     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            January 10, 2019

                                 2019COA3

No. 17CA1381, Garcia v. Colorado Cab Company LLC — Torts
— Negligence — Rescue Doctrine

     In this case, a division of the court of appeals addresses the

limits of the rescue doctrine — a theory of liability that extends a

defendant’s liability to a plaintiff who attempted to rescue someone

(1) to whom the defendant owed a duty and (2) who was in danger

because of the defendant’s negligence. The division holds that to

qualify as a rescuer under the doctrine, a plaintiff must have

physically intervened, meaning the plaintiff must have displayed

bodily movement and effort to rescue the person to whom the

defendant owed a duty.
COLORADO COURT OF APPEALS                                            2019COA3


Court of Appeals No. 17CA1381
City and County of Denver District Court No. 16CV30746
Honorable A. Bruce Jones, Judge


Jose Garcia,

Plaintiff-Appellee,

v.

Colorado Cab Company LLC, a Colorado limited liability company, d/b/a
Denver Yellow Cab,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division VII
                         Opinion by JUDGE J. JONES
                       Navarro and Márquez*, JJ., concur

                         Announced January 10, 2019


Foster Graham Milstein & Calisher, LLP, Daniel S. Foster, Laura M. Martinez,
Chip G. Schoneberger, Denver, Colorado, for Plaintiff-Appellee

White and Steele, PC, John M. Lebsack, Keith R. Olivera, Dmitry B. Vilner,
Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    Jose Garcia sued Colorado Cab Company for negligence after a

 person who had been a passenger in one of Colorado Cab’s taxis

 assaulted him on the street. The district court ruled that Colorado

 Cab owed a duty of care to Garcia. A jury determined that Colorado

 Cab had breached that duty of care and awarded damages. We

 conclude that, as a matter of law, Colorado Cab didn’t owe a duty of

 care to Garcia. So we reverse the judgment and remand the case

 for entry of judgment for Colorado Cab.

                          I.   Background

¶2    Late one night, cab driver Ali Yusuf picked up Curt Glinton

 and Glinton’s friend in Denver. The passengers, both of whom were

 apparently intoxicated, didn’t (and perhaps couldn’t) give Yusuf an

 address to which to drive, but instead told him where and when to

 turn. When they got to 44th Avenue and Tejon Street, Glinton told

 Yusuf to stop. Yusuf did so, but when he told the passengers the

 fare was $6.50, Glinton yelled and cursed at Yusuf, who explained

 the fare and told Glinton to pay. Glinton then grabbed and

 punched Yusuf from behind. (There wasn’t a partition between the

 front and back seats. There was a panic button, but Yusuf wasn’t

 able to press it.)


                                  1
¶3    Before all this unfolded, Garcia, sitting in his brother’s house

 near the intersection of 39th Avenue and Tejon Street, had called

 for a cab. Some time later, sitting inside the home, looking out the

 window, he thought he saw a taxi drive by. (It was dark, so he

 wasn’t sure what company the taxi was from.) Thinking it might be

 the taxi for which he had called, he followed it for about “two, three

 blocks.”1 As it turned out, this was Yusuf’s cab. When Garcia got

 closer, he saw the stopped taxi and could hear Glinton and Yusuf

 arguing. He approached the taxi, asked what was going on, told

 Glinton to leave Yusuf alone, and told Glinton and Yusuf to stop

 fighting. Glinton told Garcia to “mind [his] own fucking business.”

 Glinton and Yusuf got out of the cab. Garcia again told Glinton and

 Yusuf to stop fighting. Glinton then apparently attacked Garcia,

 who testified that he didn’t remember fighting back.

¶4    Garcia was hit from behind on the head. (He wasn’t sure who

 hit him.) Glinton got in the driver’s seat of the taxi and sped off.

 But before going too far, he abruptly turned around and drove

 toward Garcia and Yusuf, who were standing in a parking lot entry


 1Given the address from which Garcia saw the taxi go by, he must
 have walked almost five blocks.

                                    2
 lane. Glinton swerved toward Garcia and Yusuf. Yusuf jumped out

 of the way, but Glinton hit Garcia with the taxi, ran him over, and

 dragged him down the street.

¶5    Garcia’s injuries were extensive — they included shattered ear

 drums, a traumatic brain injury, a fractured eye socket, three

 broken ribs, a torn anterior cruciate ligament, other torn ligaments,

 and more injuries causing hip and back pain. To recover for these

 injuries, Garcia sued Colorado Cab and Yusuf.2 As to Colorado

 Cab, he alleged that the company’s negligent failure to take safety

 measures, such as installing partitions and security cameras in the

 taxi, caused his injuries. He also asserted a claim of unjust

 enrichment against Colorado Cab.

¶6    Colorado Cab moved for summary judgment, arguing that it

 didn’t owe Garcia a duty of care and that any breach of such a duty

 hadn’t proximately caused Garcia’s injuries as a matter of law. The

 district court denied the motion. At trial, Colorado Cab twice moved

 for a directed verdict based on the same arguments; the court

 denied those motions as well.


 2 Garcia dropped his claims against Yusuf at trial after Yusuf
 testified.

                                   3
¶7    The jury found in Garcia’s favor on the negligence claim, and

 the court entered judgment against Colorado Cab. The district

 court denied Colorado Cab’s subsequent motion for judgment

 notwithstanding the verdict, reasoning that a common-

 carrier/passenger relationship between Colorado Cab and Garcia

 gave rise to a duty of care; Colorado Cab owed a duty of care to

 Yusuf, as an employee; and, because of the duty of care owed to

 Yusuf, the “rescue doctrine” also supported imposing liability on the

 company.

                            II.   Discussion

¶8    Colorado Cab appeals the district court’s determination that it

 owed Garcia a duty of care, the decision to submit the issue of

 proximate cause to the jury, and the denial of its motion for post-

 verdict setoff of Garcia’s medical bills that were covered by

 Medicaid.3 Because we conclude that, under the circumstances of




 3 Garcia initially cross-appealed the court’s denial of his unjust
 enrichment claim. But in his answer brief, he makes no argument
 concerning that claim, saying instead that the court didn’t rule on it
 and that we should remand for a determination of that claim in the
 event we reverse the judgment on the jury’s verdict. The district
 court said, however, that it had made a “final determination” of that
 claim. It was therefore incumbent on Garcia to argue on appeal

                                    4
  this case, Colorado Cab didn’t owe Garcia a duty of care to protect

  him against attacks from former taxi passengers, we needn’t

  address the other two issues.

                        A.    Standard of Review

¶9     Colorado Cab first argues that the district court erred in

  determining that it owed Garcia a duty of care. Because the

  existence and scope of a duty are questions of law, we review the

  district court’s decision de novo. Cary v. United of Omaha Life Ins.

  Co., 68 P.3d 462, 465 (Colo. 2003).

                             B.   Discussion

                   1.    Common Carrier/Passenger

¶ 10   Since Garcia alleges that Colorado Cab’s failure to take safety

  measures caused his injuries, this is a case involving nonfeasance

  — the defendant’s failure to prevent harm — rather than

  misfeasance — active misconduct creating harm. See Davenport v.

  Cmty. Corr. of Pikes Peak Region, Inc., 962 P.2d 963, 967 n.6 (Colo.




  why the court’s denial of that claim was wrong in order to keep that
  claim alive. He didn’t, so it isn’t.

                                    5
  1998).4 In such cases, a duty exists only if there is a “special

  relationship” between the plaintiff and the defendant. See N.M. v.

  Trujillo, 2017 CO 79, ¶ 3; Davenport, 962 P.3d at 967; Perreira v.

  State, 768 P.2d 1198, 1214-15 (Colo. 1989). Such special

  relationships include common carrier/passenger, possessor of

  land/invited entrant, possessor of land/licensee,

  employer/employee, and hospital/patient. See § 13-21-115, C.R.S.

  2018 (Premises Liability Act); Univ. of Denver v. Whitlock, 744 P.2d

  54, 58 (Colo. 1987).

¶ 11   Denying Colorado Cab’s motion for judgment notwithstanding

  the verdict, the district court ruled that Colorado Cab owed Garcia

  a duty of care for several reasons, including that there was a




  4 To the extent the district court viewed this case as one of
  misfeasance, rather than nonfeasance, we conclude the court erred.
  Colorado Cab didn’t take any action to harm Garcia. According to
  Garcia, it merely failed to install certain safety devices to protect its
  cab drivers. The fact Yusuf may have called out for help wasn’t, in
  our view, an act increasing a risk of harm to passers-by like Garcia.
  It remained Garcia’s choice whether to intervene, call 911, or do
  nothing.

                                      6
  common-carrier/passenger relationship between them.5 We

  disagree.

¶ 12   A common carrier generally owes its passengers a heightened

  duty of care. See Publix Cab Co. v. Fessler, 138 Colo. 547, 552-53,

  335 P.2d 865, 868 (1959) (“The carrier-passenger relationship . . .

  [required the cab company] to exercise the highest degree of care

  and the slightest deviation from this constitutes negligence toward

  the passenger.”).

¶ 13   In Publix Cab, on which the district court relied, the supreme

  court applied this heightened duty to a passenger who hadn’t yet

  entered a vehicle. The plaintiff had called a cab to a trucking

  terminal. Id. at 550, 335 P.2d at 867. Ignoring posted signs, the

  cab driver drove into the terminal and waited there for the plaintiff.

  Id. As the plaintiff approached the left rear door to get into the cab,

  a truck began backing into it, causing the plaintiff to be thrown to

  the ground, injuring his back and hip. Id. at 550-51, 335 P.2d at

  867. The court held that the cab company owed a duty to the

  plaintiff to provide a safe place for him to be received, and that the


  5Garcia hasn’t asserted that any other “special relationship” existed
  between him and Colorado Cab.

                                     7
  company breached that duty by entering the trucking yard despite

  the posted warnings. Id. at 553, 335 P.2d at 868-69.

¶ 14   Publix Cab is clearly distinguishable. No evidence showed that

  Garcia was a passenger or even a prospective passenger of Yusuf’s

  cab. Colorado Cab hadn’t dispatched that cab to pick up Garcia; it

  was mere coincidence that Garcia had called for a cab and that one

  driven by Yusuf passed the house in which he was awaiting a taxi.

  And though Garcia followed the taxi for several blocks, he heard the

  fight — discovering that the cab was already occupied — while he

  was still at least half a block away. We conclude that, as a matter

  of law, this isn’t enough to create a common-carrier/passenger

  relationship.6




  6 Garcia doesn’t appear to directly defend the district court’s
  common-carrier/passenger determination. Instead, he urges that
  there was “a duty to Garcia akin to that of a common-
  carrier/passenger relationship.” (Emphasis added.) But he cites no
  support in law for such a duty, asserting only that simply by calling
  for a cab a duty arises encompassing any cab that caller might
  thereafter see. And he makes no effort to justify imposition of such
  a direct duty based on the relevant factors identified in Colorado
  case law, such as Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.
  1987).

                                    8
                        2.    The Rescue Doctrine

¶ 15   Colorado Cab could still be liable for Garcia’s injuries if (1) it

  was negligent with respect to Yusuf and (2) Garcia was Yusuf’s

  rescuer. (Garcia made this argument to the district court, and both

  parties discuss Garcia’s rescuer status extensively on appeal.) But

  we conclude that, even viewing the facts in the light most favorable

  to Garcia, he wasn’t a rescuer.7

¶ 16   The rescue doctrine extends a defendant’s liability to a plaintiff

  who attempts to rescue someone (1) to whom the defendant owed a

  duty and (2) who was in danger because of the defendant’s

  negligence. The Restatement (Third) of Torts explains that

                if an actor’s tortious conduct imperils
                another . . . , the scope of the actor’s
                liability includes any harm to a person
                resulting from that person’s efforts to aid
                or to protect the imperiled person . . . , so
                long as the harm arises from a risk that
                inheres in the effort to provide aid.

  Restatement (Third) of Torts: Liability for Physical and Emotional

  Harm § 32 (Am. Law Inst. 2010). Unless the rescuer suffers a

  different harm than would reasonably be anticipated by the rescue,



  7For this reason, we don’t address whether Colorado Cab owed a
  duty to Yusuf.

                                     9
  the defendant’s liability extends to the rescuer. Id. at cmts. b, c;

  see also W. Page Keeton et al., Prosser and Keeton on the Law of

  Torts § 44, at 307-08 (5th ed. 1984).

¶ 17   Colorado cases discussing the rescue doctrine require that the

  rescuee have been “in imminent peril, requiring immediate action to

  avoid physical harm.” Connelly v. Redman Dev. Corp., 533 P.2d 53,

  55 (Colo. App. 1975) (not published pursuant to C.A.R. 35(f)) (citing

  Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862 (1952)). But for the

  doctrine to apply, more is required. The nature of the purported

  rescuer’s conduct is also critical. Examples of qualifying rescue

  scenarios include “where one impulsively dashes in front of a swiftly

  moving vehicle to rescue a child from its path, or plunges into a

  raging stream to save a drowning victim of the flood.” Maloney, 125

  Colo. at 135, 241 P.2d at 867. These examples indicate that to be

  deemed a rescuer, the plaintiff must have taken some concrete

  physical action — that is, some bodily movement and effort — to

  save the other person from imminent peril.

¶ 18   Case law from other jurisdictions supports this notion. There

  must have been




                                    10
          some act of intervention, e.g., moving a vehicle,
          searching for a missing person, attempting to
          restrain a horse, running into a burning
          building, flagging down traffic, administering
          first aid, moving a burning barrel, or jumping
          into a swimming pool. . . . It is not reasonable
          that the rescue doctrine be extended to all who
          run to the scene of a calamity to see what
          happened and on the chance that they might
          be able to do some good.

Barnes v. Geiger, 446 N.E.2d 78, 82 (Mass. App. Ct. 1983)

(discussing the “common thread” of active, physical intervention in

cases recognizing the rescue doctrine); see also Hassanein v.

Avianca Airlines, 872 F. Supp. 1183, 1187-88 (E.D.N.Y. 1995)

(applying New York law); Lambert v. Parrish, 492 N.E.2d 289, 291

(Ind. 1986) (“We hold that a rescuer must in fact attempt to rescue

someone. A rescuer is one who actually undertakes physical

activity in a reasonable and prudent attempt to rescue.”); Stevenson

v. Delahaye, 310 So. 2d 651, 653-54 (La. Ct. App. 1975);

Restatement (Third) of Torts: Liability for Physical and Emotional

Harm § 32 illus. 1-5.8




8 This requirement of physical intervention appears also to be
implicit in the meaning of “rescue.” See Webster’s Third New
International Dictionary 1930 (2002) (defining to “rescue” as “to free
from confinement, violence, danger, or evil”).

                                  11
¶ 19   There was, to be sure, evidence that Yusuf was in imminent

  peril. But Garcia merely approached the cab and told Yusuf and

  Glinton to stop fighting. There’s no evidence in the record that he

  attempted to physically intervene; he didn’t, for example, get

  between the two men or try to pull one away from the other. Cf.

  Schwartzman v. Del. Coach Co., 264 A.2d 519, 519-20 (Del. Super.

  Ct. 1970) (rescue doctrine didn’t apply to one who merely gave a

  verbal warning of impending peril to another). It follows that the

  rescue doctrine doesn’t apply in this case.

                            III.   Conclusion

¶ 20   Because of our conclusions that there was no common-

  carrier/passenger relationship and Garcia wasn’t a rescuer, there

  was no basis for extending any duty to Garcia. So the district court

  erred in denying Colorado Cab’s directed verdict and post-trial

  motions.9

¶ 21   The judgment is reversed, and the case is remanded to the

  district court to enter judgment in Colorado Cab’s favor.

       JUDGE NAVARRO and JUDGE MÁRQUEZ concur.


  9Because of our resolutions of the issues addressed, we need not
  consider any of Colorado Cab’s other issues on appeal.

                                    12
