developed nausea. According to Dr. Ethan Cary, Mr.
Reigel’s attending doctor at Alpine, the nurse assigned to Mr. Reigel,
Sarah Pemkiewicz, told Dr. Cary only about Mr. Reigel’s nausea.
Ms. Pemkiewicz also failed to adequately chart Mr. Reigel’s
condition or to monitor his vital signs.2
By 10:00 p.m., Mr. Reigel’s heart rate had risen to 134 beats
per minute. Dr. Cary was not notified. Mr. Reigel’s fluid intake for
the day had been less than one-fifth of the recommended amount.
Mr. Reigel did not take in any fluids the following day.
According to Ms. Reigel, he was disoriented, could not focus, could
not urinate, and was sweating though his skin was cold and
Ms. Pemkiewicz did not note on Mr. Reigel’s chart that he had
developed nausea. Further, when she administered the nausea
medication Dr. Cary had prescribed, she failed either to take Mr.
Reigel’s vitals or to note his vital sign readings on his chart. When
she did take his heart rate, she did not look at his chart to see what
his normal heart rate range was. The State Board of Nursing for
Colorado later issued a letter of admonition regarding Ms.
Pemkiewicz’s failure to timely document her care of Mr. Reigel.
clammy. He also experienced increasing shortness of breath. After
taking Mr. Reigel’s vital signs and listening to his lungs, Ms.
Pemkiewicz called Dr. Cary to report the shortness of breath. At
about 1:10 p.m., Dr. Cary ordered a chest x-ray, a urinalysis, and
several other lab tests to be done as soon as possible. Ms.
Pemkiewicz did not take the urinalysis because Mr. Reigel was
unable to urinate, but she ordered the x-ray and the other lab tests.
In the meantime, Ms. Reigel grew increasingly concerned
about her husband’s condition. Between 1:00 p.m. and 4:00 p.m.,
she asked Ms. Pemkiewicz, another nurse, and Jackie Cho (Mr.
Reigel’s case manager and Alpine’s director of social services) about
either having a doctor or a registered nurse evaluate Mr. Reigel or
transferring him to a hospital. According to Ms. Reigel, the nurses
refused her requests because they were either involved in
completing the ordered tests or waiting for the lab results. Ms. Cho
also refused the requests, telling Ms. Reigel in a “caustic” tone of
voice that if an emergency existed “we would call an ambulance.”
At some point after 2:00 p.m., Ms. Pemkiewicz received the
chest x-ray results and reported those results to Dr. Cary, who told
her to transfer Mr. Reigel to a hospital. She called an ambulance at
about 4:30 p.m.
According to one of the paramedics on duty, there was no
nurse in Mr. Reigel’s room when he arrived at Alpine. Due to a
delay caused by one of Alpine’s nurses in obtaining the transfer
paperwork, it took about thirty minutes to transfer Mr. Reigel to a
hospital that was “almost across the street” from Alpine.
The emergency room doctor who treated Mr. Reigel, Dr.
Michelle Reeves, concluded that he had been having a heart attack
since the previous day. Mr. Reigel died a few hours later.
II. Defendants’ Appeal
On appeal, defendants contend that the district court erred in
(1) denying their motion for directed verdicts on Ms. Reigel’s
negligence claim; (2) denying their motion for directed verdicts on
Ms. Reigel’s outrageous conduct claim; (3) allowing Ms. Reigel to
recover punitive damages; and (4) admitting evidence from a
website concerning Alpine’s history of treatment deficiencies and
comparing its care to that of other nursing facilities. We agree in
part with defendants’ first contention and remand the case for a
new trial on the negligence claim against Alpine only. We also agree
with defendants’ second contention. Consequently, we address
their third and fourth contentions only to the extent relevant to the
case on remand.
A. The Defendants Other Than Alpine Were Entitled to a Directed
Verdict on the Negligence Claim
SSC and Administrative Services (collectively, the Sava
Defendants) contend that the district court erred in denying their
motion for directed verdicts on the negligence claim. Specifically,
they argue that Ms. Reigel did not establish that they owed a duty
of care to Mr. Reigel because she did not present evidence showing
that she could impute Alpine’s employees’ alleged negligence to the
Sava Defendants by piercing the corporate veil. Ms. Reigel does not
dispute that she failed to prove a basis for piercing the corporate
veil, but argues that the Sava Defendants owed a duty of care to Mr.
Reigel because the evidence showed that Alpine’s employees were
their agents. We conclude that Ms. Reigel did not present evidence
to establish that Alpine’s employees were the Sava Defendants’
agents. It follows that the district court erred in denying the Sava
Defendants’ motion for directed verdicts on the negligence claim.
1. The Issue Was Preserved for Review
Initially, we reject Ms. Reigel’s contention that the Sava
Defendants failed to preserve this issue for appellate review because
they did not object specifically to the jury instruction stating,
“Jackie Cho, Sarah Pemkiewicz, and [another nurse who treated
Mr. Reigel] were the agents of the defendants, at the time of this
occurrence. Therefore, any act or omission of the agent was in law
the act or omission of the defendants.”
The Sava Defendants moved for directed verdicts based on Ms.
Reigel’s alleged failure to present evidence that they owed Mr. Reigel
a duty of care. By doing so, they properly preserved the issue for
our review. See In re Rosen, 198 P.3d 116, 119 (Colo. 2008) (the
issue whether a party is entitled to judgment as a matter of law is
preserved by moving for a directed verdict); Omedelena v. Denver
Options, Inc., 60 P.3d 717, 727 (Colo. App. 2002) (where one
defendant joined in another defendant’s motion for a directed
verdict, it preserved the issue therein for appellate review even
though it did not submit an alternative jury instruction regarding
the issue); see also Aspen Highlands Skiing Corp. v. Aspen Skiing
Co., 738 F.2d 1509, 1517-18 (10th Cir. 1984), aff’d, 472 U.S. 585
2. Standard of Review
We review a district court’s ruling on a motion for directed
verdict de novo. Churchill v. Univ. of Colo. at Boulder, ___ P.3d ___,
___, 2010 WL 5099682, *16 (Colo. App. No. 09CA1713, Nov. 24,
2010) (cert. granted May 31, 2011). Where the motion concerns a
question of fact, we consider whether the evidence, viewed in the
light most favorable to the nonmoving party, “‘compels the
conclusion that reasonable jurors could not disagree and that no
evidence or inference [therefrom] has been received at trial upon
which a verdict against the moving party could be sustained.’”
Hildebrand, 252 P.3d at 1163 (quoting Brossia v. Rick Constr.,
L.T.D. Liab. Co., 81 P.3d 1126, 1131 (Colo. App. 2003)). However,
where the motion concerns a question of law, we “may make an
independent determination of [the] legal question.” Omedelena, 60
P.3d at 722; accord Tricon Kent Co. v. Lafarge N. Am., Inc., 186 P.3d
155, 159 (Colo. App. 2008).
Whether a particular defendant owes a legal duty to a
particular plaintiff is ordinarily a question of law. See Univ. of
Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987). But here the
existence of a duty ultimately turns on whether Alpine’s employees
were the Sava Defendants’ agents. Whether such a relationship
exists is ordinarily a question of fact. See Stortroen v. Beneficial
Finance Co., 736 P.2d 391, 395 (Colo. 1987); Gorsich v. Double B
Trading Co., Inc., 893 P.2d 1357, 1361 (Colo. App. 1994).
Therefore, we will review the Sava Defendants’ contention assuming
it presents a factual question.
3. The Sava Defendants Did Not Owe a Duty of Care to Mr. Reigel
To recover on a wrongful death claim founded on negligence, a
plaintiff must show, among other things, that the defendant owed
the decedent a duty of care. See Solano v. Goff, 985 P.2d 53, 54-55
(Colo. App. 1999); see also Day v. Johnson, 255 P.3d 1064, 1068-69
(Colo. 2011); Greenberg v. Perkins, 845 P.2d 530, 533 (Colo. 1993).
Ms. Reigel’s theory that the Sava Defendants owed Mr. Reigel a
duty of care is premised on the precept that a principal is liable for
negligent acts its agent commits on behalf of the principal that are
within the scope of the agency relationship. Smith v. Multi-Fin. Secs.
Corp., 171 P.3d 1267, 1271 (Colo. App. 2007); see Willey v. Mayer,
876 P.2d 1260, 1264 (Colo. 1994). She contends that the Sava
Defendants could be held liable as principals for the allegedly
negligent actions in this case because evidence presented at trial
showed the following: (1) Earl Woomer, Alpine’s nursing home
administrator, and Ms. Pemkiewicz were “Sava” employees; (2) the
nurse consultant to Alpine’s director of nursing, Sharon Darlene
Brown, was a “Sava” employee; (3) when Mr. Woomer filled out
Alpine’s license application to operate a health care facility,
Administrative Services provided him with a corporate structure
document that he attached to the application; and (4)
Administrative Services provided management services to Alpine.3
The evidence that Mr. Woomer worked for “Sava” was from his
deposition testimony. However, at trial, Mr. Woomer clarified that
he had been an employee of Alpine, not of either of the Sava
Defendants. He noted that when he had been deposed, he had
believed he had worked for “Sava Senior Care,” but when he later
reviewed his payroll checks, he saw that they said Alpine. No
Ms. Reigel does not argue that there was any evidence that Alpine
itself was an agent of the Sava Defendants. See First Horizon Merch.
Servs., Inc. v. Wellspring Capital Mgmt., LLC, 166 P.3d 166, 177
(Colo. App. 2007) (an agent may be a corporation as well as an
individual). Consequently, we do not address that issue.
documentary evidence was introduced showing that Mr. Woomer
worked for an entity other than Alpine.
Similarly, Ms. Pemkiewicz twice testified that she “work[ed] for
Alpine.” And, though, on cross-examination by plaintiffs’ counsel,
she responded “Yes” to the question, “And the company that you
worked for was Sava Senior Care; is that right?” neither she nor
counsel specified whether “Sava Senior Care” was SavaSeniorCare
L.L.C., SavaSeniorCare Administrative Services, L.L.C., or some
other entity. Nor can we reasonably infer which company she
meant. Ms. Reigel suggests, without record support, that Ms.
Pemkiewicz meant SSC. The record shows that counsel and
sometimes witnesses routinely referred to Sava without drawing any
distinction among the defendant entities.
Consequently, we conclude that, viewing the testimony in the
light most favorable to Ms. Reigel, she did not present sufficient
evidence to prove that Mr. Woomer or Ms. Pemkiewicz were
employees of one of the Sava Defendants. She argues no other
theory under which they could be regarded as agents of one of the
Sava Defendants. See Hildebrand, 252 P.3d at 1163; cf. Catholic
Archdiocese of Denver v. City & County of Denver, 741 P.2d 333,
337-38 (Colo. 1987) (the district court erred in finding that the news
carriers were the news publishers’ agents where the virtually
uncontradicted evidence was that the carriers were not the
publishers’ employees); Colo. Ranch Estates, Inc. v. Halvorson, 163
Colo. 146, 152, 428 P.2d 917, 920 (1967) (the district court erred in
entering judgment against one defendant where the allegations were
only sufficient to sustain a judgment against another defendant).
Ms. Brown testified at trial that she had reported “[i]n a
fashion” to a nurse consultant who had helped Alpine correct its
treatment deficiencies. When asked, “Do you know the name of the
company that [the nurse consultant] worked for?” Ms. Brown
responded, “No. I guess she was employed by Sava.” Not only was
this testimony seemingly pure speculation, see Cowin & Co. v.
Medina, 860 P.2d 535, 539 (Colo. App. 1992) (mere guesses are
insufficient evidence to establish an allegation), Ms. Brown did not
identify to which Sava Defendant she was referring, if either. And
although Mr. Woomer later testified that the consultant was
employed by “Sava Senior Care, that’s all I know,” he later clarified
that he had been using SavaSeniorCare as a generic term, not
referring to a specific entity.
The mere fact that Administrative Services provided a
corporate structure document to Mr. Woomer for Alpine’s license
application is clearly insufficient to establish an agency relationship
between Administrative Services and Mr. Woomer. See W. Fire
Truck, Inc. v. Emergency One, Inc., 134 P.3d 570, 575 (Colo. App.
2006) (“‘Agency is the fiduciary relation which results from the
manifestation of consent by one person to another that the other
shall act on his . . . behalf and subject to his . . . control, and
consent by the other so to act.’” (ultimately quoting Restatement
(Second) of Agency § 1(1) (1958))); cf. Moses v. Diocese of Colo., 863
P.2d 310, 325 (Colo. 1993) (there was sufficient evidence of an
agency relationship where the defendants possessed and exercised
the right of control over the manner of performing work and of
hiring, compensating, and counseling the employee).
Finally, we reject Ms. Reigel’s contention that evidence
demonstrated that Administrative Services had an agency
relationship with Alpine’s employees because it provided
management services to Alpine. Citing only to Mr. Woomer’s
testimony, Ms. Reigel alleges that Alpine paid Administrative
Services a management fee in exchange for its help in correcting
Alpine’s treatment deficiencies, among other things.4 However, Mr.
Woomer testified that he was not sure to which Sava company
Alpine had paid the management fee. When asked specifically what
Administrative Services had done for Alpine, Mr. Woomer recalled
only that it had recruited Alpine’s therapists.5 Alpine’s therapists
did not commit any of the allegedly negligent actions in this case,
and there was no evidence that Administrative Services provided
any clinical services to Alpine patients. Further, and in any event,
Ms. Reigel cites no authority for the proposition that one company’s
mere payment to another for services renders the former’s
employees general agents of the latter.
Therefore, we conclude that the evidence was not sufficient to
enable reasonable jurors to agree that either of the Sava Defendants
The district court found that Annaliese Impink, the senior vice
president and chief operations counsel of SavaSeniorCare L.L.C.,
had testified in her deposition (the transcript of which was read at
trial) that Administrative Services had “provided services to Alpine,
including assistance with quality assurance, such as helping to
cure deficiencies.” However, our review of Ms. Impink’s testimony
indicates that she never referred to Administrative Services or to
services it allegedly provided to Alpine.
Mr. Woomer also conjectured that “[Administrative Services]
helped us administratively, which had to do with probably offices or
accounts payable, accounting, things like that.”
owed a duty of care to Mr. Reigel on the theory that Alpine’s
employees were their agents. It follows that the district court erred
in denying the Sava Defendants’ motion for directed verdicts.
Accordingly, we reverse the judgment entered against the Sava
Defendants on the negligence claim.6
B. The Negligence Verdict Against Alpine Must Be Vacated But
Alpine Was Not Entitled to a Directed Verdict on the
Alpine contends that the evidence was insufficient to support a
jury finding of causation in connection with the negligence claim.
Its initial premise for this contention is that the court concluded
erroneously that to establish causation, Ms. Reigel was only
required to present evidence that the alleged negligence
substantially increased the risk of harm to Mr. Reigel – a standard
more easily met than the “but-for” causation test dictated by
Ms. Reigel argues that if we conclude that she did not establish
that the Sava Defendants owed Mr. Reigel a duty of care, we should
not reverse the damages awards against them, but rather should
simply remand for the district court to apportion those damages to
Alpine. Because we conclude in section II.B.2 below that the
judgment on her negligence claim against Alpine must be vacated,
we do not address this argument.
Colorado Supreme Court precedent.7 The court applied the
increased risk standard in denying defendants’ motion for directed
verdicts and in subsequently instructing the jury on causation.
Alpine argues that the jury’s negligence verdict cannot stand, and
that, applying the correct test for causation, the evidence was
insufficient even to present a jury question of the negligence claim.
We agree with Alpine that the district court erred by applying
an incorrect test for causation. Because the court instructed the
jurors that the incorrect test governed their deliberations, we must
vacate the judgment. But though the judgment must be vacated,
we disagree with Alpine that it was entitled to a directed verdict
because we conclude that the evidence would have been sufficient
to support a verdict under the correct test.
1. The District Court Applied an Incorrect Test of Proximate Cause
a. Standard of Review
The issue of the correct test of proximate cause is a legal one.
See Highlands Ranch University Park, LLC v. Uno of Highlands
The Sava Defendants also raise this contention, but because we
have decided that they were otherwise entitled to directed verdicts,
we address it only as it pertains to the negligence claim against
Ranch, Inc., 129 P.3d 1020, 1026 (Colo. App. 2005) (whether the
district court applied a correct legal standard is a question of law).
Therefore, our review of that issue is de novo. See Freedom Colo.
Info., Inc. v. El Paso County Sheriff’s Dep’t, 196 P.3d 892, 897 (Colo.
To recover on a negligence claim, a plaintiff must show that
the defendant’s alleged negligence proximately caused the claimed
injury. Callaham v. First Am. Title Ins. Co., 837 P.2d 769, 771 (Colo.
App. 1992). Proximate cause has two aspects: causation in fact
and legal causation. See Ludlow v. Gibbons, ___ P.3d ___, ___, 2011
WL 5436481, *4 (Colo. App. No. 10CA1719, Nov. 10, 2011); Moore v.
W. Forge Corp., 192 P.3d 427, 436 (Colo. App. 2007). Alpine’s
contention does not concern legal causation, and consequently we
do not address it.
As to causation in fact,
“[t]he test . . . is the ‘but for’ test – whether, but for the
alleged negligence, the harm would not have occurred.
The requirement of ‘but for’ causation is satisfied if the
negligent conduct in a ‘natural and continued sequence,
unbroken by any efficient, intervening cause, produce[s]
the result complained of, and without which the result
would not have occurred.’”
N. Colo. Med. Ctr., Inc. v. Comm. on Anticompetitive Conduct, 914
P.2d 902, 908 (Colo. 1996) (quoting Smith v. State Comp. Ins. Fund,
749 P.2d 462, 464 (Colo. App. 1987)); accord Graven v. Vail Assocs.,
Inc., 909 P.2d 514, 520 (Colo. 1995). Where some events unrelated
to the defendant’s conduct may also have contributed to bringing
about the claimed injury, the plaintiff must show that the
defendant’s alleged negligence was a substantial factor in producing
the injury. N. Colo. Med. Ctr., 914 P.2d at 908; Graven, 909 P.2d at
520-21; Smith, 749 P.2d at 464; see also Rodriguez v. Healthone, 24
P.3d 9, 15 (Colo. App. 2000), aff’d in part & rev’d in part on other
grounds, 50 P.3d 879 (Colo. 2002).
The plaintiff must prove causation in fact by a preponderance
of the evidence. Kaiser Found. Health Plan of Colo. v. Sharp, 741
P.2d 714, 719 (Colo. 1987); Allen v. Martin, 203 P.3d 546, 565
(Colo. App. 2008). Causation is a question of fact for the jury
unless the facts are undisputed and reasonable minds could draw
but one inference from them. Allen, 203 P.3d at 566; Sanderson v.
Heath Mesa Homeowners Ass’n, 183 P.3d 679, 683 (Colo. App.
Here, in denying defendants’ motion for directed verdicts, the
district court concluded that reasonable jurors could determine that
defendants had caused Mr. Reigel’s death because Ms. Reigel had
introduced evidence that the alleged negligence had substantially
increased the risk of harm to Mr. Reigel or had deprived him of a
significant chance to avoid death and was, therefore, a substantial
factor in his death.8 The court also subsequently rejected
defendants’ tendered instruction on but-for causation and instead
instructed the jury, as relevant here, as follows:
The word “cause” as used in these instructions
means an act or failure to act that in natural and
probable sequence produced the claimed injury. It is a
cause without which the claimed injury would not have
If more than one act or failure to act contributed to
the claimed injury, then each act or failure to act may
have been a cause of the injury. A cause does not have
to be the only cause or the last or nearest cause. It is
enough if the act or failure to act joins in a natural and
probable way with some other act or failure to act to
cause some or all of the claimed injury.
One’s conduct is not a cause of another’s death,
however, if, in order to bring about such death, it was
necessary that his or her conduct combine or join with
Defendants’ counsel argued in open court and filed a written
motion specifically challenging this theory of causation in
connection with defendants’ motion for directed verdicts.
Defendants also objected to plaintiffs’ proposed jury instruction on
this theory of causation.
an intervening cause that also contributed to cause the
death. An intervening cause is a cause that would not
have been reasonably foreseen by a reasonably careful
person under the same or similar circumstances.
For the plaintiff to recover from the defendants on
her claim of negligence, you must find that all of the
following have been proved by a preponderance of the
1) Dennis Reigel died;
2) The defendants were negligent; and
3) The defendants’ negligence was a cause of the
If you find that any one or more of these three
statements has not been proved, then your verdict must
be for the defendants.
On the other hand, if you find that all of these three
statements have been proved, then your verdict must be
for the plaintiff.
If you find that Alpine’s negligence increased the risk
of Dennis Reigel’s death or deprived Dennis Reigel of some
significant chance to avoid death, you may also find that
Alpine’s negligence was a cause of Dennis Reigel’s death.
The court based its decisions to deny the motion for directed
verdicts and to instruct the jury concerning an increase in the risk
of death on Sharp v. Kaiser Foundation Health Plan of Colorado, 710
P.2d 1153 (Colo. App. 1985) (Sharp I), aff’d, 741 P.2d 714 (Colo.
1987). In Sharp I, the division held that “the jury should be allowed
to decide the issue of causation [where] there is expert testimony”
that the defendants’ conduct was a substantial factor in causing the
injury in that it “substantially increased [the] plaintiff’s risk of the
resulting harm or substantially diminished the chance of recovery.”
710 P.2d at 1155.
On certiorari review, the supreme court did not reach the
increased risk issue because it concluded that the plaintiffs had
presented sufficient evidence of but-for causation. Sharp, 741 P.2d
Alpine contends that the “increased risk” standard articulated
in Sharp I is inconsistent with the but-for test as applied in
Colorado. It notes that the Tenth Circuit Court of Appeals has held
that the Colorado Supreme Court would not agree with Sharp I’s
increased risk standard. June v. Union Carbide Corp., 577 F.3d
1234 (10th Cir. 2009).
In June, the Tenth Circuit began by recognizing that in the
years since Sharp I was decided, the Colorado Supreme Court has
consistently followed the but-for causation test. Id. at 1238-39.
The court then determined that Sharp I’s reasoning was
inconsistent with that test and was analytically flawed because it
took certain provisions of the Restatement (Second) of Torts out of
context. See id. at 1239-41, 1245 (comparing Restatement (Second)
of Torts §§ 430-433, with Restatement (Third) of Torts §§ 26-27, 29,
and Proposed Final Draft of the Restatement (Third) of Torts:
Liability for Physical Harm). The court noted that by looking only to
sections 430, 431, and 433, which address legal causation and the
substantial factor concept, “one could easily conclude that courts . .
. have substantial leeway to depart from but-for causation in
imposing liability.” Id. at 1241. However, the court noted that
section 432 states:
(1) Except as stated in Subsection (2), the actor’s
negligent conduct is not a substantial factor in bringing
about harm to another if the harm would have been
sustained even if the actor had not been negligent.
(2) If two forces are actively operating, one because of the
actor’s negligence, the other not because of any
misconduct on his part, and each of itself is sufficient to
bring about harm to another, the actor’s negligence may
be found to be a substantial factor in bringing it about.
Thus, the court concluded that the allegedly negligent conduct of
the defendant must satisfy one of section 432’s alternative
requirements before it can even qualify as a substantial factor
under the other Restatement sections. Id. Consequently, to
establish causation under Colorado law, a plaintiff must show
either that (1) but for the defendant’s alleged negligence, the
claimed injury would not have occurred, or (2) the defendant’s
alleged negligence was a necessary component of a causal set that
would have caused the injury. Id. at 1245.
Though we are not bound by the Tenth Circuit’s reasoning, we
find it persuasive, and therefore decline to follow Sharp I. See
Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182, 1195
(Colo. App. 2011) (a division of the court of appeals is not bound by
another division’s decision).
As the Tenth Circuit recognized, the Colorado Supreme Court
has continued to adhere to the but-for test. See, e.g., N. Colo. Med.
Ctr., 914 P.2d at 908; Graven, 909 P.2d at 520. Though the court
has spoken in terms of the defendant’s negligence being a
“substantial factor” where other potential causes may be at play,
the court has not retreated from the requirement that the
defendant’s conduct be a cause without which the injury would not
have occurred. See N. Colo. Med. Ctr., 914 P.2d at 908; Graven, 909
P.2d at 520-21; see also Viner v. Sweet, 70 P.3d 1046, 1050-51
(Cal. 2003) (under Restatement (Second) of Torts § 432, the
substantial factor test subsumes the but-for causation test;
however, it does not abrogate the requirement that the plaintiff
must prove that but for the alleged negligence, the injury would not
have occurred). As both a logical and practical matter, the fact that
a defendant’s conduct increased the victim’s risk of injury does not
necessarily mean that the defendant’s conduct was a but-for cause
of the injury or a necessary component of a causal set of events that
would have caused the injury. Put another way, the victim’s injury
may well have occurred regardless of whether the defendant’s
conduct increased the risk that it would occur. Thus, the increased
risk of harm test articulated in Sharp I is inconsistent with Colorado
Supreme Court precedent.
Consequently, we conclude that the district court erred in
ruling that Ms. Reigel was only required to present evidence that
Alpine’s alleged negligence increased Mr. Reigel’s risk of death or
deprived him of a significant chance to avoid death.
2. The Negligence Verdict Against Alpine Must Be Vacated
We reject Ms. Reigel’s assertion that any error in instructing
the jury as to increased risk was harmless because the jury
instructions, read as a whole, correctly instructed the jury on the
but-for causation standard. See C.R.C.P. 61.
It is true, as noted above, that one instruction said, “The word
‘cause’ as used in these instructions means an act or failure to act
that in natural and probable sequence produced the claimed injury.
It is a cause without which the claimed injury would not have
happened . . . .” This appears to be a correct statement of the law.
And the other instruction correctly recited the elements of the
negligence claim. But it also said, in the last paragraph: “If you find
that Alpine’s negligence increased the risk of Dennis Reigel’s death
or deprived Dennis Reigel of some significant chance to avoid death,
you may also find that Alpine’s negligence was a cause of Dennis
The jury may well have viewed the latter instruction as
expounding on the definition of causation in the last paragraph of
the first instruction – that is, that the but-for test could be satisfied
by evidence of a substantial increase in the risk. Thus, the
instructions allowed a verdict in Ms. Reigel’s favor even if the jury
concluded that Alpine’s alleged negligence was not a but-for cause
of Mr. Reigel’s death in the sense contemplated by Colorado
Supreme Court precedent. Consequently, we conclude that the
district court’s error was not harmless. See Young v. Colo. Nat’l
Bank, 148 Colo. 104, 125, 365 P.2d 701, 713 (1961) (“[T]he giving of
incompatible instructions on the burden of proof is fatal error.”);
Steward Software Co., LLC v. Kopcho, ___ P.3d ___, ___, 2010 WL
3432214, *8 (Colo. App. No. 09CA1690, Sept. 2, 2010) (cert. granted
Mar. 28, 2011) (same) (“error in one instruction cannot be rendered
harmless by the mere giving of other instructions that state the law
correctly”; citing Harper v. James, 203 N.E.2d 531, 533-34 (Ind.
3. Alpine Was Not Entitled to a Directed Verdict on the Negligence
Though the district court erred in applying the test for
proximate cause to Alpine’s motion for directed verdict, it does not
necessarily follow that the court erred in denying the motion.
Rather, we must determine whether the evidence (and inferences
that reasonably could have been drawn therefrom) would have
supported a verdict against Alpine under the correct test. Viewing
the evidence in the light most favorable to Ms. Reigel, we conclude
that it would have.
To establish causation, “‘[t]he plaintiff need not prove with
absolute certainty that the defendant’s conduct caused the
plaintiff’s harm . . . [h]owever, the plaintiff must establish causation
beyond mere possibility or speculation.’” Nelson v. Hammon, 802
P.2d 452, 457 (Colo. 1990) (ultimately quoting City of Longmont v.
Swearingen, 81 Colo. 246, 251, 254 P. 1000, 1002 (1927)); see
Restatement (Second) of Torts § 433B cmt. b (1965) (“[The plaintiff]
is not required to eliminate entirely all possibility that the
defendant’s conduct was not a cause. It is enough that he
introduces evidence from which reasonable men may conclude that
it is more probable that the event was caused by the defendant than
that it was not.”).
Initially, we reject Alpine’s contention that Ms. Reigel failed to
present any evidence of but-for causation because no witness
testified that if Alpine had called an ambulance at the first sign of
trouble, Mr. Reigel would not have died. Such conclusive testimony
is not necessary to prove causation. See Nelson, 802 P.2d at 457;
Boatright v. Berkley United Methodist Church, 518 P.2d 309, 310
(Colo. App. 1974) (not published pursuant to C.A.R. 35(f))
(causation may be proved by circumstantial evidence); see also
Hildebrand, 252 P.3d at 1163 (in resolving a motion for directed
verdict, the court must consider whether “no evidence or inference
[therefrom]” has been received at trial that can sustain the verdict
Ms. Reigel presented evidence from which reasonable jurors
could conclude that had Mr. Reigel been taken to the hospital
immediately after he allegedly began having the heart attack, he
would not have died.
For example, Dr. Cary testified that when a person becomes
dehydrated, he has a greater risk of suffering a heart attack. He
then confirmed that if Mr. Reigel was dehydrated on the day before
he was transferred to the hospital, it was likely that the dehydration
affected his heart rate. As noted, on that day, Mr. Reigel’s fluid
intake was less than one-fifth of the recommended amount and his
heart rate had fluctuated between 54 and 134 beats per minute.
Dr. Cary also testified that the dehydration could have contributed
to Mr. Reigel having a heart attack. Though Dr. Cary then said he
was not sure whether dehydration would have been a substantial
contributing factor in triggering the heart attack because Mr. Reigel
had “so many other risk factors for heart disease,” reasonable
jurors could infer from this evidence that Mr. Reigel would not have
had the heart attack, and consequently would not have died, had
he not been dehydrated.
Alpine’s expert in noninvasive cardiology, Dr. Philip Wolf,
testified that if a person who had a massive heart attack like Mr.
Reigel’s is able to have an angioplasty procedure within ninety
minutes of the heart attack beginning, there is a ninety percent
chance that the procedure will be successful. He later clarified that
the ninety percent success rate figure did not apply in Mr. Reigel’s
case because (1) in his opinion, nobody could have diagnosed him
with a heart attack earlier, and (2) the cardiologist who had treated
Mr. Reigel after he arrived at the emergency room, Dr. Carlos
Mendoza, had determined that Mr. Reigel had too many other
health problems to make immediate surgery a viable option.9
However, Ms. Reigel presented evidence disputing both bases for
this latter conclusion, thereby suggesting that the ninety percent
success rate figure would have applied in Mr. Reigel’s case.
Dr. Wolf testified that Mr. Reigel’s non-negligence-related medical
conditions included terminal lung cancer, emphysema, a recent
history of pulmonary emboli, pulmonary hypertension, sleep apnea,
and “massive” obesity. Consequently, Dr. Wolf also testified that
had he been the doctor treating Mr. Reigel, he would have told the
surgeon not to operate because Mr. Reigel “was in no shape to go
through the surgery and to survive.”
As to the first basis, Dr. Wolf’s opinion was that Mr. Reigel did
not begin to have a heart attack until around the time he arrived at
the emergency room. A reasonable juror could infer that Dr. Wolf’s
opinion about the alleged inability to diagnose Mr. Reigel’s heart
attack earlier was in turn based on his opinion that Mr. Reigel was
not having a heart attack before he arrived at the emergency room.
However, as noted, Dr. Reeves testified that Mr. Reigel had begun
having a heart attack on the previous day. And in Mr. Reigel’s
emergency room admission report, which Ms. Reigel introduced at
trial, one of Mr. Reigel’s doctors said that he also believed Mr.
Reigel’s heart attack had begun twenty-four to forty-eight hours
before he arrived at the emergency room.10
As to the second basis, Dr. Reeves testified that if Mr. Reigel
had come to the hospital earlier, with stable vital signs, and he had
not been on blood thinning medication or experiencing renal failure,
she would have told the cardiologist that there was less risk
Regarding the alleged difficulty in diagnosing Mr. Reigel, we also
observe that Dr. Wolf testified it would have been difficult for a
doctor to have diagnosed Mr. Reigel with a heart attack when he
arrived at the emergency room. However, he later admitted that one
of the emergency room doctors had actually been able to diagnose
Mr. Reigel with a heart attack.
associated with a heart surgery procedure. The presence of the
blood thinning medication was allegedly due to Alpine’s nursing
staff’s negligence in giving Mr. Reigel two doses of blood thinning
medication after Dr. Cary had ordered that the medication be
discontinued. The renal failure had allegedly begun early in the
afternoon of the day Mr. Reigel was transferred to the hospital due
to poor blood flow resulting from Mr. Reigel’s untreated heart attack
Similarly, according to evidence at trial, Dr. Mendoza had
given three reasons why he did not want to immediately perform an
angioplasty procedure on Mr. Reigel: (1) Mr. Reigel was having
problems with his blood clotting; (2) he was experiencing renal
failure; and (3) he had difficulty lying flat because of shortness of
breath. As noted, the first two problems were allegedly caused by
Alpine’s employees’ negligence. And the third problem, Mr. Reigel’s
increasing shortness of breath, did not begin until the day he was
transferred to the hospital.
Based on this evidence, we conclude that reasonable jurors
could agree that but for Alpine’s employees’ alleged negligence, Mr.
Reigel would have been (1) able to have an angioplasty procedure,
and (2) among the ninety percent of people for whom the procedure
is a success.
In sum, we conclude that Ms. Reigel’s evidence was sufficient
to withstand Alpine’s motion for directed verdict. Compare Nelson,
802 P.2d at 456-57 (where a doctor testified that one gram of
penicillin “might have had some effect in reducing the chance” the
plaintiff would have developed the condition, but that two grams
was the standard recommendation, the testimony was nonetheless
sufficient to support an inference that one gram of penicillin would
have prevented the condition), and Johnson v. Nat’l R.R. Passenger
Corp., 989 P.2d 245, 249-50 (Colo. App. 1999) (where a surgeon
testified that if the plaintiff had a preexisting hip condition, there
was a ten to fifteen percent chance that he would have
spontaneously recovered, there was sufficient evidence of causation
for the jury to decide that the hip condition allegedly caused by the
defendant would not have required surgery but for the conduct at
issue), with Braud v. Woodland Village L.L.C., 54 So. 3d 745, 751-52
(La. Ct. App. 2010) (where there was no testimony that the alleged
negligence caused or contributed to the decedent’s death, there was
no evidence that the decedent suffered an injury that he would not
otherwise have suffered); see also Coffran v. Hitchcock Clinic, Inc.,
683 F.2d 5, 10-11 (1st Cir. 1982) (the plaintiff introduced sufficient
evidence of causation where one expert testified that there was a
fifty percent chance that if the defendants had performed the test
they allegedly negligently failed to perform, they could have
diagnosed the condition and prevented the injury; though another
expert disagreed, the jury was free to credit the first expert’s
testimony); Mayes v. Bryan, 44 Cal. Rptr. 3d 14, 25 (Cal. Ct. App.
2006) (causation is proven where there is sufficient evidence for the
jury to infer that absent the defendant’s negligence, there was a
reasonable medical probability the patient would have obtained a
Accordingly, though the district court applied the wrong test in
ruling on Alpine’s motion for directed verdict, the court did not err
in denying the motion. We vacate the judgment entered against
Alpine on Ms. Reigel’s negligence claim and remand for a new trial
on that claim.
C. Alpine Was Entitled to a Directed Verdict on the Outrageous
Defendants contend that the district court erred in denying
their motion for directed verdicts on Ms. Reigel’s outrageous
conduct claim because (1) the alleged conduct was not sufficiently
outrageous as a matter of law, and (2) Ms. Reigel did not present
evidence that would allow the jury to attribute that conduct to the
Sava Defendants. Because we have decided above that there is
insufficient evidence that the actions of Alpine’s employees could be
attributed to the Sava Defendants, we need only address the first
The elements of an outrageous conduct claim are “(1) the
defendant engaged in extreme and outrageous conduct, (2)
recklessly or with the intent of causing the plaintiff severe
emotional distress, and (3) causing the plaintiff severe emotional
distress.” Pearson v. Kancilia, 70 P.3d 594, 597 (Colo. App. 2003).
The level of outrageousness required to constitute extreme and
outrageous conduct is extremely high. Coors Brewing Co. v. Floyd,
978 P.2d 663, 666 (Colo. 1999); Pearson, 70 P.3d at 597; McCarty v.
Kaiser-Hill Co., L.L.C., 15 P.3d 1122, 1126-27 (Colo. App. 2000).
The conduct must be “‘so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community.’” Coors Brewing Co., 978 P.2d at 666 (quoting
Restatement (Second) of Torts § 46 (1965)); accord Tracz v. Charter
Centennial Peaks Behavioral Health Sys., Inc., 9 P.3d 1168, 1175
(Colo. App. 2000). “Mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities are insufficient.” Pearson, 70
P.3d at 597; see also Restatement (Second) of Torts § 46 cmt. d.
However, “[c]onduct, otherwise permissible, may become
extreme and outrageous if it is an abuse by the actor of a position
in which he has actual or apparent authority over the other, or the
power to affect the other’s interests.” Zalnis v. Thoroughbred Datsun
Car Co., 645 P.2d 292, 294 (Colo. App. 1982); see also Restatement
(Second) of Torts § 46 cmt. e. Conduct may also become
outrageous where the defendant proceeds though he knows that the
plaintiff “is peculiarly susceptible to emotional distress, by reason of
some physical or mental condition or peculiarity.” Restatement
(Second) of Torts § 46 cmt. f; see English v. Griffith, 99 P.3d 90, 93
(Colo. App. 2004). Nevertheless, in both scenarios, a defendant is
still not liable for mere insults, indignities, or annoyances that are
not extreme or outrageous. Restatement (Second) of Torts § 46
cmts. e, f (“It must be emphasized again, however, that major
outrage is essential to the tort; and the mere fact that the actor
knows that the other will regard the conduct as insulting, or will
have his feelings hurt, is not enough.”).
An outrageous conduct claim may be submitted to the jury
only if reasonable persons could differ on whether the defendant’s
conduct was sufficiently outrageous. Whether reasonable persons
could differ on that issue is a question of law that we review de
novo, considering the totality of the evidence pertaining to the
defendant’s conduct. Han Ye Lee v. Colo. Times, Inc., 222 P.3d 957,
963 (Colo. App. 2009); Green v. Qwest Servs. Corp., 155 P.3d 383,
385 (Colo. App. 2006); Pearson, 70 P.3d at 597.
Ms. Reigel’s evidence of outrageous conduct was as follows.
• Alpine employees allegedly refused Ms. Reigel’s requests, while
she was crying, to send Mr. Reigel to the hospital or have a
registered nurse or doctor evaluate him.
• When Ms. Reigel went to see Ms. Cho about the
aforementioned requests, Ms. Cho allegedly said, “in the most
caustic voice [Ms. Reigel had] ever heard, [‘]Well, if it was an
emergency, we would call an ambulance.[’]”
• The Alpine employees responded to Ms. Reigel’s requests in a
manner that made her feel “[l]ike [she] was going crazy. Like
they thought [she] was totally overreacting, like [she] was so
upset. Why is she so upset, we’re doing all these things, we’re
doing all these tests, we’re waiting for results.”
• Between 2:45 and 4:30 p.m. on the last day Mr. Reigel was at
the facility, no nurse or other Alpine employee allegedly
checked on Mr. Reigel.
• Ms. Pemkiewicz allegedly falsified an entry on Mr. Reigel’s
chart by noting that at 4:30 p.m. his blood pressure was
normal. Ms. Reigel testified that neither Ms. Pemkiewicz nor
any other Alpine employee was in Mr. Reigel’s room at that
time. And, when the paramedics took his blood pressure four
to five minutes later, it was abnormally low.11
Ms. Reigel also alleges that Ms. Pemkiewicz falsified the chart by
suggesting that at 5:15 p.m. Mr. Reigel “was in generally good
health, except for shortness of breath.” Though the chart for this
period notes that Mr. Reigel had “troubled breathing,” it also states
that multiple lab tests had been ordered, indicates that one of the
lab test results was abnormal, and notes that a doctor had ordered
The district court concluded that these facts were sufficient to
allow Ms. Reigel’s outrageous conduct claim to go to the jury. We
Though there is evidence that the nurses and Ms. Cho were
abrupt, irresponsible, and lacking in sensitivity in responding to
Ms. Reigel’s requests for help, we conclude that the evidence was
not sufficient to lead “an average member of the community . . . to
exclaim, ‘Outrageous!’” Rugg v. McCarty, 173 Colo. 170, 177, 476
P.2d 753, 756 (1970); Restatement (Second) of Torts § 46 cmt. d; cf.
Humana of Ky., Inc. v. Seitz, 796 S.W.2d 1, 3-4 (Ky. 1990) (where a
nurse delayed in responding to the plaintiff’s room, told her to “shut
up” though she was distressed at having given birth to a stillborn
baby, and told her that the baby would be disposed of in the
hospital, her conduct was not extreme and outrageous; although
the nurse’s conduct was “cold, callous, and lacking sensitivity,” it
was not beyond all bounds of decency); C.M. v. Tomball Reg’l Hosp.,
961 S.W.2d 236, 244-45 (Tex. App. 1997) (where the defendant
treated the plaintiffs “like dirt,” told them “[w]e do not like to deal
that Mr. Reigel be sent to the emergency room. Thus, this entry
does not suggest that, aside from the shortness of breath, Mr.
Reigel was in generally good health.
with rape victims,” suggested that the alleged victim, a minor, could
have lost her virginity by riding a bike or horse, and interviewed the
minor in a public waiting room, her “rude, insensitive, and
uncaring” conduct was not sufficiently outrageous to present a jury
Similarly, the evidence that Alpine’s employees did not attend
closely to Mr. Reigel while his condition was deteriorating was not
sufficient to create a jury question on outrageousness. The period
of the alleged inattentiveness was less than two hours. Ms. Reigel
introduced no evidence suggesting that the employees knew that
during this time Mr. Reigel was experiencing a serious health
problem that required immediate treatment. Further, Ms.
Pemkiewicz had already taken Mr. Reigel’s vital signs, contacted Dr.
Cary, and ordered multiple lab tests in response to Mr. Reigel’s
allegedly worsening condition. Though she and the other employees
may have failed to monitor Mr. Reigel adequately or to recognize
that his symptoms required immediate treatment, reasonable
persons could not conclude that this conduct rose to the level of
being “atrocious and utterly intolerable in a civilized community.”
Rugg, 173 Colo. at 177, 476 P.2d at 756; Roget v. Grand Pontiac,
Inc., 5 P.3d 341, 345 (Colo. App. 1999) (“Outrageous conduct
occurs when an actor intentionally and recklessly causes severe
emotional distress.”); Restatement (Second) of Torts § 46; cf. Jones
v. Muskegon Cnty., 625 F.3d 935, 948 (6th Cir. 2010) (where two
prison nurses allegedly received medical packets from the inmate
claiming that he was seriously ill and ignored the packets for
several months because they thought he was “faking it,” this
deliberate indifference to his serious medical needs was not
sufficiently extreme or outrageous to support the inmate’s claim
because it would not cause a reasonable juror to exclaim
“outrageous!”); Tater-Alexander v. Amerjan, 2009 WL 1212977, * 6-7
(E.D. Cal. 2009) (unpublished memorandum decision) (where the
doctor refused to treat the plaintiff with full knowledge of his
medical diagnosis, the complaint sufficiently pled outrageous
conduct); Watts v. Golden Age Nursing Home, 619 P.2d 1032, 1035
(Ariz. 1980) (the nursing home’s two-day delay in informing the
plaintiff that her husband was terminally ill was unjustifiable but
did not fall within the “quite narrow range of ‘extreme and
outrageous’ conduct”); Payton Health Care Facilities, Inc. v. Estate of
Campbell, 497 So. 2d 1233, 1240 (Fla. Dist. Ct. App. 1986) (where
the plaintiff’s expert testified that the standard of care at the
deceased’s health care facility was “an outrageous deviation from
the acceptable standard,” there was sufficient evidence to sustain
the extreme and outrageous conduct verdict); Lykins v. Miami Valley
Hosp., 811 N.E.2d 124, 147-48 (Ohio Ct. App. 2004) (where the
defendants allegedly failed to diagnose a patient properly, summary
judgment for the defendants was appropriate on the extreme and
outrageous conduct claim though the defendants’ alleged negligence
was a matter for the jury).
Finally, as to Ms. Pemkiewicz’s alleged falsification of Mr.
Reigel’s chart, we note that she allegedly did this (1) outside the
presence of Mr. or Ms. Reigel, and (2) after the paramedics had
arrived to transport Mr. Reigel to the hospital. There is no
indication that the alleged falsification affected Mr. Reigel’s care or
was part of a pattern of conduct that took place over the course of
Accordingly, we conclude that the evidence was insufficient to
create a jury question on Ms. Reigel’s outrageous conduct claim.
See Coors Brewing Co., 978 P.2d at 665 (where the defendant’s
executives allegedly engaged in an extensive criminal conspiracy
and fired the plaintiff to cover up the misconduct by making him
appear solely responsible therefor, the alleged conduct did not rise
to the requisite high level of outrageousness as a matter of law);
City of Lafayette v. Barrack, 847 P.2d 136, 139 (Colo. 1993) (“courts
are more likely to find conduct outrageous if it involves a course of
conduct rather than a single incident”).
We are not persuaded otherwise by DeCicco v. Trinidad Area
Health Ass’n, 40 Colo. App. 63, 573 P.2d 559 (1977), on which Ms.
Reigel relies. In DeCicco, a hospital administrator refused to send
an ambulance to a woman who had lapsed into a coma unless her
doctor (who had recently resigned from the hospital) consented to
having her sent to the administrator’s hospital, not the hospital the
doctor had determined was best able to treat the woman’s
condition. Id. at 64, 573 P.2d at 560-61. The administrator’s
hospital provided the only ambulance service in the county. Id.,
573 P.2d at 560. Due to its refusal to send an ambulance, the
doctor had to request an ambulance from New Mexico, which
resulted in a substantial delay in transporting the woman to the
hospital. Id. at 65, 573 P.2d at 560. The woman died one hour
after arriving in the hospital. Id. Based on these facts, the division
concluded, “defendants’ refusal of ambulance service to the
critically ill Mrs. DeCicco on grounds irrelevant to her need for, or
the availability of the service” could constitute extreme and
outrageous conduct. Id. at 66, 573 P.2d at 562.
Here, unlike in DeCicco, none of Alpine’s employees knew that
Mr. Reigel was critically ill. The allegation is that they should have
known. Nor was there evidence of a history here suggesting
personal antagonism between the Reigels or their doctors and
Alpine and its employees. Further, as noted, according to Ms.
Reigel, Alpine’s nurses refused to send Mr. Reigel to the hospital or
to have a registered nurse or doctor evaluate him because they were
waiting for results from lab tests that had been ordered in response
to his condition. Thus, their reason for refusal was not irrelevant to
that condition. Though, as noted, the nurses may have failed to
monitor Mr. Reigel adequately, this conduct is not comparable to
the deliberate indifference to the patient’s known condition in
Therefore, we conclude that the district court erred in denying
Alpine’s motion for directed verdict on Ms. Reigel’s outrageous
D. Plaintiffs May Seek Punitive Damages on Remand
Defendants contend that the district court erred in allowing
Ms. Reigel to recover punitive damages on her negligence and
outrageous conduct claims because (1) the court abused its
discretion in permitting Ms. Reigel to amend her complaint to
request punitive damages shortly before trial; (2) the court erred in
denying defendants’ motion for directed verdicts based on Ms.
Reigel’s failure to establish that any managerial employee
committed the wrongful acts at issue; and (3) punitive damages are
not awardable on an outrageous conduct claim. We need not
address the second contention because we cannot anticipate the
nature of the evidence that may be presented on remand. And we
need not address the third contention because we have determined
that Alpine was entitled to a directed verdict on the outrageous
conduct claim. We address the first contention only as it pertains
1. Standard of Review
We review a district court’s decision on a motion to amend a
complaint for an abuse of discretion. Cody Park Prop. Owners’
Ass’n, Inc. v. Harder, 251 P.3d 1, 5 (Colo. App. 2009); DeHerrera v.
Am. Family Mut. Ins. Co., 219 P.3d 346, 353 (Colo. App. 2009). A
court abuses its discretion where its decision is manifestly
arbitrary, unreasonable, or unfair. Cody Park Prop. Owners’ Ass’n,
251 P.3d at 5.
2. The District Court Did Not Abuse Its Discretion in Allowing Ms.
Reigel to Amend the Complaint
Under C.R.C.P. 16(b)(8), a party has “120 days after the case is
at issue [to move] to amend [the] pleadings.” However, section 1364-302.5(3), C.R.S. 2011, provides:
In any civil action or arbitration proceeding alleging
negligence against a health care professional, exemplary
damages may not be included in any initial claim for
relief. A claim for such exemplary damages may be
asserted by amendment to the pleadings only after the
substantial completion of discovery and only after the
plaintiff establishes prima facie proof of a triable issue. If
the court or arbitrator allows such an amendment to the
complaint under this subsection (3), it may also, in its
discretion, permit additional discovery on the question of
The Reigels filed their initial complaint on January 23, 2007.
The case became at issue on October 17, 2008, and the trial was
scheduled to begin on January 19, 2010.
Discovery began in early 2009. Between September and
December 2009, the Reigels moved three times to compel discovery
related to defendants’ relationships to one another and defendants’
individual awareness of and ability to respond to the alleged
treatment deficiencies at Alpine. The district court granted these
motions. It also found that defendants had abused the discovery
process and awarded the Reigels their attorney fees for one of the
motions. Defendants provided the last of their discovery responses
in December 2009.
In the meantime, on November 13, 2009, the Reigels moved to
amend their complaint to request punitive damages based on
Alpine’s history of treatment deficiencies, as reflected in surveys on
Medicare.gov.12 Defendants opposed the motion, arguing in
relevant part that it was untimely because the surveys had
occurred between 2005 and 2007 and were therefore available to
Those deficiencies were, as relevant here, that Alpine (1) had
hired employees without checking whether they had histories of
abusing or neglecting residents; (2) did not have the necessary
policies or infrastructure to prevent mistreatment and neglect of its
residents; (3) had failed to provide adequate quality of care to
numerous residents; (4) was not creating adequate care plans to
instruct Alpine’s employees how to care for particular residents; (5)
had failed to properly medicate its residents; (6) had employed at
least one nurse who did not follow the doctor’s orders in regard to a
lab test; and (7) was not keeping accurate and appropriate medical
the Reigels long before they moved to amend. The court granted the
motion without explanation.
Thereafter, defendants moved to continue the trial date to
allow them to conduct discovery and prepare motions related to the
punitive damages request. The court denied the motion, again
We first note that although the court did not make any
express findings in granting the Reigels’ motion, we can discern the
basis for its decision from the parties’ briefs in the district court.
Therefore, the omission does not require reversal. See Great Neck
Plaza, L.P. v. Le Peep Rests., LLC, 37 P.3d 485, 489 (Colo. App.
2001); Foster v. Phillips, 6 P.3d 791, 796 (Colo. App. 1999); Ross v.
Denver Dep’t of Health & Hosps., 883 P.2d 516, 519 (Colo. App.
We reject defendants’ suggestion that the Reigels were bound
by the time limitation in C.R.C.P. 16(b)(8), rather than that in
section 13-64-302.5(3). The Colorado Rules of Civil Procedure do
not apply to the extent they are “‘inconsistent or in conflict with the
procedure and practice provided by the applicable statute.’” City of
Steamboat Springs v. Johnson, 252 P.3d 1142, 1145 (Colo. App.
2010) (quoting C.R.C.P. 81(a)); see Hernandez v. Downing, 154 P.3d
1068, 1071 (Colo. 2007); cf. C.R.C.P. 15(a) (“[A] party may amend
his pleading only by leave of court . . . and leave shall be freely
given when justice so requires.”).
Further, we are not persuaded by Alpine’s argument that the
surveys were publicly available. Regardless of when the surveys
were available, the Reigels had to discover to whom the surveyed
deficiencies could be attributed. Even after the Reigels filed their
motion, defendants were providing discovery relating to which of
them knew about and could respond to Alpine’s deficiencies.
Accordingly, we conclude that the Reigels properly moved to amend
their complaint “after the substantial completion of discovery and . .
. after . . . establish[ing] prima facie proof of a triable issue.” § 1364-302.5(3); see also Polk v. Denver Dist. Court, 849 P.2d 23, 27
(Colo. 1993) (when a moving party knows of the claim and whether
the moving party states an acceptable reason for the delay are
important factors in determining whether to allow an amended
Finally, we reject Alpine’s contention that the district court
abused its discretion in allowing the amended complaint because it
later denied defendants’ motion for a continuance. Though section
13-64-302.5(3) allows the court to “in its discretion, permit
additional discovery on the question of exemplary damages,” it does
not require the court to permit such discovery or to continue the
trial at the defendant’s request.
Consequently, we conclude that the district court did not
abuse its discretion in granting the Reigels’ motion to amend their
complaint to request punitive damages.
E. Medicare.gov Evidence
Before trial, defendants filed a motion in limine to exclude the
Medicare.gov evidence. The Reigels responded that the evidence
was admissible solely in relation to their Colorado Consumer
Protection Act (CCPA) claim. The district court ruled that the
evidence was admissible.
The Reigels dismissed the CCPA claim before trial.
Nevertheless, at trial, the Reigels sought to introduce some of the
evidence. Defendants objected that the evidence was hearsay,
unreliable, and unduly prejudicial. The court overruled the
objection, saying that it “ha[d] ruled on this issue previously.” No
one mentioned that the Reigels had formerly sought to admit the
evidence solely for their CCPA claim.
From this record, we cannot ascertain whether the district
court believed the evidence was relevant as to claims other than the
CCPA claim. Consequently, on remand, if plaintiffs attempt to
introduce this evidence, the court should determine whether it is
admissible in relation to their negligence claim against Alpine.
III. The Sons’ Cross-Appeal
The sons cross-appeal the district court’s directed verdict in
defendants’ favor on the wrongful death claim, and its award of
costs to defendants for that claim. They contend, relying on Steedle
v. Sereff, 167 P.3d 135 (Colo. 2007), that because Ms. Reigel
introduced evidence that she suffered noneconomic damages, the
district court erroneously concluded that they were also required to
prove personal damages.13 We agree that reversal of these decisions
The sons contend in their reply brief that the district court also
erred by finding that they did not present evidence of personal
damages. We do not address issues raised for the first time in a
reply brief. See Arnold v. Anton Coop. Ass’n, ___ P.3d ___, ___, 2011
WL 3851590, *6 (Colo. App. No. 09CA2422, Sept. 1, 2011).
The sons’ contention requires us to interpret certain provisions
of the Wrongful Death Act, §§ 13-21-201 to -204, C.R.S. 2011. The
question we must resolve is whether, when multiple plaintiffs bring
a wrongful death action based on a decedent’s death and the
plaintiffs only seek damages for noneconomic losses, each plaintiff
must establish that he personally suffered damages for
noneconomic losses to remain a party to the action. We answer
that question in the negative.
A. Standard of Review
Because the sons’ contention presents an issue of statutory
construction, our review is de novo. Foiles v. Whittman, 233 P.3d
697, 699 (Colo. 2010).
B. The Sons May Participate in the Action as Plaintiffs
In interpreting a statute, our goal is to give effect to the
General Assembly’s purposes by adopting an interpretation that
best effectuates those purposes. Smith v. Exec. Custom Homes, Inc.,
230 P.3d 1186, 1189 (Colo. 2010). To do so, “we look first to the
plain language of the statute, giving the language its commonly
accepted and understood meaning.” Id. (citation omitted). Where,
as here, the statute exists as part of a comprehensive statutory
scheme, we must read the scheme as a whole so that we may give
consistent, harmonious, and sensible effect to all of its parts. Union
Pacific R.R. Co. v. Martin, 209 P.3d 185, 189 (Colo. 2009); Frank M.
Hall & Co., Inc. v. Newsom, 125 P.3d 444, 448 (Colo. 2005). Where
the statutory language is clear and unambiguous, we enforce it as
written and do not resort to other rules of statutory construction.
Smith, 230 P.3d at 1189.
Sections 13-21-201 and -202, C.R.S. 2011, of the Wrongful
Death Act authorize a decedent’s surviving spouse and heirs to seek
damages if the decedent’s death was caused by negligence. The
surviving spouse and heirs can bring only one wrongful death
action, § 13-21-203(1)(a), C.R.S. 2011, and they own the judgment
obtained in that action “under the statutes of descent and
distribution,” § 13-21-201(2), C.R.S. 2011.
Regarding the damages the heirs may recover, section 13-21203(1)(a) provides, in relevant part:
in every [wrongful death] action the jury may give such
damages as they may deem fair and just, with reference
to the necessary injury resulting from such death,
including damages for noneconomic loss or injury . . .
and including within noneconomic loss or injury
damages for grief, loss of companionship, pain and
suffering, and emotional stress, to the surviving parties
who may be entitled to sue . . . .
Section 13-21-102.5(2)(b), C.R.S. 2011, defines noneconomic loss or
injury as “nonpecuniary harm for which damages are recoverable
by the person suffering the direct or primary loss or injury,
including pain and suffering, inconvenience, emotional stress, and
impairment of the quality of life.”
In Steedle, the supreme court considered whether the
$150,000 statutory damages cap in the Colorado Governmental
Immunity Act applied separately to each family member who was a
plaintiff on a wrongful death claim. 167 P.3d at 136. In concluding
that it did not, the court noted that under the Wrongful Death Act,
“the right of the heirs to collect damages . . . does not arise from a
separate tort, but instead is wholly derivative of the injury to the
decedent.” Id. at 140. Thus, the court reasoned, “[w]hether an
individual heir suffers actual damages is irrelevant; unlike a loss of
consortium claim that requires proof of personal damages, a
wrongful death action involves a shared injury among survivors
such that there is no individualized recovery of damages.” Id.
Though it is true that different heirs may suffer different
noneconomic losses as a result of a decedent’s death, we are not
persuaded that this requires each heir-plaintiff to prove
noneconomic losses. Whether damages are awarded for economic
or noneconomic losses, all damages awarded are owned jointly and
distributed through the statutes of descent and distribution. See §
13-21-201(2); Steedle, 167 P.3d at 140. As applied here, that
means that whatever noneconomic damages Ms. Reigel established
were owned by the sons as well.
It follows that the district court erred in dismissing the sons
from the case. And because the award of costs against the sons
was premised on that dismissal, it further follows that the award
cannot stand. On remand, the sons will be entitled to participate as
plaintiffs on the negligence claim.
The judgment against SSC and Administrative Services is
reversed. The judgment against Alpine is reversed as to the
outrageous conduct claim and vacated as to the negligence claim.
The judgment and associated order awarding costs against the sons
are reversed. The case is remanded for a new trial on plaintiffs’
negligence claim against Alpine.
JUDGE CARPARELLI and JUDGE FURMAN concur.