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Martinez v. Lewis11/29/1996
e is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56; Greenberg v. Perkins, 845 P.2d 530 (Colo. 1993).
The party moving for summary judgment bears the burden of establishing the lack of a triable factual issue, and if there are any doubts as to the existence of such an issue, they must be resolved against that party. Greenberg v. Perkins, supra.
The party opposing summary judgment is entitled to the benefit of all favorable inferences that may be drawn from the facts contained in the record. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988).
Appellate review of a judgment granting a motion for summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo. 1995).
To recover on a claim of negligence, a plaintiff must prove the existence of a legal duty, a breach of that duty, causation, and damages. Perreira v. State, 768 P.2d 1198 (Colo. 1989). A negligence claim will fail if based on circumstances for which the law imposes no duty. University of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987).
Whether a defendant owes a plaintiff a legal duty is a question of law. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo. 1980).
A court considers a variety of factors when determining whether to recognize a duty. For instance, the court weighs the risk involved, 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 the harm, and the consequence of placing the burden on the defendant. Smith v. City & County of Denver, 726 P.2d 1125 (Colo. 1986).
Since no one factor is controlling, the question whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards--whether reasonable persons would recognize and agree that it exists. University of Denver v. Whitlock, supra.
Medical malpractice or professional negligence is a particular type of negligence action. The duty of care on which a medical malpractice action is predicated arises out of the professional relationship between physician and patient. If a physician undertakes to treat or otherwise provide medical care to another, the physician thereby expressly or impliedly contracts to exercise reasonable and ordinary care and diligence to fulfill that purpose. In such a circumstance, a physician-patient relationship exists. Greenberg v. Perkins, supra.
In the absence of such a relationship, any duty to be recognized in connection with the performance of professional services must be determined in each instance by taking into account the nature of the services to be performed, the circumstances surrounding the request for service, and any information gleaned by the physician during performance of the services that would suggest a need to proceed with care in order to avoid injury to the person being examined. Greenberg v. Perkins, supra.
Although Greenberg v. Perkins, supra, was decided in the context of a C.R.C.P. 35(a) examination in which the parties agreed to the examination, we conclude that the principles set forth in that case govern here. In Greenberg, the examining doctor referred the plaintiff to an occupational conditioning center for an evaluation that consisted of a series of physical exercises designed to measure the plaintiff's strength and ra
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