White v. Santomaso

Filing 107

ORDER Denying as moot 88 Third-Party Defendant Nesslers Motion for Summary Judgment; granting 91 Defendant/Third-Party Plaintiff Santomasos Motion for Summary Judgment. The Clerk of the Court is DIRECTED to enter judgment in favor of Defendant Santomaso on Plaintiff Whites civil conspiracy claim; Santomasos claim for contribution brought against Third-Party Defendant Nessler is DISMISSED WITHOUT PREJUDICE; and Each party shall bear their own costs, by Judge William J. Martinez on 9/18/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-01224-WJM-KLM
AMY V. WHITE,
Plaintiff,
v.
TYLER SANTOMASO,
Defendant/Third-Party Plaintiff,
v.
GREGORY P. NESSLER,
Third-Party Defendant.

ORDER GRANTING DEFENDANT/THIRD-PARTY PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND DENYING THIRD-PARTY DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT AS MOOT

In this personal injury case, Plaintiff Amy V. White (“White”) brings a claim of civil
conspiracy under Colorado law against Defendant Tyler Santomaso (“Santomaso”) for
injuries sustained from a two-car accident. (ECF No. 24.) Santomaso has, in turn,
brought a Third-Party Complaint against Third-Party Defendant Gregory P. Nessler
(“Nessler”), the alleged co-conspirator, seeking contribution under Colorado Revised
Statutes §§ 13-50.5-102 (1) and 13-21-111.5 (4). (ECF No. 25.) Before the Court are:
(1) Defendant/Third-Party Plaintiff Santomaso’s Motion for Summary Judgment
(“Santomaso’s Motion”) (ECF No. 91); and (2) Third-Party Defendant Nessler’s Motion
for Summary Judgment (“Nessler’s Motion”) (ECF No. 88).

For the reasons set forth below, Santomaso’s Motion for Summary Judgment is
granted, and Nessler’s Motion for Summary Judgment is denied as moot.
I. BACKGROUND
A.

Factual Background
The following facts are taken from the record and are either undisputed or

viewed in the light most favorable to the non-moving party:1
A motor vehicle traffic accident occurred on May 31, 2008 at approximately
10:10 a.m. on United States Highway 287 (“287”), in the County of Larimer, State of
Colorado (referred to as the “Incident”). (Scheduling Order, Stipulated Undisputed
Facts (ECF No. 80), ¶ 4a.) Amy White was driving her 2002 Toyota Camry northbound
on 287 at the time of the Incident. (Id., ¶ 4b.) Gregory Nessler was driving a 2007
Chevrolet Avalanche, owned by his father, southbound on 287 at the time of the
Incident. (Id., ¶ 4d.) Tyler Santomaso was in the front seat passenger of Nessler’s
vehicle. (Id., ¶ 4e.)
At or about 10:10 a.m. on May 31, 2008, Nessler fell asleep while driving at or
near mile marker 351 on 287, crossed the center line, and struck White’s vehicle
head-on. (Dep. of G. Nessler (ECF No. 103, Exhibit A), 97:9-16.) White sustained
bodily injuries and damages. (Scheduling Order, Stipulated Undisputed Facts, ¶ 4g.)
On the morning, or during the day, of Friday May 30, 2008, Nessler consumed
Xanax (hereinafter referred to by its generic pharmaceutical name of “Alprazolam”),
which he had illegally obtained without a prescription. (Dep. of G. Nessler, 31:22-25,
1

The following undisputed facts only concern Santomaso’s Motion for Summary

Judgment.

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32:1-25, 78:4-5.) On the evening of Friday, May 30, 2008, Santomaso, Nessler, and
Connor Crowley (“Crowley”), were together at Crowley’s residence. (Id., 68:14-24.)
While at Crowley’s residence, Santomaso, Nessler, and Crowley consumed illegal
substances, specifically, cocaine and marijuana. (Id., 71:23-25.) Both Santomaso and
Nessler went to sleep at approximately 2:00 a.m. on the early morning of May 31, 2008,
sleeping for approximately three to four hours, and waking at approximately 5:00 a.m.
on the morning of May 31, 2008. (Id., 75:9-11, 77:6-11, 97:6-8, 120:19-25, 121:1-9.)
Santomaso and Nessler planned to drive to Poudre Canyon, in Colorado, on
May 31, 2008, and agreed to bring marijuana with them with the intention of smoking it
at some point during their trip. (Id., 90:3-21, 125:11-14, 126:5-8; 2010 Dep. of T.
Santomaso (ECF No. 103, Exhibit B), 28:6-16, 40:22-25, 41:1-8, 43:21-25, 44:1-8; 2009
Dep. of T. Santomaso (ECF No. 103, Exhibit C), 14:18-25, 15:1-25, 16:1-20, 79:10-22.)
Nessler brought marijuana, Alprazolam, and drug paraphernalia (a pipe) with him on
their trip. (Dep. of G. Nessler, 80:8-12, 81:16-19, 82:1-3.)
During the trip, Santomaso and Nessler lit a marijuana cigarette in an attempt to
smoke it. (Id., 124:5-16; 2010 Dep. of T. Santomaso, 66:8-24.) However, the
marijuana cigarette did not stay lit, apparently as a result of the weather and wind, and
Santomaso placed it into his pocket. (Dep. of G. Nessler, 88:2-8; 2010 Dep. of T.
Santomaso, 67:18-25; 2009 Dep. of T. Santomaso, 22:3-9.) Shortly thereafter, at
approximately 10:10 a.m. on May 31, 2008, Nessler fell asleep at the wheel, causing
the aforementioned Incident. (Dep. of G. Nessler, 97:9-16.)
Three blood samples were collected from Nessler on May 31, 2008, shortly after
the Incident. (Affidavit of Sarah Urfer (ECF No. 103, Exhibit D), ¶ 5.b.) The results for
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all three blood samples were presumptive positive for benzodiazepines (Alprazolam),
cannabinoids (marijuana), and cocaine metabolite screens. (Id., ¶ 5.c.) Nessler was
under the influence of marijuana and Alprazolam at levels which would have impaired
his ability to properly and safely operate a motor vehicle at the time of the blood draws
on May 31, 2008. (Id., ¶ 6.)
B.

Procedural History
On December 30, 2010, White filed an Amended Complaint (the “White

Complaint”) against Santomaso alleging one claim of civil conspiracy between
Santomaso and Nessler based upon the events preceding the above described
Incident. (ECF No. 24.) Nessler was not named as a party defendant by White.2 (Id. ¶
8.)
On December 30, 2010, Santomaso filed a Third-Party Complaint against
Nessler for contribution pursuant to Colo. Rev. Stat. §§ 13-50.5-102 and 13-21-111.5.
(ECF No. 25, ¶¶ 12-15.) The Third-Party Complaint alleges that Santomaso is entitled
to contribution from Nessler in an amount equal to Nessler’s pro rata share of liability
for the injuries and/or damages, if any, sustained by White as alleged in the White
Complaint or as proven at trial. (Id., ¶¶ 15-17.)
On February 16, 2012, Santomaso filed a Motion for Summary Judgment
pursuant to Federal Rule of Civil Procedure 56 asking the Court to grant summary
judgment in his favor on White’s civil conspiracy claim. (ECF No. 91.) On March 8,
2012, White filed a Response to Santomaso’s Motion (ECF No. 103), and Santomaso
2

White previously brought a lawsuit against Nessler only, which was settled and
dismissed with prejudice. See White v. Nessler, 08:cv-1398-RPM-MEH, ECF Nos. 1, 23.

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filed his Reply on March 22, 2012 (ECF No. 105).
On February 15, 2012, Nessler filed a Motion for Summary Judgment pursuant
to Federal Rule of Civil Procedure 56 asking the Court to grant summary judgment in
his favor on Santomaso’s contribution claim. (ECF No. 88.) On March 7, 2012,
Santomaso filed a Response to Nessler’s Motion (ECF No. 102), and Nessler filed his
Reply on March 23, 2012 (ECF No. 106).
These Motions are now ripe for resolution.
II. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or, conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v.
U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable juror could return a verdict for either party. Anderson, 477 U.S. at 248. The
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

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The moving party bears the initial burden of showing an absence of evidence to
support the nonmoving party’s case. Celotex, 477 U.S. at 325. Where the non-movant
bears the burden of proof at trial, the non-movant must then point to specific evidence
establishing a genuine issue of material fact with regard to each challenged element.
See Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002); In re Ribozyme Pharms.,
Inc. Sec. Litig., 209 F. Supp. 2d 1106, 1111 (D. Colo. 2002).
III. ANALYSIS
A.

Santomaso’s Motion for Summary Judgment
Santomaso has asked the Court to grant summary judgment in his favor on

White’s civil conspiracy claim. (ECF No. 91.) Santomaso argues that White’s claim
fails as a matter of law, a matter of public policy, and as a matter of equity. (Id.) White
refutes these arguments. (ECF No. 103.) The Court first turns to Santomaso’s
argument that White’s claim fails as a matter of law.
A party seeking to establish a civil conspiracy claim under Colorado law must
show that there exists: (1) two or more persons; (2) an object to be accomplished; (3)
an agreement on the object or course of action; (4) one or more unlawful overt acts;
and (5) damages as the proximate result thereof. See Jet Courier Service, Inc. v.
Mulei, 771 P.2d 486, 502 (Colo. 1989). The purpose of the conspiracy must either be
unlawful, or lawful and accomplished by unlawful means. Powell Products, Inc. v.
Marks, 948 F. Supp. 1469, 1480 (D. Colo. 1996). “[T]he essence of a civil conspiracy
claim is not the conspiracy itself, but the actual damages resulting from the acts done in
furtherance of the conspiracy.” Resolution Trust Corp. v. Heiserman, 898 P.2d 1049,

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1055 (Colo. 1995); accord Farmland Indus. v. Frazier-Parrott Commodities, Inc., 871
F.2d 1402, 1409 (8th Cir. 1989) (“[T]he ‘doctrine of civil conspiracy extends liability for
tort . . . to persons other than the actual wrongdoer . . . but it is the acts causing
damage to the plaintiff that give rise to liability for damages, not the conspiracy itself.’”)
(internal quotation omitted). Thus, “it is [the] wrongful acts, not the mere existence or
continuation of a conspiracy, that injure the plaintiff.” Sterenbuch v. Goss, 266 P.3d
428, 435 (Colo. App. 2011). Further, when considering a civil conspiracy claim,:
[an individual’s] mere presence at the commission of the wrong, or failure
to object to it, is not enough to charge one with responsibility. It is []
essential that each particular defendant who is to be charged with
responsibility shall be proceeding tortiously, which is to say with the intent
requisite to committing a tort, or with negligence. One who innocently, and
carefully, does an act which happens to further the tortious purpose of
another is not acting in concert with the other.
Resolution Trust, 898 P.2d at 1049, 1057 (quoting W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 46, at 323–24 (5th ed. 1984) (footnotes omitted)).
A civil conspiracy can be implied by a course of conduct and other circumstantial
evidence. See Schneider v. Midtown Motor Co., 854 P.2d 1322, 1327 (Colo. App.
1992). Moreover, although an agreement must be shown to exist between the actors,
evidence of an express agreement is not necessary. Resolution Trust, 898 P.2d at
1056-57 (citing U.S. v. Fox, 902 F.2d 1508, 1515 (10th Cir. 1990) (“[B]y their very
nature conspiracies are often provable only by circumstantial evidence”)).
White argues that Santomaso participated in a conspiracy with Nessler to use
illegal drugs both before and after their trip, and that the use of these drugs resulted in
the Incident which caused injuries to White. (ECF No. 103.) After reviewing White’s

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arguments and evidence, the Court finds that Santomaso has met his initial burden of
showing an absence of evidence to support White’s civil conspiracy claim. See
Celotex, 477 U.S. at 325.
White asserts that Santomaso and Nessler’s use and intention to use illegal
drugs is an agreement on a course of action and an unlawful overt act which supports
her claim. (ECF No. 103 at 10-15.) Evidence indeed shows that Nessler was under the
influence of marijuana and Alprazolam at levels which would have impaired his ability to
properly and safely operate his motor vehicle at the time of the Incident. (Affidavit of
Sarah Urfer, ¶ 6.) However, there is only evidence before the Court that Nessler used
Alprazolam on May 30, 2008; there is no evidence, competent or otherwise, that
Santomaso used Alprazolam on either May 30 or 31, 2008. (Dep. of G. Nessler,
31:22-25, 32:1-25, 78:4-5.) Further, both Nessler and Santomoso state that they tried
to light a marijuana cigarette during their trip to the Poudre Canyon on the day of the
Incident, but failed. (Id., 11:2-8, 124:5-16; 2010 Dep. of T. Santomaso, 66:8-24, 67:1825; 2009 Dep. of T. Santomaso, 22:3-9.) White speculates that both men actually did
use marijuana before or during their trip. (ECF No. 103 at 14-15.) Indeed, Nessler’s
blood samples, taken after the Incident, were presumptively positive for cannabinoids
(marijuana). (Affidavit of Sarah Urfer, ¶ 5.c.) However, there is not sufficient
circumstantial evidence to support White’s speculation that Santomaso participated in
or used marijuana with Nessler immediately before or during their car trip.3

3

“Because Santomaso was a passenger, the testing done on his blood when
drawn on May 31, 2008 did not include testing for drugs, and therefore, it cannot be proven by
direct evidence whether or not Santomaso also participated in the illegal consumption of
marijuana during the trip.” (ECF No. 103 at 15.)

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White has also put forth evidence that Nessler and Santomaso used cocaine the
night before the Incident, and that, as a result, Nessler did not get enough sleep. (Dep.
of G. Nessler, 71:23-25, 75:9-11, 77:6-11, 97:6-8, 120:19-25, 121:1-9.) But White does
not argue that Nessler was under the influence of cocaine at levels which would have
impaired his ability to drive at the time of the Incident. Rather, White contends that both
Santomaso and Nessler’s illegal use of cocaine caused Nessler to not get enough
sleep on May 30, 2008, which, in turn, led to Incident. (ECF No. 103 at 14-19.) Such a
theory is akin to alleging negligence, and Santomaso cannot be held liable under such
a theory as he was only a passenger in Nessler’s vehicle.4 See Watson v. Regional
Trans. District, 762 P.2d 133, 138 (Colo. 1988) (“[T]here is no longer any basis for
assuming that the passenger, no matter what his relationship to the driver may be, has
the capacity to assert control over or direct the operation of a moving automobile.”)
(internal citations omitted); Sielsky v. Johnson, 506 P.2d 381, 383 (Colo. App. 1973)
(passenger’s mere presence in vehicle which overturned in an alleged attempt to avoid
defendant’s automobile did not establish contributory negligence between passenger
and defendant in absence of showing joint control).
In short, the Court agrees with Santomaso that an alleged plan to smoke
marijuana and then drive is not sufficient to meet the element of “[the commission of]
one or more unlawful overt acts” necessary to establish a civil conspiracy claim. See
Jet Courier Service, 771 P.2d at 502. Without evidence of actual participation in a
wrongful act that directly led to the Incident, no reasonable juror could find that

4

Indeed, White brought an action in this District against only Nessler for claims
relating to negligence. See White v. Nessler, 08:cv-1398-RPM-MEH, ECF No. 1.

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Santomaso engaged in a conspiracy that ultimately brought about White’s injuries and
damages. See Resolution Trust, 898 P.2d at 1049, 1057. Accordingly, Santomaso is
entitled to summary judgment on White’s civil conspiracy claim.5
B.

Nessler’s Motion for Summary Judgment
Also before the Court is Nessler’s Motion for Summary Judgment asking the

Court to grant summary judgment in his favor on Santomaso’s contribution claim. (ECF
No. 88.) Santomaso’s contribution claim is essentially derivative of White’s civil
conspiracy claim. Because the Court finds that Santamaso is entitled to judgment as a
matter of law on White’s civil conspiracy claim, Nessler’s Motion is denied as moot.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendant/Third-Party Plaintiff Santomaso’s Motion for Summary Judgment
(ECF No. 91) is GRANTED;

2.

Third-Party Defendant Nessler’s Motion for Summary Judgment (ECF No. 88) is
DENIED AS MOOT;

3.

The Clerk of the Court is DIRECTED to enter judgment in favor of Defendant
Santomaso on Plaintiff White’s civil conspiracy claim;

4.

Santomaso’s claim for contribution brought against Third-Party Defendant
Nessler is DISMISSED WITHOUT PREJUDICE; and

5.

Each party shall bear their own costs.

5

Because the Court holds that White’s claim fails as a matter of law, the Court
does not reach Santomaso’s arguments that White’s claim fails as a matter of public policy and
as a matter of equity.

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Dated this 18th day of September, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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