 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Gerrity Oil & Gas Corp. v. Magness9/15/1997
sions within the rules unnecessary.
The majority also concludes that a new trial is necessary because the trial court erred in rejecting Magness' trespass claim for his failure to present expert testimony. In my view, the trial court's Conclusions regarding the lack of expert testimony should not be read in isolation. The trial court expressly determined that Gerrity's use of the surface estate was reasonable "under all the facts and circumstances." This finding mirrors the majority's statement that the ultimate question in evaluating trespass claims requires that the trier of fact "balance the competing interests of the operator and surface owner and determine whether, under the circumstances, the operator's surface use was reasonable and necessary." Maj. op. at 49-50. The record therefore indicates that the trial court applied the proper legal standard in rejecting Magness' trespass claim.
Contrary to the majority, I believe that "basic fairness" warrants against granting a new trial in this case. By clarifying the relative evidentiary burdens in negligence and trespass actions, the majority has done nothing to alter or change the substantive law upon which Magness' claims are based. See Public Serv. Co. v. Blue River Irrigation Co., 782 P.2d 792, 794 (Colo. 1989). Rather, the contested issues in this case concern two areas of the law, negligence and trespass, that have been settled for some time. Without changing the playing field upon which litigants have previously relied, a new trial essentially punishes Gerrity for successfully pleading its case while forgiving Magness' failure to present sufficient evidence in support of his claims. Magness' general evidentiary burden in proving his negligence and trespass claims was clear from the outset. He should not be rewarded for failing to meet this burden merely because the majority has clarified it somewhat.
III.
The trial court's ruling that Magness presented insufficient evidence in support of his negligence and trespass claims should be accorded its proper deference. Although the trial court did not specifically address whether Gerrity violated certain provisions contained in Commission rules, these oversights do not affect the basic thrust of the trial court's ruling. Furthermore, the trial court applied the proper standard in rejecting Magness' trespass claim. Granting Magness a new trial, in effect, gives him a second chance at proving his case, complete with instructions on how to do so. Such a result is unfair to Gerrity and represents an inefficient use of judicial resources. Accordingly, I Dissent to that part of the majority opinion which grants Magness a new trial.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|