Turan v. Edgar et al

Filing 80

ORDER granting 46 Defendants' Motion for Summary Judgment. Plaintiff's remaining claims are dismissed with prejudice. Defendants shall have their costs, by Judge Lewis T. Babcock on 2/19/2015. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 13-cv-01827-LTB-MJW
CHANTAE TURAN,
Plaintiff,
v.
ROBERT EDGAR and DOUG ANDRUS DISTRIBUTING, LLC, a foreign limited liability
company authorized to do business in the State of Idaho,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on Defendants’ Motion for Summary Judgment [Doc. # 46] on
all of Plaintiff Chantae Turan’s remaining claims. A tire on a tractor-trailer driven by Defendant
Robert Edgar, an employee of Defendant Doug Andrus Distributing, LLC, blew out, leaving
debris in the road. Ms. Turan’s son, Tyler Turan, swerved his car to avoid the debris and
crashed. He died and Ms. Turan, a passenger, was injured. Ms. Turan alleges that her injuries
and her son’s death were caused by Defendants’ negligent operation of an unsafe vehicle. In
their motion, Defendants contend there is no evidence from which a reasonable jury could
conclude that Defendants were negligent in this manner. I have jurisdiction under 28 U.S.C. §
1332. I have reviewed the parties’ briefing on the motion and I am otherwise fully advised in the
premises. Oral argument would not materially assist me in determining the motion. As
explained below, I agree with Defendants and GRANT their motion.

I. Facts
The following facts are undisputed. The accident occurred during the afternoon of
October 16, 2012, in Laramie County, Colorado. Compl. ¶ 7 [Doc. # 1]. Mr. Edgar was driving
a tractor-trailer (“truck”) for his employer, Doug Andrus Distributing, LLC (the “company”),
and was heading southbound on Interstate 25. Id. ¶¶ 8, 18-19. He heard a loud bang indicating
one of his tires had blown out and immediately pulled to the side of the road. Edgar Aff. ¶ 11
[Doc. # 46-1]. The Turans were in a Volvo station wagon and were also traveling southbound on
I-25. Compl. ¶ 19 [Doc. # 1]. Mr. Turan, who was driving, came upon debris from the tire
blowout and swerved to avoid it. Id. He lost control and his car went off the side of the road,
rolled, and collided with a fence. Id. Mr. Turan was ejected from the car and pinned
underneath. Id. He was pronounced dead at the scene. Id. Ms. Turan was seriously injured. Id.
¶ 24.
Mr. Edgar’s day had begun in Montpelier, Idaho. Edgar Aff. ¶ 3 [Doc. # 46-1]. At 6:58
a.m., he conducted a pre-trip inspection of his truck, which entails “thump[ing] all of [the] tires”
with a baton and then “visually inspect[ing] the tire and mak[ing] sure there’s no, you know,
cracks, tears, or, you know, uneven worn tread or anything like that.” Edgar Dep. at 17-18 [Doc.
# 46-4]; Edgar Aff. ¶ 6 [Doc. # 46-1]. He found no abnormalities in any of the tires and wrote
that the condition of his vehicle was “satisfactory” on a “Driver’s Vehicle Inspection Report”
that the company provides. Edgar Aff. ¶ 7 [Doc. # 46-1]; Driver’s Vehicle Inspection Report
[Doc. # 46-3]; Edgar Dep. at 18-19 [Doc. # 46-4]. The pre-trip inspection completed, Mr. Edgar
started on his way.

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At 11:45 a.m., Mr. Edgar stopped in Rawlins, Wyoming, to refuel and eat lunch. Edgar
Aff. ¶¶ 9, 10 [Doc. # 46-1]; Edgar Dep. at 20-21 [Doc. # 46-4]. Before continuing on his route,
he did another inspection in which he again found the condition of the tires satisfactory. Id. Mr.
Edgar testified that he conducts a “walk-around” inspection of the vehicle “every time [he]
stop[s].” Edgar Dep. at 21 [Doc. # 46-4]. After inspecting the truck, Mr. Edgar continued on his
way. Edgar Aff. ¶ 10 [Doc. # 46-1]. Several hours later, the accident happened.
Mr. Edgar avers that he had “no reason to believe the tire might blow” at any time before
the accident. Edgar Aff. ¶¶ 10, 12 [Doc. # 46-1]. At his deposition, Mr. Edgar testified that, if
he had identified a safety issue during an inspection, company procedure would have required
him to call the company to arrange for roadside repairs or locate “the closest place for me to
safely go to get my truck fixed before I proceed.” Edgar Dep. at 18-19 [Doc. # 46-4]. At her
deposition, Ms. Turan testified that she was unaware of any information Mr. Edgar knew “that
would have alerted him to the tire potentially blowing out” before the accident. Turan Dep. at
185 [Doc. # 46-5]. Ms. Turan’s accident reconstruction expert likewise testified that tires can
fail through no fault of the driver and that he has no opinions regarding how or why the tire
failed. Stolz Dep. at 27-28 [Doc. # 46-6].
Ms. Turan’s response does not dispute these facts. As explained below, the main theory
of negligence alleged in the complaint is that Mr. Edgar “carelessly and negligently operated an
unsafe vehicle.” Compl. ¶ 18 [Doc. # 1]. Ms. Turan’s response, however, addresses a theory not
mentioned in the complaint: that Defendants were negligent in failing to clear the road of debris
from the tire blowout. She cites evidence that she contends supports this theory, including Mr.
Edgar’s deposition testimony. See Pl.’s Resp. to Defs.’ Mot. For Summ. J. [Doc. # 56]. After

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filing her response, Ms. Turan moved for leave to amend her complaint to assert this theory. The
Court denied her motion. See Order [Doc. # 77] (accepting recommendation of Magistrate Judge
[Doc. # 73]).
II. Standard of Review
A court “shall grant summary judgment if 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.” Fed.
R. Civ. P. 56(a). The movant has the initial responsibility of identifying for the Court “particular
parts of materials in the record”—including, for example, depositions, documents, declarations,
and interrogatory answers—that it believes show the absence of genuine issues of material fact.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Mares v. ConAgra
Poultry Co., 971 F.2d 492, 494 (10th Cir. 1992). Once the movant has done so, the non-movant
may not rest on the allegations contained in his complaint, but must “respond with specific facts
showing the existence of a genuine factual issue to be tried.” Otteson v. United States, 622 F.2d
516, 519 (10th Cir. 1980) (internal citation omitted); Fed. R. Civ. P. 56 (c) & (e). If a reasonable
jury could not return a verdict for the non-moving party, summary judgment is proper and there
is no need for a trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The operative
inquiry is whether, viewing the evidence in the light most favorable to the non-moving party and
drawing all reasonable inferences in that party’s favor, a reasonable jury could return a verdict
for that party. Id. at 252; Mares, 971 F.2d at 494.
A court may not grant a motion for summary judgment merely because the non-movant
fails to respond with any relevant facts. Rather, the court must “first examin[e] the moving
party’s submission to determine if it has met its initial burden of demonstrating that no material

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issues of fact remain for trial and the moving party is entitled to judgment as a matter of law.”
Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002); Caler v. Brown, No.
13-CV-02093-PAB-DW, 2014 WL 4783387, at *2 (D. Colo. Sept. 25, 2014). Once the court is
satisfied that the moving party has met its burden of production, summary judgment may enter.
Reed, 312 F.3d at 1195; Fed. R. Civ. P. 56(e)(3).
III. Analysis
A. Ms. Turan’s Claims
In her operative complaint, Ms. Turan asserts claims for negligence, negligence per se,
and wrongful death by negligence against Mr. Edgar. She asserts a respondeat superior claim
against the company for Mr. Edgar’s negligence. And she asserts claims for the company’s own
negligence: negligent failure to establish and enforce reasonable safety rules, policies, and
measures; negligent entrustment; and negligent hiring, training, and supervision. It appears the
parties may have reached an agreement to dismiss the latter two claims, but no dismissal papers
have been filed. See Scheduling Order at 3 [Doc. # 19] (Defendants noting such agreement in
their “Statement of Claims and Defenses”). The complaint also contains certain other claims that
have been dismissed. See Order [Doc. # 12] (dismissing claims against Doug Andrus, Inc.).
All of Ms. Turan’s remaining claims are based on negligence. In the “General
Allegations” section of her complaint, Ms. Turan alleges that Mr. Edgar “carelessly and
negligently operated an unsafe vehicle,” Compl. ¶ 18 [Doc. # 1], and this allegation is
incorporated into each specific count of the complaint. The allegation is also reiterated in the
specific counts for Mr. Edgar’s negligence. See id. ¶¶ 23, 27-28, 34, 38-40. Even the counts for
the company’s own negligence reference operation or use of a vehicle. See id. ¶ 48 (alleging in

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support of negligent entrustment claim that the company entrusted “vehicle to someone who was
likely to use the vehicle in violation of Colorado statute”); id. ¶ 66 (alleging the company
“fail[ed] to establish and enforce reasonable safety rules, policies and measures for the operation
of [its] vehicles while in service”); id. ¶ 82 (alleging in support of claim for negligent hiring,
training, and supervision that the company “knew, or reasonably should have known that
Defendant Edgar was not qualified to operate a tractor-trailer”). The complaint contains no
mention of the theory asserted in Ms. Turan’s response—that Defendants were negligent in
failing to retrieve tire debris from the road.
After filing her response, Ms. Turan moved to amend her complaint to allege this theory.
Pl.’s Opposed Mot. to Amend Compl. [Doc. # 65]. Her motion came after the discovery cutoff
and over a year after the deadline for amending pleadings. Scheduling Order at 7 [Doc. # 19].
The Magistrate Judge recommended denying the motion because there was no good cause to
allow an amendment out of time under the scheduling order, see Fed. R. Civ. P. 16(b), and the
interests of justice would not allow amendment even if the scheduling order were not an
obstacle, see Fed. R. Civ. P. 15(a). In reaching this conclusion, the Magistrate Judge noted that
Ms. Turan had identified no newly discovered facts to justify her delay in seeking amendment,
only “newly discovered legal theories.” Report & Recommendation on Pl.’s Opposed Mot. to
Amend Compl. at 6 [Doc. # 73]. I accepted the recommendation, see Order [Doc. # 77], and
agree with the well-reasoned analysis contained therein.
Consistent with that ruling, I decline to consider Ms. Turan’s new theory of negligence in
ruling on the instant summary judgment motion. Discovery has closed and trial is set to begin in
less than two months. The Tenth Circuit has explained that “the liberalized pleading rules [do

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not] permit plaintiffs to wait until the last minute to ascertain and refine the theories on which
they intend to build their case.” Evans v. McDonald’s Corp., 936 F.2d 1087, 1091 (10th Cir.
1991). To allow that practice would “waste the parties’ resources, as well as judicial resources,
on discovery aimed at ultimately unavailing legal theories and would unfairly surprise
defendants.” Id.; accord Pater v. City of Casper, 646 F.3d 1290, 1299 (10th Cir. 2011) (district
court properly refused to consider claim raised for first time in summary judgment response
because new claim “raised substantially different factual issues after the close of discovery” and
plaintiffs provided no reason for delay in asserting claim).
Such concerns are particularly acute here. Defendants have noted, and Ms. Turan has not
disputed, that Defendants have taken no fact or expert discovery on the new theory, “including
the feasibility of removing a piece of tire debris from a busy multi-lane highway with vehicles
traveling at 75 mph.” Resp. to Mot. to Amend at 4 [Doc. # 70]. The fact that Defendants did not
address this theory in the instant motion, but only in reply, confirms that the complaint did not
provide Defendants fair notice that they would need to defend against it. Green Country Food
Mkt., Inc. v. Bottling Grp., LLC, 371 F.3d 1275, 1280 (10th Cir. 2004) (“The complaint did not
place [defendants] on notice of the need to defend against [a claim first asserted in plaintiffs’
summary judgment response], as was demonstrated by [defendants’] failure to offer any defense
to [the] claim in their initial motion for summary judgment.”). It would obviously be unfair to
force Defendants to go to trial on a theory that they have not had an adequate opportunity to
discover. And it would waste the Court’s and Defendants’ resources to extend deadlines and/or
continue the trial date to allow such discovery to take place. For these reasons, I reiterate that
the Court will not allow Ms. Turan to transform her claims in the way she seeks at this late

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juncture. I will evaluate Defendants’ motion on the theories alleged in the complaint.
B. Summary Judgment
The Court’s jurisdiction in this case is based on diversity of citizenship, so I apply the
substantive law of the forum state, Colorado. Essex Ins. Co. v. Vincent, 52 F.3d 894, 896 (10th
Cir. 1995). To make out a negligence or negligence-based claim under Colorado law, the
plaintiff must establish the existence of a legal duty and breach of that duty, in addition to
causation and damages. United Blood Servs. v. Quintana, 827 P.2d 509, 519 (Colo. 1992). A
“legal duty to use reasonable care arises in response to a foreseeable and unreasonable risk of
harm to others.” Ayala v. United States, 846 F. Supp. 1431, 1440 (D. Colo. 1993) (citing
Quintana, 827 P.2d at 519). The “driver of a vehicle is not negligent because of a sudden failure
of the vehicle’s equipment if that person could not have reasonably foreseen the sudden
equipment failure and that person has done all that a reasonably careful person would have
done.” Colo. Jury Instr., Civil 11:13 (2014); Bartlett v. Bryant, 442 P.2d 425, 426 (Colo. 1968)
(affirming defense verdict where defendant “testified that the collision was caused by the
unexpected failure of his pickup’s brakes and that he had no prior indication of any defect or
malfunction in the braking system”); Daigle v. Prather, 380 P.2d 670, 672 (Colo. 1963)
(affirming defense verdict where “all of the evidence established a brake failure” and defendant
“categorically denied any ‘forewarning’ whatsoever”) (emphasis removed).
In their motion, Defendants have come forward with evidence showing that Mr. Edgar
could not have reasonably foreseen the tire failure. Mr. Edgar’s affidavit, deposition, and
Driver’s Vehicle Inspection Report show that he inspected his truck’s tires twice on the day of
the accident and found no cause for concern. Further, neither Ms. Turan nor her expert

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identified in their depositions any way in which Mr. Edgar could have prevented the blowout.
This evidence suffices to demonstrate that there is no genuine dispute that Mr. Edgar did not
negligently operate an unsafe vehicle. Ms. Turan has not come forward with relevant evidence
rebutting this showing.
Without proof that Mr. Edgar negligently operated an unsafe vehicle, all of Ms. Turan’s
remaining claims fail as a matter of law. This includes the claims for Mr. Edgar’s own
negligence which, as noted above, are based solely on this theory. It also includes the claims
against the company for its own negligence in relation to hiring, training, and supervising
employees; adopting and enforcing rules and policies; and entrusting a vehicle to Mr. Edgar.
Such claims fail for lack of actual and/or proximate causation. Actual causation requires the
plaintiff to show “that the injury would not have occurred but for the defendant’s negligent
conduct.” Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d 714, 719 (Colo. 1987).
Because the tire blowout was unforeseeable, it cannot be said, for example, that it would not
have occurred if the company had adopted better policies or trained its employees more
extensively. Proximate causation requires the plaintiff to show that “injury to a person in the
plaintiff’s situation was a reasonably foreseeable consequence of [the defendant’s] negligence.”
Samuelson v. Chutich, 529 P.2d 631, 634 (Colo. 1974). Even assuming the company was
negligent in its decision to hire Mr. Edgar or entrust him with a vehicle—and the parties have
presented no evidence suggesting it was—the foreseeable consequences of such negligence
might include, for example, a car wreck brought about by poor driving ability; they would not
include a tire blowout that the undisputed evidence indicates could not have been anticipated or
prevented. Accordingly, summary judgment in Defendants’ favor on all of Ms. Turan’s

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remaining claims is appropriate.
IV. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment [Doc. # 46] is
GRANTED and Plaintiff’s remaining claims are DISMISSED WITH PREJUDICE.
Defendants shall have their costs.

DATED: February

19 , 2015, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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