Trantham v. Super T. Transport, Inc. et al

Filing 67

Memorandum Opinion and Order. Defendants Hamelin and Manewiler's Motion for Summary Judgment (ECF No. 59 ) is GRANTED, these Defendants are DISMISSED from this action, costs to be awarded to these Defendants, by Judge Lewis T. Babcock on 4/30/2018. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE

Civil Action No. 1:16-cv-02757-LTB-KLM
ROGER TRANTHAM,
Plaintiff,
v.
SUPER T. TRANSPORT, INC.;
LAYNE WALTERS, individually;
MANWEILER TRANSPORT, INC.; and
PAUL HAMELIN, individually,
Defendants.
______________________________________________________________________________
MEMORANDUM OPINION AND ORDER
______________________________________________________________________________
Babcock, J.
This matter is before me on Defendants Manweiler Transport Inc. and Paul
Hamelin’s (“Moving Defendants”) Motion for Summary Judgment pursuant to Fed.
R. Civ. P. 56. (Mot. Summ. J., ECF No. 59.) Defendants Super T. Transport, Inc.
and Layne Walters (“Opposing Defendants”) filed a Response. (Defs.’ Resp., ECF
No. 60.) Plaintiff did not respond to Moving Defendants’ Motion. For reasons
explained below, I will not consider Opposing Defendants’ Response on its merits.
After consideration of the Motion, all proper related pleadings, and the case file, I
grant Moving Defendants’ Motion for the reasons set forth below.

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I.Background
This action arises out of an accident involving three commercial motor
vehicles on Interstate 25 near Highway 66. (Second Am. Compl., ECF No. 41 at 3–4;
ECF No. 59 at 2–3; Ex. D to Reply to Mot. Summ. J., ECF No. 61-3 at 2–3.) For the
purposes of Moving Defendants’ Motion, the following facts are undisputed unless
otherwise noted.
On a snowy day with limited visibility, all three vehicles were traveling
northbound when Opposing Defendants’ vehicle rear-ended Plaintiff’s vehicle. (ECF
No. 59 at 3; ECF No. 61-3 at 3–5.) Plaintiff avers in his Amended Complaint that
Opposing Defendant Walter “slammed into the rear of Plaintiff’s vehicle,” but
Plaintiff does not detail Moving Defendants’ role in the accident which caused
Plaintiff’s alleged harm. (ECF No. 41 at 4.) Moving Defendants’ vehicle
subsequently rear-ended Opposing Defendants’ vehicle. (ECF No. 61-3 at 4.)
Moving Defendants’ vehicle did not make contact with Plaintiff’s vehicle. (Ex. B to
Mot. Summ. J., ECF 59-2 at 144:24–145:1.) The force from the impact between
Moving Defendants’ and Opposing Defendants’ vehicles did not cause a secondary
impact between Plaintiff’s and Opposing Defendants’ vehicles. (ECF No. 59-2 142:69; ECF No. 61-3 at 5.)
II.Standard of Review
The purpose of a summary judgment motion under Rule 56 is to assess
whether trial is necessary. White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir.
1995). Rule 56 provides that summary judgment shall be granted if the pleadings,
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depositions, answers to interrogatories, admissions, or affidavits show that there is
no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). A fact is material if its determination might
affect the outcome of the suit under the governing law. Roberts v. Jackson Hole

Mountain Resort Corp., 884 F.3d 967, 972 (10th Cir. 2018). Evidence and any
reasonable inferences drawn from the evidence is viewed in the light most favorable
to the nonmoving party. T.D. v. Patton, 868 F.3d 1209, 1219 (10th Cir. 2017).
The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact and entitlement to judgment as a matter of law. Am.

Movie Classics v. Rainbow Media Holdings, 508 F. App’x 826, 829 (10th Cir. 2013)
(quoting Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670–71 (10th Cir. 1998)). To
meet this burden, movant need not disprove a nonmovant’s claims; rather, it must
“simply point[ ] out to the court a lack of evidence for the nonmovant on an essential
element of the nonmovant’s claim.” Adler v. Wal–Mart Stores, Inc., 144 F.3d at
670–71 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If it meets this
initial burden, the burden shifts to the nonmoving party, here Plaintiff, to “set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986). If a plaintiff does not respond to a motion for
summary judgment, it cannot rely solely on its complaint to counter supported
assertions made by the moving party. Lopez-Bignotte v. Ontivero, 42 F. App’x 404,
408 (10th Cir. 2002) (citing Parkinson v. The Calif. Co., 233 F.2d 432, 438 (10th Cir.
1956).
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In the case that the nonmoving party does not respond to the motion, the
court may: (1) give an opportunity to properly support or address the fact; (2)
consider the fact undisputed for purposes of the motion; (3) grant summary
judgment if the motion and supporting materials--including the facts considered
undisputed--show that the movant is entitled to it; or (4) issue any other
appropriate order. Fed. R. Civ. P. 56(e). Thus, “the district court may not grant the
motion without first examining the moving party’s submission to determine if it has
met its initial burden of demonstrating that no material 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, 1195 (10th Cir. 2002) (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 161 (1970)).
“If the evidence produced in support of the summary judgment motion does
not meet this burden, ‘summary judgment must be denied even if no opposing

evidentiary matter is presented.’” Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S.
at 160) (emphasis in original). However, after accepting as true all material facts
asserted and properly supported in the motion, the court should grant summary
judgment if movant is entitled to judgment as a matter of law. Id. (citing cases).
III.Analysis
A. The Effect of Opposing Defendants’ Response
Opposing Defendants responded to Moving Defendants’ Motion but did not
discuss the procedural posture of a co-defendant responding to another
co-defendant’s motion for summary judgment. In their Reply, Moving Defendants
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argued that Opposing Defendants have no standing to file a response because
Moving Defendants’ “requested dismissal does not impact Plaintiff’s claims against
[Opposing Defendants] or [Opposing Defendants’] defenses to such claims.” (Reply
to Mot. Summ. J., ECF No. 61 at 2.)
To my knowledge, a federal appellate court has yet to address what should
occur when a co-defendant responds to another co-defendant’s motion for summary
judgment when no crossclaims exist. However, many district courts have addressed
the issue, to which there have been myriad outcomes. See D.F. by & through

Amador v. Sikorsky Aircraft Corp., No. 3:13-cv-00331-GPC-KSC, 2017 WL 4922814,
at *11–12 (S.D. Cal. Oct. 30, 2017) (collecting cases). The court in D.F. summarized
that the courts not allowing an opposing co-defendant to respond “have relied on the
idea that forcing a plaintiff to prosecute a trial, against that plaintiff’s wishes, is
‘contrary to the principle of Rule 56 that trials (or portions thereof) should be
avoided when appropriate.’” Id. at *11 (quoting Blonder v. Casco Inn Care, Inc., No.
Civ. 99-274-P-C, 2000 WL 761895, at *1 (D. Me. May 4, 2000)).
On the contrary, the courts that allowed an opposing co-defendant’s response
have focused on the opposing co-defendant’s interest in keeping the moving codefendant in the case. Id. at *12; see Wood v. Millar, No. CV 13-0923 RB/CG, 2015
WL 12661926, at *4 (D.N.M. Feb. 19, 2015) (“the better rule allows defendants to
oppose motions for summary judgment if they could be aggrieved by the outcome of
the decision.”). After review of those cases, I find that the dispositive question on

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this issue is whether the Opposing Defendants would be adversely affected were I to
grant Moving Defendants’ Motion.
To this point, I find that Opposing Defendants would not be adversely
affected. In Wood v. Millar, the court found that the opposing co-defendants would
be adversely affected because they pleaded a defense of apportionment against the
other defendants and under “New Mexico’s system of comparative fault, concurrent
tortfeasors are severally liable for damages apportioned to each wrongdoer for his
share of the total fault.” 2015 WL 12661926, at *4.
However, this does not apply because Colorado law mandates that in “an
action brought as a result of a death or an injury to person or property, no
defendant shall be liable for an amount greater than that represented by the degree
or percentage of the negligence or fault attributable to such defendant that
produced the claimed injury, death, damage, or loss.” Colo. Rev. Stat § 13-21-111.5;

see Moore v. Banta, No. 14-CV-00143-REB-MJW, 2014 WL 7928838, at *1 (D. Colo.
Dec. 9, 2014) (“The adoption of [Colo. Rev. Stat § 13-21-111.5] was intended to cure
the perceived inequity under the common law concept of joint and several liability
whereby wrongdoers could be held fully responsible for a plaintiff’s entire loss,
despite the fact that another wrongdoer, who was not held accountable, contributed
to the result.”), R. & R. adopted, No. 14-CV-00143-REB-MJW, 2015 WL 849194 (D.
Colo. Feb. 25, 2015). Regardless of whether Moving Defendants are in the case,
Opposing Defendants will not be liable for Moving Defendants’ portion of liability, if

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any. This means that Opposing Defendants will not be adversely affected if Moving
Defendants’ Motion is granted.
Opposing Defendants would have the option under Colo. Rev. Stat. § 13-21111.5(3)(b) to petition the Court to designate Moving Defendants as a nonparty at
fault. Colo. Rev. Stat. § 13-21-111.5(3)(b) “provides that, in civil actions based on
claims of negligence, plaintiffs and defendants may designate nonparties as wholly
or partially negligent, and authorizes the finder of fact to consider the percentage of
a nonparty’s negligence in apportioning ultimate liability.” Elliot v. Turner Const.

Co., 381 F.3d 995, 1003 n.3 (10th Cir. 2004).
B. No Genuine Disputes of Material Fact
Moving Defendants argue that summary judgment is appropriate here
because there is no evidence that: (1) Defendant Hamelin caused any impact to
Plaintiff’s vehicle; (2) Defendant Hamelin was negligent per se; and (3) Defendant
Manewiler is vicariously liable for any of Plaintiff’s alleged damages. (ECF No. 59
at 4–5.) Since this case is before me based on diversity jurisdiction, I apply the laws
of the forum state in analyzing the underlying claims. See Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938); Essex Ins. Co. v. Vincent, 52 F.3d 894, 896 (10th
Cir. 1995).
1. Defendant Hamelin’s Alleged Negligence
In his Amended Complaint, Plaintiff alleges that Defendant Hamelin was
negligent in the operation of his vehicle, and such negligence led to Plaintiff’s
alleged injuries. (ECF No. 41 at 6–7.) Moving Defendants argue that the “record is
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devoid of any evidence that Defendant Hamelin caused any impact to Plaintiff’s
vehicle.” (ECF No. 59 at 4.) Under Colorado law, the burden is on the plaintiff to
establish a prima facie case of negligence by demonstrating: (1) the applicable
standard of care; (2) that the defendant breached the standard of care; (3) injury to
the plaintiff; and (4) that the breach caused the plaintiff’s injury. HealthONE v.

Rodriguez, 50 P.3d 879, 888 (Colo. 2002).
As explained above, Moving Defendants’ vehicle did not make contact with
Plaintiff’s vehicle and the force from the impact between Moving and Opposing
Defendants’ vehicles did not cause a secondary impact between Plaintiff’s and
Opposing Defendants’ vehicles. There are no other facts presented countering this
recitation of the events, taking into account both that Plaintiff cannot rely on his
Complaint alone and I have chosen not to analyze Opposing Defendants’ Response
on its merits. Without any showing that Defendant Hamelin made impact with
Plaintiff’s vehicle or caused a secondary collision, there is not a genuine dispute of
whether Defendant Hamelin could have caused Plaintiff’s alleged injuries as stated
in the Amended Complaint. Taking all facts in a light most favorable to the
nonmoving party, summary judgment would appropriate for this claim.
2. Defendant Hamelin’s Alleged Negligence Per Se
In his Amended Complaint, Plaintiff alleges that Defendant Hamelin violated
Colo. Rev. Stat. § 42-4-1402, such violation constitutes negligence per se, and that
Defendant Hamelin’s violation of the statute caused Plaintiff’s alleged injuries.
(ECF No. 41 at 7–8.) Moving Defendants argue that there “is no evidence that
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Defendant Hamelin drove carelessly, causing any injury to Plaintiff or his vehicle.”
(ECF No. 59 at 5.)
Negligence per se occurs when one violates a statute adopted for the public’s
safety and the violation proximately causes a plaintiff’s injury. Hendrickson v.

Doyle, 150 F. Supp. 3d 1233, 1239 (D. Colo. 2015) (quoting Scott v. Matlack, Inc., 39
P.3d 1160, 1166 (Colo. 2002). “When a party engages in the statute’s proscribed
conduct, the violation constitutes negligence per se if (1) a party is injured by the
statutory violation, (2) the injury was of the type intended to be prevented by the
statute, and (3) the injured party was one of the class meant to be protected by the
statute.” Coosewoon v. Meridian Oil Co., 25 F.3d 920, 925–26 (10th Cir. 1994).
Moving Defendants point to Plaintiff’s deposition, where Plaintiff states that
he has no evidence that: (1) Defendant Hamelin acted negligently; (2) Plaintiff’s
injuries were a result of the way Defendant Hamelin operated his vehicle; and (3)
Defendant Hamelin violated any law in the operation of his vehicle. (ECF No. 59-2
at 145:2–18.) These assertions have not been rebutted by Plaintiff, and no evidence
presented shows that there is a genuine dispute regarding these statements. Thus,
summary judgment is appropriate for this claim.
3. Defendant Manewiler’s Alleged Vicarious Liability
In his Amended Complaint, Plaintiff alleges that since Defendant Hamelin is
an employee of Defendant Manewiler, that Defendant Manewiler is responsible for
the “injuries, damages, and losses suffered by Plaintiff [] as a result of the conduct
of Defendant Hamelin.” (ECF No. 41 at 8.)
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“Under the respondeat superior doctrine, an employer is liable for torts of an
employee acting within the scope of employment.” Stokes v. Denver Newspaper

Agency, LLP, 159 P.3d 691, 693 (Colo. App. 2006). However, in this case, I have
found that Plaintiff’s claims against Defendant Hamelin are appropriate for
summary judgment against Plaintiff. Thus, there is nothing to impute onto
Defendant Manewiler and summary judgment is appropriate for this claim as well.
I.Conclusion
For the foregoing reasons, IT IS ORDERED that Defendants Hamelin and
Manewiler’s Motion for Summary Judgment (ECF No. 59) is GRANTED, these
Defendants are DISMISSED from this action, costs to be awarded to these
Defendants.

Dated: April 30, 2018 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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