Pizza Hut of America, Inc. v. Keefe

(1986), 31-35-402(l)(b), 12B wMle C.R.S. tion “municipality” not a under

the District is Dist., Conservancy Water

statute. Ute at

P.2d 598-99.

VI. sum, that the District is enti-

In we hold provided under 7 protection

tled to the 19260) prohibits City

U.S.C. —which in the providing domestic water service areas, except existing cus-

overlap to those historically

tomers that it has served—until discharged

the 1981 revenue bond is maturity in

reaches its 2021. We conclude applicable preempt

that the federal statutes further conclude that

state law. We

unambiguous language purpose statutes, princi- state common-law

federal

ples, findings and the district court’s of fact

support our conclusion that the District did discharge

not the 1981 revenue bond when it 1988;

reacquired the instrument nor did discharge it

the District the bond when con- refunding transaction in

ducted an advance present we resolve the case

1983. Because District, not,

in favor of the we need and do

not, address the conditional issues raised cross-petition. According-

the District in its

ly, affirm the of the court of AMERICA, INC.;

PIZZA HUT OF Thomas; and Ronald

Orson

Pulda, Petitioners,

Ray KEEFE and Paula

Keefe, Respondents.

No. 93SC251. Colorado,

Supreme Court of

En Banc. 30, 1995.

June

Rehearing Aug. Denied Firm, P.C.,

Fortune Law Fortune, Lowell Denver, petitioners. King Associates, P.C.,

James D. & James Scherer, Denver, F. for respondents. Meiklejohn, P.C., Turner and Scott A. Meiklejohn, Denver, for amicus curiae Colo- Lawyers rado Trial Ass’n.

Justice SCOTT Opinion delivered the the Court. respondents Ray and Paula

brought action Pizza Hut of America, Inc., Orson Thomas and Ronald (collectively Pulda “petitioners” or “Pizza Hut”), seeking damages for the child, death of their Shanae Keefe. The trial court damage ruled that claims were 18, 1991, respondents brought a April remedy provision of On by the exclusive barred Hut, Act, wrongful action Pizza Or- Compensation the Colorado Workers’ (1994 (the in the Supp.) son Thomas and Ronald Pulda District 3B C.R.S. section “Act”). City County of Denver appeals held that the Court The court of (1987).2 apply 6A C.R.S. remedy provision did not to under section exclusive wrong- respondents alleged that wrongful complaint claim because the In their death perform child was not “for and on Hut Paula to her nor- ful death of the Pizza coerced personal despite knowing of the em- her medical account of’ the mal work about and judgment damages and the was reversed ployee, Respondents claimed restrictions. directions. subsequent cause remanded with premature for the birth and addition, respon-

death of their child. In sought personal damages for dents emotional granted We certiorari determine outrageous theory. conduct distress under an remedy provision of the exclusive alleged complaint that the mother sus- against Act bars a tort claim an workp “bodily injury perma- a tained severe injury occurring in the prenatal employer’s nent nature” because of the non-employee Because we find that a lace.1 wrongful conduct. prenatal child who suffered as the negligence result of the of the mother’s em summary Pizza Hut filed a motion for ployer is not limited to remedies available judgment claiming wrongful that the Keefes’ law, compensation under our workers’ exclusivity death action was barred affirm the of the court of provisions court of the Act. The trial award- summary judgment

ed to Pizza Hut on all counts, concluding that Pizza Hut was im- liability Act. mune from under the employed by Pizza Hut Paula Keefe was appeals judg The court of reversed the August 1990 to March 1991 as an assis- trial court in v. Pizza Hut ment manager. tant Thomas and Ronald Orson America, (Colo.App. supervisors. 868 P.2d 1092 Pulda were Paula Keefe’s Pau- 1993) (not publication), and re pregnant August in selected for la Keefe learned she was began suffering in 1990 she manded the case to the trial court with di 1990 and October appeals complications preg- related to her rections. The court found medical compensation nancy. response complications, In to these workers’ statute its terms against treating physician imposed operate to bar a tort claim an a series of did not restrictions, wrongful of an em limiting her hours of work death work ployee’s appeals rea types of tasks she was allowed to child. The court of and the that “section 8-41-102 would not bar a perform. Despite those and other medical soned Keefe, employer by daughter was claim an precautions, her Shanae visiting child for sustained while prematurely born three months and died ten workplace there days complications arising employee at because later of medical employee.” Id. 868 premature The Keefes claim would be no from her birth. reasons, court Hut Paula to hours P.2d at 1094. For similar that Pizza coerced work appeals found that the exclusive perform tasks in violation of her medical restrictions, employee’s claim resulting pre- provision would not bar an work Shanae’s visiting subsequent for the death of a child the work mature death. birth another, act, neglect, granting default of and the order certiorari set forth the fol- or 1. Our would, lowing question “Does the exclusive for review: neglect, if death or default is such remedy provision Com- of the Colorado Workers' ensued, party injured had not have entitled pensation employ- Act a tort claim bar damages in to maintain an action and recover prenatal injury occurring in the work- er for case, thereof, then, every respect place?” corporation person who or the which liable, been if death had not en- would have provides part: 2. Section 13-21-202 relevant sued, damages shall be liable in an action for notwithstanding Action death. When the notwithstanding party injured. the death of act, person by wrongful caused death of a wrongful complete reasoning that a death claim it constitutes defense to civil tort place, liability employer. of an and on account of’ the is not “for employee, rather injury or of the but death remedy provi the exclusive Under of the child’s death. Id. for and on account Act, damages certain sion Finding that at 1094. by non-employees if are barred and death of claim derived they employ from” “derive child, and not an non-employee, the Keefes’ principle, ee. This known as derivative- Keefe, Paula doctrine, upon language is based appeals that the claim was court of concluded barring “for on the statute claims remedy provi not barred the exclusive personal injury account of’ death of or sion. Id. employee “accruing any person.” and to Un birth, leaving Because the child died after doctrine, derivative-injury der the a non-em wrongful parents sep- a death claim the with ployee’s may though claims be barred even any parent arate and distinct claim compensation provides the workers’ law no injuries, may personal we affirm the have for remedy injured non-employ substitute court of ee, injured employee. as it does to the See Macy’s California, Cal.App.3d Bell v. 212 II 1442, (1989). 447, 261 n. 7 455 It is well-settled Colorado that an in- jured remedy worker’s exclusive for previously applied We have the de employ- in the arise out of or course of rivative-injury recovery by to doctrine bar by proximately ment and are caused non-employees. example, certain For employment recovery under the workers’ wrongful brought against death action an statute, compensation section 3B heirs, employer by employee’s upon an based (1994 Supp.), which C.R.S. reads as follows: employee the death of an which occurred in Liability employer complying. of An scope and of course em employer complied provi- has who statute, ployment, by is barred since such Compen- of [the sions Colorado Worker’s an action is for and on account of the death Act], including provisions sation relat- employee. Ryan of an v. See Centennial insurance, ing subject to shall not be Track, Inc., 30, 35, Race 196 580 Colo. P.2d provisions [abrogating section 8-41-101 of (1978). 794, Similarly, 797 the exclusive rem assumption of of and defenses the risk edy provision of the Act bars contribution servant]; negligence employee of of fellow indemnity employer by and claims an employer nor shall such or the insurance parties injured third to an who are liable carrier, any, insuring employer’s if lia- employee, as these claims also arise out of bility subject any under said articles be to personal injury employ the death of or liability personal of other death or ee. See Williams v. White Mountain any employee, except provided to as (Colo. 423, Constr. Co. 749 P.2d 428 articles; action, all said and causes of 1988); MacDonald, 230, Hilzer v. 169 Colo. law, equity, proceedings, actions at suits in (1969). 237, 928, 454 P.2d 931-32 The deriv statutory rights and common law ative-injury precludes doctrine also civil ac remedies and on account such death for of by employee’s spouse against tions personal injury any or to such arising for loss of consortium out of any accruing person to are abolished personal injuries by suffered except provided in said articles. or employment. the course his her The added.) exclusivity (Emphasis provision preclusion rationale effectively accruing spouse’s rights strictly abolishes all claims in such cases are de of, of, any person personal on account of to an em- rivative and arise out Blair, ployee. Painting by employee. Triad See Co. v. 812 suffered See Alex (Colo.1991); Co., P.2d 638 v. Continental Sales ander Morrison-Knudsen 166 Colo. (1968), 118, 124, 397, Corp. Stookesberry, 170 P.2d 444 P.2d 400 cert. Colo. 459 de (1969). nied, statutory applies, 566 393 89 21 L.Ed.2d Where bar U.S. S.Ct. Nurseries, Inc., (1969); gardless injured, of whether the mother was Rodriquez v. separate to the child was (Colo.App.1991). P.2d subjects sepa- distinct and statute The exclusive case, right liability. rate In this the child’s however, apply, to the civil terms does not on account of of action arises out liability employers negligence tort injuries, personal and not own resulting or death to acts suffered the mother. The mother employed non-employ when the persons not happened and child to be at the same ee’s claims do not derive may have time —the fact mother employee. must determine however, injured, been is not a bar to tort subsequent and the recovery limiting for the child or a basis for inju Keefe derived from an Shanae recovery compen- the child’s to the workers’ ry to her mother. exclusivity provisions sation law. The do not Colorado, constitute a bar to a claim asserted jurisdictions, like other victim, third-party though even both the em- recognizes right bring a a child’s cause ployee injured together and the victim were prenatal injuries. Empire action for See Ca negligent in a as a result of the same act sualty Co. v. St. Paul Fire and Marine Ins. Co., single 1191, (Colo.1988); transaction. 764 P.2d 1196 see (Second)

generally Restatement of Torts (1979); Prosser, § § 869 L. Torts 55 William child, born, Legally, when (5th Annotation, 1984); Chase, ed. Roland F. position any in non- stands the same other Liability Injuries, Prenatal 40 A.L.R.3d public. member of the Civil ac for (1971). If a 1222 a child dies after birth as recovery damages of for tions for injuries, surviving prenatal parent result of injuries non-employees injuries to whose are may bring wrongful death claim derived employee’s injuries, in not derivative of an injuries. from the child’s See Callaham employees, cluding non-employee children of 291, (1963); Slavsky, P.2d 674 153 Colo. 385 language not of section 8- are affected purposes for of our Prosser example, 41-102. For section 8-41-102 analysis, it makes no difference that Shanae against employer by would not bar a claim injuries were sustained before her Keefe’s employee’s any non-employ child or other birth.3 injuries visiting while ee for sustained workplace, employee at the because there We also find that there is no differ employee. injury to the See would be no ence, determining purpose America, Inc., 767 Thompson v. Pizza Hut of statute, applicability of the exclusive (N.D.Ill.1991); Bell, F.Supp. 261 prenatal for to an an action between (1989); Cushing v. Time at 453 child, employee’s wrongful action (La.App.1989), Stores, Inc., Saver So.2d prenatal child for (La. denied, t. 556 So.2d 1281 cer in There which results the child’s death. 1990). It 8-41-102 does follows section fore, here is the issue under consideration by non-employee bar a claim a child who not daughter would have the Keefes’ injuries workplace. prenatal at the sustained right Pizza Hut for had a action agree petitioners that the While we with injuries. those her had she survived exclusivity provisions underlying policy of the system provide a no-fault petitioners that since of the Act is to The contend employer’s compensation limits the mother also claimed an which Act not case, immunity grounded liability, we note that the does it follows that overall employer’s liability non-employ injury in the alter the upon the mother’s conclude, however, employer’s as the result of the workplace. that re- ees so We separate question a fetus is a difficult of whether 3. Pizza Hut contends that a fetus in útero is mother, inseparable from mother and to the person since in this and distinct case, only can occur as the result of child therefore some baby hence was at was in fact born and the mother. The facts of this case separate person. the time of her death a us, however, today require do not to answer Accordingly, derive from an to her mother. Its negligence. we conclude holding premise “regard- exclusionary language of section 8-41- is based on the injured, apply to Shanae Keefe.4 less whether the mother was 102 does not separate to the child was and distinct Ill subjects from the mother’s Maj. separate liability.” op. at wrongful The Keefes’ death claim majority improp- 101. Because I believe the brought pursuant provisions was (1987). erly from their dissociates Shanae’s Section section 6A C.R.S. source, respectfully I dissent. transfers the cause of action creat 13-21-201 to the decedent’s ed section 13-21-202 agree IWhile that a child has a cause of heirs, in this case are the decedent’s who injuries, disagree action for in útero by this parents. The cause of action created majority’s conclusion that Shanae Keefe’s in statute arises out of tortious acts which injuries sustained while in útero can be di- jured the decedent and resulted the dece vorced her death; right dent’s the survivors’ of action is provide mother which the entire basis dependent upon right derivative of and Though majority recognizes this action. had, action which the decedent would have derivative-injury principles well settled injuries. deriva had she survived compensation, the context of it workers’ fails tive nature of the death action here properly incorporate analy- them into its places parameters it outside the of the exclu sis. sionary language contained section 8-41- pertinent Compensa- As here the Workers’ because the claim (Act) provides coverage tion Act of Colorado any personal injury is not derivative of for: herself, employee mother but rather is de action, law, of [ A]ll causes actions at suits from, upon, rived and based to the equity, in proceedings, statutory and and employee’s child. the Keefes are not rights common law and remedies and bringing barred from suit Pizza Hut for inju personal on account such death or daughter’s Accordingly, on their behalf. of ry any employee accruing such and of affirm the the court of any person_ 3B C.R.S. ROVIRA, C.J., dissents, and (1994 ERICKSON Supp.) VOLLACK, JJ., join in the dissent. added.) (Emphasis ROVIRA, dissenting: Chief Justice plain language The of the statute indicates majority injuries exclusivity holds that the its for all causes of action that subsequent death of Shanae Keefe did not on account employ- accrue of an holding majority pregnancy); Witty 4. Our is consistent with a fourth month of v. American Distributors, Inc., jurisdictions Capital other which have addressed this is General 636, 697 S.W.2d See, (Texas e.g., Thompson, F.Supp. (Tex.App.1985) sue. 767 at 918-19 641 Worker’s Com (“to bring pensation by have status to the cause of action it Act does not bar a claim asserted victim, fetus, third-party including makes no difference whether or not the fetus is an unborn occurs”); though viable at the time the Namislo v. even both the and the victim Chemicals, Inc., 573, (Ala. injured together 620 So.2d 575 were as the result of the same Akzo 1993) (exclusivity provisions negligent employer), Com act Workers' of the rev’d on other (Tex. 1987). pensation personal injury grounds, Bell, Act did not bar action 727 S.W.2d 503 But see (fetus daughter against employer insep for 261 at in 454 in útero is mother, juries daughter any injury claimed to have sustained in úte- arable from its can to it employer’s negligence); Cushing, only affecting ro as &result of occur as a result of some condition (a mother). injuries Although compensa 552 So.2d at 732 child who sustains the workers' remedy juris while útero "is entitled to assert a cause of tion exclusive statutes from other always precisely action in tort his mother's dictions are not worded in bom, statute, way already way analysis the same child who was same as the Colorado site, injured job applied typically on the mother's could assert in those cases does not turn on claim"); Buchhorn, statute, language such a Womack v. 384 Mich. the exact of the but rather 718, 218, (1971) (common depends scope derivative-injury 187 N.W.2d 222 law on the negligence brought appellate action can be on behalf of doctrine. The decisions of other states surviving negligently injured during helpful. child are therefore

103 exists, the fetal is relevant to E.g., v. White Mountain status ee. Williams (Colo.1988)(the Injuries Co., 423, injuries 425 are derivative.1 sus 749 P.2d Const. injuries by the exclusive tained útero are definition Act is meant to be injuries). sustained the fetus is all while womb. work-related (25th Dictionary, at 798 Stedman’s Medical doctrine, derivative-injury no Under the 1990). insepa ed. in útero the fetus is While any party cause of exists for who action Macy’s rable from its mother. See Bell v. a direct result of an em sustains 1442, California, Cal.App.3d 212 261 Cal. See, injury. ployee’s e.g., Alex work-related (1989). Indeed, Rptr. 447 I can think of no Morrison-Knudsen, 118, ander v. 166 Colo. injuries third-party situation where derive (1968) (when 444 P.2d the claim of an 397 directly employee’s injury more from the inju employee’s dependent derives from the by than a fetus while in ry employee, are covered útero. Keefe was Because Shanae denied, Act), by 393 U.S. cert. “on account mother’s of’ her work-related (1969). 715, 21 L.Ed.2d 706 For in S.Ct. injuries, her are covered the Act. stance, is no cause of action for surviv there ing during complaint killed reveals heirs of an Examination of the injuries. employment, scope course and even derivative nature of Shanae’s It though allegation contains no direct the heirs sustain their own distinct Sha- Track, nae, injuries. but rather her Ryan v. Centennial Race claims occurred 30, 35, 580 P.2d as a result of mother’s treatment. Para- Colo. 796-97 her (1978). alleges “[d]espite Similarly, graph no cause of action exists medical imposed for loss consortium based on a work restrictions on Mrs. Keefe work- though treating injury, physicians, related even loss of consor the Defendants com- injury recognized apart pelled on tium is an Mrs. to work a full-time Keefe Alexander, schedule, injured spouse. 166 Colo. at and to otherwise violate the medi- injuries, though 444 P.2d at 400. These cal work restrictions which had been im- “separate (Emphasis Paragraph posed.” supplied.) and distinct” from the worker, covered Act continues “that the death of Shanae are nevertheless proximate negligence they because derive from or are “on account was a result of the Defendants, of such acts of the their (1994 Paragraph 14 employee.” employees agents.” 3B then C.R.S. Thus, included, Supp.). question in a that conduct derivative- states such to, party was not “Defendant’s action is not whether third but limited failure “separate injury, sustained and distinct” to conform Keefe’s work schedule and Mrs. rather, job party’s injury requirements third duties to which whether the the medical but by Mrs. derived from a work-related source. were communicated to them Keefe’s treating physicians, failure to and their for- Throughout proceedings Paula these adequate implement mulate and an medical per- coerced has claimed that she was into disability According policy.” to the com- forming permitted by in excess of that work injuries plaint, Mrs. work-related Keefe’s doctor, she and that as a result sustained ultimately premature delivery caused re- bodily permanent injury of a severe and na- sulted Shanae’s death. allege also ture. She and her husband that majority’s disagree I also conclu- as a result of the defendant’s conduct the analogous injuries that are to prematurely child was and died. The sion Shanae’s bom by a majority [analyt- injuries may “it makes sustained child concludes that no be visiting workplace. ical], parent at difference that Shanae Keefe’s when necessarily Maj. op. Any not occur as were sustained before her birth.” does employee. In- Though agree viability at 101. not a result of an to the is deed, parent may present not a cause of action be when determinative of whether Maj. op. n. 3. I majority fact that was bom alive. at 101 believe 1. The dismissed the coverage inju- baby’s by relying ignores Act's were birth this conclusion sustained before workplace. particular baby on the that in this case the ries accrue in fact Here, injured. however, say I am the child is Sha- authorized that Justice solely join nae’s occurred as a result ERICKSON and Justice VOLLACK injuries. her mother’s work-related There dissent. negligent

was no treatment of Shanae inde-

pendent upon inflicted of the harm her moth-

er.

Further, employer’s relationship an employees

unborn its children of differs from typical relationship non-employees. employers option

While have to reduce liability persons by their risk of to third TITLE, In the Matter BALLOT restricting workplace, access to when CLAUSE, TITLE AND SUBMISSION pregnant involved such restric AND SUMMARY WITH A REGARD TO generally tions are unavailable. See Interna PROPOSED PETITION FOR AN Controls, Union, tional UAW Johnson AMENDMENT TO THE CONSTITU- 499 U.S. S.Ct. TION OF the STATE Colorado ADD- (1991) (striking protec L.Ed.2d 158 a fetal (PE- ING 2 TO SECTION ARTICLE VII policy battery manufacturing tion in a PROCEDURES), TITION plant).2 majority’s holding Under the broad Thomas M. Sutherland and Kenneth a cause of fetus has action for Katt, Petitioners, P. regardless work-related of whether pertained to the pregnancy.3 effectively subject Douglas Campbell Polhill, and Dennis liability two workplace standards of Proponents/Petitioners, control, over which has no aat time when carries high with it the likelihood that Bell, Buckley, Stephen ErkenBrack,

fetus Victoria will also occur. See Lennahan, policy at 455 (considering implications Rebecca Title allowing independent tort Board. actions for in útero by a fetus while in the 95SA149. No. workplace, including possibility of “finan cially by liability driven discrimination Supreme Colorado, con Court In employers”). my scious view the court’s En Banc.

holding today only increases the tension be June compensation law, tween workers’ tort law employment discrimination law. See Su Grover, Employer’s san S. Injury Fetal

Quandary Controls, Ky. Johnson after (1992-93). L.J. 639

Because I conclude Shanae Keefe’s

derived inju- from her mother’s work-related Act,

ries and are covered I dissent. In Johnson Controls Court struck a fetal that certain work-related risks of fetal ex- protection policy based on its discrimination ist. There, explained women. Court appropriate "[lit is no more for the courts than it 3. While preg- Paula Keefe’s claims related to her employers is for individual to decide whether a status, nant thus harm to Shanae reproductive important woman's role is more traceable to the claimed mistreatment of her family herself and her than her economic role.” mother, may simple future involve 194-95, cases work- Id. 499 U.S. at 111 S.Ct. at 1201. While relationship related bear no agree I pregnant the decision work while woman, pregnancy equally along but result harm believe that devastat- go autonomy acknowledgment ing must to the fetus.

Case Details

Case Name: Pizza Hut of America, Inc. v. Keefe

Court Name: Supreme Court of Colorado

Date Published: Jun 30, 1995

Citation: 900 P.2d 97

Docket Number: 93SC251

Court Abbreviation: Colo.