specially concurring.
I concur with the result reached by the majority, but I write separately because I believe we address issues in part II of the opinion that we need not address. See Smeal v. Oldenettel, 814 P.2d 904 (Colo.1991).
Specifically, because plaintiff proposed and defendant did not object to adding an allegation relating to custom or policy, the amended complaint clearly stated a claim for relief. See Uberoi v. University of Colorado, 713 P.2d 894 (Colo.1986); State v. DeFoor, 824 P.2d 783 (Colo.1992) (Mullarkey, J., concurring in part and dissenting in part). Hence, given the posture of this ease, in my view, additional analysis is unnecessary.
Thus, I would remand for the trial court to address defendant’s remaining contention that plaintiff knew or should have known, based upon the evidence presented in the first trial, that the facts did not support the pleaded claim and that, therefore, the claim was groundless.