Foster v. Board of Governors ex rel. Colorado State University
2014 WL 784854
Colo. Ct. App.2014Background
- Foster and the CSU Equine Reproduction Laboratory formed an oral bailment agreement for storage of semen stows from Foster's prize stallion, with Lab as bailee and Foster as bailor paying monthly fees.
- A fire destroyed the Lab and most contents, including Foster's semen straws; the fire’s cause was undetermined by investigators.
- Foster sued the Lab for breach of an oral bailment contract; CSU moved to dismiss under CGIA claiming immunity because the claim could lie in tort.
- The district court concluded facts were undisputed and denied CSU’s motion, holding that the bailment claims were contractual rather than tort-based and not subject to CGIA immunity.
- The district court also declined to address whether an exception to CGIA immunity might apply, specifically the dangerous-condition exception in § 24-10-106(1)(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the destruction of bailed property lie in tort or could lie in tort for CGIA | Foster argues the claim sounds in tort or could so lie, warranting CGIA applicability review. | CSU argues the claim lies in contract or could lie only in contract, implying CGIA immunity should apply. | The claim lies in tort or could lie in tort; CGIA immunity applies unless an exception applies. |
| Is a bailment claim governed by contract or independent tort duty for CGIA purposes | Duty is implied by law to exercise reasonable care, independent of contract. | Duty arises from the bailment contract and its terms. | The bailment duty is independent of contract; the claim can sound in tort. |
| Can damages to bailed property be pled in contract or tort under CGIA | Damages may be pursued under contract or tort; but CGIA bars if tort could be pled. | Damages arise from tort liability for negligence, triggering CGIA immunity. | Damages to bailed property can be pled in tort; CGIA bars only if the claim cannot lie in tort. |
| Does the economic loss rule control this bailment dispute | Economic loss rule does not bar tort where independent duty exists. | Economic loss rule may preclude tort claims evolving solely from contract. | Economic loss rule has no bearing here because the duty breached is independent of contract. |
| Should the district court rule on the CGIA dangerous-condition exception | Exception for dangerous condition of a public building may apply to override immunity. | Immunity should be applied unless the exception is satisfied. | The district court must rule on whether the subsection (1)(c) dangerous-condition exception applies. |
Key Cases Cited
- City & Cnty. of Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo. 1992) (destruction/detention of property damages may lie in tort for CGIA purposes)
- Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008) (form of complaint not determinative; focus on could or could not lie in tort)
- Berg v. State Bd. of Agric., 919 P.2d 254 (Colo. 1996) (immunity not apply to contract claims if could lie in tort)
- Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256 (Colo. 2000) (economic loss rule and independent tort duty discussion)
- City & Cnty. of Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo. 1992) (reiterated for its relevance to CGIA tort vs contract analysis)
- Spaur v. City of Greeley, 150 Colo. 346 (Colo. 1962) (pre-CGIA precedent cited to discuss contract vs. immunity)