Squires v. Goodwin et al

Filing 128

MEMORANDUM OPINION on Plaintiff's Motion for Leave to Amend (Doc. # 90). By Magistrate Judge Craig B. Shaffer on 01/09/2012. (cbslc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-00309-CBS
KIMBERLY N. SQUIRES, by and through her Guardian and Natural Parent,
LYLE K. SQUIRES
Plaintiff,
v.
JAMES MICHAEL GOODWIN, and
BRECKENRIDGE OUTDOOR EDUCATION CENTER,
Defendants.

MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S
MOTION FOR LEAVE TO AMEND

THIS MATTER comes before the court on Plaintiff Kimberly N. Squires’ Motion for
Leave to Amend Complaint to Add Claims for Exemplary Damages and Outrageous Conduct
Against Defendant Breckenridge Outdoor Education Center (doc. #90), filed on June 6, 2011.
Defendant Breckenridge Outdoor Education Center (“BOEC”) filed its Response (doc. #100) on
June 26, 2011, and Ms. Squires filed her Reply (doc. #104) on July 11, 2011. After carefully
considering the parties’ briefs, counsels’ comments during a telephone status conference on
December 19, 2011, the entire court file and the applicable case law, Plaintiff’s motion is granted
in part and denied in part for the following reasons.
PROCEDURAL HISTORY
While the parties are well versed in the underlying circumstances of the pending
litigation, a brief recitation of the procedural history will place the instant motion in context. The
present litigation was initiated on February 12, 2010 with the filing of Ms. Squires’ original

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Complaint. That pleading asserted four claims for relief against Defendant Goodwin and a single
claim against Defendant BOEC for “Negligence: Willful and Wanton, Reckless, and/or Grossly
Negligent Conduct.” The latter claim alleged that BOEC created a “higher-than-normal risk of
harm” to Ms. Squires by, inter alia, “failing to select appropriate means of connecting Plaintiff’s
bi-ski to instructor Phillips,” “failing to maintain control of Plaintiff’s bi-ski,” and “failing to
retain the tether or rope connected to Plaintiff’s bi-ski.” The original Complaint further alleged
that “Defendant BOEC was aware of the risks to which it was exposing Plaintiff Squires, a minor
and disabled skier.” Plaintiff filed her First Amended Complaint (doc. #5) on April 15, 2010,
which joined Defendant Mountain Man, Inc1 but did not change the single claim against BOEC.
On June 2, 2010, Ms. Squires filed a Second Amended Complaint (doc. #13) but, again, did not
change the claim against BOEC. The Second Amended Complaint reiterated the allegation that
Plaintiff has suffered non-economic losses for “pain, suffering and anxiety.”
Magistrate Judge Boland held a Fed. R. Civ. P. 16 scheduling conference in this action on
September 15, 2010. At that conference, the court adopted the parties’ proposed pretrial
schedule and set October 15, 2010 as the deadline for joinder of parties and amendment of
pleadings, a discovery cutoff of April 15, 2011, and a dispositive motion deadline of May 15,
2011. See Scheduling Order (doc. #40), at 9.
Defendant BOEC moved for summary judgment (doc. #52) on December 3, 2010,
arguing that Plaintiff’s Fifth Claim for Relief was barred by a valid release of liability signed by
Ms. Squires’ mother prior to the accident on February 13, 2008. The parties completed their
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On November 7, 2011, the court granted Defendant Mountain Man, Inc.’s Motion for
Summary Judgment and directed that judgment on the Second Amended Complaint shall be
entered in favor of Defendant Mountain Man at the conclusion of the entire case.
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initial briefing on this motion by January 24, 2011, but submitted supplemental briefs prior to a
hearing on July 20, 2011.
This court issued a Memorandum Opinion and Order (doc. # 120), which concluded that
Mrs. Squires had sufficient information to make an informed decision to release any claims that
her daughter might have against BOEC and that the release was legally valid and enforceable.
However, as a matter of law, the BOEC release cannot bar civil liability for gross negligence.
See Colo. Rev. Stat. § 13-22-107(4) (“Nothing in this section shall be construed to permit a
parent acting on behalf of his or her child to waive the child’s prospective claim against a person
or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly
negligent act or omission.”). As to the latter issue, I found that “the evidence, viewed in a light
most favorable to Ms. Squires, might lead a reasonable jury to conclude that BOEC was
conscious of its conduct and the existing conditions and knew there was a strong probability that
injury to Ms. Squires would result.”
The court conclude[d] that Ms. Squires is properly afforded an opportunity to
present to a jury evidence of the alleged willful and wanton, reckless, or grossly
negligent acts or omissions [of BOEC]. It will best be determined at trial, after
the submission of Ms. Squires’ case in chief, whether BOEC acted recklessly.
Accordingly, I granted in part and denied in part Defendant BOEC’s Motion for Summary
Judgement and held that the Fifth Claim for Relief in the Second Amended Complaint shall
proceed against BOEC “only on the alleged wilful and wanton, reckless, or grossly negligent acts
or omissions.”
During a telephone discovery hearing on May 5, 2011, Plaintiff’s counsel advised the
court and defense counsel that his client would be moving for leave to amend her pleading to add

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a claim for punitive damages.2 Counsel indicated that his request for punitive damages was
based, in part, on recently acquired deposition testimony by defense experts (Patrick Kelly and
Ruth DeMuth) and a BOEC representative (Paul Gamber), as well the opinions of Plaintiff’s own
expert, Bil Hawkins. Relying on this evidence, Plaintiff argued that BOEC’s employee, Jennifer
Phillips, engaged in reckless behavior by not properly utilizing a slip knot on her wrist to
maintain contact with the bi-ski containing Ms. Squires. At no time during the May 5, 2011
telephone conference did Plaintiff’s counsel allude to the possibility of a new claim against
BOEC for outrageous conduct. On May 23, 2011, this court permitted Plaintiff “to file a motion
for leave to amend her prayer for relief no later than June 6, 2011" and allowed Defendants to file
a Response thereto.
Plaintiff Squires filed the instant Motion for Leave to Amend Complaint in order to
include “claims for exemplary damages and outrageous conduct as against BOEC.” Ms. Squires
suggests that “discovery and deposition testimony garnered in this case” establishes “more than a
good faith basis . . . to allege that BOEC’s actions and inactions are attended by circumstances of
fraud, malice, and/or willful and wanton conduct.”

2

As a technical matter, Plaintiff’s request to add a “claim” for exemplary damages is misstated. Under Colorado law, exemplary damages are a remedy available in conjunction with a
cause of action, not an independent, stand alone claim. See, e.g., Fuller v. Mickelson, 2002 WL
3232596, at *1 (D. Colo. 2007) (citing Palmer v. A.H. Robins Co., Inc., 684 P.2d 187, 213 (Colo.
1984)); Alexander & Alexander, Inc. v. Frank B. Hall and Co., Inc., 1990 WL 8028, at *13 (D.
Colo. 1990).
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ANALYSIS
While Plaintiff Squires seeks relief pursuant to Fed. R. Civ. P. 15(a), her motion to
amend was filed well beyond the October 15, 2010 deadline established in the scheduling order
entered on September 15, 2010. Accordingly, the court must consider the interplay between Rule
15(a) and Fed. R. Civ. P. 16(b)(4). I am well aware that the Tenth Circuit “has not yet
considered whether Rule 16(b)(4) must be met when motions to amend pleadings would
necessitate a corresponding amendment of scheduling orders.” See United States ex rel. Richie v.
Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009). However, lower courts in the
Tenth Circuit repeatedly have looked to Rule 16(b)(4) when a party seeks leave to amend
pleadings after the deadline for amending pleadings has passed. See, e.g., Philippus v. Aetna
Health, Inc., 2010 WL 148282, at *2-3 (D. Colo. 2010); Texas Instruments, Inc. v. BIAX Corp.,
2009 WL 3158155, at *1-2 (D. Colo. 2009); Jenkins v. FMC Technologies, Inc., 2009 WL
1464416, at *1-2 (D. Colo. 2009); Dias v. City and County of Denver, Colorado, 2007 WL
4373229, at *2-3 (D. Colo. 2007). See also Capital Solutions LLC v. Konica Minolta Business
Solutions USA, Inc., 2009 WL 3711574, at *8 (D. Kan. 2009) and cases cited therein.
I also am persuaded by the analysis set forth in Sherman v. Winco Fireworks, Inc., 532
F.3d 709 (8th Cir. 2008). In that case, the defendant moved to amend its answer to plead a new
affirmative defense more than seventeen months after the deadline for amending pleadings. The
appellate court reversed the jury verdict in favor of the defendant after concluding that the trial
court abused its discretion by granting the belated motion to amend in the absence of “good
cause” under Rule 16(b)(4). As the court noted in Sherman, Rule 16(b) specifically requires the
trial court to “‘issue a scheduling order’ which ‘must limit the time to join other parties, amend
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the pleadings, complete discovery, and file motions.’” Id. at 715.
When a party seeks to amend a pleading after the scheduling deadline for doing
so, the application of Rule 16(b)’s good-cause standard is not optional. To permit
district courts to consider motions to amend pleadings under Rule 15(a) without
regard to Rule 16(b) “would render scheduling orders meaningless and effectively
. . . read Rule 16(b) and its good cause requirement out of the Federal Rules of
Civil Procedure.”
Id. at 716 (quoting Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1419 (11th Cir. 1988)). In this
case, the court need not address the applicability of Rule 15(a) unless it first finds that Plaintiff
has satisfied the requirements of Rule 16(b)(4).
Rule 16(b)(4) provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.” See Fed. R. Civ. P. 16(b)(4). See also D.C.COLO.LCivR 16.1 ("The
schedule established by a scheduling order shall not be modified except upon a showing of good
cause and by leave of court"). This “good cause” requirement reflects the important role a
scheduling order plays in the court’s management of its docket. Cf. Washington v. Arapahoe
County Department of Social Services, 197 F.R.D. 439, 441 (D. Colo. 2000) (noting that a
“scheduling order is an important tool necessary for the orderly preparation of a case for trial”).
See also Rent-a-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 101 (S.D.N.Y.
2003) ("scheduling orders are designed to offer a degree of certainty in pretrial proceedings,
ensuring that at some point both the parties and the pleadings will be fixed and the case will
proceed"); Deghand v. Wal-Mart Stores, Inc., 904 F. Supp. 1218, 1221 (D. Kan. 1995) (“a
scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly
disregarded by counsel without peril”).
The “good cause” standard requires the moving party to show that despite its diligent

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efforts, it could not have reasonably met the scheduled deadline. See Pumpco, Inc. v. Schenker
International, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001).
Rule 16(b)’s “good cause” standard is much different than the more lenient
standard contained in Rule 15(a). Rule 16(b) does not focus on the bad faith of
the movant, or the prejudice to the opposing party. Rather, it focuses on the
diligence of the party seeking leave to modify the scheduling order to permit the
proposed amendment. Properly construed, “good cause” means that scheduling
deadlines cannot be met despite a party’s diligent efforts. In other words, this
court may “modify the schedule on a showing of good cause if [the deadline]
cannot be met despite the diligence of the party seeking the extension.”
Carelessness is not compatible with a finding of diligence and offers no reason for
a grant of relief.
Colorado Visionary Academy v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000) (quoting
Dilmar Oil Co., Inc. v. Federated Mutual Ins. Co., 986 F. Supp. 959 (D.S.C. 1997)).
Assuming the Rule 16(b) “good cause” standard is met, the court then must consider the
balancing test mandated by Fed. R. Civ. P. 15(a). I readily acknowledge that the underlying
purpose of Rule 15(a) is to facilitate a decision on the merits. Bob Marshall Alliance v. Lujan,
804 F. Supp. 1292, 1298 (D. Mont. 1992) (noting that the court’s exercise of discretion must “be
guided by the underlying purpose of Rule 15 – to facilitate decision on the merits, rather than on
the pleadings or technicalities”). To that end, motions to amend should be freely granted when
justice requires. See, e.g., Bellairs v. Coors Brewing Co., 907 F. Supp. 1448, 1459 (D. Colo.
1995).
In considering the “needs of justice,” however, the court must take into consideration the
interests of all parties.
Several factors are typically considered by the courts in determining whether to
allow amendment of a complaint. These include whether the amendment will
result in undue prejudice, whether the request was unduly and inexplicably
delayed, was offered in good faith, or that the party had sufficient opportunity to
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state a claim and failed. Where the party seeking amendment knows or should
have known of the facts upon which the proposed amendment is based but fails to
include them in the original complaint, the motion to amend is subject to denial.
Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990). See
also Arkansas-Platte & Gulf Partnership v. Dow Chemical, 886 F. Supp. 762, 765 (D. Colo.
1995) (“Leave to amend should be freely given based on the balancing of several factors,
including futility, delay, bad faith, dilatory motive, repeated failure to cure deficiencies, and
prejudice to the opposing party.”). A motion to amend must be left to the sound discretion of the
district court. State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir.
1984).
Applying the foregoing standards to the instant case, I will grant Plaintiff’s motion to the
extent she seeks to add a request for punitive damages against BOEC in her prayer for relief. In
Colorado, punitive damages are available by statute when “the injury complained of is attended
by circumstances of fraud, malice, or willful and wanton conduct . . . .” See Colo. Rev. Stat. §
13-21-102(1)(a). Section 13-21-102(1)(b) defines “willful and wanton conduct” as “conduct
purposefully committed which the actor must have realized as dangerous, done heedlessly, and
recklessly, without regard to consequences, or of the rights and safety of others, particularly the
plaintiff.” Where a “defendant is conscious of his conduct and the existing conditions and knew
or should have known that injury would result, the statutory requirements of section 13-21-102
are met.” Qwest Services Corp. v. Blood, 252 P.3d 1071, 1092 (Colo. 2011) (quoting Coors v.
Sec. Life of Denver Ins. Co., 112 P.3d 59, 66 (Colo. 2005), opinion modified and superseded on
denial of rehearing by Qwest Services Corp. v. Blood, --- P.3d ---- (Colo. Jun 20, 2011) (No.
09SC534).
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Under Colorado law, a plaintiff may not include a claim for exemplary damages in an
initial claim for relief, and may only amend his or her complaint to add such a claim if the
plaintiff presents prima facie proof of a triable issue. “The existence of a triable issue on
punitive damages may be established through discovery, by evidentiary means, or by an offer of
proof.” Leidholt v. District Court In and For City and County of Denver, 619 P.2d 768, 771
(Colo. 1980), overruled in part on other grounds, Corbetta v. Albertson’s, Inc. 975 P.2d 718
(Colo. 1999). From the outset of this litigation, Ms. Squires has alleged that BOEC’s actions and
omissions were “heedless, reckless and/or without regard to the consequences and with regard to
the rights and safety of others, particularly Plaintiff Squires.” I will presume that Plaintiff and
BOEC have conducted discovery in this case with that allegation in mind. Finally, this court has
determined already that “the evidence, viewed in a light most favorable to Ms. Squires, might
lead a reasonable jury to conclude that BOEC was conscious of its conduct and the existing
conditions and knew there a strong probability that injury to Ms. Squires would result.” Under
the circumstances, I do not find that Plaintiff’s request to add a prayer for exemplary damages is
either untimely or prejudicial to BOEC. Of course, I express no opinion as to whether Plaintiff
can marshal sufficient evidence to prove at trial “beyond a reasonable doubt” her entitlement to
those damages. See Coors v. Sec. Life of Denver Ins. Co., 112 P.3d at 65-66 (“The sufficiency of
evidence to justify an award of punitive damages is question of law.”).
Plaintiff’s request to add a new claim for outrageous conduct, however, comes before the
court in a completely different light. Ms. Squires’ counsel never alluded to the possibility of this
new claim during the telephone discovery hearing on May 5, 2011, and cannot plausibly suggest
that a claim for outrageous conduct would have been subsumed by the court’s ruling on May 23,
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2011 allowing Ms. Squires to “file a motion for leave to amend her prayer for relief.” And so the
court turns first to the good cause standard under Rule 16(b).
The October 15, 2010 deadline for amending pleadings originated with the parties, and
was adopted by Magistrate Judge Boland after Plaintiff already had filed her Second Amended
Complaint on June 2, 2010. The parties held their Fed R. Civ. P. 26(f) meeting on August 24,
2010, and Plaintiff could have commenced formal discovery that very day. See Fed. R. Civ. P.
26(d) (“A party may not seek discovery from any source before the parties have conferred as
required by Rule 26(f)”) (emphasis added). Plaintiff’s Motion for Leave to Amend does not
acknowledge the October 15, 2011 deadline and makes no reference to Rule 16(b) or to the case
law construing the good cause standard. The instant motion was filed approximately eight
months after the deadline for amending the pleadings, nearly two months after the close of
discovery, and six months after BOEC filed its motion for summary judgment.
A review of the arguments raised in Plaintiff’s motion and the attached exhibits begs the
question why this new claim is being asserted so belatedly. Plaintiff ‘s counsel presumably had
unfettered access to his client, her parents, and relevant medical records well before the October
15, 2011 deadline and, therefore, was in a position to evaluate the emotional effects of the
February 13, 2008 incident. Cf. Learn v. Daeschner, 349 F.3d 888, 908 (6th Cir. 2003) (holding
that the Rule 16(b)(4) “good cause” standard was not met where plaintiffs could have pled their
new claim for money damages within the parameters of the court’s scheduling order because
plaintiffs were well aware of the underlying facts and the various types of relief available);
Roberge v. Lupo, LLC, 254 F.R.D. 21, 23 (D. Me. 2008) (in denying plaintiff’s motion for leave
to amend filed after expiration of the deadline for amendment of pleadings, held that plaintiff
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“had sufficient evidence to support this claim at the time the original complaint was filed”).
Although counsel was privy to this information from the outset of the litigation, the original
Complaint and every subsequent amendment has alleged simply that Plaintiff suffered noneconomic losses for “pain, suffering and anxiety.”
Ms. Squires suggests that her claim for outrageous conduct is supported by BOEC’s lack
of written safety rules for adaptive skiing, by Ms. Phillips’ failure to utilize a “properly tied
slipknot,” by Ms. Phillips’ decision to take Ms. Squires down a blue ski run, and by BOEC’s
failure to mandate a redundant safety system in conjunction with its adaptive ski program. In
support of these arguments, Ms. Squires cites to the opinions proffered by her own experts, Stan
Gale and Bil Hawkins, to November 11, 2010 deposition testimony given by Ms. Phillips, and
the December 14, 2011 testimony of BOEC’s Rule 30(b)(6) designee, Gene Gamber. Many of
these same points were addressed in Plaintiff’s Response to BOEC’s Motion for Summary
Judgment (doc. #56), filed on January 6, 2011. Under the circumstances, it is difficult to
reconcile the expectation of due diligence incorporated into Rule 16(b) with Plaintiff’s delay of
several months in asserting her outrageous conduct claim.
“A litigant’s failure to assert a claim as soon as he could have is properly a factor to be
considered in deciding whether to grant leave to amend.” In re Enron Corporation Securities,
Derivative & ERISA Litigation, 610 F. Supp. 2d 600, 653 (S.D. Tex. 2009) ( “where plaintiffs
‘deliberately chose to delay amending their complaint, . . . a busy court need not allow itself to be
imposed upon by the presentation of theories seriatim’”). See also Transamerica Life Insurance
Co. v. Lincoln National Life Insurance Co., 590 F. Supp. 2d 1093, 1100-1105 (N.D. Iowa 2008)
(concluding that plaintiff’s belated motion for leave to amend was not prompted by a change in
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the law, but rather reflected “second guessing” of earlier tactical decisions to forego those claims;
held that plaintiff knew all the circumstances giving rise to the belatedly proposed claim well
before the deadline for leave to amend). The Federal Rules of Civil Procedure will not
necessarily protect a party from the unforeseen consequences of their own litigation strategy. See
Martinez v. Target Corp, 2010 WL 2616651, at *4 (10th Cir. 2010) (finding no abuse of
discretion in the trial court’s denial of plaintiff’s untimely motion for leave to amend; found
inadequate plaintiff’s explanation that she did not move to amend because she thought her
FMLA claim was premature). I do not discount the contentious nature of this lawsuit. However,
the court’s analysis under Rule 16(b)(4) is more narrowly focused on the due diligence of the
moving party. Ms. Squires’ motion falls short under that standard.
This court has an independent responsibility for case management. Cf. Beller ex rel.
Beller v. United States, 221 F.R.D. 689, 693 (D.N.M. 2003) (the case management elements of
Rule 16 are based on the “recognition that cases can move efficiently through the federal system
only when courts take the initiative to impose and enforce deadlines”). As the Tenth Circuit has
acknowledged, courts have a “high duty to insure the expeditious and sound management of the
preparation of cases for trial.”
While on the whole Rule 16 is concerned with the mechanics of pretrial
scheduling and planning, its spirit, intent and purpose is clearly designed to be
broadly remedial, allowing courts to actively manage the preparation of cases for
trial . . .
Olcott v. Delaware Flood Co., 76 F.3d 1538, 1555 (10th Cir. 1996) (quoting Matter of Sanction
of Baker, 744 F.2d 1438, 1440 (10th Cir. 1984)). Both the court and Defendant BOEC are
entitled to expect that by a date certain, Plaintiff’s claims will be fixed and the case will proceed

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on that basis. Based upon a lack of diligence in pursuing her claim against BOEC for outrageous
conduct, I conclude that Plaintiff has not sustained her burden under Rule 16(b)(4).
The court would reach the same result under Rule 15(a). There is no absolute right to
repeatedly amend a complaint, and in exercising its discretion under Rule 15(a), the court will be
guided by considerations of efficiency. See, e.g., Peresypa v. Jiminy Peak Mountain Resort, Inc.,
653 F. Supp. 2d 131, 135 (D. Mass. 2009) (in denying plaintiff’s motion to amend to add claims
for breach of warranty and gross negligence, the court noted that the motion to amend came more
than one year after plaintiffs filed their complaint, several months after the close of non-expert
discovery, and nearly a month after defendant filed its motion for summary judgment; held that
given plaintiff’s lack of diligence in pursuing the new claims, the motion to amend was simply
too late). “[W]ith the passage of time and acceptance of earlier amendments, the party seeking
leave to amend must justify that request by more than invocation of the concept of [Fed.R.Civ.P.
15(a)]’s liberality.” Centra, Inc. v. Chandler Ins. Co., Ltd., 229 F.3d 1162, at *11 (10th Cir.
2000).
I cannot find that Plaintiff’s outrageous conduct claim is timely under Rule 15(a). See
Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1495 (10th Cir. 1995) (“untimeliness in itself
can be a sufficient reason to deny leave to amend, particularly when the movant provides no
adequate explanation for the delay”); Deghand v. Wal-Mart Stores, Inc., 904 F. Supp. at 1221
(holding that courts may deny leave to amend for untimeliness or undue delay without a showing
of prejudice to the opposing party). As noted previously, the instant motion was filed almost
eight months after the deadline for joining new parties, after BOEC moved for summary
judgment, and after the close of discovery. Cf. Hedrick v. Honeywell, Inc., 796 F. Supp. 293, 295
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(S.D. Ohio) (plaintiff denied leave to file second amended complaint alleging fraud where
discovery had closed and defendant had filed motion for summary judgment). The court does not
find that Plaintiff has provided a compelling explanation for her delay in asserting this claim.
As a separate basis for denying Plaintiff’s motion, I conclude based on the extensive
record before the court that the proposed outrageous conduct claim would be futile. “The
elements of a claim for outrageous conduct are (1) the defendant engaged in extreme and
outrageous conduct; (2) the defendant engaged in such conduct recklessly or with the intent to
cause the plaintiff severe emotional distress; and (3) the defendant’s conduct caused the plaintiff
to suffer severe emotional distress.” English v. Griffith, 99 P.3d 90, 93 (Colo. App. 2004) (citing
Culpepper v. Peal Street Building, Inc., 877 P.2d 877, 882 (Colo. 1994)). The trial court must
make the initial determination whether reasonable persons could differ on the question of
whether the defendant’s conduct was outrageous. Id.
A claim for outrageous conduct under Colorado law requires evidence of “severe
emotional distress,” which “consists of highly unpleasant, mental reactions . . . and is so extreme
that no person of ordinary sensibilities could be expected to tolerate and endure it.” See CJI-Civ.
23:1 and 23:4 (2011). See also Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999)
(holding that liability for outrageous conduct “has been found only where the conduct has been
so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community”). In
successive pleadings filed on February 12, April 15, and June 2, 2010, Ms. Squires has never
alleged “severe emotional distress.”
Although Plaintiff has presented evidence to challenge Ms. Phillips’ choice of terrain, the
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adequacy of her knot-tying, and the sufficiency of BOEC’s policies, I find that this evidence does
not equate to “atrocious and utterly intolerable” behavior and is not sufficient to create a jury
question on whether Defendant’s conduct exceeds “all possible bounds of decency.” In deciding
the threshold question of whether Plaintiff has alleged conduct that is outrageous as a matter of
law, the court must evaluate the totality of Defendant’s conduct. Cf. Green v. Qwest Services
Corp., 155 P.3d 383, 385 (Colo. App. 2006) (“The fact that an accident occurred while the
defendant was engaged in an inherently dangerous activity does not elevate it to outrageous
conduct.”). So, for example, in Green, the appellate court upheld the dismissal of plaintiffs’
outrageous conduct claim even after accepting as true the allegations that defendant’s employees
were inexperienced, poorly trained and unsupervised, that the employees were aware of a nearby
gas line before they started their excavations, and that excavating near a natural gas line is
inherently dangerous. Id. at 386.
My determination of futility also takes into consideration the timing of Plaintiff’s motion.
“The bar for a plaintiff tendering an amended complaint is higher after a motion for summary
judgment has been filed, as the plaintiff must demonstrate ‘that the proposed amendments were
supported by substantial and convincing evidence.” Adorno v. Crowley Towing and
Transportation Co., 443 F. 3d 122, 126 (1st Cir. 2006) (quoting Resolution Trust Corp. v. Gold,
30 F.3d 241, 153 (1st Cir. 1994). See also Bauchman for Bauchman v. West High School, 132
F.3d 542, 562 (10th Cir. 1997) (“A court properly may deny a motion for leave to amend as futile
when the proposed amended complaint would be subject to dismissal for any reason, including
that the amendment would not survive a motion for summary judgment.”). I find that Plaintiff
has not made a sufficient showing to support the proposed claim for outrageous conduct.
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CONCLUSION
Accordingly, for the foregoing reasons, Plaintiff Squires’ Motion for Leave to Amend
Complaint to Add Claims for Exemplary Damages and Outrageous Conduct Against Defendant
Breckenridge Outdoor Education Center (doc. #90) is GRANTED IN PART and DENIED IN
PART. The motion is granted to the extent Plaintiff seeks leave to include a request for
exemplary damages in her prayer for relief. In all other respects, the motion is denied.
DATED this 9th day of January, 2012.
BY THE COURT:

s/ Craig B. Shaffer
United States Magistrate Judge

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