Burgard v. TP Enterprises, Inc. et al

Filing 84

OPINION and ORDER by Judge Marcia S. Krieger on 1/17/2020, re: 69 Defendants' Motion for Partial Summary Judgment is GRANTED as to the negligent failure to warn/supervise claim, the negligence hiring claim, and the negligent operation claim asserted against TP Enterprises. The negligent operation claim asserted against Mr. Morales remains and will proceed to a trial. The parties shall jointly contact chambers within 14 days of this order to schedule the final pretrial conference.(sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Marcia S. Krieger
Civil Action No. 17-cv-02537-MSK-SKC
ROBERT BURGARD,
Plaintiff,
v.
TP ENTERPRISES, INC., a Colorado Corporation, and
CARLOS MORALES,
Defendants.
______________________________________________________________________________
OPINION AND ORDER GRANTING
MOTION FOR PARTIAL SUMMARY JUDGMENT

THIS MATTER comes before the Court pursuant to the Defendants’ Motion for Partial
Summary Judgment (# 69), Plaintiff’s response (# 72), and the Defendants’ reply (# 77). For the
reasons that follow, the motion is granted.
I. JURISDICTION
The Court exercises diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332.
Sitting in diversity, this Court applies Colorado law to the parties’ dispute. See Perlmutter v.
U.S. Gypsum Co., 4 F.3d 864, 869 (10th Cir. 1993).
II. FACTS
The Court briefly summarizes the pertinent undisputed facts here and elaborates as
necessary in its analysis.
On November 9, 2015, Robert Burgard, a foreman for Tharaldson Hospitality
Development, was working at a jobsite located at 4667 North Central Park Boulevard in Denver,
1

Colorado. (# 1 ¶ 6). At all relevant times, TP Enterprises, a subcontractor, was hired by
Tharaldson to perform work at the jobsite. Carlos Morales, an employee of TP Enterprises, was
also at the jobsite where he was operating a forklift within the course and scope of his
employment. (# 1 ¶¶ 7-8). Mr. Morales drove the forklift into Mr. Burgard, striking him and
severing his leg. (# 1 ¶¶ 8-9).
On October 24, 2017, Mr. Burgard filed suit against Mr. Morales and TP Enterprises,
seeking damages for the injuries he suffered in the accident. Mr. Burgard brings three claims
against Defendants TP Enterprises and Mr. Morales: (1) negligent operation; (2) negligent failure
to warn and supervise1; and (3) and negligent hiring. (# 1). On January 3, 2018, TP Enterprises
and Carlos Morales answered the Complaint. (# 32). In the Answer, TP Enterprises admits that,
at all times relevant to this action, Mr. Morales was an employee of TP Enterprises and was
operating a forklift within the course and scope of his employment. (# 32 ¶¶ 7-8, 16-18, 27).
III. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine dispute as to any material fact and
a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs
what facts are material and what issues must be determined. It also specifies the elements that

1

This claim is styled as both a negligent failure to warn and supervise claim. Although a
negligent failure to warn claim usually arises in a products liability context and requires a
plaintiff to show that a “manufacturer’s failure to warn of a risk fell below an acceptable
standard of care” Fireboard Corp. v. Fenton, 845 P.2d 1168, 1175 (Colo. 1993) where a
negligent supervision claim requires a plaintiff to prove that a “defendant knew his employee
posed a risk of harm to the plaintiff and that the harm that occurred was a foreseeable
manifestation of that risk” Keller v. Koca, 111 P.3d 445, 446 (Colo. 2005), a distinction is not
material to the Court’s analysis in the Opinion. Thus, the Court will not address the issue here.
2

must be proved for a given claim or defense, sets the standard of proof and identifies the party
with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is Agenuine@ and summary judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter
for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment
motion, a court views all evidence in the light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir.
2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the
responding party must present sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine
dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material
fact, no trial is required. The court then applies the law to the undisputed facts and enters
judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.
If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent

3

evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
IV. DISCUSSION
Defendants TP Enterprises and Carlos Morales have moved for partial summary
judgment on all claims except the negligent operation claim asserted against Mr. Morales. They
argue that because TP Enterprises admitted vicarious liability for any negligence on the part of
Mr. Morales, all three claims asserted against TP Enterprises and the negligent failure to warn
and supervise and negligent hiring claims asserted against Mr. Morales are duplicative and must
be dismissed pursuant to Colorado law. In response, Mr. Burgard contends that the Defendants
failed to comply with the Court’s Local Rules governing motions for summary judgment2 and
that there are disputed issues of material fact precluding entry of summary judgment.
Recently, in Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017), the Colorado Supreme
Court adopted the rule articulated in McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995), which
provides that once an employer admits respondeat superior liability for a driver’s negligence, it is
improper to allow a plaintiff to proceed against the employer on other theories of imputed
liability such as negligent entrustment and negligent hiring. McHaffie, 891 S.W.2d at 826. The
McHaffie court reasoned that “to allow multiple theories for attaching liability to a single party
for the negligence of another ‘serves no real purpose,’ unnecessarily expends the ‘energy and
2

The Court rejects out of hand Mr. Burgard’s argument that the Defendants’ motion for
partial summary judgment should be denied for failure to comply with the Court’s Local Rule
requiring the movant to “provide a statement of undisputed facts, argument and legal authority
incorporated into the motion in lieu of a separate opening brief.” (# 72 at 2). Indeed, the Court’s
Practice Standards set forth a format and a sample motion that “eliminates the need for a separate
Statement of Undisputed Material Facts.” MSK Civil Practice Standard 7.6.2. Accordingly, the
Court finds that the Defendants’ proffered motion for summary judgment sufficiently complies
with this Court’s Practice Standards.
4

time of courts and litigants,’ and risks the introduction of potentially inflammatory, irrelevant
evidence into the record.” Ferrer, 390 P.3d at 843 (citing McHaffie, 891 S.W.2d at 826).
In Ferrer, the plaintiff was injured when she was struck by a taxi as she was crossing a
street in Denver, Colorado. The taxi driver worked for Yellow Cab, which owned the taxi. The
plaintiff brought suit against both the taxi driver and Yellow Cab, alleging that the taxi driver
was negligent and that Yellow Cab was vicariously liable for the driver’s negligence under the
doctrine of respondeat superior. The plaintiff also alleged that Yellow Cab was liable for her
injuries under theories of direct negligence and negligent hiring, supervision, and training.
Yellow Cab admitted that the taxi driver was an employee acting within the course and scope of
his employment at the time of the accident. Ferrer, 390 P.3d at 839-40. The Ferrer Court
affirmed the district court’s order dismissing plaintiff’s direct negligence claims against Yellow
Cab, stating that “where the employer has already conceded it is subject to respondeat superior
liability for any negligence of its employee, direct negligence claims become superfluous” and
are barred. Id. at 845, 850. The Ferrer Court further explained that allowing both the direct and
respondeat superior claims to proceed to a jury could cause the jury to assess or apportion an
employer’s liability twice. Id. at 845. The Ferrer Court expressly used negligent hiring,
supervision and retention, and entrustment as examples of improper claims once the employer
admits vicarious liability. Id. at 844-45.
This Court, sitting in diversity, is required to apply the law consistent with how the
Colorado Supreme Court would apply it. Etherton v. Owners Ins. Co., 829 P.3d 1209, 1223-24
(10th Cir. 2016); Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 875 (10th Cir. 2013).
With that in mind, the Court addresses the challenged claims.

5

A. Claims Asserted Against TP Enterprises and Mr. Morales: (1) Negligent Operation
of Forklift; (2) Negligent Failure to Warn/Supervise; and (3) Negligent Hiring
To state a negligence claim under Colorado law, Mr. Burgard must establish the
following four elements by a preponderance of the evidence: (1) the existence of a legal duty
owed by the defendant; (2) a breach of that duty; (3) causation; and (4) damages. Observatory
Corp. v. Daly, 780 P.2d 462, 465 (Colo 1989). In support of this claim, Mr. Burgard alleges the
following facts3:








TP Enterprises was hired to provide work at the job site located at 4667 North
Central Park Boulevard in Denver, Colorado on November 9, 2015. (# 1 ¶ 15).
TP Enterprises then “hired, employed and engaged Defendant Carlos Morales,”
who “was operating the forklift within the course and scope of his employment on
that day.” TP Enterprises owned the forklift involved in the accident. (# 1 ¶¶ 1617).
On November 9, 2015 at approximately 6:30 a.m., Mr. Burgard was “negligently
and carelessly run over, run in to by the forklift operated by Defendant Carlos
Morales, an employee of the Defendant TP Enterprises, Inc.” (# 1 ¶ 18).
The forklift was negligently operated based on the following: (1) Mr. Morales
lacked the skill and judgment in operating a forklift and carelessly drove it
backwards striking Mr. Burgard and severing his leg; (2) no warning was given to
Mr. Burgard as to the forklift’s backward movement; (3) the forklift was driven in
reverse with “little or no recognition of [Mr. Burgard] being behind the forklift”;
(4) there was no need to travel in reverse at all; (5) Mr. Morales was not paying
attention; he was on his cell phone at the time the forklift struck Mr. Burgard; (6)
no safety precautions or measures were taken to regulate or control Mr. Morales’
operation of the forklift; and (7) Mr. Morales did not use the forklift’s mirrors or
look behind the forklift to make sure there was nothing there before he drove it
backward. (# 1 ¶ 19).
This negligence caused Mr. Burgard to suffer permanent injuries to his lag and
incur substantial damages. (# 1 ¶ 20-21).

These factual statements demonstrate that Mr. Burgard asserts this direct negligence
claim against Mr. Morales based on his operation of the forklift and against TP Enterprises as his
employer under the doctrine of respondeat superior. See Connes v. Molalla Transport System,

3

Unless otherwise noted, the Court derives the factual discussions herein from Mr.
Burgard’s version of events.
6

Inc., 831 P.2d 1316, 1320 (Colo. 1992). It is undisputed that in its Answer, TP Enterprises
conceded it is vicariously liable for any negligence of its employee, Mr. Morales. Thus, pursuant
to Ferrer, any direct negligence claim asserted against TP Enterprises cannot stand because it is
“redundant and wasteful.” Ferrer, 390 P.3d at 844-45.
A claim for negligent hiring or supervision under Colorado law consists of the same
elements of negligence—duty, breach, injury, causation—and the establishment of an agency
relationship between the employer and alleged employee. Moses v. Diocese of Colorado, 863
P.2d 310, 324 (Colo. 1993). The Ferrer Court specifically addressed negligent hiring and
supervision claims, stating that “an employer’s negligent act in hiring, supervision and retention,
or entrustment is not a wholly independent cause of the plaintiff’s injuries, unconnected to the
employer’s negligence.” Ferrer, 390 P.3d at 844. Thus, a plaintiff has no cause of action
against the employer for negligent supervision or hiring “unless and until the employee’s own
negligence causes an accident.” Id. Applying Ferrer to this case, the Court finds Mr. Burgard’s
negligent supervision and hiring claims must be dismissed.
Mr. Burgard makes two arguments against summary judgment. First, he argues that TP
Enterprises is independently liable due to its negligence in hiring Mr. Burgard and failing to
ensure he was properly trained to operate a forklift, making the issue of causation a disputed
question of fact. (# 72 at 9). Although the Ferrer Court noted that the McHaffie rule is
inapplicable where a plaintiff’s injuries are not in fact caused by the employee’s negligence, the
narrow exception does not apply here. Ferrer, 390 P.3d at 845-46. Mr. Burgard’s factual
statements clearly show that he is alleging negligence on the part of Mr. Morales, the forklift
driver, and TP Enterprises for contributing to Mr. Morales’ negligence. For example, Mr.
Burgard states that Mr. Morales was using his cell phone when he was operating the forklift and
7

was “oblivious” when he “continuously revers[ed] the rough terrain forklift into [Mr. Burgard],
pinning him against the skid steer bucket,” causing Mr. Burgard’s leg to be “pinched and
eventually severed completely.” (# 1 ¶ 19, #72 at 3-5). This is not akin to the situation
contemplated in Ferrer where an employer knew its vehicle had defective brakes yet allows an
employee to operative the vehicle and the defective brakes cause an accident. Ferrer, 390 P.3d
at 845-46.
Second, Mr. Burgard argues that the dismissal of the claims against TP Enterprises would
diminish his ability to recover from TP Enterprises. The Court disagrees. As Ferrer explains,
the dismissal of these claims does not impact Mr. Burgard’s potential recovery. “Where an
employer acknowledges respondeat superior, the employer becomes strictly liable for one
hundred percent of the damages attributable to the employee’s negligence.” Id. at 845.
Additionally, the Ferrer Court explained that the “McHaffie rule is compatible with Colorado’s
comparative negligence regime”, stating that “a plaintiff’s comparative fault should not be
reduced based on the number of defendants liable for damages.” Id. at 846. Finally, to the
extent that Mr. Burgard makes other arguments opposing summary judgment based on the
dissent in Ferrer, the Court finds that these arguments boil down to criticism of the Colorado
Supreme Court’s adoption of the McHaffie rule, which are rejected. See Etherton, 829 F.3d at
1223; Squires, 715 F.3d at 875.
For these reasons, the Defendants are entitled to summary judgment on the negligent
failure to warn/supervise claim and the negligence hiring claim. Additionally, TP Enterprises is
entitled to summary judgment on the negligent operation claim. Mr. Burgard’s negligent
operation claim asserted against Mr. Morales remains pending and will proceed to trial.

8

V. CONCLUSION
For the foregoing reasons, the Defendants’ Motion for Partial Summary Judgment (# 69)
is GRANTED as to the negligent failure to warn/supervise claim, the negligence hiring claim,
and the negligent operation claim asserted against TP Enterprises. The negligent operation claim
asserted against Mr. Morales remains and will proceed to a trial. The parties shall jointly contact
chambers within 14 days of this order to schedule the final pretrial conference.
Dated this 17th day of January, 2020.
BY THE COURT:

Marcia S. Krieger
Senior United States District Judge

9