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The Colorado Court of Appeals avoided answering addressing the issue of potential personhood of a fetus in utero under the Survival Statute in Galindo v. Valley View Ass’n, (2017 COA 78).

Parents Jose and Erika Galindo filed various suits against Valley View Association, doing business as Valley View Hospital, after their daughter, Ariana, died in utero.

Plaintiffs’ complaint asserted causes of action against the hospital for negligence on behalf of Mr. Galindo, Mrs. Galindo, and Ariana (or her estate); negligent infliction of emotional distress on behalf of Mrs. Galindo; loss of consortium on behalf of Mr. Galindo; and wrongful death on behalf of Mr. and Mrs. Galindo. It also asserts that damages can be awarded for Ariana’s pre-death injuries under the survival statute, section 13-20-101, C.R.S. 2016.1 (“the Survival Statute”). The District Court ruled that Ariana was not a person for the purposes of the Survival Statute. So, it dismissed the wrongful death claim and negligence claim brought on behalf of Ariana’s estate. The District Court also certified its order as final under CRCP 54(b), stating there was “no just reason for delay”.

The plaintiffs appealed, asserting that the district court erred in dismissing their claims. The Court of Appeals found that the District Court’s conclusory ruling that there was no just reason for delay was not supported by the law or the record. It found that the District Court’s certification of the ruling as final was inappropriate, saying it did not explain the reasoning behind the ruling. The Court of Appeals said that dealing with the question of personhood under the Survival Statute was not necessary at this time, so it did not make a determination—and simply dismissed the appeal.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.

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