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Talking to a baseball executive recently, I expressed the thought that David Samson, the president of the Florida Marlins, was probably the most disliked executive in baseball. I was thinking about Samson because I had just written about the Marlins' questionable treatment of their rookie left fielder, Logan Morrison, in demoting him to the minors.
However, my executive friend disagreed. If not Samson, I asked, who? Jeff Wilpon, he said.
Wilpon is the New York Mets' chief operating officer and son of Fred Wilpon, the team's principal owner. Jeff Wilpon is the first of those descriptions because of the second. He did not studiously work his way up to his executive position, but he has earned his reputation of most disliked executive.
What has son of Fred done lately? He has deprived the economically struggling city of Newark, N.J., and the area's baseball fans of a 2012 season of first-class AAA minor league baseball, refusing to waive the Mets' right to block a team from playing in territory it shares with the Yankees.
Borrowing from my favorite author, Dr. Seuss, Wilpon is the Grinch who stole baseball from Newark.
We can't blame Fred Wilpon for the decision because he told Jeff to handle it. Fred has enough tsuris (Yiddish for aggravation) of his own, fighting for his baseball life as the result of a multi-million dollar lawsuit filed by the trustee for victims of Bernie Madoff's gigantic Ponzi scheme.
The problem with a rich man letting his unsophisticated son handle simple matters is he is capable of simply messing it up. That's what the younger Wilpon did in the Newark matter.
Wilpon declined to talk about the matter, saying he hadn't said anything about it publicly and wasn't going to start now.
The Yankees needed a place for their AAA Scranton team to play next season while its own park was undergoing a $40 million renovation. The Yankees looked around and decided Newark would be a good location.
The city has a ball park and a team that plays in it, but it is an independent minor league team and city officials were looking forward to having a top-class Yankees' farm team, if only for a season.
"Given our city's great history of minor league baseball, Newark would be the perfect venue for the Yankees' Triple-A affiliate," Mayor Cory Booker of Newark said in a statement in response to a request for a telephone interview. "We are hopeful that the Mets will reconsider their decision to veto this temporary move."
The mayor unfortunately was not up to date with developments. The Yankees took the Mets' veto seriously and worked out a solution. The Scranton-Wilkes Barre team announced last week that it would play its 72 home games at six different sites: Rochester (N.Y.) 37, Syracuse (N.Y.) 10, Lehigh Valley (Pa.) 8, Batavia (N.Y.) 7, Buffalo (N.Y.) 6, Pawtucket (R.I.) 4.
This is what Jeff Wilpon hath wrought. He could have said yes, and the Scranton players could have had a sane season, playing all of their games in one city and not needing to include a G.P.S. in their equipment bags with their gloves and bats.
In addition, unemployed workers could have had jobs for five months and others could have had jobs fixing and cleaning the city-owned ball park. Fans could have seen games at affordable prices unlike those that the Mets and the Yankees charge. Families could have actually attended games together.
None of this, however, was Wilpon's concern; no sense of compassion there. What Wilpon cared about, said an official familiar with his thinking, was the concern that by allowing the Yankees' AAA team to play in Newark, he would allow the Yankees to develop young fans at the Mets' expense.
I don't have access to demographic studies of the residences of Mets and Yankees fans, but historically New Jersey residents are mostly Yankees fans and Long Island residents are predominantly Mets fans. How many future fans could the Mets possibly lose from a single minor league season in Newark?
But the Mets felt they would face an overload of Yankees influence in the area because the Yankees already had minor league teams in Trenton (N.J.) and Staten Island (N.Y.).
The Yankees were able to put a team on Staten Island as part of a territorial deal in which the Mets were able to put a team in Brooklyn.
Besides the Mets' perceived problem with prospective future fans, they felt the Yankees came to them with their request too late for them to give it proper consideration.
But the Mets had enough time to come up with reasons not to waive their veto rights.
Internally, within the Mets' organization, that is, Wilpon has veto rights by nature of his position. But according to executives of other teams, Wilpon exercises poor judgment and often makes life difficult for the team's general managers.
Omar Minaya has declined to talk about his six-year tenure as the Mets' general manager, but other executives have said they believed that Wilpon was calling many of the shots.
There was one time – in Minaya's last winter in the job, I believe – when I thought he was acting strangely in his negotiations with agents for free agents. He was negotiating with them one at a time instead of running parallel negotiations.
I was critical of him for doing that, but I subsequently decided that he did it because Wilpon had not allowed him to negotiate for more than one free agent at a time.
Then there the time that Wilpon forced Minaya to apologize to a reporter, Adam Rubin of the New York Daily News, after Minaya publicly questioned Rubin's ethics. Minaya, however, had been right in his position because Rubin had spoken with Wilpon about getting a job in baseball while he was covering the Mets.
Sandy Alderson, Minaya's successor, is completing his first season in the job, and I have already heard that he is growing tired of Wilpon's suffocating presence.
Sons of wealthy owners seldom make competent baseball executives. But their fathers are blind to their shortcomings. I would guess that no other owner would hire Jeff Wilpon as his chief operating officer, even if he had played baseball and knew the difference between home plate and the pitching rubber.


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Related post: quantities, given the amount of physical resources, such as energy, at hand to perform the measurement. 2) One important consequence of the physical nature of measurement is the so-called "quantum back action": The extraction of information from a system can give rise to a feedback effect in which the system configuration after the measurement is determined by the measurement outcome. For example, the most extreme case (the so-called von Neumann or projective measurement) produces a complete determination of the post-measurement state. When performing successive measurements, quantum back action can be detrimental, because earlier measurements can negatively influence successive ones. 3) A common strategy to get around the negative effect of back action and of Heisenberg uncertainty is to design an experimental apparatus that monitors only one out of a set of incompatible observables: "less is more" [3]. This strategy, called "quantum nondemolition measurement" [3-6], is not as simple Buy Norethindrone Acetate as it sounds. One has to account for the system's interaction with the external environment, which tends to extract and disperse information, and for the system dynamics, which can combine the measured observable with incompatible ones. Another strategy to get around the Heisenberg uncertainty is to employ a quantum state in which the uncertainty in the observable to be monitored is very small (at the cost of a very large uncertainty in the complementary observable). The research on quantum-enhanced measurements was spawned by the invention of such techniques [3] and by the birth of more rigorous treatments of quantum measurements. 4) Most standard measurement techniques do not account for these quantum subtleties, so that their precision is limited by otherwise avoidable sources of errors. Typical examples are the environment-induced noise from vacuum fluctuations (the so-called "shot noise") that affects the measurement of the electromagnetic field amplitude, and the dynamically induced noise in the position measurement of a free mass (the so-called "standard quantum limit"). These sources of imprecision are not as fundamental as the unavoidable Heisenberg uncertainty relations, because they originate only from a non-optimal choice of measurement strategy. However, the shot noise and standard quantum limits set important benchmarks for the quality of a measurement, and they provide an interesting challenge to devise quantum strategies that can defeat them. 5) In summary: Quantum mechanics, through the Heisenberg uncertainty principle, imposes limits on the precision of measurement. Conventional measurement techniques typically fail to reach these limits. Conventional bounds to the precision of measurements such as the shot noise limit or the standard quantum limit are not as fundamental as the Heisenberg limits and can be overcome using quantum strategies that employ "quantum tricks" such as squeezing and entanglement. References (abridged): 1. H. P. Robertson, Phys. Rev. 34, 163 (1929) 2. N. Margolus, L. B. Levitin, Physica D 120, 188 (1998) 3. C. M. Caves, K. S. Thorne, R. W. P. Drever, V. D. Sandberg, M. Zimmermann, Rev. Mod. Phys. 52, 341 (1980) 4. K. Bencheikh, J. A. Levenson, P. Grangier, O. Lopez, Phys. Rev. Lett. 75, 3422 (1995) 5. G. J. Milburn, D. F. Walls, Phys. Rev. A. 28, 2065 (1983) Science http://www.sciencemag.org -------------------------------- Related Material: QUANTUM PHYSICS: ZERO-POINT FLUCTUATIONS The following points are made by Miles Blencowe (Nature 2003 424:262): 1) In 1927, Werner Heisenberg (1901-1976) introduced his famous quantum principle, which states that the uncertainties in the position and the velocity of a particle are inversely proportional to each other: a particle's position or its velocity can be known precisely, but not both at once. This principle is one of the cornerstones of quantum mechanics, and is traditionally relevant to the domain of subatomic particles. But what about more familiar macroscopic objects, comprising many atoms, that we think of as possessing simultaneously well-defined positions and velocities of
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Either Sheriff Whittle was misquoted in this article or he doesn't know what he is talking about when trying to justify the expenditure...
Columbia County News-Times ©2016. All Rights Reserved.


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August 3, 2011
Washington, DC -- The AIDS Institute is pleased to announce that the event registration link is active for the 4th annual National HIV/AIDS and Aging Awareness Day (NHAAAD) scheduled for September 18, 2011. The theme for NHAAAD is "Aging is a part of life; HIV doesn't have to be."
NHAAAD focuses on the challenging issues facing the aging population including HIV prevention, care and treatment. The campaign primarily targets 1) People living with HIV/AIDS (PLWHAs) who are aging with the disease or already over 50 at the time of their initial diagnosis, 2) Increasing use of protection from HIV infection, especially among the baby boomer population, and 3) Increasing number of grandparents becoming the primary guardians for children who have lost their parent(s) to HIV/AIDS.
The AIDS Institute (TAI) invites organizations and community members who plan, implement and participate in awareness activities or events on or around September18, 2011, register their events at 2011 NHAAAD Event Registration.
"We are very excited to launch the registration link for NHAAAD. We strongly encourage those planning events to register them, not only on a local, regional but national level to truly gain support for these events through TAI's ongoing marketing efforts", states Michelle Scavnicky, Director of Education at The AIDS Institute.
In addition, the NHAAAD poster series was recently developed by The AIDS Institute along with its partners to assist individuals or organizations in their outreach, media and marketing efforts. The goal of the poster series is to emphasize the 30 year anniversary of HIV, highlight relevant data regarding the HIV/AIDS and aging population, and use diverse images in the overall messaging resulting in a broader reach among the target population.
To register your event, please visit 2011 NHAAAD Event Registration.
To download the NHAAAD poster series and other campaign materials, please visit www.NHAAAD.org.


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All Resources by Noël Piper
Hidden Treasures Thrift Store
Piper in Kenya
Finally! A Blossom in the Desert
I emailed a friend last week. Miriam Rockness, who edited this book, earlier wrote the book that introduced me to Lilias Trotter, A Passion for the Impossible. I was so inspired by her story that I included it in…
"Behold, It Was Very Good." But Now?
How I Fight Bossiness
The Tradition of the Pastors Conference Speakers Dinner
Talitha Interviews the Rebelution Guys
When we knew Alex and Brett Harris would be in town for the DG Pastors' Conference, we wanted to catch them for an interview. Who better to interview two popular young bloggers than another young person? The guys were…
So You Want to Be a Writer?
I Almost Died
Another Reason to Give Thanks
Recipe for Thanks-giving
Most of All Jesus Loves You (Tract)
This tract is adapted from the bedtime book for preschoolers that tells the great truth that of all people who love a child, Jesus loves him or her most!
It's wonderful to have parents, grandparents, brothers and sisters, and uncles…
On Father's Day 2007
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He died? Oh no!
Holy Week at the Pipers'
A Month of Preparation for Easter
Ordinarily at the Piper house, we begin looking toward Easter near the beginning of Lent, which begins on Ash Wednesday. That was February 21 this year. During the season, we have special devotional readings…
Lenten Lights
Not a Curse, but a Blessing
Forgiveness, Forbearance, and Fertilizer
What my husband said last Sunday at the end of a sermon on forgiveness and forebearance in marriage
Picture your marriage as a grassy field. You enter it at the beginning full of hope and joy. You look out into…


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Sealing a Smile Packs a Preventive Punch
Delta Dental endorses oral health value of school-based dental sealant programs
OAK BROOK, Ill. (Sept 18, 2012) - Why is 80 percent of tooth decay found in only 25 percent of children, disproportionately kids from low-income families?1 The answer is multifold and complex, but Delta Dental believes that school-based dental sealant programs are a large part of a workable solution.
"Sealants are a key part of children's preventive dental care," said Dr. Bill Kohn, DDS, Delta Dental's vice president for dental science and policy. "The one-two punch of sealants and fluoride (in toothpaste and water) along with a proper diet can almost totally prevent new tooth decay."
National surveys by the Centers for Disease Control and Prevention (CDC) indicate that only 38 percent of children and teenagers ages 12 to 19 have dental sealants. This number is much lower among children from low-income families and certain races/ethnicities with higher tooth decay rates who would benefit most from sealants.1
Dental sealants are a critical but underutilized component of preventive dentistry. They can save families time, money and the discomfort of dental fillings. Sealants are thin, plastic coatings applied to the pits and grooves of teeth to protect them from the bacteria and foods that lead to tooth decay. First and second permanent molars are the most likely to benefit from sealants, so it's best if the sealant is applied soon after those teeth appear, before they have a chance to decay (usually ages 6 and 12).
A sealant is virtually 100 percent effective if fully retained on the tooth, and studies have shown they remain intact 92 to 96 percent of the time after one year and 67 to 82 percent after five years. Sealants should be checked at each regular dental appointment and can be reapplied if they are no longer in place.2
Sealants delivered through school-based programs have been shown to decrease tooth decay by 60 to 65 percent.3 Using school-based sealant programs at lower-income schools has proven to be highly effective in improving the oral health of those schoolchildren. Studies of children in either Medicaid programs or with private dental insurance show that placement of sealants on first and second permanent molars reduced the need for future cavity fillings.
About Delta Dental Plans Association
The not-for-profit Delta Dental Plans Association (www.deltadental.com), based in Oak Brook, IL, is the leading national network of independent dental service corporations. It provides dental benefits programs to more than 59 million Americans in more than 95,000 employee groups throughout the country. For more oral health news and information from Dr. Kohn and DDPA, subscribe to our blog and follow us on Twitter.
1Dye BA, Tan S, Smith V, Lewis BG, Barker LK, Thornton-Evans G, et al. Trends in oral health status: United States, 1988-1994 and 1999-2004. MD: National Center for Health Statistics. Vital Health Stat. 2007 Apr. 11 (248):1-91. Available from: http://www.cdc.gov/nchs/data/series/sr_11/sr11_248.pdf
2Griffin SO, Kolavic-Gray S, et al. Caries Risk in Formerly Sealed Teeth. Journal of the American Dental Association April 2009 vol. 140 no. 4 415-423
3Truman BI, Gooch BF, Sulemana I, et al. Reviews of evidence on Interventions to prevent dental caries, oral and pharyngeal cancers and sports-related craniofacial injuries. Am J Prev Med 2002; 23(1 suppl):21-54. www.thecommunityguide.org/oral/oral-ajpm-ev-rev.pdf. Accessed March 14, 2012.


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Just replaced all three mounts in my granddaughters 2003. Her car shook like an earthquake. Started the car up and it felt likes brand new car. Thanks to this site for guiding me in the right direction. Going to change all the mounts on my 2001 next. Car is starting to shake a little.
Depending on how the pass side one breaks it can indeed get pretty bad..............I still feel the older 4 point engine support used on previous models far superior to the 3 point used on these. They certainly don't vibrate near as bad when one mount comes apart.
Are there any aftermarket upgrades available on this note?
1 Attachment(s)
VF Engineering from FSwerks. Steeda and Massive also have poly mounts.
|All times are GMT -5. The time now is 06:39 PM.


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Mr. Kleckner
Welcome to an exciting year of learning!
by 10 Noah F
6th Grade
Article posted November 3, 2010 at 05:19 PM GMT0 •
comment • Reads 286
I learned that there are atoms in every thing. My best unit was the when we did the popcorn unit, because I got to eat popcorn. I not disliked any of it I loved the hole thing. What was you faverit part?
Article posted September 28, 2010 at 05:08 PM GMT0 •
comment • Reads 152
Hi this is 10 n here. I learn that particle are in matter. There is 3 was tips of heating up things,Conduction,Convection,and Radiation. Conduction is energy is transferred by direct contact. The one thing I like the best was the popcorn esprit.


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21 August
Revision as of 02:32, August 16, 2011 by 188.8.131.52 (Talk)
13,130pages on
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21 August is the 233th day of the year (234th in leap years). There are 132 days remaining until the end of the year.
- Arthur Weasley, along with his sons Ron, Fred and George Weasley, pick up Harry Potter from Number 4, Privet Drive in order to take him to the Quidditch World Cup the following day.
- (Unknown Year): Terry Boot's check-out of Quidditch Through the Ages from the Hogwarts Library ends.
Behind the scenes
- 1989: Robert Knox, who plays Marcus Belby in the film adaptation of Harry Potter and the Half-Blood Prince, is born.


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I know I do own a D200 ... but this Nikon is nice to carry but not what I call state of the art images. POSITIVE It is really small. It is fast enough. The control wheel is strait and easy. The lens stays inside. The movies is a real plus, even if you lover your D200. I had a Sony miniDV but this shoot, drag and drop logic is realy easy to use. Problems: NEGATIVE The image quality is realy bad. I had a old SONX DSC-V1 with a far better quality than this cam. Sometimes it produces good ...View review in forums Leave a comment on this review
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text: MikeG - Unregistered June 15, 2011 11:20 AM I am afraid that as long as Ross Brawn is the team principle at Merc GP then Michael is wasting his time. Every year he promises the world and delivers Jamaica. Please Ross retire and let somebody else take over ... and take the whole design team with you. 2 agree 34 disagree


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Colorado Court of Appeals -- August 1, 2013
2013 COA 119. No. 13CA0519. Mid Valley Real Estate Solutions V, LLC v. Hepworth-Pawlak Geotechnical, Inc.
Court of Appeals No. 13CA0519
Garfield County District Court No. 11CV260
Honorable Denise K. Lynch, Judge
Mid Valley Real Estate Solutions V, LLC, a Colorado limited liability company,
Hepworth-Pawlak Geotechnical, Inc., a Colorado corporation; Steve Pawlak; Daniel Hardin; and S K Peightal Engineers, Ltd., a Colorado corporation,
Division A
Opinion by JUDGE WEBB
Gabriel, J., concurs
J. Jones, J., specially concurs
Announced August 1, 2013
Garfield and Hecht, P.C., David L. Lenyo, Chad J. Schmidt, Avery A. Simpson, Aspen, Colorado, for Plaintiff-Appellee
Cardi, Schulte & Ford, LLC, Andrew S. Ford, Daniel V. Woodward, Greenwood Village, Colorado, for Defendants-Appellants Hepworth-Pawlak Geotechnical, Inc., Steve Pawlak, and Daniel Hardin
Montgomery Little & Soran, P.C., Echo D. Ryan, Shawn A. Eady, John R. Riley, Greenwood Village, Colorado, for Defendant-Appellant S K Peightal Engineers, Ltd.
Hogan Lovells US LLP, Craig A. Umbaugh, David A. DeMarco, Denver, Colorado, for Amicus Curiae Colorado Bankers Association
Bieging Shapiro & Barber LLP, John E. Burrus, Tracy A. Davis, Denver, Colorado, for Amicus Curiae Independent Bankers of Colorado
Cardi, Schulte & Ford, LLC, Phillip B. Cardi, Greenwood Village, Colorado, for Amici Curiae American Council of Engineering Companies of Colorado, American Institute of Architects of Colorado, Structural Association of Colorado, and The Colorado Association of Geotechnical Engineers
¶1 A construction professional has an independent duty "to act without negligence in the construction of a home," and a "home owner" may sue in negligence for breach of this duty. Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041, 1042-43 (Colo. 1983). This interlocutory appeal under C.A.R. 4.2 presents a legal question unresolved in Colorado: whether "home owner" includes a wholly-owned subsidiary of the construction lender on the project, which holds title to the home solely for purposes of resale? We conclude that it does.1
¶2 Defendants, Hepworth-Pawlak Geotechnical, Inc., Steve Pawlak, and Daniel E. Hardin (collectively H-P), the project soils engineer; and S K Peightal Engineers, LTD (SKPE), the project structural engineer, challenge an order denying their motion for summary judgment on the negligence claim of plaintiff, Mid Valley Real Estate Solutions V, LLC (Mid Valley), a wholly-owned subsidiary of Alpine Bank (bank), the construction lender. Defendants contend that summary judgment should have been entered because the economic loss rule precludes this negligence claim, which was based on extensive damage to the house caused by soil expansion.
¶3 We conclude that the independent duty announced in Cosmopolitan Homes and reaffirmed in A.C. Excavating v. Yacht Club II Homeowners Ass'n, 114 P.3d 862 (Colo. 2005), applies to defendants as residential construction professionals, and that Mid Valley's relationship to the construction lender does not take it outside the scope of this duty. Therefore, we affirm the trial court's denial of summary judgment because the existence of this duty renders the economic loss rule inapplicable, and we remand for further proceedings.
I. Facts
¶4 The relevant facts are undisputed for purposes of this appeal. A developer entered into a written contract with H-P to analyze the soil on which houses would be built for resale. As required under the contract, H-P produced a report, which recommended a particular type of foundation. The developer's general contractor entered into an oral contract with SPKE to provide structural engineering services, including foundation design. The general contractor built the house at issue according to H-P's recommendations and SPKE's designs.
¶5 After completing the house, the developer was unable to sell it and eventually defaulted on the construction loan agreement with the bank. To avoid foreclosure, the developer and the bank entered into a deed-in-lieu agreement. Under this agreement, the bank received $355,000, and title to the house was transferred to Mid Valley, which had been created to hold the house, its sole asset, for resale. In return, the bank forgave the remaining balance on the construction loan.
¶6 Soon after Mid Valley took title to the house, significant structural damage began to appear, starting with cracks in the foundation. As relevant here, Mid Valley sued defendants for negligence in failing to identify expansive soils and specify an appropriate foundation. Mid Valley sought damages for costs of repair.
II. Law
¶7 Tort and contract law are distinct, each imposing different obligations: while tort duties are imposed by law to protect against "physical harm or damage to . . . personal property," among other injuries, contractual duties arise solely from voluntary promises between parties. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 72 (Colo. 2004); see City of Westminster v. Centric-Jones Constructors, 100 P.3d 472, 483 (Colo. App. 2003) ("Tort duties are imposed by law without regard to any agreement."). To maintain this distinction, the Colorado Supreme Court adopted the economic loss rule in Town of Alma v. AZCO Construction, Inc., 10 P.3d 1256, 1264 (Colo. 2000) ("[A] party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law.").
¶8 Whether the economic loss rule applies in a particular case turns on the source of the duty at issue. Id. at 1262; Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282, 291 (Colo. App. 2009). Generally, if either the duty was created by contract or the applicable tort duty would duplicate "a duty also imposed by the contract," then the duty is not "independent" and the economic loss rule applies. Makoto USA, Inc. v. Russell, 250 P.3d 625, 627 (Colo. App. 2009); accord Grynberg v. Agri Tech, Inc., 10 P.3d 1267, 1269-70 (Colo. 2000).
¶9 This source of duty inquiry is illustrated by BRW, which turned on a series of contracts involving multiple parties on a commercial construction project. The supreme court held that the economic loss rule precluded a subcontractor's negligence suit against an engineer and the project supervisor because "the duties allegedly breached were contained in the network of interrelated contracts." BRW, 99 P.3d at 74. The court compared the defendants' contractual duties and remedies to those in negligence and concluded that "[t]he interrelated contracts . . . contain[ed the defendants'] duty of care, and [plaintiff's] remedies exist[ed] in contract." Id. Thus, the economic loss rule applied and precluded the subcontractor's claims. Id.
¶10 But less than a year later, in A.C. Excavating, 114 P.3d at 866, the supreme court reiterated that "the economic loss rule ha[s] no application" when the applicable duty is necessarily "independent of any contractual obligations that may have existed." The case arose from construction defects in a townhome project. Without mentioning the test announced in BRW – whether the parties' contracts provided a standard of care, and if so, whether that standard duplicated the applicable negligence duty – the court noted that "Cosmopolitan Homes specifically held that builders have an independent duty of care to act without negligence in the construction of homes" and allowed a negligence action to proceed against subcontractors. Id. at 867.
¶11 This independent duty was first recognized in Cosmopolitan Homes, 663 P.2d at 1042, which involved a negligence action by a home owner against a builder. The supreme court noted that the contract and negligence claims were distinguishable "and therefore they should be treated differently." Id. at 1045. The court held that "[a]n obligation to act without negligence in the construction of a home is independent of contractual obligations." Id. at 1042.
¶12 Although Cosmopolitan Homes predates the supreme court's adoption of the economic loss rule, "Town of Alma firmly establish[ed] that the economic loss rule does not apply to negligent construction claims against homebuilders because homebuilders have an independent duty of care to act without negligence in the construction of homes." A.C. Excavating, 114 P.3d at 867. And rather than limiting this duty, the supreme court expanded it beyond "builders" to include residential subcontractors. Id. at 868.
¶13 Colorado appellate courts have predicated this independent duty on the following policy considerations:
• Preventing "overreaching" by a builder, which is "comparatively more knowledgeable" and "is in a far better position to determine the structural condition of a house than most buyers," Cosmopolitan Homes, 663 P.2d at 1045 (quotations omitted);
• An "ordinary purchaser of a home is not qualified to determine when or where a defect exists," id. (quotations omitted);
• A purchaser of a home "rarely has access to make any inspection of the underlying structural work, as distinguished from the merely cosmetic features," id. (quotations omitted);
• The magnitude of the investment made when purchasing a home, id.;
• The foreseeability that a house will be sold to someone who is not the original owner, id.;
• The foreseeability that a construction professional's work on a house "is, ultimately, for the benefit of home[ ]owners and that harm to home[ ]owners from negligent construction is foreseeable," Yacht Club II Homeowners Ass'n v. A.C. Excavating, 94 P.3d 1177, 1181 (Colo. App. 2003), aff'd, 114 P.3d 862 (Colo. 2005); and
• An independent duty "discourage[s] misconduct and provide[s] an incentive for avoiding preventable harm," id.
¶14 In sum, "the issue of duty in the context of the economic[ ]loss rule differs depending upon whether one is evaluating the standard of care owed by commercial contractors or residential contractors." 7 Colo. Prac., Personal Injury Torts And Insurance § 10:40 (3d ed.). Thus, while application of the economic loss rule in commercial construction cases hinges on the "contractual context among and between the parties," BRW, 99 P.3d at 74, our supreme court continues to recognize an "independent duty of care" in residential construction. A.C. Excavating, 114 P.3d at 866. As a result, "the economic loss rule has no application" to negligence that produces latent defects in residential construction "and does not bar a plaintiff's tort claim." Id.
III. Application
A. Standard of Review
¶15 "The question whether the district court correctly applied the economic loss rule is one of law . . . ." Jorgensen v. Colo. Rural Properties, LLC, 226 P.3d 1255, 1258 (Colo. App. 2010). Application of law to undisputed facts is reviewed de novo, Schuessler v. Wolter, 2012 COA 86, ¶105, as is a trial court's summary judgment ruling. Shaw Constr., LLC v. United Builder Servs., Inc., 2012 COA 24, ¶ 13.2
B. Analysis
¶16 Whether Mid Valley falls within the class of plaintiffs who may enforce defendants' independent duty under Cosmopolitan Homes and A.C. Excavating depends on whether that duty, which arises from the services provided in constructing a home, is limited by particular characteristics of the party holding title when the latent defect ripens. We conclude that neither tort law in general nor Cosmopolitan Homes and A.C. Excavating in particular limit the duty of residential construction professionals based on whether the plaintiff who seeks damages to cure a latent defect is a traditional home owner – a natural person who occupies the premises. Rather, because that duty arises from the services provided and the residential nature of the project, the particular attributes of the owner harmed when the latent defect ripens do not limit the scope of the duty.
¶17 While Mid Valley is not a traditional home owner, it took title to a completed house from the original owner. Allowing defendants to avoid liability merely because Mid Valley is not a traditional home owner would afford defendants a windfall resulting solely from the fortuity that the latent defect caused damage before Mid Valley could sell the house. Thus, we conclude that the scope of defendants' duty is not limited based on Mid Valley's relationship with the bank, lack of occupancy, or status as a commercial entity holding title only for purposes of resale. We address these considerations separately as follows.
1. Mid Valley's Relationship to the Bank Does Not Make the Bank a
De Facto Plaintiff
¶18 Initially, we reject defendants' contention that because Mid Valley is a wholly-owned, single-asset subsidiary of the bank, created only to hold the house for resale, we should treat the bank as the de facto plaintiff. Doing otherwise, defendants argue, would allow the bank to skirt the economic loss rule "due solely to the fact that [the bank] was sophisticated enough in its dealings to create a subsidiary . . . ." This argument is unpersuasive, for the following reasons.
¶19 The parties agree that that Mid Valley is a legal entity separate from the bank, albeit its wholly-owned subsidiary. But "[o]nly extraordinary circumstances justify disregarding the corporate entity . . . ." McCallum Family L.L.C. v. Winger, 221 P.3d 69, 74 (Colo. App. 2009). And merely showing that one corporation "owns and controls" the other is insufficient to disregard the corporate entity. Jarnagin v. Busby, Inc., 867 P.2d 63, 69 (Colo. App. 1993).
¶20 Rather, courts must perform a fact-specific inquiry into a variety of factors, including:
(1) The parent corporation owns all or [a] majority of the capital stock of the subsidiary. (2) The parent and subsidiary corporations have common directors or officers. (3) The parent corporation finances the subsidiary. (4) The parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation. (5) The subsidiary has grossly inadequate capital. (6) The parent corporation pays the salaries or expenses or losses of the subsidiary. (7) The subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation. (8) In the papers of the parent corporation, and in the statements of its officers, 'the subsidiary' is referred to as such or as a department or division. (9) The directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take direction from the parent corporation. (10) The formal legal requirements of the subsidiary as a separate and independent corporation are not observed.
Great Neck Plaza, L.P. v. Le Peep Rests., LLC, 37 P.3d 485, 490 (Colo. App. 2001).
¶21 Here, on summary judgment, the trial court made no findings relevant to these factors. Defendants cite no Colorado authority, nor are we aware of any, explaining how we could resolve such a fact-intensive inquiry for the first time on appeal. And in any event, doing so would be inappropriate because in reviewing summary judgment, the nonmoving party "must receive the benefit of all favorable inferences that may be reasonably drawn from the undisputed facts." Mancuso v. United Bank of Pueblo, 818 P.2d 732, 736 (Colo. 1991) (quotations and citations omitted). Because treating the bank as the de facto plaintiff could weaken Mid Valley's position on the economic loss rule, we cannot assume that Mid Valley is the bank's alter ego for purposes of summary judgment.
¶22 Also, defendants point to no record evidence, other than Mid Valley's wholly-owned subsidiary status, showing that refusing to disregard the corporate entity would lead to an inequitable result under the circumstances. See Great Neck Plaza, 37 P.3d at 490 (disregarding the corporate entity "requir[es] balancing of the equities in each particular case"). And "[i]n the absence of a fully developed factual record and adequate findings of fact . . . we cannot determine whether th[e] equitable doctrine [of disregarding the corporate entity] should be applied here." Micciche v. Billings, 727 P.2d 367, 373 (Colo. 1986).
¶23 Therefore, we decline to treat the bank as the de facto plaintiff. Having so concluded, we also decline to address defendants' arguments for applying the interrelated contract doctrine to the bank's rights under the construction loan agreement with the developer.3
2. The Independent Duty of Residential Construction Professionals
Can Be Enforced by Any Transferee of a House Who is in Title When
the Latent Defect Causes Damage
¶24 Defendants argue that the duty of residential construction professionals to act with reasonable care should be limited based on characteristics of the plaintiff. This argument fails because duty analysis deals with classes of plaintiffs, not attributes of an individual plaintiff, and because our supreme court formulated this duty without any limitation based on particular attributes of the plaintiff, beyond requiring that the plaintiff be a transferee from the original owner, have owned the house in question when the latent defect caused damage, and have suffered harm as a result. Therefore, we decline to impose any other limitation on the class of plaintiffs to whom the duty is owed.
a. Duty Analysis Looks at the Class of Plaintiffs to Whom a Duty Is
¶25 "Whether the defendant owed a duty to the class in which the plaintiff found [it]self is a question of law for the court based on the foreseeable appreciable risk of harm." Lannon v. Taco Bell, Inc., 708 P.2d 1370, 1373 (Colo. App. 1985) (emphasis added), aff'd, 744 P.2d 43 (Colo. 1987). If "the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced[,] . . . liability may appropriately be imposed on the negligent party." Ballard v. Uribe, 715 P.2d 624, 648 n.6 (Cal. 1986) (emphasis added), cited with approval in Groh v. Westin Operator, LLC, 2013 COA 39, ¶33; see also White v. Pines Enters., Inc., 728 P.2d 759, 761 (Colo. App. 1986) ("[L]andscaper . . . owed a general duty of care to all persons who might reasonably be foreseen to incur physical injuries as a result of such conduct." (emphasis added)); cf. Montoya v. Connolly's Towing, Inc., 216 P.3d 98, 105 (Colo. App. 2008) (recognizing "a risk that either friends and family members using its storage lot or third parties could be injured" (emphasis added)).4
¶26 Here, Mid Valley falls within the class – subsequent transferees of houses bearing latent defects – foreseeably harmed by negligent construction that created such defects. See Cosmopolitan Homes, 663 P.2d at 1045 ("[I]t is foreseeable that a house will be sold to subsequent purchasers, and any structural defects are as certain to harm the subsequent purchaser as the first."). If any of Mid Valley's specific circumstances could limit defendants' liability, this is a question of proximate cause for the jury, not the scope of the duty. See Dan B. Dobbs, The Law of Torts § 182, at 450 (2000) ("[While] duty rules are classically categorical and abstract[,] . . . cover[ing] a class or category of cases. . . . proximate cause decisions are quite fact-specific."); see also Hayes v. Williams, 17 Colo. 465, 473, 30 P. 352, 355 (1892) (noting that proximate cause is determined by the "associated facts and circumstances" of the case).
b. Cosmopolitan Homes and A.C. Excavating Do Not Support
Limiting the Class of Plaintiffs
¶27 Cosmopolitan Homes, 663 P.2d at 1042, discusses a residential builder's duty of care in terms of a "subsequent home owner['s ability] to maintain an action against a builder for negligence," but does not define "home owner." Nor has any other reported Colorado case done so.
¶28 According to Black's Law Dictionary, 1214 (9th ed. 2009), an "owner" is someone "who has the right to possess, use, and convey something; a person in whom one or more interests are vested." And a "home" is "a dwelling place." Id. at 801; see People v. Holwuttle, 155 P.3d 447, 450 (Colo. App. 2006) (describing Black's Law Dictionary as a source of "the most widely accepted legal meaning" of undefined terms).
¶29 Neither of these definitions suggests narrowing the scope of "home owner" based on any particular attribute of the plaintiff. Rather, they encompass any entity or person that has vested property rights in a dwelling place.
¶30 The supreme court's reasoning in Cosmopolitan Homes supports this broad interpretation of "home owner." The court used "home owner" and "purchaser" interchangeably throughout the opinion. See, e.g., 663 P.2d at 1045 ("Moreover, given the mobility of most potential home owners, it is foreseeable that a house will be sold to subsequent purchasers, and any structural defects are as certain to harm the subsequent purchaser as the first. We see no reason for disallowing a subsequent purchaser to state a claim in negligence." (citations omitted)).
¶31 But the term "purchaser" does not distinguish between natural persons and commercial entities. Nor does the act of purchasing limit the purchaser's intended use of the home. A purchaser could acquire a home as a secondary residence, to hold as an investment, to rent, or to remodel and resell.
¶32 In A.C. Excavating, 114 P.3d at 867, the supreme court explained, "Cosmopolitan Homes specifically held that builders have an independent duty of care to act without negligence in the construction of homes." The court reaffirmed the "holding in Cosmopolitan Homespermitting residential property owners to bring negligent construction claims against builders generally." Id. at 869. It relied in part on the Construction Defect Action Reform Act, which defines a claimant broadly as someone "who asserts a claim against a construction professional that alleges a defect in the construction of an improvement to real property." § 13-20-802.5(3), C.R.S. 2012.
¶33 Nowhere does this duty formulation suggest that the scope of a residential builder's liability should be limited based on particular characteristics of the owner, despite having arisen from the foreseeable consequences of latent defects caused by defective workmanship. In addition, A.C. Excavating, 114 P.3d at 868, "did not attempt to describe the relationship" between plaintiffs and defendants, but rather "simply found that the duty was to be borne by all 'builders.'"
¶34 Further, the court clarified that the term "builder," as used in Cosmopolitan Homes, "suggests that [the independent] duty is broadly shared by builders in general, not limited to the exclusion of subcontractors." A.C. Excavating, 114 P.3d at 868; see also Park Rise Homeowners Ass'n v. Res. Constr. Co., 155 P.3d 427, 430 (Colo. App. 2006) (noting that A.C. Excavating uses "expansive language" when discussing negligence duty). Broadening the class of defendants who bear this duty weighs against narrowing the class of owners who can enforce it.
¶35 The factors announced in Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo. 1987), as applied in A.C. Excavating, also weigh against narrowing the class of owners. The court evaluated "the foreseeability and likelihood of injury as weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the defendant," before concluding that "subcontractors and other builders are under an independent tort duty to act without negligence in the construction of homes." A.C. Excavating, 114 P.3d at 868. Because these factors focus on the conduct and identity of the defendant rather than on the characteristics of the plaintiff, they do not support excluding nontraditional home owners from the class of potential plaintiffs.
¶36 Additionally, our supreme court has not provided any guidance in parsing the wide spectrum of owners in the class of potential plaintiffs in residential construction cases. Cf. Liebelt v. Bob Penkhus Volvo-Mazda, Inc., 961 P.2d 1147, 1149 (Colo. App. 1998) (an "intermediate appellate court may not exercise the raw judicial power necessary to create a new duty where the supreme court has established and never revoked contrary legal principles") (citing Bernard Johnson, Inc. v. Cont'l Constructors, Inc., 630 S.W.2d 365 (Tex. App. 1982)). And such parsing is especially problematic in the realm of duty, which uses "relatively bright lines, [which] are of general application . . . ." Raleigh v. Performance Plumbing & Heating, Inc., 130 P.3d 1011, 1021 (Colo. 2006) (Mullarkey, C.J., concurring in part and dissenting in part) (quoting Restatement (Third) of Torts § 29 cmt. e (2010)).
¶37 Therefore, like in Cosmopolitan Homes, 663 P.2d at 1045, we "see no reason" that "a subsequent purchaser" should be prevented from suing under negligence. Accordingly, we do not read Cosmopolitan Homes or A.C. Excavating as limiting the scope of the duty of residential construction professionals based on any particular characteristics of the plaintiff, other than ownership at the time the latent defect causes injury.
3. Neither Cosmopolitan Homes nor A.C. Excavating Supports the
Duty Limitations Urged by Defendants
¶38 Defendants argue that the independent duty does not extend to Mid Valley because it does not "reside" in the home, and because it is a commercial entity, which acquired the home solely as an asset for resale. Cosmopolitan Homes and A.C. Excavating do not support these limitations on the scope of defendants' duty.
a. Occupancy
An occupancy limitation is unworkable for three reasons.
¶39 First, the court's analysis in Cosmopolitan Homes undercuts an occupancy limitation on duty. As discussed above, the opinion does not refer to occupants but rather to "home owners" and "purchasers." And while a purchaser necessarily becomes a home owner, the purchaser need not become an occupant. Nor does an occupancy limitation present a bright-line test. For example, a purchaser may acquire a second home and occupy it only for certain parts of the year, such as holidays or vacations. Defendants do not provide, nor can we discern, how to apply an occupancy limitation in these circumstances.
¶40 Second, this limitation could erode the purpose of Cosmopolitan Homesto allow subsequent purchasers of homes to bring negligence claims. For example, an occupancy limitation would preclude claims by foreclosing mortgage lenders, rental home owners, or owners who acquired the home for remodeling and resale. This result is illogical because such owners purchased the homes but could not recover for damages suffered when a latent defect ripened.
¶41 Third, as more fully discussed in subsection 4 below, limiting claimants to occupants would frustrate the goal of "discourag[ing] misconduct and provid[ing] an incentive for avoiding preventable harm." Yacht Club, 94 P.3d at 1181.
b. Commercial Owner/Purpose
¶42 Initially, because only a natural person can occupy a residence, this limitation overlaps the proposed occupancy limitation. Hence, the commercial owner/purpose limitation suffers from the same failings discussed above.
¶43 Additionally, considering this limitation independent of the occupancy limitation would produce arbitrary results. For example, both a natural person and a commercial entity could acquire a house for rental or to remodel for resale, and both would suffer the same economic injury when a latent defect ripened. But defendants' proposed limitation would allow only the natural person to recover tort damages from the injury.
¶44 The plaintiffs in Cosmopolitan Homes were natural persons. The plaintiff in A.C. Excavating was a home owner's association bringing a statutory derivative action under the Colorado Common Interest Ownership Act.5The opinion does not address whether all of the owners represented were also natural persons. Yet, neither case so limits its holding.
¶45 Rather than limiting its reasoning to noncommercial property owners, as defendants suggest, Cosmopolitan Homes, 663 P.2d at 1045, extends a builder's duty to all "foreseeable users of the property." A.C. Excavating does not contain contrary language. We have already discussed the foreseeability of Mid Valley's ownership. See Part III.B.2. And to the extent that "user" limits this foreseeability, it does not limit it as defendants suggest. Several "uses" for homes exist that are both foreseeable and commercial in nature, such as renting a house for profit or purchasing a house for renovation and resale. Cf. Jackson & Co. (USA), Inc. v. Town of Avon, 166 P.3d 297, 300 (Colo. App. 2007) (referring to "short-term rental[]" as a "use of the duplex" at issue in the case).
¶46 Further, some of the policy factors discussed in Cosmopolitan Homes, 663 P.2d at 1045, weigh against a commercial owner/purpose limitation. Defendants rightly note that unlike a traditional home owner, a commercial entity does not "make[] the biggest and most important investment in his or her life" when purchasing a home. And while the budgets of many such entities are not so limited as that of many traditional home owners, id., a commercial owner's investment is no less worthy of protection than that of a noncommercial owner.
¶47 Nevertheless, including commercial owners in the class of potential plaintiffs is consistent with the policy of preventing "overreaching" by a builder, who "is in a far better position to determine the structural condition of a house than most buyers." Id. at 1045. An owner's commercial status and purpose do not guarantee insight into structural conditions that would conceal latent defects. Nor will such owners necessarily have "access to make any inspection of the underlying structural work, as distinguished from the merely cosmetic features." Id. (citation omitted).6And like the proposed occupancy limitation, a commercial owner/purpose limitation would both erode the objective of protecting subsequent purchasers and hamper the goal of discouraging defective construction.
4. Defendants' Proposed Limitations Would Grant Them a Windfall
¶48 Finally, both of defendants' proposed limitations on the class of plaintiffs would allow them to avoid liability solely through the fortuity of who owned the house when the latent defect ripened. For example, as years pass, some houses will be foreclosed on by mortgage lenders, who, in turn, will sell the houses to new owners. If only natural persons who both owned and occupied such a house could enforce the builder's duty, the dispositive factor would be the fortuity of who owned the house when the defect ripened, rather than the builder's negligence and its consequences to that owner. This approach, in turn, would lead to the anomaly of a negligence duty becoming unenforceable upon sale of a home to a commercial or non-occupant owner, only to have enforceability resurrected upon acquisition by a traditional home owner.7
¶49 Nor would such limitations have any risk-avoidance value to a residential construction professional. On the one hand, such a professional would be motivated to build with care, because the vast majority of houses will be owner-occupied by natural persons. On the other hand, the resources allocated to building with care could not be reduced based on the limitations that defendants advance, as predicting when a non-occupying or commercial owner might acquire title, for how long, and the likelihood of a latent defect ripening during that time, is impossible.
¶50 Colorado courts "strongly endors[e] a policy favoring quality construction of homes" in order "[t]o discourage misconduct and provide an incentive for avoiding preventable harm." Yacht Club, 94 P.3d at 1181. Allowing a defendant's liability to depend not on the defendant's blameworthiness and its consequences, but on the fortuity of who owned the home when the defect manifests itself, runs contrary to this policy. Because "any structural defects are as certain to harm the subsequent purchaser as the first," Cosmopolitan Homes, 663 P.2d at 1045, the mere fortuity of an owner who does not occupy the home or is a commercial entity would be an unprincipled reason to limit a defendant's liability. Cf. Tanner v. Lambert Auto Elec. Co., 522 P.2d 130, 131 (Colo. App. 1974) (not published pursuant to C.A.R. 35(f)) (noting that a plaintiff's ability to collect damages against a corporation whose employee injured the plaintiff should not "depend upon [a] fortuitous circumstance").
¶51 We do not consider defendants' duty "on a clean slate," Justus v. State, 2012 COA 169, ¶44, but rather in the context of longstanding and recently reaffirmed supreme court precedent. Limiting the broad scope of the independent duty rule announced in Cosmopolitan Homes and A.C. Excavating, as defendants urge, would invite fine, ad-hoc distinctions unsupported by either case. Cf. DCB Constr. Co. v. Cent. City Dev. Co., 965 P.2d 115, 120 (Colo. 1998) ("[T]he law must be sufficiently predictable so that the appropriate parties can adequately calculate and make adjustments for the risks they face."). Thus, "absent some clear indication" from the supreme court, Silver v. Colo. Cas. Ins. Co., 219 P.3d 324, 330 (Colo. App. 2009), we decline to limit the independent duty as defendants request.
IV. Conclusion
¶52 Because defendants owed Mid Valley an independent duty of care, the economic loss rule does not preclude its negligence claim. Accordingly, we affirm the trial court's order denying summary judgment, and we remand for further proceedings consistent with this opinion.
1 The trial court certified the following question: "whether a construction professional providing work on a residential house owes a common law tort duty of care to commercial entities [that] hold title to the property as part of a commercial transaction."
2 While denial of summary judgment is usually not appealable, Moss v. Members of Colorado Wildlife Com'n, 250 P.3d 739, 742 (Colo. App. 2010), we may review non-final orders "where specifically authorized by statute or rule." J.P. Meyer Trucking & Const., Inc. v. Colorado Sch. Districts Self Ins. Pool, 18 P.3d 198, 201 (Colo. 2001). And C.A.R. 4.2 grants to divisions of this court the discretion to review interlocutory orders when: "(1) immediate review may promote a more orderly disposition or establish a final disposition of the litigation, (2) the order from which an appeal is sought involves a controlling question of law, and (3) the order from which an appeal is sought involves an unresolved question of law." Wahrman v. Golden W. Realty, Inc., ___ P.3d. ___, ___ (Colo. App. No. 11CA2231, Dec. 8, 2011).
3 The bank's rights under the construction loan agreement included: approval of all subcontractors; acceptance of the plans and specifications; receipt of satisfactory soils reports; and inspection "at any reasonable time." However, we express no opinion on application of the economic loss rule had the bank taken title under the deed-in-lieu agreement and brought this action.
4 For example, in Groh v. Westin Operator, LLC, ¶34, the majority concluded that the plaintiff, an intoxicated guest who had been evicted from the defendant hotel and therefore was injured in an automobile accident, was "a member of a class – intoxicated guests – to whom harm from eviction was reasonably foreseeable." Rejecting the hotel's argument that the accident was too attenuated from the eviction, the division held that summary judgment was inappropriate. It explained, "if a court finds a duty and a trier of fact concludes that a defendant breached this duty by failing to act according to the standard of conduct, the particular risk that ripens presents only an issue of proximate cause." Id. at ¶36.
5 See§ 38–33.3–302(1)(d), C.R.S. 2012 (permitting homeowners associations to "[i]nstitute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the common interest community").
6 For example, a foreclosing mortgage lender's knowledge of the encumbered property may be limited to its appraised value.
7 Cf. Sumitomo Bank v. Taurus Developers, Inc., 185 Cal. App. 3d 211, 225-26 (1986) ("Here, the fact it is the [commercial] lender who purchases and not a third party, is fortuitous. Liability for negligence should not depend upon the randomness in selection of the party who purchases an item when placed in the market. Nor do we divine any difference as to the foreseeability of harm to a purchaser of an item constructed for the purpose of being marketed to the public merely because the insolvency or default of the builder/debtor causes the product to be marketed through a trustee sale where the lender may be forced to purchase.").
JUDGE GABRIEL concurs.
JUDGE J. JONES specially concurs.
JUDGE J. JONES specially concurring.
¶53 I agree with the result reached by the majority, and with much of its analysis. In my view, the conclusion that defendants owed an independent duty to Mid Valley to act without negligence in the construction of the home is compelled (at least in this court) by the supreme court's decisions in Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo. 1983), and A.C. Excavating v. Yacht Club II Homeowners Ass'n, Inc., 114 P.3d 862 (Colo. 2005).
¶54 This is so for these reasons:
• Mid Valley is a "home owner" and "foreseeable user" of the home. See Cosmopolitan Homes, 663 P.2d at 1045; id. at 1044 ("The apparent risk encompasses one who foreseeably suffers personal injury as a consequence of builder or contractor negligence."); see also A.C. Excavating, 114 P.3d at 869 ("Cosmopolitan Homes permit[s] residential property owners to bring negligent construction claims against builders generally."). None of the bases for distinguishing Mid Valley from the typical homeowner posited by defendants strike me as workable or consistent with the supreme court's discussions in Cosmopolitan Homes and A.C. Excavating.
• Many, though perhaps not all, of the policy concerns given by the supreme court as supporting the independent duty rule in this context apply to Mid Valley.
• As the majority points out in Part III.B.4 of its analysis, distinguishing among types of homeowners could lead to anomalous results.
¶55 Thus, I perceive no principled basis for distinguishing Cosmopolitan Homes, a decision reaffirmed in A.C. Excavating, from this case. We are, of course, bound by those decisions. Justus v. State, 2012 COA 169, ¶44 (Court of Appeals is bound by decisions of the Colorado Supreme Court).
¶56 However, it does not appear to me that the holding of Cosmopolitan Homes is compatible with the economic loss rule, as articulated and explained by subsequent supreme court cases.
¶57 If a duty arises from or is encompassed by a contract, that duty cannot serve as the basis of a tort claim seeking only recovery for economic losses. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 68, 71-74 (Colo. 2004); Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1262 (Colo. 2000). It is only when the duty is truly independent of the contract that such a tort claim is viable. Town of Alma, 10 P.3d at 1262. Thus, the ultimate question in this context is: What is the source of the duty? Id.
¶58 In Town of Alma, the court distinguished Cosmopolitan Homes on the basis the negligence claim in the latter case purportedly arose from a breach of a duty that was independent of the contract. Id. at 1265-66 (in Cosmopolitan Homes "we determined that a builder has an independent duty to act without negligence in the construction of a home") (citing Cosmopolitan Homes, 663 P.2d at 1042); see also A.C. Excavating, 114 P.3d at 866. But a close examination of the rationale of Cosmopolitan Homes shows that the duty recognized in that case is not "independent" of the contract in the manner contemplated by the economic loss rule. The majority in Cosmopolitan Homes based its decision to allow a negligence claim against the builder, in large part, on the following reasoning.
[T]he 'contractual obligation is not the touchstone of civil liability in tort. It is only the matrix from which an independent obligation may arise.' . . . A contractual obligation gives rise toa common law duty to perform the work subject to the contract with reasonable care and skill. . . . The fact that a contract may have existed between a builder and the original purchaser of the home does not transform the builder's contractual obligation into the measure of its tort liability arising out of its contractual performance.
Cosmopolitan Homes, 663 P.2d at 1043 (citations omitted; emphasis added). Thus, the court recognized the source of the tort duty as the contract itself. Under BRW and other subsequent supreme court decisions, any such duty is not independent of the contract and, hence, cannot provide the basis of a tort claim. See A.C. Excavating, 114 P.3d at 871 (Kourlis, J., dissenting) (opining that Cosmopolitan Homesis "inconsistent with the development of the law in this court"); see also Davencourt at Pilgrims Landing Homeowners Ass'n v. Davencourt at Pilgrims Landing, LC, 221 P.3d 234, 248 (Utah 2009) (characterizing Town of Alma's attempt to reconcile Cosmopolitan Homes with the economic loss rule as "more a result of post hoc rationalization to save precedent than anything else" and holding there is no independent duty to construct a home without negligence).
¶59 8To be sure, the majority in Cosmopolitan Homes articulated a number of policy concerns justifying a rule allowing a homeowner to sue a builder for negligent construction. It seems to me, however, that while such concerns may justify recognition of a de jure exception to the economic loss rule (a matter on which I express no opinion), they do not render the result in Cosmopolitan Homes consistent with the economic loss rule.
¶60We cannot disregard Cosmopolitan Homes, particularly in light of the apparent affirmations of that decision in Town of Alma and A.C. Excavating. But perhaps it is time for the supreme court to take another look at the viability of the rule announced in that case in light of continued development of the law in Colorado and elsewhere.
8 Two other features of Cosmopolitan Homes are noteworthy. First, in a footnote, the majority dismissed out of hand any concern that only "economic loss" was at issue. Cosmopolitan Homes, 663 P.2d at 1051 n.5. Subsequent cases have not been dismissive of such a fact. Second, Justice Rovira's dissent, though not mentioning the economic loss rule by name, was based on economic loss rule analysis. Cosmopolitan Homes, 663 P.2d at 1046-50.
These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.
Colorado Court of Appeals Opinions || August 1, 2013


text:
Morel of the story: it's over
The end is drawing near for one of my favorite seasons. The weather sort of postponed our mushroom season, but several people have had some good luck this last week. I had a couple of friends drop by and give me some tasters. They were so good. I just wished the season lasted a little longer. I had some in the morning with egg and cheese and then in the evening on a big cheeseburger. It doesn't seem what recipe you use, they make a meal so much better. The sad thing is, my sources tell me, that the season is just about over. Guess we'll just have to wait for next year.
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text: this company has been very rude to me when I called them to remove me from their list. I asked the rep and he just hung up on me. Then I received another call on my cell phone which caused me money and time. They just called today and the same thing happened. Thank you for your assistance.


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I am having some sharp pinching pains going on. Its happening to the left of my belly button right before my hip bone... are these my ovaries?? Sorry, this is such a dumb question!
Where are my ovaries from outside of my body?
Mommy, wife and coach!
Comments (7)
I think so!! Its probably a little lower than your belly button on both your right and left side :) I had some shapr pains on Friday and Saturday ( the days I ovulated)
I can't get the photo I found to paste...try this link
Me�+ DH�= Mr. & Mrs.�10/13/07
Our first little�sweetpea�Owen Weyr is here!
12/30/2010 @ 9:18am, 6lbs 10.8oz, 19.5" long
Or this one...
Me�+ DH�= Mr. & Mrs.�10/13/07
Our first little�sweetpea�Owen Weyr is here!
12/30/2010 @ 9:18am, 6lbs 10.8oz, 19.5" long
I have been having the same pains, right side for the last three days on and off. What does it mean?? I'm 5-6 DPO.
I wanna be Kate
Mine are right inside my hip bones... makes it easy to find :) Ovulation can be a cause for ovarian pains and twinges... you could also have a little cyst or something which is very normal. If the pain persists go see the doctor to let them know what is up.
~Liz~ proud mommy to Ava Lauren, 1-18-08, Emma Grace, 11-7-09 and Grayson Michael, 7-18-12 ;)
Mine are just outside my hip bones. Internal U/S (to check on ovaries) are quite uncomfortable!
If you put your fist on your stomach, right above your pelvic bone, that's where your uterus is-- really low!
~ April Embryo Donation!
April (34), Tom (43), ♥, Trent (6), Claire (4), ED.
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As we gather on this sacred day, we contemplate the sorrowful and tragic scene
on the hill of Calvary.
Jesus, the incarnate Son of God, has been delivered into the hands
of hateful, violent, lawless men.
They have ridiculed Him by dressing Him in a crown made from thorns
a purple cloak and a scepter made from a reed
and then blindfolding Him and demanding He display His alleged divinity
by prophesying who struck Him.
They treated our Lord with the worst kind of cruel violence:
beating Him to the point his face is no longer recognizable
lashing Him and tearing off His skin with whips of cords
with sharp pieces of bone and metal fastened to the end
kicking Him and making His sacred body a mass of blood and bruises.
The body of Jesus is like a rag doll, tossed about as a sport for the soldiers
and so exhausted and limp He can barely move another step.
Finally, the miserable cohort arrives at the place of the skull
and Jesus is fastened with nails to the Cross and left hanging to die in agony.
The great High Priest mounts the gibbet of the Cross
to make of it by His sacrifice the supreme Altar
and to present Himself as the spotless Victim,
whose death brings new life to all humanity!
Thus He embraces His Cross with tenderness,
knowing its pain will be our deliverance.
This instrument of torture and death becomes the instrument of our salvation.
For those three long hours, while He writhes and whimpers in pain
and is further mocked by the soldiers who await His last breath
so they can complete their duty and be on their way…
Jesus is utterly alone.
When circumstances turned against them and fear of arrest came over them,
the Apostles ran away from the garden.
The crowds who days before has celebrated Jesus' triumphal entry into the city
with cries of "Hosanna!"
now have been cajoled into turning against Him
and demanded His crucifixion.
Mary, His sorrowful Mother, and John, His closest disciple and friend
stand unwavering in their devotion at the foot of the Cross
but His happiness at seeing them is tempered.
He longs for an embrace, a touch, the warmth of another's love
but His hands are fastened and He cannot reach out to them.
In His humanity, He even questions the providence of the Father:
"My God, my God, why have you abandoned me?"
The words of the prophetic psalms become the agonizing thoughts of the Lord:
Insult has broken my heart and I empty
I looked for consolers but there were none
I searched for comfort but there was none to be found
They put gall in my food and in my thirst they gave me vinegar to drink
Look to the right and see; for there is no one who regards me
There is no escape for me; there is no one who cares for my life.
Consider the stark emptiness and desolate yearning of the Lord Jesus.
He is regarded as a worm and no man.
He is hated and despised by the people He came to save.
By all accounts of the world, His life is a failure and is about to end in darkness.
And yet, it was for this agony that He was born
and in this suffering that His true glory is revealed.
For THIS…Christ came into the world!
Call to mind your own experiences of being alone.
The times when you did your best and worked hard and your efforts were ignored.
The times when people misunderstood and rejected you.
The times when insult has broken your heart.
The times when your closest friends have betrayed you.
The times when it seemed like enemies were trying to undermine you,
putting vinegar in your drink…souring your joy.
The times when you were mocked and ridiculed for just being yourself.
The times when you were surrounded by people
and it still felt that no one cares for you.
The times when there was no means of escape from the oppression of life
and no comfort could be found.
You were utterly alone.
There was no one who cared for your life.
We have all been there.
We have all been there.
In the moments of your loneliness,
you were united to Christ in His suffering, from Gethsemane to Calvary.
The loneliness of Jesus confirms our faith in His eternal love –
He is the High Priest knows our weaknesses and endured them without sin.
He is close to us in our needs is our supreme comfort.
His love will never abandon us even in our most painful emptiness.
There is no better place to be than close to Jesus and united to His life.
Just as His emptiness was our salvation,
so our emptiness is an encounter with Christ's suffering
that leads us from darkness into life
as we feel the loving embrace of Jesus.
Feel the weight of Jesus' loneliness as you walk this way of the Cross tonight.
Then feel the relief of His loving embrace in your own emptiness
as you walk the journey of your life arm in arm with the Lord.
See…how He loves you!


text:
Steve Yuen's Library tagged → View Popular, Search in Google
- Edudemic has also helped in the realization of this infographic and it even summarized its key elements in the following bullets :
- 91% of teachers have computers in the classroom
- Just 20% think they have the right level of technology in the classroom
- More than half of all colleges surveyed say their biggest priority is upgrading their wi-fi system
- 43% of teachers surveyed have used online games in the classroom
- 29% of teachers use social networks… 80% of college professors do too.
many higher education institutions are clean-sheet redesigning teaching, learning, assessment, and career development. The 10 rules in this article suggest the depth of change that's occurring on campuses right now.
Two basic 21st century laws frame these rules: First, the knowledge developed during the course does not pre-exist the course. Second, since the knowledge of the course does not exist before the course (because you and the students develop the knowledge during the course), your chief challenge is to manage the process of knowledge discovery
1. Re-examine and adopt the move from teaching to learning.
2. Re-visit the accountability measures on your campus
3. Make a corollary change in assessment,
4. Insist on teaching only in technology-enabled classrooms
5. Make sure your students have technology management tools of their own
6. Insist on faculty having management tools for their own professional development
7. Do not discard the lecture or class discussion approach when appropriate,
8. Make sure your students have a digital repository of some sort-
9. Require your students to interpret their collected online evidence at regular intervals
10. Make the collection of evidence the primary work of the course
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The Regional Educational Laboratory Northeast and Islands (REL-NEI) is one of ten regional laboratories and has a mission to help pre-K–16 educators use the best available evidence to make decisions leading to improved student achievement and reduced performance gaps.
The New England Comprehensive Center (NECC) is one of 16 regional comprehensive centers that are federally funded to implement the mandates of the No Child Left Behind Act (NCLB). The NECC engages state education leaders in using research and best practice to meet the goals of NCLB. Our purpose is to design and deliver technical assistance services that meet education leaders' priority needs, further the key initiatives of the U.S. Department of Education, and have the greatest potential for building states' capacities to help districts and schools improve.
Foundations of Science Literacy (FSL) is a comprehensive professional development program in science for preschool teachers. FSL integrates college-level coursework, mentoring, a nationally recognized science curriculum, and classroom-based assignments. The project's goal is to support teachers' abilities to create a classroom culture of inquiry and to engage their young students in authentic "minds-on" science explorations.
Cultivating Young Scientists (CYS) is funded by the Institute for Education Sciences, and builds upon FSL. CYS offers three major innovations:
In collaboration with the National Institute of Out-of-School Time (NIOST), EDC's Center for Science Education worked with six science centers around the country to introduce design-engineering activities into afterschool programming. CSE developed the curricula for the engineering projects; NIOST provided technical support for their implementation. Through monthly workshops, science centers introduced the curricula to program leaders of participating community agencies.
NEIR*TEC helps state and local educational leaders address the many challenges involved in using technology effectively, emphasizing the needs of schools in underserved urban and rural communities. NEIR*TEC, one of 10 regional technology-in-education consortia, serves the six New England states, New York, Puerto Rico, and the Virgin Islands.
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