Walters v. S&F Holdings, LLC et al
Filing
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ORDER granting in part and denying in part 47 Report and Recommendations. Denying 48 APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Denying 16 Motion to Dismiss for Failure to State a Claim. Denying 25 Motion to Dismiss for Failure to State a Claim. By Judge Robert E. Blackburn on 8/6/2015.(mlace, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-02006-REB-MJW
BRIANNA WALTERS,
Plaintiff,
v.
S & F HOLDINGS LLC, dba “WILLOW RIDGE MANOR,”
GREGORY SARGOWICKI,
JASON SCHUH, and
STACIE SCHUH,
Defendants.
ORDER ADOPTING IN PART AND REJECTING IN PART THE
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) Defendants S & F Holdings LLC DBA Willow
Ridge Manor and Gregory Sargowicki’s Motion to Dismiss for Failure to State a
Claim Pursuant to Fed. R. Civ. P. 12(b)(6) [#16]1 filed September 19, 2015; (2) Jason
and Stacie Schuh’s Joinder in Defendants S & F Holdings LLC DBA Willow Ridge
Manor and Gregory Sargowicki’s Motion to Dismiss for Failure to State a Claim
Pursuant to Fed. R. Civ. P. 12(b)(6) [#25] filed September 29, 2014; (3) Plaintiff’s
Motion to Amend and for Partial Summary Judgment [#36] filed April 30, 2015; and
(4) the Recommendation on (1) Plaintiff’s Motion To Amend (Docket No. 36), (2)
Defendants S & F Holdings LLC DBA Willow Ridge Manor and Gregeory
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“[#16]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
Sargowicki’s Motion To Dismiss for Failure To State a Claim Pursuant to Fed. R.
Civ. P. 12(B)(6) (Docket No. 16), and (3) Jason and Stacie Schuh’s Joinder in
Defendants S & F Holdings LLC DBA Willow Ridge Manor and Gregory
Sargowicki’s Motion To Dismiss for Failure To State a Claim Pursuant to Fed. R.
Civ. P. 12(B)(6) (Docket No. 25) [#47] filed July 13, 2015. The defendants filed
objections [#48] to the recommendation.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed, and have considered carefully the
recommendation, the objections, and the applicable case law. I approve and adopt the
recommendation in part and respectfully reject it in part. I overrule the objections of the
defendants. I grant motions to dismiss in part and deny them in part, and I deny the
motion to amend.
This summary of facts is based on the allegations in the amended complaint [#6].
On July 28, 2012, the plaintiff, Brianna Walters, was attending the wedding of the
defendants, Jason and Stacie Schuh (Schuh Defendants). The wedding was held at the
Willow Ridge Manor, which is owned by defendants S & F Holdings, LLC and Gregory
Sargowicki (Manor defendants). Jason and Stacie Schuh were “utilizing or leasing the
premises from” the Manor defendants. Amended complaint [#6], p. 3. Ms. Walters was
bitten by a rattlesnake while she was in the parking lot of Willow Ridge Manor. As a
result of the snake bite, she suffered severe, debilitating injuries and incurred prodigious
medical expenses.
In her amended complaint [#6], Ms. Walters asserts four causes of action: (1)
Ms. Walters was an invitee on the premises and her injuries were caused by the
defendants’ negligence in permitting an unreasonably dangerous condition to exit,
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negligent failure to remedy such condition, and negligent and willful failure to warn of
rattlesnakes on the property; (2) the defendants wilfully and wantonly operated a
location to host events yet failed to maintain a safe environment; (3) respondeat
superior – the defendants are liable for the negligence of each other because
employees and/or agents of each defendant were acting in the course and scope of
their employment with defendants at all relevant times; and (4) joint enterprise alternatively, the defendants are liable of the negligence of each other because they
operated a joint enterprise.
I. MOTIONS TO DISMISS
The defendants move to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that the
allegations in the amended complaint [#6] are not sufficient to state a claim on which
relief can be granted. In his recommendation [#47], the magistrate judge notes that Ms.
Walters has not pled explicitly a claim under the Colorado Premises Liability Act (PLA)
§13-21-115, C.R.S. However, the PLA is “the sole codification of landowner duties in
tort” under Colorado law. Lombard v. Colorado Outdoor Educ. Center, Inc., 187
P.3d 565, 574 (Colo. 2008).
Under the PLA, a landowner includes, without limitation, an authorized agent, a
person in possession of real properly, a person legally responsible for the condition of
real property, and a person responsible for activities or circumstances existing on real
property. §13-21-115(1), C.R.S. The PLA defines the duties owed by a landowner to
trespassers, licensees, and invitees. §13-21-115(3), C.R.S. In the amended complaint,
Ms. Walters alleges she was an invitee on the premises for which the defendants were
responsible, but she does not allege specific facts which demonstrate that she was an
invitee. Amended complaint [#6], p. 3. If Ms. Walters was at the wedding as a social
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guest, she was a licensee under the PLA. §13-21-115(5)(b), C.R.S. If she was at the
wedding to transact business, she was an invitee under the PLA. §13-21-115(5)(a),
C.R.S. In the recommendation, the magistrate judge outlines further these categories
and the associated duties under the PLA.
According to the Schuh Defendants, the allegations in the complaint do not
support the contention that the Schuhs are landowners under the PLA. Contrastingly,
the Manor Defendants concede they are landowners. All defendants argue that the
allegations in the complaint are not sufficient to allege that any defendant owed a
negligence-based duty to Ms. Walters. On these issues, and after de novo review, I
concur with the analysis and conclusions of the magistrate judge. As to each of the
defendants, Ms. Walters has alleged facts sufficient to state a claim under the PLA.
This is true despite the fact that Ms. Walters does not plead a PLA claim explicitly in her
amended complaint [#6].
However, the court is not bound by the formal designation given a claim by the
plaintiff; the factual allegations are what matter.
As a general rule, a plaintiff should not be prevented from pursuing a valid
claim just because she did not set forth in the complaint a theory on which
she could recover, provided always that a late shift in the thrust of the
case will not prejudice the other party in maintaining his defense upon the
merits. The purpose of “fact pleading,” as provided by Fed.R.Civ.P.
8(a)(2), is to give the defendant fair notice of the claims against him
without requiring the plaintiff to have every legal theory or fact developed
in detail before the complaint is filed and the parties have opportunity for
discovery.
Evans v. McDonald's Corp., 936 F.2d 1087, 1090-91 (10th Cir. 1991) (internal
quotations and citations omitted). In this case, the facts plead by Ms. Walters are
sufficient to give the defendants fair notice of the bases for the claims against them
under the PLA.
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The magistrate judge recommends that the motions to dismiss be granted as to
the claims for negligence alleged in the amended complaint [#6] because those claims
are not asserted explicitly under the PLA. Relatedly, he recommends that Ms. Walters
be granted leave to file an amended complaint to plead claims under the PLA.
However, trial of this case is set to begin in less than four weeks. The proximity of trial,
constrains me to conclude that it would be inefficacious to require Ms. Walters to file an
amended complaint – even on an expedited basis. The parties are aware of the factual
allegations of Ms. Walters and the evidence revealed in discovery. The parties also are
aware of the terms of the PLA. Given these circumstances, I find and conclude that the
defendants have fair notice of the claims against them and that amendment of the
complaint is not necessary. Rather, in preparing a proposed Final Pretrial Order, Ms.
Walters shall define her negligence claims to fit within the framework of the PLA.
Given the totality of these circumstances, I will grant the motions to dismiss of the
defendants as to any negligence claim asserted by Ms. Walters on any basis other than
the PLA. Simultaneously, I will deny the motions to dismiss as to the PLA claims of Ms.
Walters against the defendants. None of the defendants argues that the respondeat
superior or joint enterprise theories of Ms. Walters are subject to dismissal under Fed.
R. Civ. P. 12(b)(6). To the extent these theories are applicable under the PLA, liability
based on these theories must be resolved at trial.
II. MOTION TO AMEND
Ms. Walters filed a combined motion to amend and motion for partial summary
judgment [#36]. I have resolved the motion for summary judgment in a separate order.
See Order Denying Motion for Partial Summary Judgment [#61] filed August 5,
2015. Ms. Walters seeks permission to amend her complaint to add a claim for breach
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of contract and a claim for exemplary damages. She claims facts revealed in discovery
show that she is a third-party beneficiary of the contract between the Schuh Defendants
and the Manor Defendants. She claims also that the evidence now supports a claim
that the defendants engaged in willful and wanton conduct, which warrants exemplary
damages.
As to the motion to add a breach of contract claim, I agree with the analysis of
the magistrate judge. Ms. Walters has not shown good cause to extend the deadline in
the scheduling order for amendment of the pleadings. Ms. Walters has had extended
access to the contract in question, a contract mentioned in her complaint, yet she did
not seek to amend her complaint to add a contract claim until nearly five months after
the deadline for amendment of pleadings. Given the circumstances detailed by the
magistrate judge, Ms. Walters has not shown good cause to extend the deadline for
amendment of pleadings concerning her proposed contract claim.
Turning to the proposed claim for exemplary damages, the magistrate judge
recommends that the motion to amend be denied because this proposed claim is futile.
Under Colorado law, willful and wanton conduct is “conduct purposefully committed
which the actor must have realized as dangerous, done heedlessly and recklessly,
without regard to consequences, or the rights and safety of others, particularly the
plaintiff.” §13-21-102(1)(b). , C.R.S. “Willful and wanton conduct is purposeful conduct
committed recklessly that exhibits an intent consciously to disregard the safety of
others. Such conduct extends beyond mere unreasonableness.” U.S. Fire Ins. Co. v.
Sonitrol Mgmt. Corp., 192 P.3d 543, 549 (Colo. App. 2008) (internal quotation and
citation omitted). The magistrate judge found that Ms. Walters has offered nothing to
show that any of the defendants wilfully and wantonly acted or failed to act with regard
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to the rattlesnake risk on the property. As a result, the magistrate judge concluded that
the proposed claim for exemplary damages is futile. I concur with this analysis and,
thus, will deny the motion to amend to add a claim for exemplary damages.
III. CONCLUSION & ORDERS
The factual allegations in the amended complaint [#6] are sufficient to state
negligence claims under the Colorado PLA against all defendants. Therefore, the
motions to dismiss are denied as to negligence claims implicating the PLA.
However, the PLA is the sole codification of landowner duties in tort. Therefore,
the motions to dismiss are granted as to negligence claims asserted by the plaintiff
other than claims under the PLA. The plaintiff shall not be required to file an amended
complaint. Rather, in preparing a proposed Final Pretrial Order, the plaintiff shall define
her claims to fit within the framework defined by the PLA.
Finally, the motion to amend the complaint is denied.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation on (1) Plaintiff’s Motion To Amend (Docket
No. 36), (2) Defendants S & F Holdings LLC DBA Willow Ridge Manor and
Gregeory Sargowicki’s Motion To Dismiss for Failure To State a Claim Pursuant
to Fed. R. Civ. P. 12(B)(6) (Docket No. 16), and (3) Jason and Stacie Schuh’s
Joinder in Defendants S & F Holdings LLC DBA Willow Ridge Manor and Gregory
Sargowicki’s Motion To Dismiss for Failure To State a Claim Pursuant to Fed. R.
Civ. P. 12(B)(6) (Docket No. 25) [#47] filed July 13, 2015, respectfully is rejected to the
extent the magistrate judge recommends that the plaintiff be required to file an
amended complaint pleading her claims under the Colorado Premises Liability Act;
2. That in preparing a proposed Final Pretrial Order, the plaintiff shall define her
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negligence claims to fit within the framework required under the Colorado Premises
Liability Act;
3. That otherwise, the Recommendation on (1) Plaintiff’s Motion To Amend
(Docket No. 36), (2) Defendants S & F Holdings LLC DBA Willow Ridge Manor and
Gregeory Sargowicki’s Motion To Dismiss for Failure To State a Claim Pursuant
to Fed. R. Civ. P. 12(B)(6) (Docket No. 16), and (3) Jason and Stacie Schuh’s
Joinder in Defendants S & F Holdings LLC DBA Willow Ridge Manor and Gregory
Sargowicki’s Motion To Dismiss for Failure To State a Claim Pursuant to Fed. R.
Civ. P. 12(B)(6) (Docket No. 25) [#47] filed July 13, 2015, is approved and adopted as
an order of this court;
4. That the objections [#48] of the defendants to the recommendation are
overruled;
5. That Defendants S & F Holdings LLC DBA Willow Ridge Manor and
Gregory Sargowicki’s Motion to Dismiss for Failure to State a Claim Pursuant to
Fed. R. Civ. P. 12(b)(6) [#16] filed September 19, 2015, is denied as to negligence
claims of the plaintiff under the Colorado Premises Liability Act;
6. That Defendants S & F Holdings LLC DBA Willow Ridge Manor and
Gregory Sargowicki’s Motion to Dismiss for Failure to State a Claim Pursuant to
Fed. R. Civ. P. 12(b)(6) [#16] filed September 19, 2015, is granted as to negligence
claims of the plaintiff other than claims under the Colorado Premises Liability Act;
7. That Jason and Stacie Schuh’s Joinder in Defendants S & F Holdings
LLC DBA Willow Ridge Manor and Gregory Sargowicki’s Motion to Dismiss for
Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6) [#25] filed September
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29, 2014, is denied as to negligence claims of the plaintiff under the Colorado Premises
Liability Act;
8. That Jason and Stacie Schuh’s Joinder in Defendants S & F Holdings
LLC DBA Willow Ridge Manor and Gregory Sargowicki’s Motion to Dismiss for
Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6) [#25] filed September
29, 2014, is granted as to negligence claims of the plaintiff other than claims under the
Colorado Premises Liability Act; and
9. That the Plaintiff’s Motion to Amend and for Partial Summary Judgment
[#36] filed April 30, 2015, is denied to the extent the plaintiff seeks permission to amend
her complaint to add a contract claim and a claim for exemplary damages.
Dated August 6, 2015, at Denver, Colorado.
BY THE COURT:
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