Bunting v. Preferred Homecare

Filing 42

ORDER: It is ORDERED that "Plaintiff's Opposed Motion to Amend His Civil Complaint and Jury Demand to Add Claims for Negligence Per Se and Exemplary Damages." (Doc. No. 28 ) is GRANTED in part and DENIED in part. Plaintiff's motion to amend is DENIED as to his inherently dangerous activity claim and GRANTED in all other respects. It is further ORDERED that Plaintiff shall file his Amended Complaint, in conformity with this Order, on or before October 4, 2013. By Magistrate Judge Kathleen M. Tafoya on 10/01/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–03327–RM–KMT

MATTHEW BUNTING,
Plaintiff,
v.
PREFERRED HOMECARE,
Defendant.
______________________________________________________________________________
ORDER

This case comes before the court on “Plaintiff’s Opposed Motion to Amend His Civil
Complaint and Jury Demand to Add Claims for Negligence Per Se and Exemplary Damages.”
(Doc. No. 28 [Mot.], filed May 17, 2013.) Defendant filed its response on June 7, 2013 (Doc.
No. 34 [Resp.]), and Plaintiff filed his reply on June 21, 2013 (Doc. No. 36 [Reply]). This
matter is ripe for ruling.1

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Motions to amend are widely considered non-dispositive motions because they are
“ ‘pretrial matter[s] not dispositive of a claim or defense of a party’ within the purview of Fed.
R. Civ. P. 72(a).” Pagano v. Frank, 983 F.2d 343, 346 (1st Cir.1993) (citing Walker v. Union
Carbide Corp., 630 F. Supp. 275, 277 (D. Me.1986) and 28 U.S.C. § 636(b)(1)(A)); Hall v.
Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006); Sprint Commc’ns L.P. v. Vonage Holdings
Corp., 500 F.Supp.2d 1290, 1346 (D. Kan.2007); Vandewalker v. Quandt’s Food Serv. Distribs.,
Inc., 934 F.Supp. 42, 48 (N.D.N.Y. 1996) (“Orders granting leave to amend are nondispositive,
as they do not remove claims or defenses of a party.” (citing Fed.R.Civ.P. 72)).

I. Background
In his Complaint, Plaintiff alleges on July 28, 2011, he was injured in an explosion while
he was working for D.M.E. Solutions, Inc./Colorado Compressed Gases (“DME”). (Doc. No. 3,
¶ 1.) Plaintiff alleges DME maintains a 6000 gallon bulk liquid oxygen storage tank and sells
liquid oxygen to vendors who then distribute smaller amounts of oxygen to individuals for
medical purposes. (Id., ¶ 9.) Plaintiff alleges an employee of the defendant drove a cargo van to
DME in order to purchase and fill the van with approximately five gallons of liquid oxygen.
(Id., ¶ 11.) Plaintiff alleges the van’s pressure building valve was not operating correctly and
was going to be repaired the next day. (Id., ¶ 12.) Plaintiff alleges as he was preparing to fill the
van with liquid oxygen, a flash fire exploded inside the liquid oxygen tank and erupted at
multiple points within the van. (Id., ¶ 17.) Plaintiff alleges he suffered extensive severe burns
and other injuries. (Id., ¶ 18.)
Plaintiff now moves to amend his complaint to add claims for negligence per se and
exemplary damages. (See Mot.) Plaintiff also seeks to amend to “eradicat[e] the stand-alone
claims of inherently dangerous activity and res ipsa loquitur” in his original complaint. (See
Reply at 7.)
II. Amendments Pursuant to Fed. R. Civ. P. 15(a)
Fed. R. Civ. P. 15(a) provides for liberal amendment of pleadings. Leave to amend is
discretionary with the court. Foman v. Davis, 371 U.S. 178, 182 (1962); Viernow v. Euripides
Devel. Corp., 157 F.3d 785, 799 (10th Cir. 1998). Amendment under the rule has been freely
granted. Castleglenn, Inc. v. Resolution Trust Company, 984 F.2d 1571 (10th Cir. 1993)
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(internal citations omitted). “If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the
merits.” Foman, 371 U.S. at 182. “Refusing leave to amend is generally only justified upon a
showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive,
failure to cure deficiencies by amendments previously allowed, or futility of amendment.”
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
A.

Undue Delay

When evaluating opposition to a motion to amend based on undue delay, the Tenth
Circuit focuses primarily on the asserted reasons for delay. Minter v. Prime Equiip. Co., 451
F.3d 1196, 1206 (10th Cir. 2006). Denial based on delay is appropriate “when the party filing
the motion has no adequate explanation for the delay,” or in instances where it appears the
plaintiff utilizes Rule 15 to make the complaint “a moving target.” Id. (citations omitted).
Defendant argues Plaintiff’s proposed negligence per se claim fails because it is
untimely. (Resp. at 11.) However, in the Scheduling Conference held on March 21, 2013, this
court set a deadline of July 28, 2013, for joinder of parties and amendment to pleadings. (See
Doc. No. 20 at 1; Doc. No. 21 at 10.) Thus, Plaintiff’s motion is timely.
B.

Futility

Defendant also argues Plaintiff’s proposed amendments would be subject to a motion to
dismiss under Fed. R. Civ. P. 12(b)(6) and therefore are futile. (Resp. at 7–11.) Futility is an
appropriate ground for denial of leave to amend under Rule 15. Frank v. U.S. West, Inc., 3 F.3d
1357, 1365 (10th Cir. 1993).
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1.

Inherently Dangerous Activity

Defendant argues that Plaintiff’s proposed amended complaint recites the legal elements
of the inherently dangerous activity doctrine but does not allege any facts showing that the
doctrine is applicable to this case. (Mot. at 9.)
The Colorado Supreme Court recognizes a theory of strict liability for ultra-hazardous or
abnormally dangerous activities. See Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70,
81 (Colo. 1998); Mountain States Tel. & Tel. Co. v. Horn Tower Const. Co., 363 P.2d 175 (Colo.
1961) (“Since the emergence of negligence as an independent tort during the last century, fault
has been a necessary ingredient of tort liability except in the area of ultra-hazardous activity.”).
One who engages in such activity is strictly liable for any damages proximately caused to other
persons, land, or chattels by that activity. See Cook v. Rockwell Int’l Corp., 181 F.R.D. 473, 486
(D. Colo. 1998).
Whether an activity is ultra-hazardous-thereby subjecting the actor to strict liability-is a
question of law for a court to decide. See King v. United States, 53 F. Supp.2d 1056, 1076 (D.
Colo. 1999), rev’d in part on other grounds, 301 F.3d 1270 (10th Cir.2002). In making such a
determination, the Court looks to the factors outlined in Restatement (Second) of Torts § 520.
Id. Analysis of these factors requires a particularized inquiry into the activity alleged to be
ultra-hazardous or abnormally dangerous. See Daigle v. Shell Oil Co., 972 F.2d 1527, 1544
(10th Cir. 1992). This initial inquiry is a factual one that requires consideration of all the
relevant circumstances. See id. As noted by the Tenth Circuit in Daigle, the requisite factors the

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Court must consider under Restatement (Second) of Torts § 520 when determining whether a
given activity is ultra-hazardous or abnormally dangerous are:
(a)
(b)
(c)
(d)
(e)
(f)

existence of a high degree of risk of some harm to the person, land or
chattels of others;
likelihood that the harm will be great;
inability to eliminate the risk by the exercise of reasonable care;
extent to which the activity is not a matter of common usage;
inappropriateness of the activity to the place where it is carried on; and
extent to which its value to the community is outweighed by its dangerous
attributes.

See Daigle, 972 F.2d at 1544. The presence of any one of these factors “is not necessarily
sufficient of itself in a particular case, and ordinarily several of them will be required for strict
liability. On the other hand, it is not necessary that each of them be present, especially if others
weigh heavily.” Restatement (Second) of Torts § 520 comment f.
In the proposed amended complaint, Plaintiff alleges, “Transporting compressed gas and
liquid oxygen in the general stream of commerce poses a heightened risk of danger and injury to
the general public due to the inherent nature of such business, even when the activity is
undertaken in the ordinary or prescribed manner.” (Doc. No. 29, ¶ 33.) Thus, the court finds
Plaintiff has alleged the first requisite factor. Plaintiff makes conclusory allegations that
Defendant owed the “highest degree of care” to Plaintiff and that Defendant breached that duty.
(Id., ¶¶ 34–35.) However, Plaintiff has failed to allege the remaining factors required to state a
claim for an ultra-hazardous or abnormally dangerous activity. See Daigle, 972 F.2d at 1544.
Even if Plaintiff had recited the factors in his proposed amended complaint, that would be
insufficient, as “conclusory allegations without supporting factual averments are insufficient to

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state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). See Bd. of Cnty. Comm’rs of Cnty. Of La Plata, Colo. v. Brown Group Retail, Inc., 598
F. Supp. 2d 1185, 1196 (D. Colo. 2009) (dismissing abnormally dangerous activity claim where
the plaintiff merely recited the factors a court should consider without alleging specific facts in
support).
Because Plaintiff’s inherently dangerous activity claim would be subject to dismissal, his
motion to amend his complaint in this regard is denied as futile.
2.

Res Ipsa Loquitur

Defendant also argues that Plaintiff’s res ipsa loquitur claim would be subject to
dismissal for Plaintiff’s failure to provide sufficient factual allegations.
Res ipsa loquitur is a rule of evidence that gives rise to a rebuttable presumption of the
defendant’s negligence, but it does not create a substantive claim for relief. Stone’s Farm
Supply, Inc. v. Deacon, 805 P.2d 1109, 1114 (Colo. 1991). Plaintiff has cured the deficiency in
his original complaint by pleading reliance on the doctrine of res ipsa loquitur within his
negligence claim. Allegations of specific negligence in a complaint do not preclude a plaintiff
from relying upon the doctrine of res ipsa loquitur. Weiss v. Axler, 328 P.2d 88 (1958). By the
same reasoning, a pleading which, as here, sets forth alleged acts of negligence and then pleads
reliance upon the doctrine of res ipsa loquitur sets forth a viable claim for relief.
The essential elements of res ipsa loquitur are as follows:
(1) The event is the kind which ordinarily does not occur in the absence of
negligence, (2) other responsible causes, including the conduct of the plaintiff and

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third persons, are sufficiently eliminated by the evidence, and (3) the indicated
negligence is within the scope of the defendant’s duty to the plaintiff.
Montgomery Elevator Co. v. Gordon, 619 P.2d 66, 68 (Colo. 1980). Upon a review of the
proposed amended complaint, the court finds Plaintiff has sufficiently pleaded the requisite
elements. As such, Plaintiff’s motion to amend to assert reliance on the doctrine of res ipsa
loquitur within his negligence claim is granted.
II. Claim for Exemplary Damages
In his motion, Plaintiff argues the evidence in the case supports a prima facie case of
willful and wanton conduct and seeks to amend his complaint to assert a claim for exemplary
damages pursuant to Colo. Rev. Stat. § 13-21-102. (See Mot. at 6.) Plaintiff argues the
defendant had an employee drive the van and fill is oxygen vessel at DME “without any regard
to safety of the public at large, including Plaintiff and other employees and patrons of DME.”
(Mot. at 7.)
In Colorado, exemplary or punitive damages are available only by statute. The Colorado
general exemplary damages provision, Colo. Rev. Stat. § 13-21-102(1.5)(a), states as follows:
A claim for exemplary damages in an action governed by this section may not be
included in any initial claim for relief. A claim for exemplary damages in an
action governed by this section may be allowed by amendment to the pleadings
only after the exchange of initial disclosures pursuant to rule 26 of the Colorado
rules of civil procedure and the plaintiff establishes prima facie proof of a triable
issue. After the plaintiff establishes the existence of a triable issue of exemplary
damages, the court may, in its discretion, allow additional discovery on the issue
of exemplary damages as the court deems appropriate.
Exemplary or punitive damages are only appropriate if “the injury complained of is attended by
circumstances of fraud, malice, or willful and wanton conduct.” Colo. Rev. Stat. § 13-217

102(1)(a). The statute 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.” Colo. Rev. Stat.
§ 13-21-102(1)(b). Thus, in order for an amendment seeking exemplary damages to be proper,
the Court must find Plaintiff establishes prima facie proof of a triable issue that Defendant
purposefully behaved in a reckless manner “without regard to consequences, or of the rights and
safety” of Plaintiff.
“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. Dist. Court in & for the
City and Cnty. of Denver, 619 P.2d 768, 771 (Colo. 1980). Plaintiff must articulate “[a]
reasonable likelihood that the issue will ultimately be submitted to the jury for resolution,” in
order to demonstrate the requisite prima facie proof of a triable issue. Id.
According to the U.S. Department of Labor’s Occupational Safety and Health
Administration (“OSHA”) Violation Worksheet attached to Plaintiff’s motion, OSHA
determined
The employer was made aware by their own employee that there was an issue
with the pressure builder valve leaking, or sticking open, on the middle bulk
oxygen tank in vehicle #4. The initial action taken by management was to
remove the tank from service and get it fixed. The following work day when the
tank was taken to be serviced, another tank and vehicle failed DOT inspection.
Management decided to have th tank and vehicle that failed DOT Inspection be
serviced and put the tank with the faulty pressure builder valve be put back into
service.
(Mot., Ex. B at 2.) OSHA also spoke to Defendant’s Facility Manager, who

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stated that he was aware that the pressure valve was bad on the bulk oxygen tank
system on vehicle #4. He stated that he planned to take it out of service but when
another vehicle/tank had a bigger issue, he decided to continue using vehicle #4
rather than fixing both systems.
(Id. at 3.) OSHA cited the defendant for their failure to remove the oxygen tank system from
service following discovery of the defective pressure building valve and for failure to train its
employees on the hazards associated with filling oxygen cylinders and working in an oxygen
enriched environment. (Mot., Ex. A.)
Defendant argues that Plaintiff has failed to demonstrate prima facie entitlement to
exemplary damages. However, the court finds that the exhibits attached by Plaintiff to his
Motion demonstrate to the court that, at the least, a factfinder should have the opportunity to
decide whether Defendant’s alleged conduct rises to the level of willful and wanton conduct.
Pursuant to the standard prescribed by Colo. Rev. Stat. § 13-21-102, the court finds Plaintiff
establishes prima facie proof of a triable issue of exemplary damages.
The court emphasizes to the parties that this order does not address the merits of
awarding exemplary damages, nor does this order pre-adjudicate the alleged culpability of
Defendant. The court simply recognizes that Plaintiff’s claim is properly supported with
evidentiary materials and should be permitted to proceed as a triable issue.
WHEREFORE, for the foregoing reasons, it is
ORDERED that “Plaintiff’s Opposed Motion to Amend His Civil Complaint and Jury
Demand to Add Claims for Negligence Per Se and Exemplary Damages.” (Doc. No. 28) is

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GRANTED in part and DENIED in part. Plaintiff’s motion to amend is DENIED as to his
inherently dangerous activity claim and GRANTED in all other respects. It is further
ORDERED that Plaintiff shall file his Amended Complaint, in conformity with this
Order, on or before October 4, 2013.
Dated this 1st day of October, 2013.

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