Petition for Writ of Certiorari — Pacheco v. DeFoor

(\ ; Bupreme iy Mart, U. .

Il -1877 a

MAY 22 1992

OFFICE _Ur_IHE CLERK

IN THE

Supreme Court of the United States

OCTOBER 1991 TERM

THE COLORADO DEPARTMENT OF HIGHWAYS and THI

COLORADO DIVISION OF HIGHWAYS, PHILLIP PACHECO,

EARMAN PACHECO, MERLE ZIMER, PHILLIP WEST, ROSS

HAMILTON, EDWARD FINK, JOHN M. SALAZAR, R.L.

CLEVENGER, DWIGHT BOWER, PHIL MCCULLOUGH, and

LOWELL JACKSON,

Petitioners,

V.

YVONNE E. DEFOOR, FRANK BOWEN; MARGIE BOWEN:

ELINOR M. BUTENHOFF: URS FREI: MICHAEL HATTON; THI

ESTATE OF ANNA HAYES, Deceased; THE CHILDREN AND

ESTATE OF ARLENE JOHNSON, Deceased: ESTATE OF JOHN

KILLEEN, Deceased; ESTATE OF MARKUS LANG, HERBERT

_LAND, as survivor, heir and personal representative of

Markus Lang, and THE ESTATE OF MARKUS LANG, RITA

LAND, as survivor, heir and personal representative of

Markus Lang and THE ESTATE OF MARKUS LANG, and

ELFRIEDE BORRILLO, as Special Administrator of the Estate of

Markus Lang; THE ESTATE OF DOUGLAS MACKENZIE,

Deceased; SUZANNE MACKENZIE: MICHAEL MCGARVEY,

NANCY MCGARVEY; BERNADINE M. REMMERS; CAROL J.

SMITH, THOMAS C. SMITH, and MEAGAN N. SMITH, a minor;

THE ESTATE OF GLADYS STEWART, Deceased: THE ESTATE O!

SOL STEWART, Deceased; THE CHILDREN AND ESTATE OF

KEITH WALTERS, Deceased; THE CHILDREN AND ESTATE OF

KATHLEEN WALTERS, Deceased; HOROSHI YOSHIOKA:

MORDEKHAY FUMISHIKA; MASHASIKI NAKAYAMA; MIKAYO

TAJIMA: and RODNEY ALVA WEST: and CLARENDON

NATIONAL INSURANCE COMPANY; SAN JUAN TOURS, IN¢

[continued]

d/b/a GRAY LINE Tours: and all persons or entities suffering,

or claiming to suffer. damages resultant from the August 10,

1987, collision between a boulder and a Gray Line Tour Bus

on U.S. Highway 40, about seven miles east of Winter Park.

Colorado, while the bus was on Berthoud Pass,

Respondents,

and

THE STATE OF COLORADO. by and through the Colorado State

Claims Board of the Division of Risk Management,

Plaintiff-Appellee,

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF COLORADO

David R. Brougham

Alan Epstein

of HALL & EVANS

1200 - 17th Street, Suite 1700

Denver, Colorado 80202

(303) 628-3300

Attorneys For Third-Party

Defendants and Counter

Defendants-Appellees, Phillip

Pacheco, Earman Pacheco.

Merle Zimer, Phillip West.

Ross Hamilton, Edward Fink.

John M. Salazar. R_L.

Clevenger, Dwight Bower.

Phil McCullough, and Lowell

Jackson

I

QUESTIONS PRESENTED

|. Whether the Colorado Supreme Court’s order revers-

ing the trial court’s dismissal of claimants’ civil rights claims

against the individually named public official and employee

third party defendants, which implicitly acknowledges the

validity of claimants’ allegations of constitutional violations

arising out of a roadway accident, erroneously elevates an

ordinary tort claim into a case of constitutional dimension

and is inconsistent with this Court’s recent holding in Collins

v. City of Harker Heights, Texas. Ih acmnneny 12 CE

1061, 117 L.Ed.2d 261 (1992) and other decisions of this

Court.

2. Whether the Colorado Supreme Court’s decision erro-

neously holds that the individually named third party defend-

ants are not entitled to qualified immunity as a matter of law.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED..................

OPINION BELOW ........................

Ch ty: 6, a |

CONSTITUTIONAL AND STATUTORY

oO Se ee ee a aa

I

|

STATEMENT OF RELATED CASES........... 4

REASONS FOR GRANTING THE WRIT ....... 4

A. The Colorado Supreme Court’s Order

Reversing the Trial Court’s Dismissal of

Claimants’ Civil Rights Claims Against the

Individual Public Official and Employee

Third-Party Defendants, Which Implicitly

Acknowledges the Viability of Claimants’

Allegations of Constitutional Violations

Arising out of a Roadway Accident,

Erroneously Elevates an Ordinary Tort

Claim Into a Case of Constitutional

Dimension and is Inconsistent With This

Court’s Recent Holding in Collins v. City of

Harker Heights, Texas, USS. me by:

S. Ct. 1061, 117 L.Ed.2d 261 (1992) and

Other Decisions of this Court .......... 4

B. The Colorado Supreme Court’s Decision

Erroneously Holds That the Individually

Named Defendants are not Entitled io

Qualified Immunity as a Matter of Law ... )

EP 8 nee eich pean abt iy Grilaret, Uet m ler 14

ii

TABLE OF AUTHORITIES

CASES

PAGE

Anderson v. Creighton, 483 U.S.

635, 107 S. Ct. 3034, 97 L.Ed.2d

ge 7) Sr es enn 9, 10, 12, 13, 14

Baker v. McCollan, 443 U.S. 137.

99 S. Ct. 2689, 61 L.Ed.2d 433

SEO TEEs wanv ie ce eet 4

City of Canton, Ohio v. Harris, 489

U.S. 378, 109 S. Ct. 1197. 103

L.Ed.2d 412 (1989) ........... 11

Collins v. City of Harker Heights,

Texas, Set , tte oe CL

1061, 117 L.Ed.2d 261 (1992). ... i, 5, 6, 8, 13, 14

Daniels v. Williams, 474 U.S. 327.

106 S. Ct. 662, 88 L.Ed.2d 662

Ls Pe eet ate aan 4,8,9

Dawson vy. Milwaukee Housing

Authority, 930 F.2d 1283 (7th Cir.

Pees ee ee ee ee 13

Harlow v. Fitzgerald, 457 U.S. 800.

102 S. Ct. 2727, 73 L.Ed.2d 396

LS: Pan aPene arr iey arieeny gece ; 3, 9, 42,13

Martin v. D.C. Metro. Police Dept.,

812 F.2d 1425 (D.C. Cir. 1987)... 10

Martinez v. California, 444 U.S.

277, 100 S. Ct. 553 62 L.Ed.2d

et Ces Vea I |

McCrary v. O'Hare, 786 F.2d 863

(dnd Cir. 1986) .... 2... une ee. 4

Mitchell v. Forsythe, 472 U.S. 511.

105 S. Ct. 2806, 86 L.Ed.2d 411

Li +) Pai ere Neiman os a 5 | iz, -45

PAGE

Monell v. New York City Dept. of

Social Services, 436 U.S. 658,

98 S. Ct. 2018, 56 L.Ed.2d 611

ia Pe eee eee ear 8, 10

Paul v. Davis, 424 U.S. 693,

96 S. Ct. 1155, 47 L.Ed.2d 405

2, rere ene ALY te) 4,5

Rankin v. City of Wichita Falls,

Texas, 762 F.2d 444 (Sth Cir.

Poe) sok ea ee eee 4

Rizzo v. Goode, 423 U.S. 362,

96 S. Ct. 598, 46 L.Ed.2d 561

462, ee yee re ru aren op 10

Ruge v. City of Bellevue, 892 F.2d

738 (0th Cir. E908) oo ee ec 13

STATUTES AND OTHER AUTHORITIES

oe Uae BE! 6 ee eee

Qc UA. See sea 1, 3, 4, 6, 8, 9-11, 13, 14

(kd s SEs reo ce ee ee eee 3

§24-10-114(1)(b), C.R.S. (1988 Repl.

VOR: Te ee eee ae.

ea OS ee a

OPINION BELOW

The decision of the Colorado Supreme Court has been

published at 824 P.2d 783 (Colo. 1992). The Berthoud Pass

claimants’ petition for rehearing was denied on February 24,

1992. in

JURISDICTION

This Court has jurisdiction to entertain this petition for

certiorari pursuant to the provisions of 28 U.S.C. §1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves 42 U.S.C. § 1983:

Civil Action for Deprivation of Rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereot

to the deprivation of any rights, privileges, or immu-

nities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. For

the purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.

STATEMENT OF THE CASE

This case involves a roadway accident in Colorado. pre-

cipitated when a boulder being moved by third-party defen-

dant Phillip Pacheco, an employee of plaintiff. The State of

Colorado, rolled downhill on an upper switchback on the west

side of Berthoud Pass and struck a tour bus. Claimants are the

2

twenty-five individuals injured in the accident and the survi-

vors ofthe nine individuals killed in the accident. The indi-

vidual third-party defendants are State Department of

Highways employees in the-chain of supervision from Mr.

Pacheco, the loader operator, to the Department director.

The Colorado Attorney General initiated the litigation

by filing an interpleader action in Denver District Court on

January 6, 1988. (Vol. I, pp.1-36) The Attorney General

attempted to deposit the sum of $400,000 with the registry of

the court (Vol. I, pp.37-38) pursuant to the statutory limita-

tion on damages in tort litigation involving public entities

pursuant to §24-10-114(1)(b), C.R.S. (1988 Repl. Vol. 10A)

which states:

The maximum amount that may be recovered

under this Article in any single occurrence, whether

from one or more public entities and public employ-

ees, shall be:

* * *

For an injury to two or more persons in any single

occurrence, the sum of $400,000; except that, in

such instance, no person may recover in excess of

$150,000.

Claimants counterclaimed against the State of Colorado

and filed a motion for summary judgment contending that

§24-10-114(1)(b), C.R.S. violated their right to equal protec-

tion of the laws, access to courts, and due process of law. (Vol.

I, pp.104-113; Vol. IV, pp.1153-1200) Claimants also filed

third-party claims against the individually named defend-

ants, who are officials and employees of the Colorado Depart-

ment of Highways, generally alleging that they were following

the customs and policies of the State of Colorado in their

ditch-clearing operations and that “such acts and omissions

were grossly negligent, reckless, and showed deliberate indif-

ference to the public safety and human life, including but not

limited to that of the defendant counterclaimants and other

3

members of the traveling public.” (See amended counter-

claims and third-party complaint of Clarendon National

Insurance Company, San Juan Tours, Inc., d/b/a Gray Line

Tours, and Rodney Alva West, 147, Vol. III, pp.786-797)

Claimants also contended that the conduct of the individual

third-party defendants in carrying out the policies and cus-

toms of the State of Colorado violated their constitutional

rights and sought redress under 42 U.S.C. §1983.

The individual third-party defendants filed a motion to

dismiss claimants’ 42 U.S.C. §1983 claims, contending that

the factual allegations contained in claimants’ counterclaims

did not state a claim for relief under 42 U.S.C. §1983. (Vol.

IX, pp.2362-2364) The individual third-party defendants

also alleged in their motion to dismiss that they were entitled

to qualified immunity under Harlow v. Fitzgerald, 457 U.S.

800, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982).

The trial court granted the individual third-party

defendants’ motion to dismiss claimants’ civil rights claims,

leaving claimants’ state law tort claims pending against the

individual third-party defendants.' (Vol. X, pp.2526-2534)

The trial court also held that the damage limitation contained

in §24-10-114(1)(b), C.R.S. was not unconstitutional.

Claimants appealed the trial court’s rulings to the Colo-

rado Supreme Court. The Colorado Supreme Court afirmed

the trial court’s order upholding the constitutionality of §24-

10-114(1)(b). However, the Court reversed the trial court’s

entry of summary judgment with respect to claimants’ civil

rights claims against the individual third-party defendants.

Without articulating any specific rationale, or specific facts

allegedly in dispute, the Court held that issues of material fact

remained coxncerning claimarts’ §1983 allegations. 824 P.2d

at 793.

| The trial court certified pursuant to C.R.C.P. 54(b) the dismissed

constitutional claims for purposes of appeal.

4

STATEMENT OF RELATED CASES

There are no related cases.

REASONS FOR GRANTING THE WRIT

A. The Colorado Supreme Court’s Order Reversing the Trial

Court’s Dismissal of Claimants’ Civil Rights Claims

Against the Individual Public Official and Employee

Third Party Defendants, Which Implicitly Acknowledges

the Viability of Claimants’ Allegations of Constitutional

Violations Arising out of a Roadway Accident, Errone-

ously Elevates an Ordinary Tort Claim Into a Case of

Constitutional Dimension and is Inconsistent With This

Court’s Recent Holding in Collins v. City of Harker

Heights, Texas, US. , 112 S. Ct. 1061, 117

L.Ed.2d 261 (1992) and Other Decisions of this Court

42 U.S.C. §1983 may not be construed to augment or

replace state tort law even where a public entity or employee

may be a tortfeasor. Daniels v. Williams, 474 U.S. 327, 106S.

Ct. 662, 88 L.Ed.2d 662 (1986); Baker v. McCollan, 443 U.S.

137, 99S. Ct. 2689, 61 L.Ed.2d 433 (1979); Paul v. Davis, 424

U.S. 693, 96S. Ct. 1155, 47 L.Ed.2d 405 (1976). The analysis

necessary to differentiate tortious behavior by a state actor

from that involving the deprivation of a federal civil right

demands consideration of both the acts challenged and the

Status or role of the accused tortfeasor. When such an inquiry

reveals that only the public employment status of one

tortfeasor differentiates that tortfeasor from any other, no

justification exists to allow a federal civil rights claim against

the public entity or employee. McCrary v. O'Hare, 786 F.2d

863 (2nd Cir. 1986); also see Rankin v. City of Wichita Falls,

Texas, 762 F.2d 444 (Sth Cir. 1985). Of particular signifi-

cance to claimants’ allegations against the individual third-

5

party defendants in this case is the following statement of this

Court in Paul v. Davis, supra:

Respondent, however, has pointed to no specific

constitutional guarantee safeguarding the interest he

asserts has been invaded. Rather, he apparently

believes that the Fourteenth Amendment’s Due Pro-

cess Clause should ex proprio vigore extend to him a

right to be free of injury wherever the State may be

characterized as the tortfeasor. But such a reading

would make of the Fourteenth Amendment a font of

tort law to be superimposed upon whatever system

may already be administered by the States. We have

noted the ‘constitutional shoals’ that confront any

attempt to derive from congressional civil rights

statutes a body of general federal tort law [cite], a

fortiori, the procedura! guarantees of the due process

clause cannot be the source for such law.

96 S. Ct. at 1160.

The line of demarcation between tort law and civil rights

litigation derives from the obvious Congressional purpose to

provide a remedy for the abuse of authority arising under

color of state law, in the form of 42 U.S.C. §1983, rather than

to occupy the field of tort relief against public entities pursu-

ant to the federal supremacy clause.

The distinction between the two types of cases was

recently addressed by this Court in Collins v. City of Harker

Heights, Texas, supra. There, an employee in the respondent

city’s sanitation department died of asphyxia after entering a

manhole to unstop a sewer line. His widow brought an action

under 42 U.S.C. §1983 alleging that her husband had a right

under the due process clause to be free from unreasonable

risk of harm and to be protected from the city’s custom and

policy of deliberate indifference toward its employees’ safety.

She further alleged that the city had violated that right by

following a custom and policy of not training its employees

about the dangers of working in sewers and not providing

ve

6

safety equipment and warnings. The district court dismissed

the complaint on the ground that it did not allege a constitu-

tional violation. The Fifth Circuit Court of Appeals affirmed

on the theory that there had been no “abuse of governmental

power” which the court found to be a necessary element of a

42 U.S.C. §1983 claim. This Court rejected the reasoning of

the Fifth Circuit, but affirmed its holding. The court did so on

the basis that, allegations of “‘custom and policy of deliberate

indifference” notwithstanding, the facts of the case did not

give rise to a claim of constitutional proportion; the case

presented a simple tort claim. The Court stated:

We are also not persuaded that the city’s alleged

failure to train its employees, or to warn them about

known risks of harm, was an omission that can prop-

erly be characterized as arbitrary, or conscience-

shocking, in a constitutional sense. Petitioner’s

claim is analogous to a fairly typical state law tort

claim: The city breached its duty of care to her hus-

band by failing to provide a safe work environment.

Because the due process clause ‘does not purport

to supplant traditional tort law in laying down rules

of conduct to regulate liability for injuries that

attend living together in society, Daniels v. Wil-

liams, 474 U.S. at 332, we have previously rejected

claims that the due process clause should be inter-

preted to impose federal duties that are analogous to

those traditionally imposed by state tort law [cites].

112 S. Ct. at 1070.

The Colorado Supreme Court’s decision in this case

cannot be reconciled with Collins v. City of Harker Heights,

Texas or with previous decisions of this Court recognizing the

distinction between civil rights claims and ordinary tort

actions. Claimants’ claims here are analogous to a fairly

typical state law tort claim. Claimants contend that, with

‘““deliberate indifference’ the individual third-party

7

defendants followed customs and administered policies of the

State of Colorado in:

(a) pushing large rocks, boulders and debris, which

are dangerous and lethal to the traveling public, over

embankments and slopes, without stopping or warning

public traffic lawfully traveling on highways or roadways

below;

(b) Requiring maintenance workers to work on

projects involving the movement of dangerous and lethal

rocks to the traveling public, in the absence of orders or

direction from superiors;

(c) Requiring maintenance workers to move danger-

ous and lethal rocks and boulders without adequate

instruction, training, guidance, and supervision;

(d) Requiring or allowing employees of the State of

Colorado, the Colorado Department of Highways and/or

Colorado Division of Highways to perform ditch-clear-

ing operations and other highway maintenance tasks on

mountainous terrain without adequate assistance from

co-employees;

(e) Failing to post adequate numbers of flag persons

and warning signs so as to stop traffic when ditch-clearing

operations are performed on mountainous terrain;

(f) Training, instructing, supervising, and guiding

employees of the State of Colorado, the Colorado

Department of Highways and/or Colorado Division of

Highways to perform ditch-clearing operations in moun-

tainous terrain in a highly dangerous manner In grossly

negligent, reckless, and deliberate disregard of the public

safety;

(g) Emphasizing excessive work production stan-

dards by the State of Colorado, the Colorado Depart-

ment of Highways and/or Colorado Division of

a

8

Highways employees with inadequate regard for the pub-

lic safety;

(h) Requiring maintenance workers to forego known

and relatively simple procedures to break dangerous and

potentially lethal rocks into smaller, safer, and more

manageable sizes.

(Amended counterclaims and third-party complaint of Clar-

endon National Insurance Company, San Juan Tours, Inc.,

d/b/a Gray Line Tours, and Rodney Alva West, 1 46). (Vol.

III, pp. 786-797) These activities challenged by claimants are

no different in nature from activities that might be under-

taken by various private enterprises. A mining company, log-

ging firm, or private road building contractor could find the

ordinary operations of its business generating a claim identi-

cal to those involved here. Claimants’ allegations reveal that

the only distinguishing aspect of this accident, when com-

pared to an ordinary tort, is the involvement of government

employees. Alone, this element cannot transform the matter

into a 42 U.S.C. §1983 case. As only the employer of these

alleged tortfeasors distinguishes this from other tort actions,

no cognizable civil rights claim exists. Daniels v. Williams,

supra; Collins v. City of Harker Heights, Texas, supra.

Moreover, claimants’ allegations against the individual

third-party defendants confuses the requisite conduct on the

part of a public entity giving rise to liability under §1983 with

allegations which are necessary to give rise to liability under

§1983 of an individual public official or employee. Claimants’

allegations regarding the individual third-party defendants

carrying out the “customs and policies” of the State of Colo-

rado would be relevant if they were directed at a municipal-

ity. Monell v. New York City Dept. of Social Services, 436

U.S. 658, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978) (local gov-

erning bodies can be liable under §1983 where the action that

is alleged to be unconstitutional implements or executes a

policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers, 98 S. Ct. at

9

2035-2036). Those same allegations directed at these individ-

ual third-party defendants are irrelevant. The appropriate

inquiry is whether the third-party defendants, with at least

deliberate indifference, violated constitutional rights of

claimants which were clearly established at the time of the

accident. Daniels v. Williams, supra; Anderson v. Creighton,

483 US. 635, 107 S. Ct. 3034, 97 L.Ed.2d 523 (1987).

Since the allegations contained in claimants’ third-party

complaint against the individual third-party defendants

states no more than an ordinary tort cause of action, the

Colorado Supreme Court erred in holding that further factual

determinations were necessary with respect to the 42 U.S.C.

§1983 claims. However, assuming, arguendo, that the third-

party complaints did allege a constitutional violation pursu-

ant to §1983, as discussed below, any right claimants may

have had, or may now have, under the Constitution were not

“clearly established” at the time of this accident and, there-

fore, the individually named third-party defendants were

entitled to qualified immunity as a matter of law.

B. The Colorado Supreme Court’s Decision Erroneously

Holds That the Individually Named Defendants are not

Entitled to Qualified Immunity as a Matter of Law

Pursuing any §1983 civil rights claim for damages

against an individual public servant, in the individual capac-

ity of such person, requires that a claimant satisfy the four

part test announced in Anderson v. Creighton, supra, and

overcome the qualified immunity of public officials described

in Harlow v. Fitzgerald, supra.

The test announced by Anderson v. Creighton, supra,

allows a civil rights damage remedy against a public servant

only once all of the following are shown:

1. The specific conduct of each named individual

involved;

2. The alleged constitutional provision(s) implicated:

|

10

3. The contours of the constitutional provision(s), as

clearly established at the time of the individual

employee’s behavior; and

4. How the behavior of each individual employee

caused the rights violation alleged.

A civil right damages claimant must also convince a

court that each named defendant was postured to recognize,

as a reasonable person, that the challenged conduct

threatened the established constitutional rights of the claim-

ant, prior to any discovery or evidentiary process. No part of

the Anderson requirements were satisfied by claimants’ third-

party complaints and, therefore, the Colorado Supreme

Court’s order of remand was inappropriate.

The third-party complaint allegations do not include any

reference to specific conduct by individual State employees

sufficient to determine just what each such person did in

relation to this suit. At best, the only specific information

relates to allegations that one person moved the rock in ques-

tion. Nowhere else are specific actions or behaviors of indi-

vidual employees particularized in the fashion demanded by

Anderson v. Creighton. In the absence of particularized allega-

tions, an adequate claim against an individual under 1983

cannot exist. Martin v. D.C. Metro. Police Dept., 812 F.2d

1425, 1434 (D.C. Cir. 1987). Claimants may not rely on any

inference of participation by named individuals in the super-

vision and control of roadway maintenance policy and proce-

dure. Such reliance constitutes no more than an effort to

implicate individuals, in their individual capacities, as a mat-

ter of respondeat superior, impermissible under § 1983.

Monell v. Dept. of Social Services, supra; Rizzo v. Goode, 423

U.S. 362, 96 S. Ct. 598, 46 L.Ed.2d 561 (1976).

Claimants’ reliance on existing highway department pol-

icy and procedure as the basis for these claims also highlights

their dependence on factors possessing potential significance

only in the analysis of public entity liability under § 1983, but

1]

without any relevance to the analysis of public employee lia-

bility. See City of Canton, Ohio v. Harris, 489 U.S. 378,

109 S. Ct. 1197, 103 L.Ed.2d 412 (1989).

The specific constitutional protections invoked by

claimants also fail to sustain these claims. The allegations do

not indicate that any identified constitutional provision

could be implicated by a roadway accident, as those provi-

sions were contoured in August, 1987. Claimants’ substantive

due process argument advanced in the Colorado Supreme

Court is illustrative. No significant debate exists regarding the

inability of government to deprive citizens of property with-

out due process, either procedurally or substantively. None-

theless, claimants can refer the Court to no judicial precedent

announced prior to August, 1987, that reflects the implication

of due process in any factual setting at all similar to this one.

The source of this shortcoming is apparent. No court ever

considered a highway accident as possessed of constitutional

significance, at least before this case arose. Standing alone,

the complete absence of judicial guidance on the issue pre-

cludes claimants’ effort to link government rock disposal

practices to constitutional infringements, at least to the

extent such claims are directed at individuals in their individ-

ual capacities.2 Only when the impact of a specific action ona

clearly established right is predictable or apparent, can the

2 Claimants never stated what particular highway department policy

or procedure they challenge. For purposes of this discussion, claimants

appear to be alleging that some State policy or procedure allowed work-

ers to roll boulders down slopes in the course of roadway maintenance.

Even proof that such a policy or procedure were in effect could not

provide any basis for the assumption that a predictable constitutional

consequence existed, however. Absent an historical basis for expecting

a constitutional claim, no individual employee could formulate the

requisite intent to face § 1983 damages liability. See Daniels v. Wil-

liams, supra, and Martinez v. California, 444 U.S. 277, 285, 100 S.Ct

553, 559, 62 L.Ed.2d 481 (1980).

12

immunity granted in Harlow to government workers be over-

come. Mitchell v. Forsythe, 472 U.S. 511, 105 S. Ct. 2806, 86

L.Ed.2d 411 (1985).

Claimants’ argument, espoused by Colorado Supreme

Court Justice Mullarkey in her special concurrence in part

and dissent in part, that their constitutional rights to life,

liberty, and freedom of travel were infringed as the result of

this accident reflects an incomplete analysis of the issue. For

purposes of qualified immunity, the court must inquire not

only into the type of harm visited on the claimant, but also

upon the specific act of the defendant. This same argument

was addressed by this Court in Anderson v. Creighton as

follows:

For example, the right to due process of law is

quite clearly established by the Due Process Clause,

and thus there is a sense in which any action that

violates that Clause (no matter how unclear it may

be that the particular action is a violation) violates a

clearly established right. Much the same could be

said of any other constitutional or statutory viola-

tion. But if the test of ‘clearly established’ law were

to be applied at this level of generality, it would bear

no relationship to the objective legal reasonableness

that is the touchstone of Harlow. Plaintiffs would be

able to convert the rule of qualified immunity that

our cases plainly establish into a rule of virtually

unqualified liability simply by alleging violation of

extremely abstract rights. Harlow would be trans-

formed from a guarantee of immunity into a rule of

pleading.

It should not be surprising, therefore, that our

cases establish that the right the official is alleged to

have violated must have been ‘clearly established’ in

a more particularized, and hence, more relevant

sense: The contours of the right must be sufficiently

clear that a reasonable official would understand that

13

what he is doing violates that right. This 1s not to say

that an official action is protected by qualified

immunity unless the very action in question has pre-

viously been held unlawful [cite], but it is to say that

in the light of pre-existing law the unlawfulness must

be apparent. (Emphasis added)

107 S. Ct. at 3039.

While claimants’ rights to life. liberty and travel were in

a generalized sense violated, the individual third-pariy

defendants could not have known that their conduct in con-

ducting ditch clearing operations would violate those rights.

The only case factually bearing any resemblance to this action

is Ruge v. City of Bellevue, 892 F.2d 738 (8th Cir. 1989), in

which the Eighth Circuit Court of Appeals held that a munici-

pality could be held liable under §1 983 for having a deliberate

policy of not shoring up ditches and then requiring employees

to work in them without warning of the dangers. However.

Ruge is a case involving a public entity defendant, not an

individual employee of the entity. Ruge was announced after

the accident occurred in this case. Moreover, Ruge has been

explicitly criticized by the Eighth Circuit Court of Appeals,

Dawson v. Milwaukee Housing Authority, 930 F.2d 1283,

1285-1286 (7th Cir. 1991), and implicitly rejected by this

Court in Collins v. City of Harker Heights, Texas, supra, by its

holding that similar conduct did not implicate 42 U.S.C.

§ 1983. Therefore, it would have been impossible for defend-

ants to have known that their conduct in ditch clearing opera-

tions could violate a clearly established constitutional right.

This Court held in Mitchell v. Forsythe, supra, that quali-

fied immunity is an entitlement not to stand trial under cer-

tain circumstances and that even such pretrial matters as

discovery are to be avoided if possible. Also see Anderson \

Creighton, supra; Harlow vy. Fitzgerald, supra. This Court also

noted in Anderson v. Creighton, supra, that one of the pur-

poses of the Harlow qualified immunity standard 1s to protect

public officials from the broad ranging discovery that can be

14

peculiarly disruptive of effective government. For this reason,

this Court has emphasized that qualified immunity questions

should be resolved at the earliest possible stage of a litigation.

Anderson vy. Creighton, 107 S. Ct. at 3042, n.6. Since the

allegations contained in claimants’ third-party complaints do

not, as a matter of law, overcome the individual third-party

defendants’ qualified immunity defense, the Colorado

Supreme Court erred in remanding the matter for further

hearings in this regard.

CONCLUSION

This case presents a unique and long awaited opportu-

nity for this Court to define where the actions of public

employees depart from traditional tort theory and enter the

field of 42 U.S.C. § 1983. The Colorado Supreme Court sug-

gests that this is to be measured by the degree of fault alleged

against the public employee who has admittedly injured the

claimant. If this is the test, then every act resulting in injury

becomes, through artful pleading, a recognized claim under

§ 1983. Harker Heights and Anderson v. Creighton leave no

doubt that this 1s not the test. Although the ‘abuse of govern-

mental power” test utilized by the Fifth Circuit was explicitly

rejected by this Court in Harker Heights, no clearly defined

alternative was articulated in its place. Rather, the Court held

that “[p]Jetitioner’s claim is analogous to a fairly typical state

law tort clam... ” 112 S. Ct. at 1070. Clearly it is, but

why? Until guidance is provided by this Court “fairly typical

state law tort claims” such as claimants’ here will continue to

be misconstrued as torts of Constitutional proportion.

15

Dated this 20th day of May, 1992.

Respectfully submitted,

A

DAVID R. BROUGHAM

ALAN EPSTEIN

of HALL & EVANS

1200 - 17th Street

Suite 1700

Denver, Colorado 80202

(303) 628-3300

ATTORNEYS FOR

PETITIONERS, PHILLIP

PACHECO, EARMAN

PACHECO, MERLE ZIMER.,

PHILLIP WEST, ROSS

HAMILTON, EDWARD FINK.

JOHN M. SALAZAR, R.L.

CLEVENGER, DWIGHT

BOWER, PHIL

MCCULLCUGH, and LOWELI

JACKSON

16

CERTIFICATE OF MAILING

I hereby certify that on this 20th day of May, 1992 a true

and correct copy of the foregoing PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF THE

STATE OF COLORADO was mailed by placing the same in

the United States Mail, postage prepaid, addressed as follows:

Leland P. Anderson, Esq.

Sears, Anderson & Swanson, P.C.

Denver Centerpoint, Suite 810

3900 E. Mexico Avenue

Denver, Colorado 80210

Victoria C. Swanscn, Esq.

Sears, Anderson & Swanson, P.C.

2 North Cascade Avenue; Suite 1250

Colorado Springs, Colorado 80903

Thomas L. Roberts. Esq.

Mark P. Martens, Esq.

Pryor, Carney & Johnson

6200 South Syracuse Way, Suite 400

P.O. Box 6559

Englewood, Colorado 80155-6559

William L. Keating, Esq.

David Struthers, Esq.

Fogel, Keating & Wagner

1199 Bannock Street

Denver, Colorado 80204

H. Paul Himes, Esq.

Aisenberg & Kaplan

1600 Broadway, Suite 2000

Denver, Colorado 80202

ea

Gregg E. Kay, Esq.

First Assistant Attorney General

Office of the Attorney General

Tort Litigation Section

110 - 16th Street, Tenth Floor

Denver, Colorado 80202

Eugene Sprague, Esq.

Eason, Sprague & Wilson

1625 Broadway, #900

Denver, Colorado 80202-4709

Yvonne DeFoor

c/o Colorado Public Justice Foundation

Attn: Arthur Pina

P.O. Box 37311

Denver. Colorado 80237

Dennis H. Mark

Colorado Trial Lawyers Association

1600 Stout Street, #1300

Denver, Colorado 80202

Michael C. Maher

1050 31st Street, N.W.

Washington, D.C. 20007

John Gelhausen

1888 Sherman Street. #370

Denver, Colorado 80203

J. Kent Miller

Miller & McCarren

370 - 17th Street, #3050

Denver, Colorado 80202

Daniel S. Hoffman

Boyd N. Boland

Holme, Roberts & Owen

1700 Lincoln, #4100

Denver, Colorado 80203

Frederic K. Conover, II

Faegre & Benson

370 - 17th Street, #2500

Denver, Colorado 80202

Kathleen E. Haddock

Colorado Municipal League

1660 Lincoln Street, #2100

Denver, Colorado 80264

Susan K. Griffiths

Tami A. Tanoue

Elizabeth E. Salkind

Griffiths & Tanoue

Blake Street Terrace

1860 Biake Street, #550

Denver, Colorado 80202

Mac V. Danford

Clerk, Colorado Supreme Court

2 East 14th

Denver, Colorado 80203

Gi