The plaintiff in Robinson v. Colorado State Lottery Division, No. 06SC385, alleged that the State Lottery continued to sell scratch lottery tickets for months after all of the available prizes had been awarded. The plaintiff (proceeding as a purported class representative) framed her claims as ones arising in contract or quasi-contract, arguing that she did not receive the chance to win a prize for which she had contracted by buying the tickets. The Colorado Supreme Court found that, for purposes of the Colorado Government Immunity Act (“CGIA”) the plaintiff’s claims could lie in tort because they were based on alleged misrepresentations by the Lottery. The Court thus concluded that the claims were barred by the CGIA. It also held, as a matter of first impression, that an unjust enrichment claim is to be analyzed on a case-by-case basis to determine the applicability of the CGIA.
This case puts a new twist on the Lottery slogan “you can’t win if you don’t play.” Apparently, at least in some cases, you can’t win even if you do play. Interestingly, however, you don’t have to take that risk. The Colorado Lottery posts the number of prizes remaining in its scratch games on its website.
Speaking of not really not being able to win, did you notice the holding on 13-17-201? Apparently, a governmental entity cannot recover fees where a plaintiff pleads tort claims (or claims that could lie in tort) as contract claims. Though I suppose that fits with the equally strange holding in Sweeney (where plaintiff got dinged for dismissal of claims that were not really torts).
I also got a kick out of the Court's decision to review the attorneys fees in the first place. The rule seems to be that you don't have to challenge "implicit" rulings in order to preserve such an issue on appeal. I expect that this will be the most frequently cited portion of the decision.
Posted by: E | April 03, 2008 at 09:11 AM