Petrick v. Sabas et al
FINDINGS OF FACT AND CONCLUSIONS OF LAW by Judge Robert E. Blackburn on 6/21/17. (rebsec)
Petrick v. Diaz-Sabas et al, Civil Action No. 16-cv-00182-REB
List of implicated instructions and supporting conclusions of law
I. Principles of law
A. Defendant Collins is no longer a defendant. Because defendants have
stipulated that defendant Diaz-Sabas was acting in the course and scope of his
employment at the time of the accident, only AZ Asphalt, LLC, is potentially liable for his
negligence via respondeat superior. Mr. Collins could be liable only if there were
evidence sufficient to pierce the company veil and show that AZ Asphalt was the alter
ego of Mr. Collins. However, there is not a sufficient evidentiary basis for the jury to
conclude that AZ Asphalt was the alter ego of Mr. Collins.
B. Any injuries, damages, or losses of the surviving, adult children of Dale
Thomas (Leah and Jake Thomas) are not properly included for consideration by the
jury. Ellen Petrick brings this claim under §13-21-201(1)(a), C.R.S., which provides that
in the first year after death, a claim for wrongful death may be brought, inter alia, by
either “the spouse of the deceased” or “[u]pon the written election of the spouse, by
the spouse and the heir or heirs of the deceased.” (Emphasis added) §§13-21201(1)(a)(I) & (II), C.R.S. This case was filed on January 25, 2016, within one year of
the death of Dale Thomas, but there is no evidence or argument that the required
election has been made in this case. Neither the initial complaint [#1], the amended
complaint [#45], nor the Final Pretrial Order [#58] names or refers to the surviving
adult children of Dale Thomas.
C. The Final Pretrial Order [#58], filed May 24, 2017, relying implicitly on the
relevant averments of the amended complaint, preserves independent and direct claims
against AZ Asphalt for its alleged negligence in entrusting the truck and trailer to an
untrained, inexperienced, unlicensed, minor driver and/or in failing to first properly
inspect the truck and trailer (see FPTO page 2, penultimate sentence). AZ Asphalt’s
counter argument (see id. page 4) that such claims are barred by Ferrer v.
Okbamicael, 390 P.3d 836, 844-46 (Colo. 2017), is belied by the following excerpt from
We note the McHaffie rule does not apply where the plaintiff's injuries are
not in fact caused by the employee's negligence. For example, if an
employer is aware its vehicle has defective brakes yet allows an *846
employee to use it and the defective brakes cause an accident, the rule
would not apply. The unknowing employee was not negligent, and the
employer could not be vicariously liable. “[T]he means of imposing liability
on the owner would be through his own negligence of lending the car with
bad brakes, i.e., negligent entrustment.” Clooney, 352 So.2d at 1220; see
also Willis v. Hill, 116 Ga.App. 848, 159 S.E.2d 145, 159 n.6 (1967), rev'd
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on other grounds, 224 Ga. 263, 161 S.E.2d 281 (1968). In that situation,
the employer's own negligence is both the independent and direct cause
of the plaintiff's injuries, unconnected to any negligent act of the employee.
Ferrer, 390 P.3d at 845-46.
D. Plaintiff did not plead in the original complaint [#1] or the amended complaint
[#45] a claim for exemplary damages against AZ Asphalt. Further, such a claim is not
preserved in the Final Pretrial Order [#58]. See FPTO at page 3 (which refers to the
claims for exemplary damages pled in the Amended Complaint).
II. Jury instructions implicated
Page 1, paragraph 4: added “Plaintiff contends defendant AZ
Asphalt, LLC was negligent because it allowed Mr. Diaz-Sabas, an
untrained, inexperienced, unlicensed, minor driver, to drive the
truck and trailer without an operational right turn signal and right
brake light and without first properly inspecting the truck and
Page 2: Penultimate paragraph re: defenses of AZ Asphalt.
Excised second half of second full sentence, which read “. . . and
denies that it acted in a willful and wanton manner concerning this
No. 14: the final paragraph was reworded to read, “However, if the
evidence warrants, you may find for the plaintiff, Ellen Petrick, on her
claims that the defendant, AZ Asphalt, LLC, was itself negligent in
entrusting the truck and trailer to an untrained, inexperienced, unlicensed,
minor driver and/or in failing to first properly inspect the truck and trailer.”
No. 17 was incorporated into Instruction No. 25, and Instruction No. 17
now reads “There is no Instruction No. 17.”
No. 29: paragraph 2 was reworded to include the stipulated amount of
economic loss for Dale Thomas of $58,300.
No.32: revised to refer only to defendant Diaz-Sabas.
Verdict Form: eliminated questions 12 and 13 concerning punitive
damages against AZ Asphalt.
References to Dale Thomas’s adult children, Leah Thomas and Jake
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Thomas were removed from Instructions No. 12, 13, 14, 26, 27, 28, 29,
and 32 and the Verdict Form
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