Jenkins v. Duffy Crane and Hauling, Inc. et al

Filing 356

ORDER Denying Motions for Summary Judgment. Plaintiff's Motion for Summary Judgment (Doc. # 306 ) is DENIED. Defendant's Motion for Summary Judgment (Doc. # 319 ) is DENIED. By Judge Christine M. Arguello on 02/08/2019. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-00327-CMA-KLM
FRANKLYN A. JENKINS,
Plaintiff,
v.
IMMEDIA, INC., a Minnesota corporation,
Defendant.
_____________________________________________________________________
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
_____________________________________________________________________
Before the Court are two motions: Plaintiff Franklyn Jenkin’s Motion for Summary
Judgment (Doc. # 306) and Defendant Immedia, Inc.’s Motion for Summary Judgment
(Doc. # 319). Having thoroughly reviewed the briefing, pertinent exhibits, and
applicable law, the Court denies both motions.
I.

BACKGROUND

This Court recited the factual and procedural background of this dispute in its
October 27, 2017 Order Granting Plaintiff’s Motion for Reconsideration (Doc. # 268),
which is incorporated herein. Accordingly, this Order will reiterate only what is
necessary to address the competing Motions for Summary Judgment.1

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Three other motions are ripe for the Court’s review: (1) Defendant’s Motion to Exclude the
Expert Opinions of Dr. Richard Ziernicki (Doc. # 321); (2) Defendant’s Rule 702 Motion to
Exclude Rebuttal Expert Witness Walter Guntharp (Doc. # 322); and (3) Defendant’s Motion to
Limit the Opinion Testimony of Jeffrey Opp (Doc. # 323). The Court will address these motions
in due time.

Plaintiff asserts five claims against Defendant: (1) negligence; (2) failure to warn;
(3) negligence per se; (4) negligent misrepresentation; and (5) vicarious liability. (Doc.
# 134 at 20–27.) On October 1, 2018, Plaintiff filed his Motion for Summary Judgment
“As to Liability.” (Doc. # 306.) Plaintiff argues that he is entitled to a legal ruling by the
Court that Defendant had and undertook to assume a duty of care and that such a ruling
“resolve[s] the issue of [Defendant’s] tort liability.” (Id. at 1.) It appears to the Court that
Plaintiff only seeks summary judgment on his negligence claim; he only identifies the
elements of that claim and does not refer to his other claims against Defendant. See
(id. at 6.) Defendant responded in opposition to Plaintiff’s summary judgment motion on
November 15, 2018, contending that “Plaintiff bore the duty to ensure that the load on
his trailer was sufficiently secured.” (Doc. # 320 at 1.) Plaintiff replied on November 29,
2016. (Doc. # 326.)
Defendant filed its Motion for Summary Judgment on November 15, 2018. (Doc.
# 319.) Defendant seeks summary on all the claims, which “all require a duty,” and it
disputes “the existence of a duty” and causation. (Id. at 2–3.) Plaintiff filed his
Response on November 29, 2018, first asking the Court to strike Defendant’s Motion for
Summary Judgment as an improper second summary judgment motion and then
arguing that Minnesota law gave rise to Defendant’s duties. See generally (id.)
Defendant replied in support of its Motion for Summary Judgment on December 13,
2018.

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II.

MOTION FOR SUMMARY JUDGMENT

Summary judgment is warranted when the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Turnkey Sols. Corp. v. Hewlett Packard Enter. Co., No. 15-cv-01541CMA-CBS, 2017 WL 3425140, at *2 (D. Colo. Aug. 9, 2017). A fact is “material” if it is
essential to the proper disposition of the claim under the relevant substantive law. Id. A
–dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return
a verdict for the nonmoving party. Id. When reviewing motions for summary judgment,
a court must view the evidence in the light most favorable to the non-moving party. Id.
However, conclusory statements based merely on conjecture, speculation, or subjective
belief do not constitute competent summary judgment evidence. Id.
III.

ANALYSIS

Upon review of the parties’ filings and the evidence referenced therein, the Court
determines that genuine issues of material fact preclude the Court from entering
summary judgment in favor of either party on the existence of a duty. In short, whether
Defendant owed a duty of care to Plaintiff depends on the role Defendant performed in
the loading and unloading of the cargo. See Spence v. ESAB Group, Inc., 623 F.3d
212, 219 (3rd Cir. 2010). The parties vociferously dispute Defendant’s involvement in
the loading and unloading of the cargo. For example, Plaintiff argues in his Motion for
Summary Judgment that Defendant’s “affirmative undertakings,” such as signing the Bill
of Lading, “not packaging the tables or removing the wheels,” and “allowing unloading in
violation of its own procedures,” imposed on Defendant a duty to act with reasonable

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care. (Doc. # 306 at 8–9.) In response to that argument, Defendant contends that there
is no evidence the Bill of Lading played into Plaintiff’s decision-making at the time the
cargo was loaded onto his trailer, that it (Defendant) was not involved with packaging
the tables or developing a plan to package the tables, and that its internal policies and
procedures cited by Plaintiff did not apply to the circumstances at hand. (Doc. # 320 at
16–18.) Accordingly, neither party is entitled to summary judgment on the existence of
a duty.
IV.

CONCLUSION

For the foregoing reasons, the Court ORDERS as follows:
1.

Plaintiff’s Motion for Summary Judgment (Doc. # 306) is DENIED; and

2.

Defendant’s Motion for Summary Judgment (Doc. # 319) is DENIED.

DATED: February 8, 2019
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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