DEHERRERA v. SULIVAN, ET AL CASE REPORT
4 Year Old Critically and Permanently Injured
Statutory Cap on Damages Limits Recovery to
Only $150,000.00

Case Name: TOBY PATRICK DEHERRERA, JR., by and through DEBORAH LYNN DEHERRERA and TOBY PATRICK DEHERRERA, Sr., his natural parents and guardians, and DEBORAH LYNN DEHERRERA and TOBY PATRICK DEHERRERA, Sr., individually; v. SUSAN SULLIVAN, individually, and the STATE OF COLORADO, the STATE OF COLORADO DEPARTMENT OF EDUCATION, COLORADO COMMUNITY COLLEGE AND OCCUPATIONAL EDUCATIONAL SYSTEM, OTERO JUNIOR COLLEGE, CHILD DEVELOPMENT SERVICES.

Counsel for Plaintiffs: Chalat & Koupal PC

Court: DISTRICT COURT, COUNTY OF OTERO, STATE OF COLORADO

FACTS
This matter arose from a one-car auto accident which occurred on November 19, 1999. The reports indicate that Toby Jr., then age 4, and weighing less than 40 lbs., was placed in the rear seat of Mrs. Susan Sullivan's Jeep Cherokee.

Mrs. Sullivan was then employed as the Assistant Director then of Child Development services, which was essentially a head start program, located in Rocky Ford, Colorado, just West of La Junta. Toby Jr. was a student in the program. It is unclear why Toby Jr. was put into Mrs. Sullivan's car as opposed to being sent home on the bus which would typically provide him with transportation back and forth between Rocky Ford and the school.

Mrs. Sullivan was last known to have been driving south on Hwy. 71, away from her destination to drop off Toby, Jr. With Toby Jr., still in the car, Mrs. Sullivan drove off of the highway, and into an irrigation canal. Toby's seat belt was inadequate to restrain him.

As the car impacted at a high rate of speed, Toby Jr., suffered severe, critical, and permanent injuries, including: a severe, traumatic brain injury requiring a left frontal temporopareital craniotomy, (opening the skull to relieve pressure), a hematoma (bleeding in the brain) which required evacuation, as well as a partial left frontal and temporal lobectomy (removal of large portions of the front and side of the brain, injured by trauma and blood loss), a left femur fracture, and septal orbital (facial bone) fractures, bilaterally.

The claimants sought damages for economic loss, non-economic loss, pain and suffering, and permanent impairment and disfigurement. Medical expenses for Toby Jr. over the course of a lifetime will exceed $1,000,000.00. Rehabilitation expenses will exceed $1,000,000.00. Toby Jr. is profoundly brain injured and will need lifetime care; he is permanently disabled from ever entering the job force. His lost income is valued at $2,200,000.00. He is, for all practical purposes, blind, deaf, and spastic. He cannot feed himself, walk, sit up, or talk.

However, the accident clearly occurred within the course and scope of Mrs. Sullivan's employment as a public employee. Under C.R.S. 24-10-109, the State has responsibility for the case and the cap for damages is $150,000.00. Therefore, under C.R.S. 24-10-118 and 119, the DeHerrera family, no matter how they styled the Complaint, whether it be in tort or contract, whether they named Mrs. Sullivan as an individual defendant or not, and whether they alleged wanton and willful behavior or not, were limited to compensation of only $150,000.00.