City and County of Denver v. DeLong

I concur in part and dissent in part to the majority opinion.

*224While I agree that the case should be retried and plaintiff was entitled to have an instruction on the police department safety rules, the holding in part II of the majority opinion that the court erred in refusing to give an instruction on the presumption of due care because she was suffering from amnesia will create a irreconcilable conflict on retrial.

There can be no presumption of due care in this case on the physical evidence and the inferences to be drawn therefrom. The photographs show that there are no obstructions in the…